PARTICIPATION AGREEMENT
AMONG
XXX XXXXXX LIFE INVESTMENTS TRUST,
XXX XXXXXX FUNDS INC.,
XXX XXXXXX ASSET MANAGEMENT
AND
SECURITY BENEFIT LIFE INSURANCE COMPANY
DATED AS OF
SEPTEMBER 1, 2005
TABLE OF CONTENTS
PAGE
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ARTICLE I Purchase and Redemption of Fund Shares 2
ARTICLE II Representations and Warranties 4
ARTICLE III Prospectuses, Reports to Shareholders
and Proxy Statements; Voting 6
ARTICLE IV Sales Material and Information 8
ARTICLE V Fees and Expenses 9
ARTICLE VI Diversification 9
ARTICLE VII Potential Conflicts 10
ARTICLE VIII Indemnification 11
ARTICLE IX Applicable Law 17
ARTICLE X Termination 17
ARTICLE XI Notices 19
ARTICLE XII Miscellaneous 19
SCHEDULE A Separate Accounts and Associated Contracts A-l
SCHEDULE B Portfolios of Xxx Xxxxxx Life Investment Trust
Available Under this Agreement X-x
SCHEDULE C Proxy Voting Procedures C-l
SCHEDULE D Operating Procedures D-l
THIS AGREEMENT is made and entered into as of the 1st day of September,
2005 by and among SECURITY BENEFIT LIFE INSURANCE COMPANY (the "Company"), a
Kansas corporation, on its own behalf and on behalf of each separate account of
the Company set forth on Schedule A hereto as may be amended from time to time
(each such account referred to as an "Account"), XXX XXXXXX LIFE INVESTMENT
TRUST (the "Fund"), a Delaware business trust, XXX XXXXXX FUNDS INC. (the
"Underwriter"), a Delaware corporation, and XXX XXXXXX ASSET MANAGEMENT (the
"Adviser"), a Delaware corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established by insurance companies for individual and group
life insurance policies and annuity contracts with variable accumulation and/or
pay-out provisions (hereinafter referred to individually and/or collectively as
"Variable Insurance Products"); and
WHEREAS, insurance companies desiring to utilize the Fund as an
investment vehicle under their Variable Insurance Products enter into
participation agreements with the Fund, the Underwriter and the Adviser (the
"Participating Insurance Companies"); and
WHEREAS, shares of the Fund are divided into several series of shares,
each representing the interest in a particular managed portfolio of securities
and other assets, any one or more of which may be made available under this
Agreement; and
WHEREAS, the Fund intends to offer shares of the series set forth on
Schedule B hereto (each such series referred to as a "Portfolio"), as such
Schedule may be amended from time to time by mutual agreement of the parties
hereto, to the Account(s) of the Company (all references herein to "shares" of a
Portfolio shall mean the class or classes of shares specifically identified on
Schedule B); and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission ("SEC"), dated September 19, 1990 (File No. 812-7552), granting
Participating Insurance Companies and Variable Insurance Product separate
accounts exemptions from the provisions of Sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940, as amended (the "1940 Act"), and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Fund to be sold to and held by Variable Insurance Product
separate accounts of both affiliated and unaffiliated life insurance companies
(the "Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended, and any applicable state
securities laws; and
WHEREAS, the Adviser manages the Portfolios of the Fund; and
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WHEREAS, the Underwriter is registered as a broker/dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") and serves as principal underwriter of the shares of the Fund; and
WHEREAS, the Company offers or proposes to offer certain Variable
Insurance Products that it has registered (or will register) under the 1933 Act
(the "Registered Contracts"), as well as other Variable Insurance Products that
are not registered under the 1933 Act (the "Unregistered Contracts," and
together with the Registered Contracts, the "Contracts"), each as set forth on
Schedule A hereto; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution or under authority of the Board of
Directors of the Company, on the date shown for such Account on Schedule A
hereto, to set aside and invest assets attributable to the Contracts; and
WHEREAS, the Company has registered (or will register) certain Accounts
as unit investment trusts under the 1940 Act that are attributable to the
Registered Contracts (the "Registered Accounts"), while certain other Accounts
that are attributable to the Unregistered Contracts will not be registered under
the 1940 Act (the "Unregistered Accounts," and together with the Registered
Accounts, the "Accounts"), each as set forth on Schedule A hereto; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios, on behalf
of each Account or sub-Account thereof (together, as applicable, an "Account"),
to fund the Contracts and the Underwriter is authorized to sell such shares to
each such Account at net asset value; and
WHEREAS, the Fund, acting through the Fund's transfer agent, has
established a master account on its mutual fund shareholder account system (the
"T/A Account") reflecting the aggregate ownership of shares of the Fund and all
transactions involving such shares by the Company on behalf of the Accounts; and
WHEREAS, the Company, the Fund, the Underwriter and the Adviser wish to
permit the Fund to receive, and the Company to transmit, purchase and redemption
orders of Portfolio shares using the National Securities Clearing Corporation
("NSCC") Fund/SERV System ("Fund/SERV"); and
WHEREAS, in order to receive and transmit Fund shares via Fund/SERV, it
is intended that the Fund and the Company will establish an account using
Fund/SERV (the "Fund/SERV Account") that will reflect corresponding transactions
and Fund share balances in the T/A Account.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Funds the Underwriter and the Adviser agree as follows:
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ARTICLE I. PURCHASE AND REDEMPTION OF FUND SHARES
1.1. The Fund and the Underwriter agree to make available for
purchase by the Company shares of the Portfolio(s) and shall execute purchase
orders placed for each Account on each Business Day at the net asset value next
computed after receipt by the Fund or its designee of such purchase order. For
purposes of this Section 1.1, the Company shall be the designee of the Fund and
the Underwriter for receipt of such purchase orders from each Account and
receipt by such designee shall constitute receipt by the fund; provided that
such purchase orders are received and transmitted in accordance with the
Operating Procedures attached hereto as Schedule D (the "Operating Procedures").
"Business Day" shall mean any day on which the New York Stock Exchange, Inc. is
open for trading and on which the Fund calculates its net asset value pursuant
to SEC rules.
1.2. The Fund, so long as this Agreement is in effect, and thereafter
in accordance with Section 10.2, agrees to make shares of the Portfolios
available for purchase at the applicable net asset value per share by the
Company and its Accounts on those days on which the Fund calculates its net
asset value pursuant to SEC rules and the Fund shall use reasonable efforts to
calculate such net asset value on each day that the New York Stock Exchange, Inc
is open for trading. Notwithstanding the foregoing, the Board of Trustees of the
Fund (the "Board") may refuse to permit the Fund to sell shares of any Portfolio
to any person, or suspend or terminate the offering of shares of any Portfolio
if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in good faith and
in light of its fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund will
be sold only to Participating Insurance Companies and their separate accounts.
