PARTICIPATION AGREEMENT
AMONG
MFS VARIABLE INSURANCE TRUST
MFS VARIABLE INSURANCE TRUST II
FORETHOUGHT LIFE INSURANCE COMPANY
AND
MFS FUND DISTRIBUTORS, INC.
THIS AGREEMENT, made and entered into this day of 20 , by and among
MFS VARIABLE INSURANCE TRUST, a Massachusetts business trust (the "Trust I"),
MFS VARIABLE INSURANCE TRUST II, a Massachusetts business trust (the "Trust II")
(Trust I and Trust II each referred to, individually, as the "Trust" and,
collectively, as the "Trusts"), FORETHOUGHT LIFE INSURANCE COMPANY an Indiana]
corporation (the "Company") on its own behalf and on behalf of each of the
segregated asset accounts of the Company set forth in Schedule A hereto, as may
be amended from time to time (the "Accounts"), and MFS Fund Distributors, Inc.,
a Delaware corporation ("MFD").
WHEREAS, each Trust is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), and its
shares are registered or will be registered under the Securities Act of 1933, as
amended (the "1933 Act");
WHEREAS, shares of beneficial interest of each Trust are divided into several
series of shares, each representing the interests in a particular managed pool
of securities and other assets;
WHEREAS, certain series of shares of each Trust are divided into two separate
share classes, an Initial Class and a Service Class, and each Trust on behalf of
the Service Class has adopted a Rule 12b-1 plan under the 1940 Act pursuant to
which the Service Class pays a distribution fee;
WHEREAS, the series of shares of each Trust (each, a "Portfolio," and,
collectively, the "Portfolios") and the classes of shares of those Portfolios
(the "Shares") offered by each Trust to the Company and the Accounts are set
forth on Schedule A attached hereto;
WHEREAS, MFD is registered as a broker-dealer with the Securities and Exchange
Commission (the "SEC") under the Securities Exchange Act of 1934, as amended
(hereinafter the "1934 Act"), and is a member in good standing of the Financial
Industry Regulatory Authority, Inc. ("FINRA");
WHEREAS, the Company will issue certain variable annuity and/or variable life
insurance contracts (individually, the "Policy" or, collectively, the
"Policies") which, if required by applicable law, will be registered under the
1933 Act;
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolution of the Board of Directors of the Company, to
set aside and invest assets attributable to the aforesaid variable annuity
and/or variable life insurance contracts that are allocated to the Accounts (the
Policies and the Accounts covered by this Agreement, and each corresponding
Portfolio covered by this Agreement in which the Accounts invest, is specified
in Schedule A attached hereto as may be modified from time to time);
WHEREAS, the Company has registered or will register the Accounts as unit
investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, Massachusetts Financial Services Company ("MFS") is duly registered as
an investment adviser under the Investment Advisers Act of 1940, as amended, and
any applicable state securities law, and is the Trusts' investment adviser;
WHEREAS, Forethought Distributors, LLC shall serve as underwriter for the
Policies at such time as it becomes registered as a broker-dealer with the SEC
under the 1934 Act and is a member in good standing of FINRA; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase the Shares of the Portfolios as specified in
Schedule A attached hereto on behalf of the Accounts to fund the Policies, and
the Trusts intend to sell such Shares to the Accounts at net asset value; and
NOW, THEREFORE, in consideration of their mutual promises, each Trust, MFD, and
the Company agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. Each Trust agrees to sell to the Company those Shares which the Accounts
order (based on orders placed by Policy holders prior to the pricing time set
forth in the applicable Portfolio's prospectus, e.g., the close of regular
trading on the New York Stock Exchange, Inc. (the "NYSE") on that Business Day,
as defined below) and which are available for purchase by such Accounts,
executing such orders on a daily basis at the net asset value next computed
after receipt by such Trust or its designee of the order for the Shares. For
purposes of this Section 1.1, the Company shall be the designee of each Trust
for receipt of such orders from Policy owners and receipt by such designee shall
constitute receipt by each Trust; provided that such Trust receives notice of
such orders by 9:00 a.m. New York time on the next following Business Day.
"Business Day" shall mean any day on which the NYSE is open for trading and on
which such Trust calculates its net asset value pursuant to the rules of the
SEC. The Company will ensure that orders for transactions in Shares by Policy
owners comply with each Portfolio's prospectus (including statement of
additional information) restrictions with respect to purchases, redemptions and
exchanges. The Company will not engage in, authorize or facilitate market timing
or late trading in Shares and has implemented controls designed to identify and
prevent market timing and late trading in Shares by Policy holders.
1.2. Each Trust agrees to make the Shares available indefinitely 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 net asset value pursuant to rules
of the SEC and each Trust shall calculate such net asset value on each day which
the NYSE is open for trading. Notwithstanding the foregoing, the Board of
Trustees of the relevant Trust (the "Board") may refuse to sell any Shares to
the Company and the Accounts, or suspend or terminate the offering of the Shares
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 interest of the Shareholders of such Portfolio.
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1.3. Each Trust and MFD agree that the Shares will be sold only to insurance
companies that have entered into participation agreements with the relevant
Trust and its affiliate (the "Participating Insurance Companies") and their
separate accounts, qualified pension and retirement plans, and any other person
or plan permitted to hold shares of such Trust pursuant to Treasury Regulation
1.817-5 without impairing the ability of the Company, on behalf of its separate
accounts, to consider the Shares as constituting investments of the separate
accounts for the purpose of satisfying the diversification requirements of
Section 817(h). Each Trust and MFD will not sell such Trust shares to any
insurance company or separate account unless an agreement containing provisions
substantially the same as Articles II, III, VI and VII of this Agreement is in
effect to govern such sales. The Company will not resell the Shares except to
such Trust or its agents.
