PARTICIPATION AGREEMENT BETWEEN AND AMONG
SYMETRA MUTUAL FUNDS TRUST
SYMETRA SECURITIES, INC.
AND
SYMETRA LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into this 30th day of March, 2012 (the
"Agreement") by and among Symetra Life Insurance Company, a life insurance
company organized under the laws of the state of Washington (the "Company"),
on behalf of itself and each separate account of the Company named in Schedule
A to this Agreement (each, an "Account" and collectively, the "Accounts");
Symetra Mutual Funds Trust, a statutory trust organized under the laws of the
State of Delaware (the "Trust"); and Symetra Securities, Inc., corporation
organized under the laws of the State of Delaware and principal underwriter of
the shares of the Trust (the "Distributor").
WHEREAS, the Trust registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act") and was
established for the purpose of serving as the investment vehicle for the
Accounts; and
WHEREAS, the Trust issues several series of shares of beneficial interests
(the "Shares"), each representing a fractional undivided interest in a
distinct investment portfolio of the Trust (each, a "Fund," together, the
"Funds"); and
WHEREAS, the Company has established the Accounts to serve as investment
vehicles for certain variable annuity contracts and variable life insurance
policies it issues set forth on Schedule A (the "Contracts"); and
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolutions of the board of directors of the Company
under the insurance laws of Washington, to hold assets corresponding to
certain liabilities attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Funds identified in Schedule B
(the "Designated Funds") on behalf of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust and the Distributor agree as follows:
ARTICLE I: SALE OF TRUST SHARES
1.1 The Trust agrees to sell to the Company those shares of the Designated
Funds which each Account orders (based on orders placed by Contract owners on
that Business Day, as defined below), executing such orders on a daily basis
at the net asset value (and with no sales charges) next computed after receipt
by the Trust or its designee of the order for Shares. For purposes of this
Section 1.1, the Company or its agent will be the designee of the Trust for
receipt of such orders from each Account and receipt by such designee will
constitute receipt by the Trust; provided that the Trust receives notice of
such order in compliance with this Article I of this Agreement.
1.2 The Trust agrees to redeem for cash, upon the Company's request, any full
or fractional Shares held by the Company (based on orders placed by Contract
owners on that Business Day), executing such requests on a daily basis at the
net asset value next computed after receipt and acceptance by the Trust or its
agent of the request for redemption. For purposes of this Article I, the
Company or its agent will be the designee of the Trust for receipt of requests
for redemption from each Account and receipt by such designee will constitute
receipt by the Trust; provided the Trust receives notice of such requests for
redemption in compliance with Article I of this Agreement.
1.3 If transactions in Designated Fund Shares are to be settled through the
NSCC Trust/SERV system, the following provisions shall apply:
(i) Trust/SERV Transactions. If the parties choose to use the
National Securities Clearing Corporations Mutual Fund
Settlement, Entry and Registration Verification ("Trust/SERV")
system, any corrections to a Share's price for the prior trade
date will be submitted through the Mutual Fund Profile with
the correct prices and applicable date. If the corrections
are dated later than trade date plus one, a facsimile should
be sent in addition to the Mutual Fund Profile submission; or
Manual Transactions. If the parties choose not to use
Trust/SERV, if there are technical problems with Trust/SERV,
or if the parties are not able to transmit or receive
information through Trust/SERV, any corrections to a Share's
price should be communicated by facsimile or by electronic
transmission, and will include for each day on which an
adjustment has occurred the incorrect Share price, the correct
price, and, to the extent communicated to Shareholders, the
reason for the adjustment.
(ii) Purchases and Redemption Orders; Settlement of Transactions.
Method of Communication.
Trust/SERV Transactions. If the parties choose to use
Trust/SERV, the following provisions shall apply:
The Company or its designee and the Trust or its
designee will be bound by the rules of the NSCC.
Without limiting the generality of the following
provisions of this section, the Company or its
designee and the Trust or its designee each will
perform any and all duties, functions, procedures
and responsibilities assigned to it and as otherwise
established by the NSCC applicable to Fund/SERV and
the Networking Matrix Level utilized.
Any information transmitted through NSCC's Networking
system by any party to the other and pursuant to this
amendment will be accurate, complete, and in the
format prescribed by the NSCC. Each party will adopt,
implement and maintain procedures reasonably designed
to ensure the accuracy of all transmissions through
Networking and to limit the access to, and the
inputting of data into, Networking to persons
specifically authorized by such party.
On each Business Day, the Company shall aggregate and
calculate the net purchase and redemption orders for
each Account received by the Company prior to the
Close of Trading on each Business Day. "Business Day"
will mean any day on which the New York Stock Exchange
is open for trading and on which the Trust calculates
the net asset value of its Funds pursuant to the rules
of the Securities and Exchange Commission (the
"Commission"). The Company shall communicate to the
Trust or its designee for that Business Day, by
Fund/SERV, the net aggregate purchase or redemption
orders (if any) for each Account received by the close
of trading on such Business Day (the "Trade Date") no
later than 8:00 a.m. Eastern Time on the Business Day
following the Trade Date. All orders received by the
Company after the close of trading on a Business Day
shall not be transmitted to NSCC prior to the following
Business Day. The Trust or its designee shall treat
all trades communicated to the Trust or its designee
in accordance with this provision as if received prior
to the close of trading on the Trade Date.
All orders are subject to acceptance by the Trust or
its designee and become effective only upon
confirmation by the Trust or its designee. Upon
confirmation, the Trust or its designee will verify
total purchases and redemptions and the closing share
position for each Account. In the case of delayed
settlement, the Trust or its designee shall make
arrangements for the settlement of redemptions by wire
no later than the time permitted for settlement of
redemption orders by the 1940 Act.
Such wires should be sent to the Company's designated
account provided by the Company in writing.