No shares of a Portfolio will be sold to the general public.
1.4. The Fund and the Underwriter agree to redeem for cash, on the
Company's request, any full or fractional shares of the Portfolio(s) held by
the Company, executing such redemption requests for each Account on each
Business Day at the net asset value next computed after receipt by the Fund or
its designee of the request for redemption. For purposes of this Section 1.4,
the Company shall be the designee of the Fund and the Underwriter for receipt of
requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that such redemption requests are
received and transmitted in accordance with the Operating Procedures.
1.5. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Fund shall be made in
accordance with the provisions of such prospectus. The Company will give the
Fund, the Underwriter and the Adviser forty-five (45) days written notice of its
intention to make available in the future, as a funding vehicle under the
Contracts, any other investment company with substantially similar investment
objectives as a Portfolio listed on Schedule B to this Agreement.
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1.6. The fund and the Company will settle all purchase and redemption
orders transmitted pursuant to Sections 1.1 and 1.4 of this Agreement,
respectively, in accordance with the Operating Procedures.
1.7. Issuance and transfer of the Fund's shares will be by book entry
only. Share certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate sub-account of each Account.
1.8. The Company shall not redeem Fund shares attributable to the
Contracts (as distinct from Fund shares attributable to the Company's assets
held in the Account) except (i) as necessary to implement Contract owner
initiated or approved transactions, (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption") or (iii) as
permitted by an order of the SEC pursuant to Section 26(c) of the 1940 Act. Upon
request, the Company will promptly furnish to the Fund the opinion of counsel
for the Company (which counsel shall be reasonably satisfactory to the Fund) to
the effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund ninety (90) days prior written notice of
its intention to do so.
1.9. Any material errors in the calculation of net asset value,
dividends or capital gain information will be reported promptly upon discovery
to the Company. An error will be deemed "material" based on the Fund's
interpretation of the SEC's position and policy with regard to materiality, as
it may be modified from time to time. If the Fund provides the Company with
materially incorrect net asset value information, through no fault of the
Company, the Account(s) will be entitled to an adjustment to the number of
shares purchased or redeemed to reflect the correct net asset value per share.
The correction of any such errors shall be made by the Fund at the separate
account level and shall be made pursuant to the SEC's recommended guidelines
regarding such errors.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that: (i) it is an insurance
company duly organized and in good standing under applicable law; (ii) it is a
member in good standing of the NSCC, or is otherwise entitled to use Fund/SERV;
(iii) it will abide by the rules and regulations of the NSCC; (iv) it has
legally and validly established each Account prior to any issuance or sale
thereof as a segregated asset account under applicable laws and regulations; (v)
it has registered or, prior to any issuance or sale of the Registered Contracts,
will register and will thereafter maintain the registration of each Registered
Account as a unit investment trust in accordance with the provisions of the 1940
Act to serve as a segregated investment account for the Registered Contracts;
(vi) the Unregistered Accounts are exempt from the registration requirements of
the 1940 Act under the provisions of Section 3(c)(l) or 3(c)(7) thereof; and
(vii)
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the Unregistered Accounts are exempt from the provisions of Section 12(d)(l) of
the 1940 Act under the provisions of Section 12(d)(l)(E) of the 1940 Act. The
Company further represents and warrants that: (i) the Registered Contracts are
or will be registered and shall remain registered under the 1933 Act; (ii) the
Unregistered Contracts are exempt from the registration requirements of the 1933
Act under the provisions of Section 4(2) thereof; (iii) the Contracts will be
issued and sold in compliance in all material respects with all applicable
federal and state laws; and (iv) the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements. The Company
shall amend the registration statement for the Registered Accounts and the
Registered Contracts under the 1940 Act and the 1933 Act, respectively, from
time to time as required in order to effect the continuous offering of the
Registered Contracts; moreover, the Company will notify the Fund immediately in
writing of any changes in facts or circumstances leading the Company to believe
that any of the exemptions described above with respect to the Unregistered
Contracts or Unregistered Accounts are not applicable as represented.
2.2. The Fund and the Underwriter represent and warrant that Fund
shares sold pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for issuance and sold in compliance with the laws of the State
of Delaware and all applicable federal and state securities laws and that the
Fund is and shall remain registered under the 0000 Xxx. The Fund shall amend the
registration statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares. The Fund shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Fund.
2.3. The Fund represents and warrants that it is currently qualified
as a Regulated Investment Company under Subchapter M of the Internal Revenue
Code of 1986, as amended (the "Code"), and that it will use its best efforts to
maintain such qualification (under Subchapter M or any successor or similar
provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify.
2.4. The Company represents and warrants that each Account is and
will continue to be a "segregated asset account" under applicable provisions of
the Code and applicable Treasury Regulations promulgated thereunder and that
each Contract is and will continue to be treated as a "variable contract" under
applicable provisions of the Code and applicable Treasury Regulations
promulgated thereunder. The Company further represents and warrants that it will
make every effort to maintain such treatment and that it will notify the Fund
immediately upon having a reasonable basis for believing that any Account or
Contract has ceased to be so treated or that any Account or Contract might not
be so treated in the future.
2.5. The Fund represents that to the extent that it decides to
finance distribution expenses pursuant to Rule 12b-l under the 1940 Act, the
Fund undertakes to have the Board, at least 75% of whom are not interested
persons of the Fund, formulate and approve any plan under Rule 12b-l to finance
distribution expenses.
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2.6. The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states.
2.7. The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply in all material respects with the 1940 Act. The Fund represents and
warrants that it is a member in good standing of the NSCC, or is otherwise
entitled to use Fund/SERV, and will abide by the rules and regulations of the
NSCC.
2.8. The Adviser represents and warrants that it is and shall remain
duly registered in all material respects under all applicable federal and state
securities laws and that it will perform its obligations for the Fund in
compliance in all material respects with the laws of its state of domicile and
any applicable state and federal securities laws.
2.9. The Underwriter represents and warrants that it is and shall
remain duly registered in all material respects under all applicable federal and
state securities laws and that it will perform its obligations for the Fund in
compliance in all material respects with the laws of its state of domicile and
any applicable state and federal securities laws.
2.10. The Fund represents and warrants that all of its trustees,
officers, employees, and other individuals/entities dealing with the money
and/or securities of the Fund are and shall continue to be at all times covered
by a blanket fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than the minimum coverage as currently required by Rule 17g-1
of the 1940 Act or related provisions as may be promulgated from time to time.
The aforesaid blanket fidelity bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Account(s) are and shall continue to be
at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Company and/or the Account(s) that is reasonable and customary in
light of the Company's obligations under this Agreement. The aforesaid includes
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company in an amount not less than $5 million. The Company agrees to make all
reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Fund, the Underwriter
and the Adviser in the event that such coverage no longer applies.