1.4. Each Trust agrees to redeem for cash or, if mutually agreed upon by the
parties and to the extent permitted by applicable law, in-kind, on the Company's
request, any full or fractional Shares held by the Accounts (based on orders
placed by Policy owners prior to the close of regular trading on the NYSE on
that Business Day), executing such requests on a daily basis at the net asset
value next computed after receipt by such Trust or its designee of the request
for redemption. For purposes of this Section 1.4, the Company shall be the
designee of such Trust for receipt of requests for redemption from Policy owners
and receipt by such designee shall constitute receipt by such Trust; provided
that such Trust receives notice of such request for redemption by 10:00 a.m. New
York time on the next following Business Day.
1.5. Each purchase, redemption and exchange order placed by the Company shall
be placed separately for each Portfolio and shall not be netted with respect to
any Portfolio. However, with respect to payment of the purchase price by the
Company and of redemption proceeds by the Trusts, the Company and the relevant
Trust shall net purchase and redemption orders with respect to each Portfolio
and shall transmit one net payment for all of the Portfolios in accordance with
Section 1.6 hereof.
1.6. In the event of net purchases, the Company shall pay for the Shares by
close of business (5:00 p.m.). New York time on the next Business Day after an
order to purchase the Shares is made in accordance with the provisions of
Section 1.1 hereof. In the event of net redemptions, each Trust shall pay the
redemption proceeds by close of business (5:00 p.m.) New York time on the next
Business Day after an order to redeem the shares is made in accordance with the
provisions of Section 1.4. hereof. All such payments shall be in federal funds
transmitted by wire.
1.7. All purchases, redemptions, and exchanges of Shares for the Accounts shall
occur via the NSCC Fund/SERV system and shall be governed by and subject to the
terms of the Fund/SERV and Networking Supplement to Participation Agreement by
and among the Company, each Trust, and MFD or its affiliate, dated .
1.8. Issuance and transfer of the Shares will be by book entry only. Stock
certificates will not be issued to the Company or the Accounts. The Shares
ordered from each Trust will be recorded in an appropriate title for the
Accounts or the appropriate subaccounts of the Accounts.
1.9. Each Trust shall furnish same day notice (by wire or telephone followed by
written confirmation) to the Company of any dividends or capital gain
distributions payable on the Shares. The Company hereby elects to receive all
such dividends and distributions as are payable on a Portfolio's Shares in
additional Shares of that Portfolio. Each Trust shall notify the Company of the
number of Shares so issued as payment of such dividends and distributions.
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1.10. Each Trust or its custodian shall make the net asset value per share for
each Portfolio available to the Company on each Business Day as soon as
reasonably practicable after the net asset value per share is calculated and
shall use its best efforts to make such net asset value per share available by
6:30 p.m. New York time. In the event that such Trust is unable to meet the 6:30
p.m. time stated herein, it shall provide additional time for the Company to
place orders for the purchase and redemption of Shares. Such additional time
shall be equal to the additional time which such Trust takes to make the net
asset value available to the Company. If such Trust provides materially
incorrect share net asset value information, such 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 such Trust shall bear the cost of
adjusting the error. Any material error in the calculation or reporting of net
asset value per share, dividend or capital gains information shall be reported
promptly upon discovery to the Company.
1.11 Each party or its designee shall maintain and preserve all records as
required by law to be maintained and preserved in connection with providing the
services hereunder and in making Shares available to the Policy holders. Upon
the request of MFD or a Trust, the Company shall provide copies of all the
historical records relating to transactions between the relevant Portfolios and
the Policy holders, written communications regarding the relevant Portfolios to
or from such Policy holders' accounts and other materials, in each case to the
extent necessary for such Trust or its designee to meet its recordkeeping
obligations under applicable law or regulation, including to comply with any
request of a governmental body or self-regulatory organization.
ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. The Company represents and warrants that the Policies are or will be
registered under the 1933 Act or are exempt from or not subject to registration
thereunder, and that the Policies will be issued, sold, and distributed in
compliance in all material respects with all applicable state and federal laws,
including without limitation the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the 1940 Act. 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 the Account
as a segregated asset account under applicable law and has registered or, prior
to any issuance or sale of the Policies, will register the Accounts as unit
investment trusts in accordance with the provisions of the 1940 Act (unless
exempt therefrom) to serve as segregated investment accounts for the Policies,
and that it will maintain such registration for so long as any Policies are
outstanding. The Company shall amend the registration statements under the 1933
Act for the Policies and the registration statements under the 1940 Act for the
Accounts from time to time as required in order to effect the continuous
offering of the Policies or as may otherwise be required by applicable law. The
Company shall register and qualify the Policies for sales 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 and warrants that the Policies are currently and at
the time of issuance will be treated as life insurance, endowment or annuity
contracts under applicable provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), that it will maintain such treatment and that it will
notify the Trusts or MFD immediately upon having a reasonable basis for
believing that the Policies have ceased to be so treated or that they might not
be so treated in the future.
2.3. The Company represents and warrants that the underwriter for the
individual variable annuity and the variable life policies is or shall be a
member in good standing of FINRA and is or shall be a registered broker-dealer
with the SEC at such time as it acts as underwriter for the Policies. The
Company represents and warrants that the Company and its underwriter will sell
and distribute such
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policies in accordance in all material respects with all applicable state and
federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.4. Each Trust and MFD represent and warrant that the 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 Commonwealth of
Massachusetts and all applicable federal and state securities laws and that such
Trust is and shall remain registered under the 1940 Act. Each Trust 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. Each Trust shall register and qualify the Shares for sale in accordance
with the laws of the various states only if and to the extent deemed necessary
by such Trust.