Manual Transactions. If the parties choose not to use Fund/SERV, if there are
technical problems with Fund/SERV, or if the parties are not able to transmit
or receive information through Fund/SERV, then the manual following provisions
in shall apply:
Next Day Transmission of Orders. On each Business Day,
the Company shall aggregate and calculate the net
purchase and redemption orders for each Account
received by the Company prior to the Close of Trading
on such Business Day. Prior to 8:30 a.m. Eastern Time
(or such other time as may be agreed by the parties
from time to time) on the next following Business Day,
the Company shall communicate to the Trust or its
designee by facsimile or, in the Company's discretion,
by telephone or any other method agreed upon by the
parties, the net aggregate purchase or redemption
orders (if any) for each Account received by the close
of trading on the prior Business Day (the
"Trade Date"). All orders communicated to the Trust
or its designee by the 8:30 a.m. deadline (or such
other time as may be agreed by the parties from time
to time) shall be treated by the Trust or its designee
as if received prior to the close of trading on the
Trade Date.
Purchases. The Company will use its best efforts to
transmit each purchase order to the Trust or its
designee in accordance with written instructions
previously provided by the Trust or its designee to
the Company. The Company will use its best efforts to
initiate by wire transfer to Trust or its designee
purchase amounts prior to 1:00 p.m. Eastern Time on
the next Business Day following the Trade Date.
Redemptions. With respect to redemption orders placed
by the Company by 8:30 a.m. Eastern Time (or such
other time as may be agreed by the parties from time
to time) on the first Business Day following the Trade
Date, the Trust or its designee will use its best
efforts to initiate by wire transfer to the Company
proceeds of such redemptions by 1:00 p.m. Eastern Time
on the next Business Day following the Trade Date.
Redemption wires should be sent to the Company's
designated account provided by the Company in writing.
For the purposes of manual trading, the Trust will make the net asset value per
Share for each Designated Fund available to the Company via electronic means
on each Business Day as soon as reasonably practical after the net asset value
per Share is calculated and will use its best efforts to make such net asset
value per Share available by 6:00 p.m., Eastern Time, each Business Day. In
the event that the Trust is unable to meet the 6:00 p.m. time stated herein,
it shall provide additional time for the Company to place orders for the
purchase and redemption of Shares and wire net payments for the purchase of
Shares. Such additional time shall be equal to the additional time which the
Trust takes to make the net asset value per Share available to the Company.
1.4 The Trust agrees to make Shares of the Designated Funds available
continuously for purchase at the applicable net asset value per Share by the
Company and the Accounts on those days on which the Trust calculates its
Designated Fund net asset value pursuant to rules of the Commission and the
Trust shall calculate such net asset value on each day which the NYSE is open
for regular trading; provided, however, that the board of trustees of the
Trust (the "Trust Board") may refuse to sell Shares of any Fund to any person,
or suspend or terminate the offering of Shares of any Fund if such action is
required by law or by regulatory authorities having jurisdiction or is, in the
sole discretion of the Trust Board, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, in the best
interests of the Shareholders of such Fund.
1.5 The Trust agrees that Shares will be sold only to the Company and the
Accounts, or to Symetra Financial Corporation. No Shares of any Fund will be
sold directly to the general public.
1.6 The Company agrees to purchase and redeem the Shares of the Designated
Funds offered by the then current prospectus of the Trust in accordance with
the provisions of such prospectus to the extent not inconsistent with the
terms and conditions of this Agreement.
1.7 Issuance and transfer of the Shares will be by book entry only.
Certificates will not be issued to the Company or to any Account. Purchase
and redemption orders for Shares will be recorded in an appropriate title for
each Account or the appropriate sub-account of each Account.
1.8 The Trust will furnish same day notice (by facsimile) to the Company of
the declaration of any income, dividends or capital gain distributions payable
on each Designated Fund's Shares. The Company hereby elects to receive all
such dividends and distributions as are payable on the Fund Shares in the form
of additional shares of that Fund at the ex-dividend date net asset values.
The Company reserves the right to revoke this election and to receive all such
dividends and distributions in cash. The Trust will notify the Company of the
number of Shares so issued as payment of such income, dividends and
distributions.
1.9 In addition to the Trust's indemnification obligations hereunder, if the
Trust provides the Company with a materially incorrect net asset value per
Share (as determined under SEC guidelines), the Trust shall make an adjustment
to the number of Shares purchased or redeemed for the Accounts to reflect the
correct net asset value per Share, and the Adviser shall bear the cost of
correcting such errors and shall reimburse the Company for any expenses
incurred related to correction of the net asset value (including correcting
Contract owner accounts). Any material error in the calculation or reporting
of net asset value per Share, dividend or capital gain information shall be
reported to the Company upon discovery by the Trust.
ARTICLE II: REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that interests under the Contracts are
or will be registered under the Securities Act of 1933 (the "1933 Act"), or are
exempt from registration thereunder, and that the Contracts will be issued and
sold and distributed in compliance with all applicable federal and state laws.
The Company further represents and warrants that it is an insurance company
duly organized and in good standing under applicable law and that it has
legally and validly established each Account as a separate account under
applicable law and that each Account is or will be registered as a unit
investment trust in accordance with the provisions of the 1940 Act to serve
as a segregated investment account for the Contracts, or is excluded from the
definition of an investment company under the 1940 Act, and that it will
maintain such registration for so long as any Contracts are outstanding, as
applicable. The Company will amend the registration statement under the 1933
Act for the Contracts and the registration statement under the 1940 Act for
the Account from time to time as required in order to effect the continuous
offering of the Contracts or as may otherwise be required by applicable law.
The Company will register and qualify the Contracts for sale in accordance with
the securities laws of the various states only if and to the extent deemed
necessary by the Company.