ARTICLE III. PROSPECTUSES, REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS; VOTING
3.1. The Fund or its designee shall provide the Company with as many
printed copies of the Fund's current prospectus and statement of additional
information as the Company may reasonably request. If requested by the Company,
in lieu of providing printed copies the Fund shall provide camera-ready film or
computer diskettes containing the Fund's prospectus and
6
statement of additional information, and such other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus and/or statement of additional information for the Fund is amended
during the year) to have the prospectus or other disclosure document for the
Contracts and the Fund's prospectus (and statement of additional information for
the Fund and the statement of additional information for the Registered
Contracts) printed together in one document. Alternatively, the Company may
print the Fund's prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and statements of additional
information.
3.2. Except as provided in this Section 3.2, all expenses of
preparing, setting in type, printing and distributing Fund prospectuses and
statements of additional information shall be the expense of the Company. For
prospectuses and statements of additional information provided by the Company to
its Contract owners who currently own shares of one or more Portfolios
("Existing Contract Owners"), in order to update disclosure as required by the
1933 Act and/or the 1940 Act, the cost of printing shall be borne by the Fund.
If the Company chooses to receive camera-ready film or computer diskettes in
lieu of receiving printed copies of the Fund's prospectus, the Fund shall bear
the cost of typesetting to provide the Fund's prospectus to the Company in the
format in which the Fund is accustomed to formatting prospectuses, and the
Company shall bear the expense of adjusting or changing the format to conform
with any of its prospectuses or other disclosure documents. In such event, the
Fund will reimburse the Company in an amount equal to the product of "x" and
"y", where "x" is the number of such disclosure documents distributed to
Existing Contract Owners and "y" is me Fund's per unit cost of printing the
Fund's prospectus. The same procedures shall be followed with respect to the
Fund's statement of additional information. The Company agrees to provide the
Fund or its designee with such information as may be reasonably requested by the
Fund to assure that the Fund's expenses do not include the costs of printing,
typesetting or distributing any prospectuses or statements of additional
information other than the costs of printing those prospectuses or statements of
additional information actually distributed to Existing Contract Owners.
3.3. The statement of additional information of the Fund shall be
obtainable from the Fund, the Underwriter, the Company or such other person as
the Fund may designate.
3.4. The Fund or its designee shall provide the Company with as many
printed copies of the Fund's current shareholder report as the Company may
reasonably request. If requested by the Company, in lieu of providing printed
copies the Fund shall provide camera-ready film or computer diskettes containing
the Fund's shareholder reports, and such other assistance as is reasonably
necessary in order for the Company twice each year (once for the Fund's
semi-annual report and once for the Fund's annual report) to have the reports
for the Contract Owners and the Fund's shareholder reports printed together in
one document. Alternately, the Company may print the Fund's shareholder reports
in combination with other fund companies' shareholder reports.
3.5. Except as provided in this Section 3.5, all expenses of
preparing, setting in type, printing and distributing Fund shareholder reports
shall be the expense of the Company. For Fund shareholder reports provided by
the Company to its Contract owners who currently own
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shares of one or more Portfolios ("Existing Contract Owners"), in order to
deliver such reports as required by the 1934 Act and/or the 1940 Act, the cost
of printing shall be borne by the Fund. If the Company chooses to receive
camera-ready film or computer diskettes in lieu of receiving printed copies of
the Fund's shareholder reports, the Fund shall bear the cost of typesetting to
provide the Fund's shareholder reports to the Company in the format in which the
Fund is accustomed to formatting shareholder reports, and the Company shall bear
the expense of adjusting or changing the format to conform with any of its
reports to Contract Owners. In such event, the Fund will reimburse the Company
in an amount equal to the product of "x" and "y", where "x" is the number of
such shareholder reports distributed to Existing Contract Owners and "y" is the
Fund's per unit cost of printing the Fund's shareholder reports. The Company
agrees to provide the Fund or its designee with such information as may be
reasonably requested by the Fund to assure that the Fund's expenses do not
include the costs of printing, typesetting or distributing any shareholder
reports other than the costs of printing those shareholder reports actually
distributed to Existing Contract Owners.
3.6. The Fund, at its expense, shall provide the Company with copies
of its proxy statements and other communications (except for prospectuses and
statements of additional information that are covered in Section 3.1 and reports
to shareholders that are covered in Section 3.4) to shareholders in such
quantity as the Company shall reasonably require for distributing to Existing
Contract Owners. The Fund shall not pay any costs of distributing such materials
to prospective Contract owners.
3.7. If and to the extent required by law, the Company shall
distribute all proxy materials furnished by the Fund to Contract owners to whom
voting privileges are required to be extended and shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Portfolio shares in accordance with
instructions received from Contract owners; and
(iii) vote Portfolio shares for which no instructions have
been received in the same proportion as Portfolio shares
for which instructions have been received;
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners. The Company
reserves the right to vote Portfolio shares held in any segregated asset account
in its own right, to the extent permitted by law. If the Company is required to
solicit voting instructions, the Fund and the Company shall follow the
procedures, and shall have the corresponding responsibilities, for the handling
of proxies and voting instruction solicitations, as set forth in Schedule C
attached hereto and incorporated herein by reference. Participating Insurance
Companies shall be responsible for ensuring that each of their separate accounts
participating in the Fund (and for which the soliciting of voting instructions
is required) calculates voting privileges in a manner consistent
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with the standards set forth on Schedule C, which standards will also be
provided to the other Participating Insurance Companies.
3.8. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either provide
for annual meetings (except insofar as the SEC may interpret Section 16 of the
1940 Act not to require such meetings) or comply with Section 16(c) of the 1940
Act (although the Fund is not one of the trusts described in Section 16(c) of
the 0000 Xxx) as well as with Section 16(a) of the 1940 Act and, if and when
applicable, Section 16(b) of the 1940 Act. Further, the Fund will act in
accordance with the SEC's interpretation of the requirements of Section 16(a) of
the 1940 Act with respect to periodic elections of trustees and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee, each piece of sales literature or other promotional
material in which the Fund, the Underwriter or the Adviser is named, at least
ten (10) Business Days prior to its use. No such material shall be used without
the prior approval of the Fund or its designee. The Fund shall use its
reasonable best efforts to review any such material as soon as practicable after
receipt and no later than ten (10) Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement or prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund
which are in the public domain or approved by the Fund for distribution to Fund
shareholders, or in sales literature or other promotional material approved by
the Fund or its designee, except with the permission of the Fund.