2.5. MFD represents and warrants that it is a member in good standing of FINRA
and is registered as a broker-dealer with the SEC. Each Trust and MFD severally
represent that such Trust and MFD will sell and distribute the Shares in
accordance in all material respects with all applicable state and federal
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 0000 Xxx.
2.6. Each Trust represents that it is lawfully organized and validly existing
under the laws of The Commonwealth of Massachusetts and that it does and will
comply in all material respects with the 1940 Act and any applicable regulations
thereunder.
2.7. MFD represents and warrants that it is and shall remain duly registered
under all applicable federal securities laws and that it shall perform its
obligations for the Trusts in compliance in all material respects with any
applicable federal securities laws and with the securities laws of The
Commonwealth of Massachusetts. MFD represents and warrants that MFS is not
subject to state securities laws other than the securities laws of The
Commonwealth of Massachusetts and is exempt from registration as an investment
adviser under the securities laws of The Commonwealth of Massachusetts.
2.8. No less frequently than annually, the Company shall submit to each Board
such reports, material or data as such Board may reasonably request so that it
may carry out fully the obligations imposed upon it by the conditions contained
in the exemptive application pursuant to which the SEC has granted exemptive
relief to permit mixed and shared funding (the "Mixed and Shared Funding
Exemptive Order").
2.9. The Company acknowledges that, with respect to Service Class Shares of a
Portfolio, it or its affiliate(s) may receive payments under a Trust's Rule
12b-1 plan. The Company, and not the relevant Trust, MFS or MFD, is responsible
for providing any disclosures relating to this Agreement and/or payments made to
the Company to Policy owners.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. At least annually, each Trust or its designee shall provide the Company,
free of charge, with as many copies of the current prospectus (describing only
the Portfolios listed in Schedule A hereto) for the Shares as the Company may
reasonably request for distribution to existing Policy owners whose Policies are
funded by such Shares. Each Trust or its designee shall provide the Company, at
the Company's expense, with as many copies of the current prospectus for the
Shares as the Company may reasonably request for distribution to prospective
purchasers of Policies. In the event that the Company utilizes a summary
prospectus for any Trust, the term or "prospectus" shall mean the summary
prospectus
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for the relevant Trust and the term "statement of additional information" shall
mean the statutory prospectus, together with corresponding statement of
additional information, for the relevant Trust.
If requested by the Company in lieu thereof, a Trust or its designee shall
provide such documentation (including a "camera ready" copy of the new
prospectus as set in type or, at the request of the Company, as a diskette or
electronic file in the form sent to the financial printer) and other assistance
as is reasonably necessary in order for the parties hereto once each year (or
more frequently if the prospectus for the Shares is supplemented or amended) to
have the prospectus for the Policies and the prospectus for the Shares printed
together in one document; the expenses of such printing to be apportioned
between (a) the Company and (b) the relevant Trust(s) or its designee in
proportion to the number of pages of the Policy and Shares' prospectuses, taking
account of other relevant factors affecting the expense of printing, such as
covers, columns, graphs and charts; such Trust or its designee to bear the cost
of printing the Shares' prospectus portion of such document for distribution to
owners of existing Policies funded by the Shares and the Company to bear the
expenses of printing the portion of such document relating to the Accounts;
provided, however, that the Company shall bear all printing expenses of such
combined documents where used for distribution to prospective purchasers or to
owners of existing Policies not funded by the Shares. In the event that the
Company requests that a Trust or its designee provides such Trust's prospectus
in a "camera ready" or electronic file format, such Trust shall be responsible
for providing the prospectus in the format in which it is accustomed to
formatting prospectuses and shall bear the expense of providing the prospectus
in such format (e.g., typesetting expenses), and the Company shall bear the
expense of adjusting or changing the format to conform with any of its
prospectuses.
3.2. The prospectus for the Shares shall state that the statement of additional
information for the Shares is available from the relevant Trust or its designee.
Each Trust or its designee, at its expense, shall print and provide such
statement of additional information to the Company (or a master of such
statement suitable for duplication by the Company) for distribution to any owner
of a Policy funded by the Shares. Each Trust or its designee, at the Company's
expense, shall print and provide such statement to the Company (or a master of
such statement suitable for duplication by the Company) for distribution to a
prospective purchaser who requests such statement or to an owner of a Policy not
funded by the Shares.
3.3. Each Trust or its designee shall provide the Company free of charge
copies, if and to the extent applicable to the Shares, of such Trust's reports
to Shareholders and other communications to Shareholders in such quantity as the
Company shall reasonably require (including a "camera ready" copy of the reports
to Shareholders and other communications as set in type or, at the request of
the Company, as a diskette or electronic file in the form sent to the financial
printer) for distribution to Policy owners.
3.4. Notwithstanding the provisions of Sections 3.1, 3.2, and 3.3 above, or of
Article V below, the Company shall pay the expense of printing or providing
documents to the extent such cost is considered a distribution expense.
Distribution expenses would include by way of illustration, but are not limited
to, the printing of the Shares' prospectus or prospectuses for distribution to
prospective purchasers or to owners of existing Policies not funded by such
Shares.
3.5. Each Trust hereby notifies the Company that it may be appropriate to
include in the prospectus pursuant to which a Policy is offered disclosure
regarding the potential risks of mixed and shared funding.
3.6. The Trust or its designee shall provide the Company free of charge with
copies of its proxy solicitations applicable to the Trust.
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If and to the extent required by the 1940 Act or other applicable law, the
Company shall:
(a) solicit voting instructions from Policy owners;
(b) vote the Shares in accordance with instructions received from Policy
owners; and
(c) vote the Shares for which no instructions have been received in the same
proportion as the Shares of such Portfolio for which instructions have been
received from Policy owners; 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 will in no way recommend action in connection with
or oppose or interfere with the solicitation of proxies for the Shares held for
such Policy owners. The Company reserves the right to vote shares held in any
segregated asset account in its own right, to the extent permitted by law.