2.2 The Company represents that the Contracts are currently and at the time of
issuance will be treated as life insurance, endowment or annuity contracts (as
applicable) under applicable provisions of the Internal Revenue Code of 1986,
as amended (the, "Code") and that it will make every effort to maintain such
treatment and that it will notify the Trust and the Distributor immediately
upon having a reasonable basis for believing that the Contracts have ceased to
be so treated or that they might not be so treated in the future; provided,
however, that the Company makes no representation or undertaking regarding any
Contract to the extent such representation or undertaking is dependent on
compliance by any other investment vehicle in which the Company or an Account
may invest with the requirements of Subchapter M or Section 817(h) of the
Code, the regulations thereunder, or any successor provision.
2.3 The Trust and Distributor each represents and warrants that Shares of the
Designated Fund(s) sold pursuant to this Agreement will be registered under
the 1933 Act and duly authorized for issuance in accordance with applicable
law and that the Trust is and will remain registered as an open-end management
investment company under the 1940 Act for as long as such shares of the
Designated Fund(s) are sold. The Trust will 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.
2.4 The Trust and Distributor represent that the Trust will comply with the
laws of its state of domicile, and, to the extent specifically requested in
writing by the Company, any other applicable state insurance laws or
regulations as they may apply to the investment objectives, policies and
restrictions of the Designated Funds, as they may apply to the Trust. If the
Trust cannot comply with such state insurance laws or regulations, it will so
notify the Company in writing. The Company represents that it will use its
best efforts to notify the Trust of any restrictions imposed by state insurance
laws that may become applicable to the Trust as a result of the Accounts'
investments therein. The Trust and the Adviser agree that they will furnish
the information required by state insurance laws to assist the Company in
obtaining the authority needed to issue the Contracts in various states.
2.5 The Trust and Distributor represent and warrant that the Trust is lawfully
organized and validly existing under the laws of the State of Delaware and
that the Trust does and will comply in all material respects with applicable
provisions of the 1940 Act and any applicable regulations thereunder. The
Trust and Adviser represent and warrant that the Trust's operations, and that
of each Designated Fund, does and will comply with applicable federal and
state law.
2.6 The Trust and Distributor represent and warrant that all of the Trust's
directors, officers, employees, investment advisers, and other individuals/
entities having access to the Trusts and/or securities of the Trust are and
continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Trust in an amount not less than the minimal
coverage as required currently by Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
2.7 The Distributor represents and warrants that it is lawfully organized and
validly existing under the laws of its state of organization; it is registered
as a broker-dealer under the Securities Exchange Act of 1934, as amended (the
"1934 Act") and will remain duly registered under all applicable federal and
state securities laws, and is a member in good standing of the Financial
Industry Regulatory Authority ("FINRA") and serves as principal underwriter/
distributor of the Trust and that it will perform its obligations for the
Trust in accordance in all material respects with the laws of the State of
Delaware and any applicable state and federal securities laws.
ARTICLE III: TRUST COMPLIANCE
3.1 The Trust and the Distributor acknowledge that any failure (whether
intentional or in good faith or otherwise) to comply with the requirements of
Subchapter M of the Code or the diversification requirements of Section 817(h)
of the Code may result in the Contracts not being treated as variable
contracts for federal income tax purposes, which would have adverse tax
consequences for Contract owners. The Trust and the Distributor further
acknowledge that any such failure may result in costs and expenses being
incurred by the Company in obtaining whatever regulatory authorizations are
required to substitute shares of another investment company for those of the
Trust as well as fees and expenses of legal counsel and other advisers to the
Company and any federal income taxes, interest or tax penalties incurred by
the Company in connection with any such failure.
3.2 The Trust and Distributor represent and warrant that each Designated Fund
is currently qualified as a Regulated Investment Company under Subchapter M of
the Code, and that they will maintain such qualification (under Subchapter M
or any successor or similar provision). The Trust or Distributor will notify
the Company immediately upon having a reasonable basis for believing that any
Designated Fund has ceased to so qualify or that any might not so qualify in
the future.
3.3 The Trust and Distributor represent and warrant that for each quarter each
Designated Fund of the Trust does and will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be treated as
variable contracts under the Code and the regulations issued thereunder;
including, but not limited to, that the Trust will at all times comply with
the diversification requirements of Section 817(h) of the Code and any
regulations thereunder applicable to variable contracts as defined in Section
817(d) of the Code and any amendments or other modifications or successor
provisions to such Sections or regulations (and any revenue rulings, revenue
procedures, notices, and other published announcements of the Internal Revenue
Service interpreting those Sections or regulations), as if those requirements
applied directly to each such Fund. The Trust will notify the Company
immediately upon having a reasonable basis for believing that the Trust or a
Fund has ceased to comply with the diversification requirements or that the
Trust or Fund might not comply with the diversification requirements in the
future. In the event of a breach of this representation and warranty the
Trust will take all reasonable necessary steps to adequately diversify the
Trust so as to achieve compliance within the grace period afforded by Treasury
Regulation 1.817-5.
3.4 The Trust and Distributor represent and warrant that the Trust is in and
shall maintain compliance with Rule 38a-1 under the 0000 Xxx.
3.5 The parties acknowledge that the Trust has retained Symetra Investment
Management, Inc. ("SIMI") under an investment management agreement providing
that SIMI shall make every effort to ensure that each Fund complies with
Section 817(h) of Subchapter M.
ARTICLE IV: PROSPECTUS AND PROXY STATEMENTS/VOTING
4.1 At least annually (or in the case of a prospectus supplement, when that
supplement is issued), the Trust will timely provide the Company with as many
copies of the current Trust prospectus or the Trust's then current summary
prospectus (as such term is defined in Rule 498 under the 1933 Act or any
successor provision) (describing only the Designated Fund(s)) and any
supplements thereto as the Company may reasonably request for distribution,
at the Trust's expense, to Contract owners at the time of Contract fulfillment
and confirmation. To the extent that the Designated Fund(s) are one or more
of several Funds of the Trust, the Trust shall bear the cost of providing the
Company only with disclosure related to the Designated Fund(s). The Trust
will provide, at the Trust's expense, as many copies of said prospectus or
summary prospectus as necessary for distribution, at the Trust's expense, to
existing Contract owners. The Trust will provide the copies of said prospectus
or summary prospectus to the Company or to its mailing agent. The Company
will distribute the prospectus or summary prospectus to existing Contract
owners and will xxxx the Trust for the reasonable cost of such distribution.