4.3. The Fund or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company and/or its Account(s) or
Contract(s) are named at least ten (10) Business Days prior to its use. No such
material shall be used if the Company or its designee reasonably objects to such
use within ten (10) Business Days after receipt of such material.
4.4. Neither the Fund, the Underwriter nor the Adviser shall give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Contracts, other than the information or
representations contained in a registration statement, prospectus, offering
memorandum or other disclosure document for the Contracts, as such documents may
be amended or supplemented from time to time, or in reports or proxy statements
for each Account which are in the public domain or approved by the Company for
distribution to Contract owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission
of the Company.
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4.5. The Fund will provide to the Company at least one complete copy
of all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Fund or its shares and are
relevant to the Company or the Contracts.
4.6. The Company will provide to the Fund, to the extent applicable,
at least one complete copy of all registration statements, prospectuses,
statements of additional information, offering memoranda or other disclosure
documents, reports, solicitations for voting instructions, sales literature and
other promotional materials, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate to investment in
the Fund or the Portfolios under the Contracts.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
offering memoranda, prospectuses, statements of additional information or other
disclosure documents, shareholder reports, and proxy materials.
ARTICLE V. FEES AND EXPENSES
5.1. The Fund shall pay no fee or other compensation to the Company
under this Agreement, except that if the Fund or any Portfolio adopts and
implements a service plan and/or a plan pursuant to Rule 12b-l, then the
Underwriter may make payments to the Company or to the underwriter for the
Contracts pursuant to such plans if and in amounts agreed to by the Underwriter
in writing.
5.2. All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Fund, in
accordance with applicable state laws prior to their sale. Except as otherwise
set forth in Section 3.2 of this Agreement, the Fund shall bear the expenses for
the cost of registration and qualification of the Fund's shares, preparation and
filing of the Fund's prospectus and registration statement, proxy materials and
reports, setting the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders, the preparation of all statements and
notices required by any federal or state law, and all taxes on the issuance or
transfer of the Fund's shares.
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5.3. The Company shall bear the expenses of distributing the Fund's
prospectus, statement of additional information, proxy materials and reports to
owners of Contracts issued by the Company.
ARTICLE VI. DIVERSIFICATION
6.1. The Fund will use its best efforts to at all times comply with
Section 817(h) of the Code and Treasury Regulation 1 817-5, relating to the
diversification requirements for annuity, endowment, or life insurance contracts
and any amendments or other modifications to such Section or Regulations. In the
event the Fund ceases to so qualify, it will take reasonable steps to (a) notify
the Company of such event and (b) adequately diversify the Fund so as to achieve
compliance within the time period afforded by Regulation 1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
7.1. The Board will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the contract owners of
all separate accounts investing in the Fund. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by contract owners; or (f) a decision by a Participating
Insurance Company to disregard the voting instructions of contract owners. The
Fund shall promptly inform the Company if the Board determines that an
irreconcilable material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order by providing
the Board with all information reasonably necessary for the Board to consider
any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever Contract owner voting instructions are
disregarded. The Company agrees that these responsibilities will be carried out
with a view only to the interests of Contract owners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested members, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another portfolio of the Fund, or
submitting the question whether such segregation should be implemented to a vote
of all affected contract owners and, as appropriate, segregating the assets of
any appropriate group (i.e., annuity contract owners, life insurance policy
owners, or variable
11
contract owners of one or more Participating Insurance Companies) that votes in
favor of such segregation, or offering to the affected contract owners the
option of making such a change; and (2) establishing a new registered management
investment company or managed separate account. No charge or penalty will be
imposed as a result of such withdrawal. The Company agrees that it bears the
responsibility to take remedial action in the event of a Board determination of
an irreconcilable material conflict and the cost of such remedial action, and
that these responsibilities will be carried out with a view only to the
interests of Contract owners.
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and that
decision represents a minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account (at the Company's expense); provided, however that such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. No charge or penalty will be imposed as a
result of such withdrawal. The Company agrees that it bears the responsibility
to take remedial action in the event of a Board determination of an
irreconcilable material conflict and the cost of such remedial action, and that
these responsibilities will be carried out with a view only to the interests of
Contract owners.
7.5. For purposes of Sections 7.3 and 7.4 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict, but in
no event will the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 or 7.4 to establish
a new funding medium for the Contracts if an offer to do so has been declined by
vote of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict.
7.6. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies,
as appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3 and 7.4 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
7.7. Each of the Company and the Adviser shall at least annually
submit to the Board such reports, materials or data as the Board may reasonably
request so that the Board may fully carry out the obligations imposed upon it by
the provisions hereof and in the Shared Funding Exemptive Order. Such reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Board.
12
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY.
8.1(a). The Company agrees to indemnify and hold harmless the Fund, the
Underwriter, the Adviser and each member of the Board and each officer and
employee of the Fund, and each director, officer and employee of the Underwriter
and the Adviser, and each person, if any, who controls the Fund, the Underwriter
or the Adviser within the meaning of Section 15 of the 1933 Act (collectively,
the "Indemnified Parties" and individually, an "Indemnified Party," for purposes
of this Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or litigation (including reasonable legal and other expenses), to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained
in the registration statement, prospectus, offering
memorandum or other disclosure document for the
Contracts or contained in the Contracts or sales or
other promotional literature for the Contracts (or any
amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon
and in conformity with information furnished to the
Company by or on behalf of the Fund for use in the
registration statement, prospectus, offering memorandum
or other disclosure document for the Contracts or in the
Contracts or sales or other promotional literature (or
any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund
shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration statement,
prospectus or sales literature of the Fund not supplied
by the Company, or persons under its control and other
than statements or representations authorized by the
Fund, the Underwriter or the Adviser) or unlawful
conduct of the Company or persons under its control,
with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in
a registration statement, prospectus, or sales
literature of the Fund or any amendment thereof or
supplement thereto or the omission or alleged omission
to state therein a material fact required to be
13
stated therein or necessary to make the statements
therein not misleading if such a statement or omission
was made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the
Company; or
(iv) arise as a result of any failure by the Company to
provide the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in
this Agreement or arise out of or result from any other
material breach of this Agreement by the Company.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.1 (b) and 8.l(c) below.
8.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement.
8.l(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Company shall be entitled to participate,
at its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
8.l(d). The Fund, the Underwriter or the Adviser, as applicable, will
promptly notify the Company of the commencement of any litigation or proceedings
against an Indemnified Party in connection with this Agreement, the issuance or
sale of the Fund shares or the Contracts, or the operation of the Fund.