Participating Insurance Companies shall be responsible for assuring that each of
their separate accounts holding Shares calculates voting privileges in the
manner required by the Mixed and Shared Funding Exemptive Order. Each Trust and
MFD will notify the Company of any changes of interpretations or amendments to
the Mixed and Shared Funding Exemptive Order.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to each Trust
or its designee, each piece of sales literature or other promotional material in
which such Trust, MFS, any other investment adviser to such Trust, or any
affiliate of MFD is named, at least three (3) Business Days prior to its use. No
such material shall be used if such Trust, MFD, or their respective designees
reasonably objects to such use within three (3) Business Days after receipt of
such material.
4.2. The Company shall not give any information or make any representations or
statement on behalf of any Trust, MFS, or other investment adviser to any Trust,
or any affiliate of MFD or concerning such Trust or any other such entity in
connection with the sale of the Policies other than the information or
representations contained in the registration statement, prospectus or statement
of additional information for the Shares, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in reports or proxy statements for such
Trust, or in sales literature or other promotional material approved by such
Trust, MFD or their respective designees, except with the permission of such
Trust, MFD or their respective designees. Each Trust, MFD or their respective
designees each agrees to respond to any request for approval on a prompt and
timely basis. The Company shall adopt and implement procedures reasonably
designed to ensure that information concerning a Trust, MFD or any of their
affiliates which is intended for use only by brokers or agents selling the
Policies (i.e., information that is not intended for distribution to Policy
owners or prospective Policy owners) is so used, and neither the Trusts, MFD nor
any of their affiliates shall be liable for any losses, damages or expenses
relating to the improper use of such broker only materials.
4.3. Each Trust 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 the Accounts is named, at least
three (3) Business Days prior to its use. No such material shall be used if the
Company or its designee reasonably objects to such use within three (3) Business
Days after receipt of such material.
4.4. The Trusts and MFD shall not give any information or make any
representations on behalf of the Company or concerning the Company, the
Accounts, or the Policies in connection with the sale of
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the Policies other than the information or representations contained in a
registration statement, prospectus, or statement of additional information for
the Policies, as such registration statement, prospectus and statement of
additional information may be amended or supplemented from time to time, or in
reports for the Accounts, or in sales literature or other promotional material
approved by the Company or its designee, except with the permission of the
Company. The Company or its designee agrees to respond to any request for
approval on a prompt and timely basis. The Trusts and MFD may not alter any
material so provided by the Company or its designee (including, without
limitation, presenting or delivering such material in a different medium, e.g.,
electronic or internet) without the prior written consent of the Company. The
parties hereto agree that this Section 4.4. is neither intended to designate nor
otherwise imply that MFD is an underwriter or distributor of the Policies.
4.5. Upon request of the other party, the Company and each Trust (or its
designee in lieu of the Company or such Trust, as appropriate) will each provide
to the other 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 Policies, or to such Trust or its Shares, prior to or
contemporaneously with the filing of such document with the SEC or other
regulatory authorities. The Company and a Trust shall also each promptly inform
the other of the results of any examination by the SEC (or other regulatory
authorities) that relates to the Policies, such Trust or its Shares, and the
party that was the subject of the examination shall provide the other party with
a copy of relevant portions of any "deficiency letter" or other correspondence
or written report regarding any such examination.
4.6. No party shall use any other party's names, logos, trademarks or service
marks, whether registered or unregistered, without the prior written consent of
such other party, or after written consent therefor has been revoked, provided
that separate consent is not required under this Section 4.6 to the extent that
consent to use a party's name, logo, trademark or service xxxx in connection
with a particular piece of advertising or sales literature has previously been
given by a party under Sections 4.2 and 4.4 of this Agreement. The Company shall
not use in advertising, publicly or otherwise the name of the Trusts, MFD or any
of their affiliates nor any trade name, trademark, trade device, servicemark,
symbol or any abbreviation, contraction or simulation thereof of the Trusts,
MFD, or their affiliates without the prior written consent of the relevant Trust
or MFD in each instance PROVIDED THAT the Company is hereby granted a
non-exclusive, royalty-free, worldwide license to use, print, and otherwise
display in any print or electronic medium the Fund's or the Distributor's
service marks, trade names and logos solely with respect to such sales
literature or other promotional material created by the Company with respect to
the Policies. The Trusts and MFD shall not use in advertising, publicly or
otherwise the name of the Company or any of its affiliates nor any trade name,
trademark, trade device, servicemark, symbol or any abbreviation, contraction or
simulation thereof of the Company or its affiliates without the prior written
consent of the Company in each instance.
4.7. Each Trust and MFD will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Portfolio, and of any
material change in such Trust's registration statement, particularly any change
resulting in change to the registration statement or summary prospectus,
statutory prospectus or statement of additional information for any Account
including but not limited to, (a) fund objective changes, b) fund
merger/substitutions filed with the SEC, (c) no-action or exemptive requests
from the SEC, if relevant, (d) fund name changes, (e) fund adviser or
sub-adviser changes. If the Trust does not provide the Company with 90 days
notice the Company will use its best efforts to make the change at the date
requested by the Trust. Notwithstanding anything to the contrary, the
Distributor will provide all registration statement supplements to the Company
in hand no later than the date of filing such document with the Securities and
Exchange Commission or 30 days before the effective date, whichever first
occurs. Each Trust and MFD will cooperate with the Company so as to enable the
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Company to solicit proxies from Policy owners or to make changes to its summary
prospectus, statutory prospectus, statement of additional information or
registration statement, in an orderly manner. Each Trust and MFD will make
reasonable efforts to attempt to have changes affecting Policy prospectuses
become effective simultaneously with the annual updates for such prospectuses.