The Trust shall provide the Company, at the Company's expense, with as many
copies of the current Trust prospectus or summary prospectus (describing only
the Designated Fund(s)) and any supplement thereto, as the Company may
reasonably request for distribution to prospective purchasers of Contracts.
If requested by the Company, in lieu thereof, the Trust will provide such
documentation, including a final copy of a current prospectus or summary
prospectus set in type at the Trust's expense and other assistance as is
reasonably necessary in order for the Company at least annually (or more
frequently if the Trust prospectus or summary prospectus is amended more
frequently) to have the new prospectus for the Contracts and the Trust's new
prospectus or summary prospectus printed together, in which case the Trust
agrees to pay its proportionate share of reasonable expenses directly related
to the Trust's prospectus or summary prospectus used at the time of Contract
fulfillment and confirmation and for delivery to existing Contract owners.
The Trust will, upon request, provide the Company with a copy of the Trust's
prospectus or summary prospectus through electronic means to facilitate the
Company's efforts to provide Trust prospectuses or summary prospectus via
electronic delivery, in which case the Trust agrees to pay its proportionate
share of reasonable expenses related to the Trust's prospectus or summary
prospectus used at the time of Contract fulfillment and confirmation and for
delivery to existing Contract owners.
4.2 The Trust's prospectus will state that the Statement of Additional
Information (the "SAI") for the Trust is available from the Company. The
Trust will provide the Company, at the Company's expense, with as many copies
of the SAI and any supplements thereto as the Company may reasonably request
for distribution, at the Company's expense, to prospective Contract owners and
applicants. To the extent that the Designated Fund(s) are one or more of
several Funds of the Trust, the Trust shall bear the cost of providing the
Company only with disclosure related to the Designated Fund(s). The Trust
will provide, at the Trust's expense, as many copies of the SAI as necessary
for distribution, at the Trust's expense, to any existing Contract owner who
requests such statement or whenever state or federal law requires that such
statement be provided. The Trust will provide the copies of the SAI to the
Company or to its mailing agent. The Company will distribute the SAI as
requested or required and will xxxx the Trust for the reasonable cost of such
distribution.
4.3 The Trust, at its expense, will provide the Company or its mailing agent
with copies of its proxy material, if any, reports to shareholders/Contract
owners and other permissible communications to shareholders/Contract owners
in such quantity as the Company will reasonably require. The Company will
distribute this proxy material, reports and other communications to existing
Contract owners and will xxxx the Trust for the reasonable cost of such
distribution.
4.4 If and to the extent required by law, the Company will:
(a) solicit voting instructions from Contract owners;
(b) vote the Shares of the Designated Funds held in the Account
in accordance with instructions received from Contract owners; and
(c) vote Shares of the Designated Funds held in the Account for which
no timely instructions have been received, in the same proportion as
Shares of such Designated Fund for which instructions have been
received from the Company's Contract owners,
so long as and to the extent that the Commission continues to interpret the
1940 Act to require pass-through voting privileges for variable contract
owners. The Company reserves the right to vote Trust shares held in any
segregated asset account in its own right, to the extent permitted by law.
4.5 The Trust will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Trust either will provide for annual
meetings (except insofar as the Commission may interpret Section 16 of the
1940 Act not to require such meetings) or, as the Trust currently intends, to
comply with Section 16(c) of the 1940 Act (although the Trust is not one of
the trusts described in Section 16(c) of the 0000 Xxx) as well as with
Sections 16(a) and, if and when applicable, Section 16(b). Further, the Trust
will act in accordance with the Commission's interpretation of the
requirements of Section 16(a) with respect to periodic elections of directors
and with whatever rules the Commission may promulgate with respect thereto.
ARTICLE V: SALES MATERIAL AND INFORMATION
5.1 The Company will not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement, prospectus or SAI for Shares, as
such registration statement, prospectus and SAI may be amended or supplemented
from time to time, or in reports or proxy statements for the Trust, or in
published reports for the Trust which are in the public domain or approved by
the Trust or Distributor or their designees for distribution, or in sales
literature or other material provided by the Trust or by the Distributor,
except with permission of the Trust or the Distributor or their designees.
5.2 The Trust and the Distributor will not give any information or make any
representations or statements 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 or SAI for
the Contracts, as such registration statement, prospectus and SAI may be
amended or supplemented from time to time, or in published reports for each
Account or the Contracts which are in the public domain or approved by the
Company for distribution to Contract owners, or in sales literature or other
material provided by the Company, except with written permission of the
Company.
5.3 Upon written request, the Trust will provide to the Company at least one
complete copy of all registration statements, prospectuses, SAIs, 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 Trust or its shares, within
a reasonable time after filing of each such document with the Commission or
FINRA.
5.4 Upon written request, the Company will provide to the Trust at least one
complete copy of all definitive prospectuses, definitive SAIs, 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 the Contracts or each
Account, within a reasonable time after filing of each such document with the
Commission or FINRA. In addition, upon written request, the Company will
provide to the Trust at least one complete copy of (i) a registration
statement that relates to the Contracts or each Account, containing
representative and relevant disclosure concerning the Trust; and (ii) any
post-effective amendments to any registration statements relating to the
Contracts or such Account that refer to or relate to the Trust.
5.5 The Trust and Distributor will provide the Company with as much notice as
is reasonably practicable of any proxy solicitation for any Designated Fund,
and of any material change in the Trust's registration statement, particularly
any change resulting in a change to the registration statement or prospectus
or statement of additional information for any Account.
5.6 The Trust, the Distributor and the Company agree to adopt and implement
procedures reasonably designed to ensure that information concerning the
Company, the Trust, or the Distributor, respectively, and their respective
affiliated companies, that is intended for use only by brokers or agents
selling the Contracts is properly marked as "Not For Use With The Public"
and that such information is only so used.