8.2. INDEMNIFICATION BY THE UNDERWRITER.
14
8.2(a). The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors, officers and employees, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party," for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Underwriter) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of shares of a Portfolio and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement or prospectus or sales
literature of the Fund (or any amendment or supplement
to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made
in reliance upon and in conformity with information
furnished to the Fund, the Underwriter or the Adviser by
or on behalf of the Company for use in the registration
statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or
Portfolio shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in registration statement,
prospectus, offering memorandum, other disclosure
document or sales or other promotional literature for
the Contracts not supplied by the Fund or the
Underwriter or persons under their respective control
and other than statements or representations authorized
by the Company) or unlawful conduct of the Fund or the
Underwriter or persons under their respective control,
with respect to the sale or distribution of the
Contracts or Portfolio shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in
a registration statement, prospectus, offering
memorandum, other disclosure document or sales or other
promotional literature covering the Contracts, or any
amendment thereof or supplement thereto, or the omission
or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statement or statements therein not misleading, if such
statement or omission was made in reliance upon
information furnished to the Company by or on behalf of
the Fund or the Underwriter: or
15
(iv) arise as a result of any failure by the Underwriter to
provide the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter
in this Agreement or arise out of or result from any
other material breach of this Agreement by the
Underwriter.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.2(b) and 8.2(c) below.
8.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement.
8.2(c). The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriter of
any such claim shall not relieve the Underwriter from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. The Underwriter also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Underwriter to such party
of the Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Underwriter will not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
8.2(d). The Company will promptly notify the Underwriter of the
commencement of any litigation or proceedings against an indemnified Party in
connection with this Agreement, the issuance or sale of the Contracts or the
operation of the Account(s).
8.3. INDEMNIFICATION BY THE ADVISER
8.3(a). The Adviser agrees to indemnify and hold harmless the Company
and each of its directors, officers and employees, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party," for purposes of this Section 8.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Adviser) or litigation (including reasonable legal and other
expenses) to which the Indemnified
16
Parties may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale or
acquisition of shares of a Portfolio and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement or prospectus or sales
literature of the Fund (or any amendment or supplement
to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made
in reliance upon and in conformity with information
furnished to the Fund, the Underwriter or the Adviser by
or on behalf of the Company for use in the registration
statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or
Portfolio shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration statement,
prospectus, offering memorandum, other disclosure
document or sales or other promotional literature for
the Contracts not supplied by the Fund or the Adviser or
persons under their respective control and other than
statements or representations authorized by the Company)
or unlawful conduct of the Fund or the Adviser or
persons under their respective control, with respect to
the sale or distribution of the Contracts or Portfolio
shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in
a registration statement, prospectus, offering
memorandum, other disclosure document or sales or other
promotional literature coveting the Contracts, or any
amendment thereof or supplement thereto, or the omission
or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statement or statements therein not misleading, if such
statement or omission was made in reliance upon
information furnished to the Company by or on behalf of
the Fund or the Adviser; or
(iv) arise as a result of any failure by the Adviser to
provide the services and furnish the materials under the
terms of this Agreement, including but not limited to
services provided to or on behalf of the Fund in
accordance with paragraphs 2.3 and 6.1 above; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser in
this Agreement, including but not limited
17
to paragraph 2.8 above, or arise out of or result from
any other material breach of this Agreement by the
Adviser.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.3(b) and 8.3(c) below.
8.3(b). The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement.
8.3(c). The Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Adviser of any
such claim shall not relieve the Adviser from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Adviser will be entitled to participate, at
its own expense, in the defense thereof. The Adviser also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Adviser to such party of the Adviser's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Adviser will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3(d). The Company will promptly notify the Adviser of the commencement
of any litigation or proceedings against an Indemnified Party in connection with
this Agreement, the issuance or sale of the Contracts or the operation of the
Account(s).
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Delaware.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. TERMINATION
18
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by ninety (90) days
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio based
upon the Company's determination that shares of such Portfolio
are not reasonably available to meet the requirements of the
Contracts; provided, however, that said termination shall become
effective ten (10) days after receipt of notice unless the Fund
makes available a sufficient number of shares of the Portfolio
to reasonably meet the requirements of the Contracts within said
ten (10) day period; or
(c) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the
event that any of the Portfolio's shares are not registered,
issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such shares as the
underlying investment media of the Contracts issued or to be
issued by the Company; or
(d) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the
event that such Portfolio ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any
successor or similar provision; or
(e) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the
event that such Portfolio fails to meet the diversification
requirements specified in Article VI hereof; or
(f) termination by the Fund, the Underwriter or the Adviser by
written notice to the Company if the Fund, the Underwriter or
the Adviser, as applicable, shall determine, in its sole
judgment exercised in good faith, that the Company and/or its
affiliated companies has suffered a material adverse change in
its business, operations, financial condition or prospects since
the date of this Agreement or is the subject of material adverse
publicity; or
(g) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser, if the Company shall determine, in
its sole judgment exercised in good faith, that the Fund, the
Underwriter or the Adviser has suffered a material adverse
change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity; or
(h) termination by the Fund, the Underwriter or the Adviser by
written notice to the Company, if the Company gives the Fund,
the Underwriter and the Adviser the written notice specified in
Section 1.5 hereof and at the time such notice was given there
was no notice of termination outstanding under any other
provision of this
19
Agreement; provided, however, any termination under this Section
10.l(h) shall be effective forty-five (45) days after the notice
specified in Section 1.5 was given; or
(i) termination by any party to this Agreement upon another party's
material breach of any provision of this Agreement.
10.2. Notwithstanding any termination of this Agreement with respect
to a Portfolio, the Fund and the Underwriter shall at the option of the Company
continue to make available additional shares of the Portfolio, pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (the "Existing Contracts"),
unless such further sale of Portfolio shares is proscribed by law, regulation or
applicable regulatory authority, or unless the Board determines that liquidation
of the Portfolio following termination of this Agreement is in the best
interests of the Portfolio. Specifically, subject to the foregoing, the owners
of the Existing Contracts shall be permitted to direct reallocation of
investments in the Portfolio, redemption of investments in the Portfolio and/or
investment in the Portfolio upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 10.2 shall not
apply to any terminations under Article VII and the effect of such Article VII
terminations shall be governed by Article VII of this Agreement.