4.8. For purpose of this Article IV and Article VIII, the phrase "sales
literature or other promotional material" includes but is not limited to
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),
and sales literature (such as brochures, circulars, reprints or excerpts or any
other advertisement, sales literature, or published articles), distributed or
made generally available to customers or the public, educational or training
materials or communications distributed or made generally available to some or
all agents or employees.
ARTICLE V. FEES AND EXPENSES
5.1. Each Trust shall pay no fee or other compensation to the Company under
this Agreement, and the Company shall pay no fee or other compensation to either
Trust, except that, to the extent a Trust or any Portfolio has adopted and
implemented a plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution and for Shareholder servicing expenses, then such Trust may make
payments to the Company or to the underwriter for the Policies in accordance
with such plan. Each party, however, shall, in accordance with the allocation of
expenses specified in Articles III and V hereof, reimburse other parties for
expenses initially paid by one party but allocated to another party. In
addition, nothing herein shall prevent the parties hereto from otherwise
agreeing to perform, and arranging for appropriate compensation for, other
services relating to such Trust and/or to the Accounts.
5.2. Each Trust or its designee shall bear the expenses for the cost of
registration and qualification of the Shares under all applicable federal and
state laws, including preparation and filing of such Trust's registration
statement, and payment of filing fees and registration fees; preparation and
filing of such Trust's proxy materials and reports to Shareholders; setting in
type and printing its prospectus and statement of additional information (to the
extent provided by and as determined in accordance with Article III above);
setting in type and printing the proxy materials and reports to Shareholders (to
the extent provided by and as determined in accordance with Article III above);
such preparation of all statements and notices required of such Trust by any
federal or state law with respect to its Shares; all taxes on the issuance or
transfer of the Shares; and the costs of distributing proxy materials and
certain costs of distributing such Trust's prospectuses, (but not postage) to
owners of Policies funded by the Shares and any expenses permitted to be paid or
assumed by such Trust pursuant to a plan, if any, under Rule 12b-1 under the
1940 Act. Such Trust shall not bear any expenses of marketing the Policies.
5.3. The Company shall bear the expenses of distributing the Shares' prospectus
or prospectuses in connection with new sales of the Policies and of distributing
a Trust's Shareholder reports to Policy owners. The Company shall bear all
expenses associated with the registration, qualification, and filing of the
Policies under applicable federal securities and state insurance laws; the cost
of preparing, printing and distributing the Policy prospectus and statement of
additional information; and the cost of preparing, printing and distributing
annual individual account statements for Policy owners as required by state
insurance laws.
5.4. With respect to the Service Class Shares of a Portfolio, the relevant
Trust may make payments quarterly to MFD under a Portfolio's Rule 12b-1 plan,
and MFD may in turn use these payments to pay or reimburse the Company for
expenses incurred or paid (as the case may be) by the Company
9
attributable to Policies offered by the Company, provided that no such payment
shall be made with respect to any quarterly period in excess of an amount
determined from time to time by such Trust's Board and disclosed in such Trust's
prospectus. MFD shall not be required to provide any payment to the Company with
respect to any quarterly period pursuant to a Trust's Rule 12b-1 plan unless and
until MFD has received the corresponding payment from such Trust pursuant to the
Trust's Rule 12b-1 plan. MFD shall not be required to provide any payment to the
Company with respect to any quarterly period pursuant to a Trust's Rule 12b-1
plan if (i) such Trust's Rule 12b-1 plan is no longer in effect during such
quarterly period; or (ii) regulatory changes result in the rescission of Rule
12b-1 or otherwise prohibit the making of such payments. Each Trust's prospectus
or statement of additional information may provide further details about such
payments and the provisions and terms of such Trust's Rule 12b-1 plan, and the
Company hereby agrees that neither such Trust, nor MFD has made any
representations to the Company with respect to such Trust's Rule 12b-1 plan in
addition to, or conflicting with, the description set forth in such Trust's
prospectus.
5.5. In calculating the payments due under this Agreement, the Company agrees
that it will permit MFD or its representatives to have reasonable access to its
employees and records for the purposes of monitoring of the quality of the
services provided hereunder, verifying the Company's compliance with the terms
of this Agreement and verifying the accuracy of any information provided by the
Company that forms the basis of the fee calculations. In addition, if requested
by MFD, the Company will provide a certification (which may take the form of a
control report or set of agreed upon standards) satisfactory to MFD that
certifies the performance of the services by the Company and the accuracy of
information provided by the Company.
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1. Each Trust and MFD represent and warrant that each Portfolio of the Trust
will meet the diversification requirements of Section 817 (h) (1) of the Code
and Treas. Reg. 1.817-5, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts, as they may be amended
from time to time (and any revenue rulings, revenue procedures, notices, and
other published announcements of the Internal Revenue Service interpreting these
sections), as if those requirements applied directly to each such Portfolio. In
the event that any Portfolio is not so diversified at the end of any applicable
quarter, such Trust and MFD will make every effort to: (a) adequately diversify
the Portfolio so as to achieve compliance within the grace period afforded by
Treas. Reg. 1.817.5, and (b) notify the Company.
6.2. Each Trust and MFD represent that each Portfolio will elect to be
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).
ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1. Each Trust agrees that its relevant Board, constituted with a majority of
disinterested trustees, will monitor each Portfolio of such Trust for the
existence of any material irreconcilable conflict between the interests of the
variable annuity contract owners and the variable life insurance policy owners
of the Company and/or affiliated companies ("contract owners") investing in such
Trust. The relevant Board shall have the sole authority to determine if a
material irreconcilable conflict exists, and such determination shall be binding
on the Company only if approved in the form of a resolution by a majority
10
of the relevant Board, or a majority of the disinterested trustees of the
relevant Board. The relevant Board will give prompt notice of any such
determination to the Company.