ARTICLES VI: FEES, COSTS AND EXPENSES
6.1 The Trust will pay no fee or other compensation to the Company under this
Agreement.
6.2 All expenses incident to performance by the Trust of this Agreement will
be paid by the Trust to the extent permitted by law. The Trust will bear the
expenses for the cost of registration and qualification of the Shares,
including without limitation, the preparation of and filing with the SEC of
Forms N-CSR and N-SAR and Rule 24f-2 Notices and payment of all applicable
registration or filing fees with respect to shares of the Trust; preparation
and filing of the Trust's prospectus, SAI and registration statement, proxy
materials and reports; typesetting and printing the Trust's prospectus and
SAI (to the extent provided by and as determined in accordance with Article
III above); typesetting and printing proxy materials and reports to Contract
owners (including the costs of printing a Trust prospectus that constitutes
an annual report) (to the extent provided by and as determined in accordance
with Article III above); the preparation of all statements and notices
required by any federal or state law; all taxes on the issuance or transfer of
the Trust's shares; and other costs associated with preparation of
prospectuses and SAIs for the Designated Funds in electronic or typeset
format, as well as any other expenses as set forth in Article III of this
Agreement.
ARTICLE VII: INDEMNIFICATION
7.1 INDEMNIFICATION BY THE COMPANY
(a) The Company agrees to indemnify and hold harmless the Trust, the
Distributor, and each person, if any, who controls the Trust or the
Distributor within the meaning of such terms under the federal securities
laws and any director, trustee, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this Section 7.1)
against any and all losses, claims, expenses, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or actions
in respect thereof (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, acquisition, or holding of the Trust Shares or the
Contracts or the operation of the Accounts and:
(1) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration
statement, prospectus or SAI for the Contracts or contained in the
Contracts or sales literature or other promotional material 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 or necessary to
make such statements not misleading in light of the circumstances in
which they were made; provided that this agreement to indemnify will
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 Trust or the Distributor for use in the registration statement,
prospectus or SAI for the Contracts or in the Contracts or sales
literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Trust shares; or
(2) arise out of or as a result of statements or representations by or
on behalf of the Company (other than statements or representations
contained in the Trust registration statement, prospectus, SAI or
sales literature or other promotional material of the Trust, or any
amendment or supplement to the foregoing, not supplied by the Company
or its designee) or wrongful conduct of the Company or persons under
its control, with respect to the sale or distribution of the Contracts
or Trust shares; or
(3) arise out of untrue statement or alleged untrue statement of a
material fact contained in the Trust registration statement,
prospectus, SAI or sales literature or other promotional material of
the Trust (or amendment or supplement) or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make such statements not misleading in light
of the circumstances in which they were made, if such a statement or
omission was made in reliance upon and in conformity with information
furnished to the Trust by or on behalf of the Company or its designee;
or
(4) 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
(5) arise out of 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 by the Company of this
Agreement;
except to the extent provided in Sections 7.1(b) and 7.4 hereof. This
indemnification will be in addition to any liability that the Company
otherwise may have.
(b) No party will be entitled to indemnification under Section 7.1(a) if such
loss, claim, damage, liability or action is due to the willful misfeasance,
bad faith, or gross negligence in the performance of such party's duties under
this Agreement, or by reason of such party's reckless disregard of its
obligations or duties under this Agreement.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with the issuance, holding
or sale of the Trust shares or the Contracts or the operation of the
Accounts.
7.2 INDEMNIFICATION BY THE DISTRIBUTOR
(a) The Distributor agrees to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of such terms
under the federal securities laws and any director, officer, employee or agent
of the foregoing (collectively, the "Indemnified Parties" for purposes of this
Section 7.2) against any and all losses, claims, expenses, damages,
liabilities (including amounts paid in settlement with the written consent of
the Distributor) or actions in respect thereof (including reasonable legal and
other expenses) to which the Indemnified Parties may become subject under any
statute, 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, acquisition, or holding of the Trust
shares or the Contracts or the operation of the Trust and:
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or SAI for the Trust or sales literature or
other promotional material of the Trust (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 or necessary to make such statements not
misleading in light of the circumstances in which they were made;
provided that this agreement to indemnify will 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 Distributor or Trust by or on behalf
of the Company for use in the registration statement, prospectus or
SAI for the Trust or in sales literature of the Trust (or any
amendment or supplement thereto) or otherwise for use in connection
with the sale of the Contracts or Trust Shares; or
(2) arise out of or as a result of statements or representations
(other than statements or representations contained in the Contracts
or in the Contract or Trust registration statements, prospectuses or
statements of additional information or sales literature or other
promotional material for the Contracts, or any amendment or supplement
to the foregoing, not supplied by the Distributor or the Trust or
persons under the control of the Distributor or the Trust
respectively) or wrongful conduct of the Distributor or the Trust or
persons under the control of the Distributor or the Trust respectively,
with respect to the sale or distribution of the Contracts or Trust
shares; or
(3) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI
or sales literature or other promotional material covering the
Contracts (or any amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated or necessary to make such statement or statements not
misleading in light of the circumstances in which they were made, if
such statement or omission was made in reliance upon and in conformity
with information furnished to the Company by or on behalf of the
Distributor or the Trust or persons under the control of the
Distributor or the Trust; or
(4) arise as a result of any failure by the Distributor or Trust to
provide the services and furnish the materials under the terms of this
Agreement; or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor or the Trust in
this Agreement, or arise out of or result from any other material
breach of this Agreement by the Distributor or the Trust (including a
failure, whether intentional or in good faith or otherwise, to comply
with the requirements of Subchapter M of the Code specified in Article
III, Section 3.2 of this Agreement and the diversification
requirements specified in Article III, Section 3.3 of this Agreement,
as described more fully in Section 8.5 below);
except to the extent provided in Sections 7.2(b) and 7.4 hereof. This
indemnification will be in addition to any liability that the Distributor
otherwise may have.