ARTICLE XI. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Fund:
Xxx Xxxxxx Life Investment Trust
0 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
If to the Underwriter:
Xxx Xxxxxx Funds Inc
0 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
20
If to the Adviser:
Xxx Xxxxxx Asset Management
0 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
If to the Company:
Security Benefit Life Insurance Company
One Security Benefit Place
Topeka, Kansas 66636
Attention: General Counsel
ARTICLE XII. MISCELLANEOUS
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund, as
neither the Board, officers, agents or shareholders of the Fund assume any
personal liability for obligations entered into on behalf of the Fund. Each of
the Company, the Underwriter and the Adviser acknowledges and agrees that, as
provided by the Fund's Agreement and Declaration of Trust, the shareholders,
trustees, officers, employees and other agents of the Fund and the Portfolios
shall not personally be bound by or be liable for matters set forth hereunder,
nor shall resort be had to their private property for the satisfaction of any
obligation or claim hereunder. A Certificate of Trust referring to the Fund's
Agreement and Declaration of Trust is on file with the Secretary of State of
Delaware.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential any "non-public
personal information" about any "consumer" of another party (as such terms are
defined in SEC Regulation S-P) and any other information reasonably identified
as confidential in writing by another party ("Confidential Information"). Each
party agrees not to disclose, disseminate or utilize another party's
Confidential Information except: (i) as permitted by this Agreement, (ii) upon
the written consent of the other party, (iii) where the Confidential Information
comes into the public domain through no fault of the party receiving the
information, or (iv) as otherwise required or permitted under applicable law.
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
21
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
National Association of Securities Dealers and state insurance regulators) and
shall permit such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby. Notwithstanding the generality of the
foregoing, each party hereto further agrees to furnish state insurance
authorities with any information or reports in connection with services provided
under this Agreement which such authorities may request in order to ascertain
whether the insurance operations of the Company are being conducted in a manner
consistent with applicable law and regulations.
12.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8. This Agreement or any of the lights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Adviser may assign this Agreement or
any rights or obligations hereunder to any affiliate of or company under common
control with the Adviser, if such assignee is duly licensed and registered to
perform the obligations of the Adviser under this Agreement.
12.9. If requested by the Fund, the Underwriter or the Adviser, the
Company shall furnish, or shall cause to be furnished, to the requesting party
or its designee copies of the following documents:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles ("GAAP'), if any),
as soon as practical and in any event within ninety (90) days
after the end of each fiscal year;
(b) the Company's quarterly statements (prepared under statutory
accounting principles and GAAP, if any), as soon as practical
and in any event within forty-five (45) days after the end of
each quarterly period;
(c) any financial statement, proxy statement, notice or report of
the Company sent to stockholders and/or policyholders, as soon
as practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the SEC or any state insurance
regulator, as soon as practical after the filing thereof; and
(e) any other report submitted to the Company by independent
accountants in connection with any annual, interim or special
audit made by them of the books of the Company, as soon as
practical after the receipt thereof.
22
12.10. Unless otherwise specifically provided in this Agreement, no
provision of this Agreement may be amended or modified in any manner except by a
written agreement executed by all parties.
23
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified above.
SECURITY BENEFIT LIFE INSURANCE COMPANY
BY: /s/ Xxxxxx X Xxxxx
----------------------------
NAME: Xxxxxx X Xxxxx
TITLE: Sr VP, CFO, & Treasurer
XXX XXXXXX LIFE INVESTMENT TRUST
BY: /s/ Xxxxxxx Xxxx
----------------------------
NAME: XXXXXXX XXXX
TITLE: EXECUTIVE DIRECTOR
XXX XXXXXX FUNDS INC.
BY: /s/ Xxxxxx Xxxxxxx
----------------------------
NAME: Xxxxxx Xxxxxxx
TITLE: Managing Director
XXX XXXXXX ASSET MANAGEMENT
BY: /s/ Xxxxxx Xxxx III
----------------------------
NAME: XXXXXX XXXX III
TITLE: MANAGING DIRECTOR/CAO
24
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
NAME OF SEPARATE ACCOUNT AND FORM NUMBER AND NAME OF
DATE ESTABLISHED BY BOARD OF DIRECTORS CONTRACT FUNDED BY SEPARATE ACCOUNT
-------------------------------------- -----------------------------------
REGISTERED ACCOUNT(S): REGISTERED CONTRACT(S):
SBL Variable Annuity Account XVII V6029 - Classic Strategies
November 24,2003
SBL Variable Annuity Account XIV V6029 - SecureDesigns
June 26, 2000
SBL Variable Annuity Account XIV V6029 - Advance Designs
June 26, 2000
SBL Variable Annuity Account V & VI V6023, GV 6322, V6019 -
January 31, 1984 Variflex and Variflex ES, VIVA
SBL Variable Annuity Account VIII V6028, V6025, V6022 and V6320 -
September 12, 1994 Variflex Extra Credit,
Variflex Signature,
Variflex LS and Variflex
LS Group Unallocated
UNREGISTERED ACCOUNT(S): UNREGISTERED CONTRNCT(S):
None None
A-1
SCHEDULE B
PORTFOLIOS OF THE XXX XXXXXX LIFE INVESTMENT TRUST
AVAILABLE UNDER THIS AGREEMENT
Xxxxxxxx Portfolio - Class II Shares
CUSIP No. 00000X000
Government Portfolio - Class II Shares
CUSIP No. 00000X000
X-x
SCHEDULE C
PROXY VOTING PROCEDURES
The following is a list of procedures and corresponding responsibilities for the
handling of proxies and voting instructions relating to the Fund. The defined
terms herein shall have the meanings assigned in the Participation Agreement
except that the term "Company" shall also include the department or third party
assigned by the Company to perform the steps delineated below.
o The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting to
enable the Company to consider and prepare for the solicitation of
voting instructions from Contract owners and to facilitate the
establishment of tabulation procedures. At this time the Fund will
inform the Company of the Record, Mailing and Meeting dates. This will
be done verbally approximately two months before the shareholder
meeting.
o Promptly after the Record Date, the Company will perform a "tape run",
or other activity, which will generate the names, addresses and number
of units which are attributed to each Contract owner/policyholder (the
"Customer") as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of the
Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to call
in the number of Customers to the Fund, as soon as possible, but no
later than two weeks after the Record Date.
o The Fund's Annual Report must be sent to each Customer by the Company
either before or together with the Customers' receipt of voting
instruction solicitation material. The Fund will provide the last Annual
Report to the Company pursuant to the terms of Section 3.4 of the
Participation Agreement to which this Schedule relates.
o The text and format for the Voting Instruction Cards ("Cards" or "Card")
is provided to the Company by the Fund. The Company, at its expense,
shall produce and personalize the Voting Instruction Cards. The Fund or
its affiliate must approve the Card before it is printed. Allow
approximately 2-4 Business Days for printing information on the Cards.
Information commonly found on the Cards includes:
- name (legal name as found on account registration)
- address
- fund or account number
- coding to state number of units
- individual Card number for use in tracking and verification of
votes (already on Cards as printed by the Fund)
C-l
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
o During this time, the Fund will develop, produce and pay for the Notice
of Proxy and the Proxy Statement (one document). Printed and folded
notices and statements will be sent to Company for insertion into
envelopes (envelopes and return envelopes are provided and paid for by
the Company). Contents of envelope sent to Customers by the Company will
include:
- Voting Instruction Card(s)
- One proxy notice and statement (one document)
- return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
- "urge buckslip" - optional, but recommended (this is a small,
single sheet of paper that requests Customers to vote as quickly
as possible and that their vote is important; one copy will be
supplied by the Fund.)