7.2. The Company agrees that it will be responsible for assisting each relevant
Trust Board in carrying out its responsibilities under the conditions set forth
in the Trusts' exemptive application pursuant to which the SEC has granted the
Mixed and Shared Funding Exemptive Order by providing each Board, as it may
reasonably request, with all information necessary for such Board to consider
any issues raised and agrees that it will be responsible for promptly reporting
any potential or existing conflicts of which it is aware to such Board
including, but not limited to, an obligation by the Company to inform such Board
whenever contract owner voting instructions are disregarded. The Company also
agrees that, if a material irreconcilable conflict arises, it will at its own
cost remedy such conflict up to and including (a) withdrawing the assets
allocable to some or all of the Accounts from the relevant Trust(s) or any
Portfolio and reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio of a Trust, or submitting to a
vote of all affected contract owners whether to withdraw assets from a Trust or
any Portfolio and reinvesting such assets in a different investment medium and,
as appropriate, segregating the assets attributable to any appropriate group of
contract owners that votes in favor of such segregation, or offering to any of
the affected contract owners the option of segregating the assets attributable
to their contracts or policies, and (b) establishing a new registered management
investment company and segregating the assets underlying the Policies, unless a
majority of Policy owners materially adversely affected by the conflict have
voted to decline the offer to establish a new registered management investment
company.
7.3. A majority of the disinterested trustees of the relevant Board shall
determine whether any proposed action by the Company adequately remedies any
material irreconcilable conflict. In the event that a Board determines that any
proposed action does not adequately remedy any material irreconcilable conflict,
the Company will withdraw from investment in the relevant Trust each of the
Accounts designated by the disinterested trustees and terminate this Agreement
within six (6) months after the relevant Board informs the Company in writing of
the foregoing determination; provided, however, that such withdrawal and
termination shall be limited to the extent required to remedy any such material
irreconcilable conflict as determined by a majority of the disinterested
trustees of the relevant Board.
7.4. 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 Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Shared Funding
Exemptive Order, then (a) the Trusts and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rule 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent
such rules are applicable; and (b) Sections 3.5, 3.6, 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.
ARTICLE VIII. INDEMNIFICATION
8.1. Indemnification by the Company
The Company agrees to indemnify and hold harmless each Trust, MFD, any
affiliates of MFD, and each of their respective directors/trustees, officers and
each person, if any, who controls each Trust or MFD within the meaning of
Section 15 of the 1933 Act, and any agents or employees of the foregoing (each
an "Indemnified Party," or collectively, the "Indemnified Parties" for purposes
of this
11
Section 8.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or expenses
(including reasonable counsel fees) to which any Indemnified Party 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 or acquisition of the Shares or
the Policies and:
(a) 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 statement of additional information for the Policies or contained
in the Policies or sales literature or other promotional material for the
Policies (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 reasonable reliance upon and in conformity
with information furnished to the Company or its designee by or on behalf of the
relevant Trust or MFD for use in the registration statement, prospectus or
statement of additional information for the Policies or in the Policies or sales
literature or other promotional material (or any amendment or supplement) or
otherwise for use in connection with the sale of the Policies or Shares; or
(b) arise out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, statement of additional information or sales literature or other
promotional material of relevant Trust not supplied by the Company or its
designee, or persons under its control and on which the Company has reasonably
relied) or wrongful conduct of the Company or persons under its control, with
respect to the sale or distribution of the Policies or Shares; or
(c) arise out of any untrue statement or alleged untrue statement of a material
fact contained in the registration statement, prospectus, statement of
additional information, or sales literature or other promotional literature of
the relevant Trust, 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 relevant Trust by or on behalf of the Company; or
(d) 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; or
(e) arise as a result of any failure by the Company to provide the services and
furnish the materials under the terms of this Agreement;
as limited by and in accordance with the provisions of this Article VIII.
8.2. INDEMNIFICATION BY THE TRUSTS
Each Trust severally agrees to indemnify and hold harmless the Company and each
of its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, and any agents or employees of
the foregoing (each an "Indemnified Party," or collectively, the "Indemnified
Parties" 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 such Trust) or expenses (including reasonable counsel fees) to which
any Indemnified Party may become subject under any statute, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
12
actions in respect thereof) or settlements are related to the sale or
acquisition of the Shares or the Policies and:
(a) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement,
prospectus, statement of additional information or sales literature or other
promotional material of such 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 therein or
necessary to make the statement 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
reasonable reliance upon and in conformity with information furnished to such
Trust, MFS, MFD or their respective designees by or on behalf of the Company for
use in the registration statement, prospectus or statement of additional
information for such Trust or in sales literature or other promotional material
for such Trust (or any amendment or supplement) or otherwise for use in
connection with the sale of the Policies or Shares; or
(b) arise out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, statement of additional information or sales literature or other
promotional material for the Policies not supplied by such Trust, MFS, MFD or
any of their respective designees or persons under their respective control and
on which any such entity has reasonably relied) or wrongful conduct of such
Trust or persons under its control, with respect to the sale or distribution of
the Policies or Shares; or
(c) arise out of any untrue statement or alleged untrue statement of a material
fact contained in the registration statement, prospectus, statement of
additional information, or sales literature or other promotional literature of
the Accounts or relating to the Policies, 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 such Trust, MFS or MFD;
or
(d) arise out of or result from any material breach of any representation
and/or warranty made by such Trust in this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to comply with the
diversification requirements specified in Article VI of this Agreement) or arise
out of or result from any other material breach of this Agreement by such Trust;
or
(e) arise out of or result from the materially incorrect or untimely
calculation or reporting of the daily net asset value per share or dividend or
capital gain distribution rate; or
(f) arise as a result of any failure by such Trust to provide the services and
furnish the materials under the terms of the Agreement;
as limited by and in accordance with the provisions of this Article VIII.