(b) No party will be entitled to indemnification under Section 7.2(a) if such
loss, claim, damage, liability or action is due to the willful misfeasance,
bad faith, or gross negligence in the performance of such party's duties under
this Agreement, or by reason of such party's reckless disregard or its
obligations or duties under this Agreement.
(c) The Indemnified Parties will promptly notify the Distributor and the Trust
of the commencement of any litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with the issuance, holding
or sale of the Contracts or the operation of the Trust.
7.3 INDEMNIFICATION BY THE TRUST
(a) The Trust agrees to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of such terms
under the federal securities laws and any director, officer, employee or agent
of the foregoing (collectively, the "Indemnified Parties" for purposes of this
Section 7.3) against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the Trust)
or action in respect thereof (including reasonable legal and other expenses)
to which the Indemnified Parties may become subject under any statute,
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, acquisition, or holding of the Trust
Shares or the Contracts, or operations of the Trust and:
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or SAI for the Trust (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 or necessary to make such statements not
misleading in light of the circumstances in which they were made;
provided that this agreement to indemnify will not apply as to any
Indemnified Party if such statement or omission of such alleged
statement or omission was made in reliance upon and in conformity with
information furnished to the Distributor or Trust by or on behalf of
the Company for use in the registration statement, prospectus or SAI
for the Trust (or any amendment or supplement thereto) or otherwise
for use in connection with the sale of the Contracts or Trust Shares;
or
(2) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI
or sales literature or other promotional material covering the
Contracts (or any amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated or necessary to make such statement or statements not
misleading in light of the circumstances in which they were made, if
such statement or omission was made in reliance upon and in conformity
with information furnished to the Company by or on behalf of the Trust
or persons under the control of the Trust;
except to the extent provided in Sections 7.3(b) and 7.4 hereof. This
indemnification will be in addition to any liability that the Trust otherwise
may have.
(b) No party will be entitled to indemnification under Section 7.3(a) if such
loss, claim, damage, liability or action is due to the willful misfeasance,
bad faith, or gross negligence in the performance of such party's duties under
this Agreement, or by reason of such party's reckless disregard of its
obligations and duties under this Agreement.
(c) The Indemnified Parties will promptly notify the Trust of the commencement
of any litigation, proceedings, complaints or actions by regulatory
authorities against them in connection with the issuance, holding or sale of
the Contracts or the operation of the Trust.
7.4 INDEMNIFICATION PROCEDURE
Any person obligated to provide indemnification under this Article VII
("Indemnifying Party") for the purpose of this Section 7.4) will not be
liable under the indemnification provisions of this Article VII with respect
to any claim made against a party entitled to indemnification under this
Article VII ("Indemnified Party") for the purpose of this Section 7.4) unless
such Indemnified Party will have notified the Indemnifying Party in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim will have been served upon such
Indemnified Party (or after such party will have received notice of such
service on any designated agent), but failure to notify the Indemnifying Party
of any such claim will not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of the indemnification provision of this Article
VII, except to the extent that the failure to notify results in the failure of
actual notice to the Indemnifying Party and such Indemnifying Party is damaged
solely as a result of failure to give such notice. In case any such action
is brought against the Indemnified Party, the Indemnifying Party will be
entitled to participate, at its own expense, in the defense thereof. The
Indemnifying Party also will be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Indemnifying Party to the Indemnified Party of the Indemnifying Party's
election to assume the defense thereof, the Indemnified Party will bear the
fees and expenses of any additional counsel retained by it, and the
Indemnifying Party 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, unless:
(a) the Indemnifying Party and the Indemnified Party will have
mutually agreed to the retention of such counsel; or
(b) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The Indemnifying Party will not be liable for any settlement of
any proceeding effected without its written consent but if settled
with such consent or if there is a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify the Indemnified Party from
and against any loss or liability by reason of such settlement or
judgment. A successor by law of the parties to this Agreement will be
entitled to the benefits of the indemnification contained in this
Article VII. The indemnification provisions contained in this Article
VII will survive any termination of this Agreement.
7.5 INDEMNIFICATION FOR FAILURE TO COMPLY WITH DIVERSIFICATION REQUIREMENTS
The Trust and the Distributor acknowledge that any failure (whether intentional
or in good faith or otherwise) to comply with the diversification requirements
specified in Article III, Section 3.3 of this Agreement may result in the
Contracts not being treated as variable contracts for federal income tax
purposes, which would have adverse tax consequences for Contract owners and
could also adversely affect the Company's corporate tax liability.
Accordingly, without in any way limiting the effect of Sections 7.2(a) and
7.3(a) hereof and without in any way limiting or restricting any other remedies
available to the Company, the Trust and the Distributor will pay on a joint
and several basis all costs associated with or arising out of any failure, or
any anticipated or reasonably foreseeable failure, of the Trust or any
Designated Fund to comply with Section 3.3 of this Agreement, including all
costs associated with correcting or responding to any such failure; such costs
may include, but are not limited to, the costs involved in creating,
organizing, and registering a new investment company as a Trusting medium for
the Contracts and/or the costs of obtaining whatever regulatory authorizations
are required to substitute shares of another investment company for those of
the failed Trust or Fund (including but not limited to an order pursuant to
Section 26(c) of the 1940 Act); fees and expenses of legal counsel and other
advisors to the Company and any federal income taxes or tax penalties (or
"toll charges" or exactments or amounts paid in settlement) incurred by the
Company in connection with any such failure or anticipated or reasonably
foreseeable failure. Such indemnification and reimbursement obligation shall
be in addition to any other indemnification and reimbursement obligations of
the Trust and/or the Distributor under this Agreement.
ARTICLE VIII: APPLICABLE LAW
8.1 This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the state of Washington without
reference to its conflicts of law provisions.