- cover letter - optional; supplied by Company and reviewed and
approved in advance by the Fund
o The above contents should be received by the Company approximately 3-5
Business Days before mail date. Individual in charge at Company reviews
and approves the contents of the mailing package to ensure correctness
and completeness. Copy of this approval sent to the Fund.
o Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the
Company as the shareowner. (A 5-week period is recommended.)
Solicitation time is calculated as calendar days from (but NOT
including,) the shareholder meeting, counting backwards.
o Collection and tabulation of Cards begins. Tabulation usually takes
place in another department or another vendor depending on process used.
An often used procedure is to sort Cards on arrival by proposal into
vote categories of all yes, no, or mixed replies, and to begin data
entry.
Note: Postmarks are not generally needed. A need for postmark
information would be due to an insurance company's internal procedure
and has not been required by the Fund in the past.
o Signatures on Card checked against legal name on account registration
that was printed on the Card.
Note: For Example, if the account registration is under "Xxxx X Xxxxx,
Trustee," then that is the exact legal name to be printed on the Card
and is the signature needed on the Card.
C-2
o If Cards are mutilated, or for any reason are illegible or are not
signed properly, they are sent back to Customer with an explanatory
letter and a new Card and return envelope. The mutilated or illegible
Card is disregarded and considered to be NOT RECEIVED for purposes of
vote tabulation. Any Cards that have been "kicked out" (e.g. mutilated,
illegible) of the procedure are "hand verified," i.e., examined as to
why they did not complete the system. Any questions on those Cards are
usually remedied individually.
o There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
o The actual tabulation of votes is done in units which is then converted
to shares. (It is very important that the Fund receives the tabulations
stated in terms of a percentage and the number of SHARES.) The Fund must
review and approve tabulation format.
o Final tabulation in shares is verbally given by the Company to the Fund
on the morning of the shareholder meeting not later than 10:00 a.m.
Eastern time. The Fund may request an earlier deadline if reasonable and
if required to calculate the vote in time for the shareholder meeting.
o A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
The Fund will provide a standard form for each Certification.
o The Company will be required to box and archive the Cards received from
the Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, the Fund will
be permitted reasonable access to such Cards.
o All approvals and "signing-off may be done orally, but must always be
followed up in writing.
C-3
SCHEDULE D
OPERATING PROCEDURES
Unless otherwise defined below, all capitalized terms have the meanings
specified in the Participation Agreement, each of which this Exhibit is a part.
I. FUND/SERV PROCEDURES
A. FUND/SERV ACCOUNT ESTABLISHMENT. All parties hereto agree and
acknowledge that the Company may not open or establish any new F und/SERV
Accounts without the prior written consent of the Fund. The Company further
acknowledges that the Fund reserves the right to reject any new Fund/SERV
Accounts established by the Company that have not been previously approved by
the Fund in writing.
B. TRANSMITTAL OF PORTFOLIO INFORMATION. With respect to each
Portfolio, the Fund will provide the Company with (i) the net asset value per
share of the Portfolio (the "Share Price") on each Business Day, determined as
of the time specified in the Portfolio's prospectus ("Close of Trading"); (ii)
dividend and capital gains distribution information on ex-date; and (iii) in the
case of fixed income and money market Portfolios which declare dividends daily,
the daily accrual interest rate factor. The Fund will use its best efforts to
communicate such information to the Company or its designee by 7:00 p.m. Eastern
Time each Business Day; however, the Fund reserves the right to communicate the
Share Price at a time later than 7:00 p.m. Eastern Time due to extraordinary or
unforeseen circumstances.
C. TRANSMITTAL OF ORDERS. The Company agrees that, unless otherwise
agreed to in writing with the Fund, orders for the purchase or redemption of
Fund shares ("Instructions") received by the Company prior to the Close of
Trading on any Business Day ("Day 1") will be transmitted to the Fund via
Fund/SERV and accepted by Fund/SERV prior to 12:00 a.m. Eastern Time on the
following Business Day ("Day 2") (such orders are referred to as "Day 1
Trades"), Each transmission by the Company of a purchase or redemption order
relating to a Business Day ("Order") will constitute a representation by the
Company that such Order was based on Instructions that the Company received and
accepted as being in good order prior to the Close of Trading on that Business
Day, and that the Order included all purchase and redemption Instructions so
received by the Company.
In the event that Orders for any Business Day are not transmitted to the
Fund via Fund/SERV and accepted by Fund/SERV prior to 12:00 a.m. Eastern Time on
Day 2, the Company shall transmit such Orders to the Fund in accordance with the
Manual Procedures below. If such Orders are not transmitted to the Fund in
accordance with the Manual Procedures, the Fund reserves the right, in its sole
discretion, to reject, reverse or re-price the Orders (notwithstanding that the
Company may have received Fund/Serv confirmation of the Orders).
and the Company will be responsible for reimbursement of any loss
sustained by the Fund that may arise out of the improper transmittal of such
Orders.
D-l
All Orders transmitted to the Fund via Fund/SERV will be communicated in
accordance with Fund/SERV rules and procedures. The Company acknowledges that
certain cash flows may be known on or before a trade date, and the Company
agrees to use its reasonable efforts to notify the Fund of such cash flows
before such trade date.
D. FUND/SERV CONFIRMATION. All Orders transmitted in accordance
with Section C of these Fund/Serv Procedures are subject to acceptance by the
Fund and shall become effective only upon confirmation by the Fund. The Fund
reserves the right, in its sole discretion, (i) to reject any Order, and (ii) to
require any Order to be settled outside of Fund/SERV, in which case the Fund
shall not confirm such Order via Fund/SERV and such Order shall settle in
accordance with the Manual Procedures discussed below.
E. PRICING OF ORDERS. Day 1 Trades communicated to the Fund as
provided under Section C of these Fund/SERV Procedures will be effected at the
Share Price for the applicable Portfolio on Day 1.
F. SETTLEMENT,. Day 1 Trades confirmed by the Fund via Fund/SERV
will settle in U.S. dollars in accordance with the Fund's profile within
Fund/SERV applicable to the Company.
G. DIVIDENDS AND OTHER DISTRIBUTIONS. The Fund will furnish the
Company or its designee notice of any dividends or other distributions payable
on the shares of each Portfolio via Fund/SERV. Dividends and distributions with
respect to a Portfolio will be automatically reinvested in additional shares of
the Portfolio held by the Account(s) and the Fund will notify the Company or its
designee as to the number of shares so issued.