8.3. In no event shall any Trust be liable under the indemnification provisions
contained in this Agreement to any individual or entity, including without
limitation, the Company, or any Participating Insurance Company or any Policy
holder, with respect to any losses, claims, damages, liabilities or expenses
that arise out of or result from (i) a breach of any representation, warranty,
and/or covenant made by the Company hereunder or by any Participating Insurance
Company under an agreement containing substantially similar representations,
warranties and covenants; (ii) the failure by the Company or any Participating
Insurance Company to maintain its segregated asset account (which invests in any
Portfolio)
13
as a legally and validly established segregated asset account under applicable
state law and as a duly registered unit investment trust under the provisions of
the 1940 Act (unless exempt therefrom); or (iii) the failure by the Company or
any Participating Insurance Company to maintain its variable annuity and/or
variable life insurance contracts (with respect to which any Portfolio serves as
an underlying funding vehicle) as life insurance, endowment or annuity contracts
under applicable provisions of the Code.
8.4. Neither the Company nor any Trust shall be liable under the
indemnification provisions contained in this Agreement with respect to any
losses, claims, damages, liabilities or expenses to which an Indemnified Party
would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, willful misconduct, or 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.
8.5. Promptly after receipt by an Indemnified Party under this Section 8.5 of
notice of commencement of any action, such Indemnified Party will, if a claim in
respect thereof is to be made against the indemnifying party under this section,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any Indemnified Party otherwise than under this section. In case any
such action is brought against any Indemnified Party, and it notified the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, assume the
defense thereof, with counsel satisfactory to such Indemnified Party. After
notice from the indemnifying party of its intention to assume the defense of an
action, the Indemnified Party shall bear the expenses of any additional counsel
obtained by it, and the indemnifying party shall not be liable to such
Indemnified Party under this section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation.
8.6. Each of the parties agrees promptly to notify the other parties of the
commencement of any litigation or proceeding against it or any of its respective
officers, directors, trustees, employees or 1933 Act control persons in
connection with the Agreement, the issuance or sale of the Policies, the
operation of the Accounts, or the sale or acquisition of Shares.
8.7. A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
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 Commonwealth of Massachusetts.
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 and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS
Each Trust and MFD agree that each such party shall promptly notify the other
parties to this Agreement, in writing, of the institution of any formal
proceedings brought against such party or its
14
designees by FINRA, the SEC, or any insurance department or any other regulatory
body regarding such party's duties under this Agreement or related to the sale
of the Policies, the operation of the Accounts, or the purchase of the Shares.
ARTICLE XI. CONTROLS AND PROCEDURES
11.1. The Company has implemented controls and procedures that are reasonably
designed to ensure compliance with applicable laws and regulations, as well as
the terms of this Agreement. Without limiting the foregoing, these controls and
procedures are reasonably designed to ensure, and MFD or a Trust may request
certifications on an annual basis with respect to, each of the following:
(a) Orders for Shares received by the Company for each Portfolio comply with
the Portfolio's restrictions with respect to purchases, transfers, redemptions
and exchanges as set forth in each Portfolio's prospectus and statement of
additional information;
(b) Orders for Shares received by the Company prior to the Portfolio's pricing
time set forth in its prospectus (e.g., the close of the New York Stock
Exchange -- normally 4:00 p.m. Eastern time) are segregated from those received
by the Company at or after such time, and are properly transmitted to the
Portfolios (or their agents) for execution at the current day's net asset value
("NAV"); and orders received by the Company at or after such time are properly
transmitted to the Portfolios (or their agents) for execution at the next day's
NAV;
(c) Late trading in Shares by Policy holders is identified and prevented and
market timing is appropriately addressed;
(d) Compliance with applicable state securities laws, including without
limitation "blue sky" laws and related rules and regulations;
(e) Compliance with all applicable federal, state and foreign laws, rules and
regulations regarding the detection and prevention of money laundering activity;
and
(f) Effective business continuity and disaster recovery systems with respect to
the services contemplated by the Agreement.
11.2 The Company shall ensure that any other party to whom the Company assigns
or delegates any services hereunder is responsible for, and has controls and
procedures that are reasonably designed to ensure, each of the items set forth
in Section 11.1 above.
ARTICLE XII. TERMINATION
12.1. This Agreement shall terminate with respect to the Accounts, or one,
some, or all Portfolios:
(a) at the option of any party upon three (3) months' advance written notice to
the other parties; or
(b) at the option of the Company to the extent that the Shares of Portfolios
are not reasonably available to meet the requirements of the Policies or are not
"appropriate funding vehicles" for
15
the Policies, as reasonably determined by the Company. Without limiting the
generality of the foregoing, the Shares of a Portfolio would not be "appropriate
funding vehicles" if, for example, such Shares did not meet the diversification
or other requirements referred to in Article VI hereof; or if the Company would
be permitted to disregard Policy owner voting instructions pursuant to Rule 6e-2
or Rule 6e-3(T) under the 1940 Act. Prompt notice of the election to terminate
for such cause and an explanation of such cause shall be furnished to the
relevant Trust(s) by the Company; or
(c) at the option of a Trust or MFD upon institution of formal proceedings
against the Company by FINRA, the SEC, or any insurance department or any other
regulatory body that would have a material adverse impact on the Company's
duties under this Agreement or related to the sale of the Policies, the
operation of the Accounts, or the purchase of the Shares; or
(d) at the option of the Company upon institution of formal proceedings against
a Trust by FINRA, the SEC, or any state securities or insurance department or
any other regulatory body that would have a material adverse impact on such
Trust's or MFD's duties under this Agreement or related to the sale of the
Shares; or
(e) at the option of the Company, a Trust or MFD upon receipt of any necessary
regulatory approvals and/or the vote of the Policy owners having an interest in
the Accounts (or any subaccounts) to substitute the shares of another investment
company for the corresponding Portfolio Shares in accordance with the terms of
the Policies for which those Portfolio Shares had been selected to serve as the
underlying investment media. The Company will give thirty (30) days' prior
written notice to the relevant Trust(s) of the Date of any proposed vote or
other action taken to replace the Shares; or
(f) termination by either a Trust or MFD by written notice to the Company, if
either one or both of such Trust or MFD shall determine, in their sole judgment
exercised in good faith, that the Company 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 a Trust and MFD, if the
Company shall determine, in its sole judgment exercised in good faith, that such
Trust or MFD has suffered a material adverse change in this business,
operations, financial condition or prospects since the date of this Agreement or
is the subject of material adverse publicity; or
(h) at the option of any party to this Agreement, upon another party's material
breach of any provision of this Agreement; or
(i) upon assignment of this Agreement, unless made with the written consent of
the parties hereto.