8.2 This Agreement will be subject to the provisions of the 1933 Act, the 1934
Act and the 1940 Act, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
Commission may grant and the terms hereof will be interpreted and construed in
accordance therewith.
ARTICLE IX: TERMINATION
9.1 This Agreement will terminate:
(a) at the option of any party, with or without cause, with respect to one,
some or all of the Designated Funds, upon three (3) month's advance written
notice to the other parties, unless otherwise agreed in a separate written
agreement among the parties; or
(b) at the option of the Company, upon written notice to the other parties,
with respect to any Fund if shares of the Designated Fund are not reasonably
available to meet the requirements of the Contracts as determined in good
faith by the Company; or
(c) at the option of the Company, upon written notice to the other parties,
with respect to any Fund in the event any of 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 Company; or
(d) at the option of the Trust, upon written notice to the other parties, upon
institution of formal proceedings against the Company by FINRA, the Commission,
the Insurance Commission of any state or any other regulatory body regarding
the Company's duties under this Agreement or related to the sale of the
Contracts, the administration of the Contracts, the operation of the Account,
or the purchase of the Trust shares, provided that the Trust determines in its
sole judgment, exercised in good faith, that any such proceeding would have a
material adverse effect on the Company's ability to perform its obligations
under this Agreement; or
(e) at the option of the Company, upon written notice to the other parties,
upon institution of formal proceedings against the Trust, the Adviser, or the
Distributor by FINRA, the Commission or any state securities or insurance
department or any other regulatory body, provided that the Company determines
in its sole judgment, exercised in good faith, that any such proceeding would
have a material adverse effect on the Trust's or the Adviser's ability to
perform its obligations under this Agreement; or
(f) at the option of the Company, upon written notice to the other parties,
with respect to any Designated Fund, if a Designated Fund ceases to qualify as
a Regulated Investment Company under Subchapter M of the Code, or under any
successor or similar provision, or if the Company reasonably and in good faith
believes that the Designated Fund may fail to so qualify; or
(g) at the option of the Company, upon written notice to the other parties,
with respect to any Designated Fund if the Designated Fund fails to meet the
diversification requirements specified in Section 3.3 hereof or if the Company
reasonably and in good faith believes the Designated Fund may fail to meet
such requirements; or
(h) at the option of any party to this Agreement, upon written notice to the
other parties, upon another party's material breach of any provision of this
Agreement; or
(i) at the option of the Company or the Trust upon receipt of any necessary
regulatory approvals and/or the vote of the Contract owners having an interest
in the Account (or any sub-account) to substitute the shares of another
investment company for Shares of one or more Funds in accordance with the
terms of the Contracts. The Company will give sixty (120) days' prior written
notice to the Trust of the date of any proposed vote or other action taken to
substitute Shares or of the filing of any application or request for
regulatory approval to do so.
9.2 NOTICE REQUIREMENT
No termination of this Agreement will be effective unless and until the party
terminating this Agreement gives prior written notice to the other parties of
its intent to terminate, which notice will set forth the basis for the
termination.
9.3 EFFECT OF TERMINATION
Notwithstanding any termination of this Agreement, the Trust, the Adviser and
the Distributor will, at the option of the Company, continue to make available
additional Shares of the Trust pursuant to the terms and conditions of this
Agreement, for all Contracts in effect on the effective date of termination of
this Agreement (hereinafter, "Existing Contracts"). Specifically, without
limitation, as long as a Designated Fund (as in effect on such date) remains
in operation, the owners of the Existing Contracts will be permitted to
reallocate investments in that Designated Fund, redeem investments in that
Designated Fund and/or invest in that Designated Fund upon the making of
additional purchase payments under the Existing Contracts.
9.4 SURVIVING PROVISIONS
Notwithstanding any termination of this Agreement, each party's obligations
under Article VII to indemnify other parties will survive and not be affected
by any termination of this Agreement. In addition, with respect to Existing
Contracts, all provisions of this Agreement also will survive and not be
affected by any termination of this Agreement.
ARTICLE X: NOTICES
Any notice will be deemed duly given when sent by written memorandum or e-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 parties.
If to the Company:
Law Department SC_11
Symetra Life Insurance Company
000 000xx Xxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
If to the Trust:
[President]
Symetra Investment Management, Inc.
000 000xx Xxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
If to the Distributor:
Law Department SC_11
Symetra Securities, Inc.
000 000xx Xxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
ARTICLE XI: MISCELLANEOUS
11.1 All persons dealing with the Trust must look solely to the property of
the Trust for the enforcement of any claims against the Trust as neither the
directors, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Trust.
11.2 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.
11.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together will constitute one and the same instrument.
11.4 If any provision of this Agreement will be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement will not
be affected thereby.
11.5 This Agreement will not be assigned by any party hereto without the prior
written consent of all the parties hereto.
11.6 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 law.
11.7 Each party to this Agreement will cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Commission, FINRA and state insurance regulators) and will permit each other
and 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.
11.8 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate or board action, as applicable, by such
party and when so executed and delivered this Agreement will be the valid and
binding obligation of such party enforceable in accordance with its terms.
11.9 The schedules to this Agreement (each, a "Schedule," collectively, the
"Schedules") form an integral part hereof and are incorporated herein by
reference. The parties to this Agreement may agree in writing to amend the
Schedules to this Agreement from time to time to reflect changes in or
relating to the Contracts, the Accounts or the Designated Funds of the Trust
or other applicable terms of this Agreement. References herein to any
Schedule are to the Schedule then in effect, taking into account any amendments
thereto.
11.10 The parties have entered into or shall enter into a Shareholder
Information Agreement as required by Rule 22c-2 under 1940 Act in connection
with the Contracts in the form shown on Schedule C, which is incorporated
herein by reference. This Agreement shall control with regard to the terms of
the business relationship described in this Agreement. To the extent that the
terms of the Shareholder Information Agreement conflict with the terms of this
Agreement, the terms of the Shareholder Information Agreement shall control to
the extent required by Rule 22c-2.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the date specified below.