H. CONFIRMATIONS AND VERIFICATION. If the Company chooses to
participate in and utilize Fund/SERV's Networking application when trading with
the Fund in accordance with the procedures herein, the Fund or its designee will
transmit or make available to the Company via Fund/SERV, as applicable: (i)
confirmations of Orders received from the Company, and (ii) the share balance
for each T/A Account in accordance with Fund/SERV's Networking guidelines. The
Company will promptly review and verify this information on Fund/SERV and
immediately advise the Fund or its designee in writing of any discrepancies
between the Company's records and the balance in the Fund/SERV Account or the
T/A Account.
If the Company chooses to utilize Fund/SERV without the Networking
application when trading with the Fund in accordance with the procedures herein,
the Fund or its designee will deliver to the Company: (i) physical confirmations
of Orders received from the Company, and (ii) a physical statement for the
preceding calendar month reflecting the shares of each Portfolio held by the
Account(s) as of the end of such preceding month and all purchases and
redemptions by the Company of shares of a Portfolio during such preceding month.
The Company will immediately on receipt of any physical confirmation or
statement concerning an Account verify the information contained therein against
the information contained on the Company's record-keeping system and immediately
advise the Fund in writing of any discrepancies between such information.
D-2
The Fund and the Company will cooperate to resolve any such
discrepancies mentioned in this Section H as soon as reasonably practicable.
I. PROCESSING ADJUSTMENTS. In the event of any error or delay with
respect to these Fund/SERV Procedures that is caused by the Fund, the Fund will
make any adjustments on its (or its transfer agent's) accounting system
necessary to correct such error or delay. The Company will make the
corresponding adjustments on its record-keeping system. The Company and the Fund
will each provide the other with prompt notice of any errors or delays of the
type referred to in these Fund/SERV Procedures.
J. FUND/SERV UNAVAILABILITY. If the Fund/SERV system is unavailable
for any reason, or if it is otherwise impracticable to operate in accordance
with these Fund/SERV Procedures, transactions shall be processed in accordance
with the Manual Procedures below.
II. MANUAL PROCEDURES
A. TRANSMITTAL OF PORTFOLIO INFORMATION. With respect to each
Portfolio, the Fund will provide the Company with (i) the Share Price determined
as of the Close of Trading on each Business Day; (ii) dividend and capital gains
distribution information on ex-date, but no later than the first Business Day
following each ex-date established for the payment of dividends or capital gains
distributions by the Portfolio; and (iii) in the case of fixed income and money
market Portfolios which declare dividends daily, the daily accrual interest rate
factor. The Fund will use its best efforts to communicate such information to
the Company or its designee by 7:00 p.m. Eastern Time each Business Day;
however, the Fund reserves the right to communicate the Share Price at a time
later than 7:00 p.m. Eastern Time due to extraordinary or unforeseen
circumstances.
B. TRANSMITTAL OF ORDERS. The Company agrees that, unless otherwise
agreed to in writing with the Fund, Instructions received by the Company prior
to the Close of Trading on any Business Day ("Day 1") will be transmitted to the
Fund by facsimile no later than 8:00 a.m. Eastern Time on the following Business
Day ("Day 2") (such Orders are referred to as "Day 1 Trades"), Each transmission
by the Company of a purchase or redemption order relating to a Business Day
("Order") will constitute a representation by the Company that such Order was
based on Instructions that the Company received and accepted as being in good
order prior to the Close of Trading on that Business Day, and that the Order
included all purchase and redemption Instructions so received by the Company.
All Orders transmitted to the Fund will be communicated in U.S. dollars
and will indicate the date of the transaction. On Business Days where there are
no Orders, or where the net dollar amount for purchases and redemptions for an
Account equals zero, the communication will so indicate. The Company
acknowledges that certain cash flows may be known on or before a trade date, and
the Company agrees to use its reasonable efforts to notify the Fund of such cash
flows before such trade date.
C. PRICING OF ORDERS. Day 1 Trades communicated to the Fund by 8:00
a.m. Eastern Time on Day 2 will be effected at the Share Price for the
applicable Portfolio on Day 1.
D-3
D. SETTLEMENT.
1. PURCHASE ORDERS. In the case of Day 1 Trades that constitute a
net purchase order, the Company will arrange for a federal funds wire
transfer of the net purchase amount to a custodial account designated by
the Fund by 12:00 p.m. Eastern Time on Day 2.
2. REDEMPTION ORDERS. In the case of Day 1 Trades that constitute a
net redemption order, the Fund will arrange for a federal funds wire
transfer of the net redemption amount to a custodial account designated
by the Company on Day 2, or in no instance later than the time provided
for in the applicable Portfolio's Prospectus.
3. GENERALLY. Settlements will be in U.S. dollars, except that each
Portfolio reserves the right, in cases of substantial liquidations, to
pay redemption proceeds in whole or in part by a distribution in-kind of
readily marketable securities that it holds in lieu of cash in
accordance with applicable law, and the Portfolio's redemption policy as
described in the Prospectus. On any Business Day when the Federal
Reserve Wire Transfer System is closed, all communication and processing
rules will be suspended for the settlement of Orders. Orders will be
settled on the next Business Day on which the Federal Reserve Wire
Transfer System is open. Transactions that are the subject of such
Orders will be processed at the Share Price for the applicable Portfolio
on the Business Day to which the Orders originally relate.
E. DIVIDENDS AND OTHER DISTRIBUTIONS. The Fund will furnish the
Company or its designee notice of any dividends or other distributions payable
on the shares of each Portfolio. Dividends and distributions with respect to a
Portfolio will be automatically reinvested in additional shares of the Portfolio
held by the Account(s) and the Fund will notify the Company or its designee as
to the number of shares so issued.
F. CONFIRMATIONS AND VERIFICATION. The Fund or its designee will
deliver to the Company: (i) confirmations of Orders received from the Company,
and (ii) a statement for the preceding calendar month reflecting the shares of
each Portfolio held by the Account(s) as of the end of such preceding month and
all purchases and redemptions by the Company of shares of a Portfolio during
such preceding month. The Company will immediately on receipt of any
confirmation or statement concerning an Account verify the information contained
therein against the information contained on the Company's record-keeping system
and immediately advise the Fund in writing of any discrepancies between such
information. The Fund and the Company will cooperate to resolve any such
discrepancies as soon as reasonably practicable.
G. PROCESSING ADJUSTMENTS. In the event of any error or delay with
respect to these Manual Procedures that is caused by the Fund the Fund will make
any adjustments on its (or its transfer agent's) accounting system necessary to
correct such error or delay. The Company will make the corresponding adjustments
on its record-keeping system. The Company and the Fund will each provide the
other with prompt notice of any errors or delays of the type referred to in
these Manual Procedures.
D-4