(j) at the option of the Company if a Trust fails to meet the diversification
requirements specified in Article VI (other than any failure caused by the
Company's actions or omissions) or the Company has a reasonable expectation that
such Trust will fail to meet these diversification requirements in the future.
12.2. The notice shall specify the Portfolio or Portfolios, Policies and, if
applicable, the Accounts as to which the Agreement is to be terminated.
12.3. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 12.1(a) may be exercised for cause
or for no cause.
16
12.4. Except as necessary to implement Policy owner initiated transactions, or
as required by state insurance laws or regulations, the Company shall not redeem
the Shares attributable to the Policies (as opposed to the Shares attributable
to the Company's assets held in the Accounts), until ten (10) days after the
Company shall have notified the relevant Trust of its intention to do so.
12.5. Notwithstanding any termination of this Agreement, each Trust and MFD
shall, at the option of the Company, continue to make available additional
shares of the Portfolios pursuant to the terms and conditions of this Agreement,
for all Policies in effect on the effective date of termination of this
Agreement (the "Existing Policies"), except as otherwise provided under Article
VII of this Agreement. Specifically, without limitation, the owners of the
Existing Policies shall be permitted to transfer or reallocate investment under
the Policies, redeem investments in any Portfolio and/or invest in each Trust
upon the making of additional purchase payments under the Existing Policies.
ARTICLE XIII. NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail, overnight courier or facsimile 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 Trust I:
MFS VARIABLE INSURANCE TRUST
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Assistant Secretary
If to Trust II:
MFS VARIABLE INSURANCE TRUST II
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Assistant Secretary
If to the Company:
FORETHOUGHT LIFE INSURANCE COMPANY
000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxx, EVP, Chief Investment Officer
If to MFD:
MFS FUND DISTRIBUTORS, INC.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
17
ARTICLE XIV. MISCELLANEOUS
14.1. Subject to the requirement of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Policies and all information reasonably identified as confidential
in writing by any other party hereto and, except as permitted by this Agreement
or as otherwise required by applicable law or regulation, shall not disclose,
disseminate or utilize such names and addresses and other confidential
information without the express written consent of the affected party until such
time as it may come into the public domain.
14.2. 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.
14.3. This Agreement may be executed simultaneously in one or more
counterparts, each of which taken together shall constitute one and the same
instrument.
14.4. 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.
14.5. The Schedule attached hereto, as modified from time to time, is
incorporated herein by reference and is part of this Agreement.
14.6. Each party hereto shall cooperate with each other party in connection
with inquiries by appropriate governmental authorities (including without
limitation the SEC, FINRA, and state insurance regulators) relating to this
Agreement or the transactions contemplated hereby.
14.7. 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.
14.8. A copy of each Trust's Declaration of Trust is on file with the Secretary
of State of The Commonwealth of Massachusetts. The Company acknowledges that the
obligations of or arising out of this instrument are not binding upon any of
each Trust's trustees, officers, employees, agents or shareholders individually,
but are binding solely upon the assets and property of the relevant Trust in
accordance with its proportionate interest hereunder. The Company further
acknowledges that the assets and liabilities of each Portfolio are separate and
distinct and that the obligations of or arising out of this instrument are
binding solely upon the assets or property of the Portfolio on whose behalf the
relevant Trust has executed this instrument. The Company also agrees that the
obligations of each Portfolio hereunder shall be several and not joint, in
accordance with its proportionate interest hereunder, and the Company agrees not
to proceed against any Portfolio for the obligations of another Portfolio.
[SIGNATURE PAGE FOLLOWS]
18
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.
FORETHOUGHT LIFE INSURANCE COMPANY
By its authorized officer,
BY:
-----------------------------------
Xxxx X. Xxxx
EVP, Chief Investment Officer
MFS VARIABLE INSURANCE TRUST,
ON BEHALF OF THE PORTFOLIOS
By its authorized officer and not
individually,
By:
-----------------------------------
Xxxxx X. Xxxxxx
Assistant Secretary
MFS VARIABLE INSURANCE TRUST II,
ON BEHALF OF THE PORTFOLIOS
By its authorized officer and not
individually,
By:
-----------------------------------
Xxxxx X. Xxxxxx
Assistant Secretary
MFS FUND DISTRIBUTORS, INC.
By its authorized officer,
By:
-----------------------------------
Xxxxx X. Xxxxx
President
19
As of
SCHEDULE A
ACCOUNTS, POLICIES, AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
And any other Portfolios or series of shares of the Trusts that are available
and open to new investors on or after the effective date of this Agreement.
NAME OF SEPARATE ACCOUNT
Forethought Life Insurance Company Separate Account A
POLICIES FUNDED BY SEPARATE ACCOUNT
All Policies Funded by the Separate Account
PORTFOLIOS APPLICABLE TO POLICIES
As reflected in the applicable Policy prospectus
20