SYMETRA MUTUAL FUNDS TRUST
By: ______________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SYMETRA SECURITIES, INC.
By: _____________________________
Name: Xxxxx X. Xxxxx
Title: President
SYMETRA LIFE INSURANCE COMPANY
By: ______________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
PARTICIPATION AGREEMENT
SCHEDULE A
The following Separate Accounts and Associated Contracts of Symetra Life
Insurance Company are permitted in accordance with the provisions of this
Agreement to invest in Designated Funds shown in Schedule B:
NAME OF SEPARATE ACCOUNT: Symetra Resource Variable Account B
CONTRACT(S): Symetra True Variable Annuity
NAME OF SEPARATE ACCOUNT: Symetra Separate Account VL (unregistered)
CONTRACT(S): Symetra Variable Corporate Owned Life Insurance
PARTICIPATION AGREEMENT
SCHEDULE B
The Separate Account(s) shown on Schedule A may invest in the following
Designated Fund(s) of the Trust.
Symetra DoubleLine Total Return Fund
Symetra DoubleLine Emerging Markets Income Fund
Symetra DFA U.S. CORE Equity Fund
Symetra DFA International CORE Equity Fund
Symetra Yacktman Focused Fund
Symetra Pension Reserve Fund - 2016 (b. 1942-1947)
Symetra Pension Reserve Fund - 2016 (b. 1948-1952)
Symetra Pension Reserve Fund - 2016 (b. 1953-1957)
Symetra Pension Reserve Fund - 2020 (b. 1942-1947)
Symetra Pension Reserve Fund - 2020 (b. 1948-1952)
Symetra Pension Reserve Fund - 2020 (b. 1953-1957)
Symetra Pension Reserve Fund - 2020 (b. 1958-1962)
Symetra Pension Reserve Fund - 2024 (b. 1942-1947)
Symetra Pension Reserve Fund - 2024 (b. 1948-1952)
Symetra Pension Reserve Fund - 2024 (b. 1953-1957)
Symetra Pension Reserve Fund - 2024 (b. 1958-1962)
Symetra Pension Reserve Fund - 2028 (b. 1948-1952)
Symetra Pension Reserve Fund - 2028 (b. 1953-1957)
Symetra Pension Reserve Fund - 2028 (b. 1958-1962)
PARTICIPATION AGREEMENT
SCHEDULE C
This Schedule C supplements the Trust Participation Agreement. To the extent
the terms of this Schedule C conflict with the terms of the Trust Participation
Agreement, the terms of this Schedule C shall control.
Shareholder Information
1. Agreement to Provide Information. Company agrees to provide the Trust,
upon written request, the Taxpayer Identification Number ("TIN"), the
Individual Taxpayer Identification Number ("ITIN"), or other
government-issued identifier ("GII"), if known, of any or all Contract
owner(s) and the amount, date, name or other identifier of any
investment professional(s) associated with the Contract owner(s) and
transaction type (purchase, redemption, or exchange) of units of
sub-accounts of one or more Accounts investing in Shares during the
period covered by the request.
(a) Information Request. Requests must set forth a specific
period, not to exceed ninety (90) days from the date of the
request, for which transaction information is sought. The
Trust may request transaction information older than ninety
(90) days from the date of the request as it deems necessary
to investigate compliance with policies established by the
Trust for the purpose of eliminating or reducing any dilution
of the value of the Shares issued by the Trust.
(b) Form and Timing of Response. Company agrees to transmit the
requested information that is on its books and records to the
Trust or its designee promptly, but in any event not later
than 5 business days, after receipt of a request. If
requested by the Trust or its designee, Company agrees to use
best efforts to determine promptly, but in any event not later
than five (5) business days after receipt of a specific
request, whether any specified person about whom it has
received the identification and transaction information
specified in Paragraph 1 above is itself a financial
intermediary ("indirect intermediary") and, upon further
request of the Trust or its designee, promptly, but in any
event not later than five (5) business days after such
request, either (i) obtain and transmit (or arrange to have
transmitted) the requested information specified in Paragraph
1 above for those Contract owner(s) who hold an account with
an indirect intermediary or (ii) restrict or prohibit the
indirect intermediary from purchasing, redeeming or exchanging
sub-account units on behalf of such Contract owner(s). In
such instance, Company agrees to inform the Trust whether it
plans to perform (i) or (ii).
Responses required by this paragraph must be communicated in
writing and in a format mutually agreed upon by the parties.
To the extent practicable, the format for any transaction
information provided to the Trust should be consistent with
the NSCC Standardized Data Reporting Format.
(c) Limitations on Use of Information. The Trust agrees not to
use the information received for marketing or any other
similar purpose without the prior written consent of the
Company. The Trust may, however, use the information received
to ensure compliance with the Trust's compliance policies and
procedures.
2. Agreement to Restrict Trading. Company agrees to execute written
instructions from the Trust to restrict or prohibit further purchases
of Shares by a Contract owner that has been identified by the Trust as
having engaged in transactions that result in the purchase and
redemption of Trust Shares that violate policies established by the
Trust for the purpose of eliminating or reducing any dilution of the
value of the Shares.
(a) Form of Instructions. Instructions must include the TIN,
ITIN, or GII, if known, and the specific restriction(s) to be
executed. If the TIN, ITIN, or GII is not known, the
instructions must include an equivalent identifying Contract
number of the Contract owner(s) or other agreed upon
information to which the instruction relates.
(b) Timing of Response. Company agrees to execute instructions to
restrict or prohibit trading as soon as reasonably practicable,
but in any event not later than five (5) business days after
receipt of instructions from the Trust.
(c) Confirmation by Company. Company must provide written
confirmation to the Trust that instructions have been executed
and agrees to provide confirmation as soon as reasonably
practicable, but not later than ten (10) business days after
the instructions have been executed.
Capitalized terms used in this Schedule C shall have the same meaning as
defined in the Agreement to which this Schedule C is attached.
