FUND PARTICIPATION AGREEMENT
AMONG
VARIABLE INSURANCE PRODUCTS FUNDS,
FIDELITY DISTRIBUTORS CORPORATION,
AND
HARTFORD LIFE INSURANCE COMPANY
TABLE OF CONTENTS
PAGE
-----------------------------------------------------------------------------------------------
ARTICLE I. Portfolio Shares 4
ARTICLE II. Representations and Warranties 7
ARTICLE III. Prospectuses, Reports to Shareholders and Proxy Statements; Voting 8
ARTICLE IV. Sales Material and Information 10
ARTICLE V. Diversification 11
ARTICLE VI. Potential Conflicts 11
ARTICLE VII. Indemnification 13
ARTICLE VIII. Applicable Law 19
ARTICLE IX. Termination 19
ARTICLE X. Notices 20
ARTICLE XI. Miscellaneous 20
SCHEDULE A Separate Accounts and Contracts 23
SCHEDULE B Participating Portfolio 24
SCHEDULE C Allocation of Expenses 25
SCHEDULE D Format for NAV and Dividend Information 26
SCHEDULE E Proxy Voting Procedure 27
SCHEDULE F NSCC Procedures 30
2
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, effective as of this 1st day of April, 2005 by and among
Hartford Life Insurance Company ("Hartford"), a Connecticut corporation, on its
behalf and on behalf of each separate account set forth on attached SCHEDULE A
as it may be amended from time to time (the "Separate Accounts"); Variable
Insurance Products Fund, Variable Insurance Products Fund II, Variable Insurance
Products Fund III and Variable Insurance Products Fund IV (each referred to
hereinafter as the "Trust"); and Fidelity Distributors Corporation (the
"Distributor").
WHEREAS, each Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established by insurance companies for life insurance policies and annuity
contracts; and
WHEREAS, the beneficial interest in each Trust is divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets, any one or more of which may be made available
under this Agreement, as may be amended from time to time by mutual agreement of
the parties hereto (each such series hereinafter referred to as a "Portfolio");
and
WHEREAS, each Trust has obtained an order from the Securities and Exchange
Commission, dated October 15, 1985 (File No. 812-6102) or September 17, 1986
(File No. 812-6422), granting Participating Insurance Companies and variable
annuity and variable life insurance separate accounts exemptions from the
provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company
Act of 1940, as amended, (hereinafter the "1940 Act") and Rules 6e-2(b) (15) and
6e-3(T) (b) (15) thereunder, to the extent necessary to permit shares of the
Trust to be sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance companies
(hereinafter the "Shared Funding Exemptive Order");
WHEREAS, the Distributor is registered as a broker/dealer under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), is a member in good standing
of the National Association of Securities Dealers (the "NASD") and serves as
principal underwriter of the shares of each Trust, and
WHEREAS, each Trust intends to make available shares of its Portfolios as set
forth on attached SCHEDULE B, as it may be amended from time to time by mutual
agreement at the parties (the "Portfolios"), to the Separate Accounts of
Hartford; and
WHEREAS, Fidelity Management and Research Company ("the Adviser") is registered
as an investment adviser under the Investment Advisers Act of 1940, as amended,
and any applicable state securities laws and serves as the investment adviser to
the Portfolios, and Fidelity Investments Institutional Services Company, Inc.
("FIIS") is an affiliate of the Distributor and Adviser that performs sales,
marketing and administrative services; and
3
WHEREAS, Hartford is an insurance company which has registered or will register
the variable annuities and/or variable life insurance policies funded through
the Separate Account under the Securities Act of 1933 (the "1933 Act") and the
Investment Company Act of 1940 (the "1940 Act"), unless exempt from such
registration, to be issued by Hartford for distribution (the "Contracts").
NOW, THEREFORE, in consideration of their mutual promises, Hartford, the Trust,
and the Distributor agree as follows:
ARTICLE A. Form of Agreement
Although the parties have executed this Agreement in the form of a Master
Participation Agreement for administrative convenience, this Agreement shall
create a separate participation agreement for each Trust, as though Hartford and
the Distributor had executed a separate, identical form of participation
agreement with each Trust. No rights, responsibilities or liabilities of any
Trust shall be attributed to any other Trust.
ARTICLE I. PORTFOLIO SHARES
1.1 The Trust and the Distributor agree to make Portfolio shares available for
purchase by Hartford on behalf of the Separate Accounts on each Business Day.
The Trust will execute orders placed for each Separate Account on a daily basis
at the net asset value of each share next computed after receipt by the Trust,
or its designee, of such order as of the close of business on each Business Day.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust and Distributor for receipt of orders from each Separate
Account and receipt by Hartford constitutes receipt by the Trust,
provided that the Trust receives notice of such orders by 9:30 a.m.
(Boston time) on the next following Business Day.
B. For purposes of this Agreement, "Business Day" shall 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 each Portfolio pursuant
to the rules of the Securities and Exchange Commission ("SEC"), as
set forth in the Portfolio' prospectus.
1.2. The Board of Trustees of the Trust (the "Board"), acting in good faith and
in the exercise of its fiduciary responsibilities, may refuse to permit the
Trust to sell shares of any Portfolio to any person, or suspend or terminate the
offering of shares of any Portfolio if such action is required by law or by
regulatory authorities having jurisdiction over the sale of shares, or is, in
the sole discretion of the Board acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, necessary in the
best interests of the shareholders of such Portfolio.
4
1.3. The Trust and the Distributor agree that shares of the Trust or any of its
Portfolios will be sold only to insurance companies for use in conjunction with
variable life insurance policies or variable annuities. No shares of the Trust
or any of its Portfolios will be said to the general public.
1.4 The Trust and the Distributor agree to redeem for cash, at Hartford's
request, any full or fractional shares of the Portfolios held by the Separate
Accounts, on a daily basis at the net asset value next computed after receipt by
the Trust or its designee of the request for redemption.
A. For the purposes of this Agreement, Hartford shall be the designee of
the Trust for receipt of redemption requests from each Separate
Account and receipt by Hartford constitutes receipt by the Trust,
provided that the Distributor receives notice of the redemption
request by 9:30 a.m. (Boston time) on the next following Business
Day. Hartford agrees to submit such orders electronically through
secured trading systems as described on Schedule F to this Agreement
or, if it is unable to submit orders electronically, Hartford shall
submit such orders through manual transmissions using the procedures
described in Schedule F to this Agreement.
1.5 Hartford agrees that purchases and redemptions of Portfolio shares offered
by the then current prospectus of the Portfolio shall be made in accordance with
the provisions of the prospectus.
A. Hartford will place separate orders to purchase or redeem shares of
each Portfolio. Each order shall describe the net amount of shares
and dollar amount of each Portfolio to be purchase or redeemed.
B. In the event of net purchases, Hartford will pay for shares in
federal funds transmitted by wire before 3:00 p.m. (Eastern time) on
the next Business Day after receipt of an order to purchase shares,
or as the parties may otherwise agree in writing or by course of
conduct.
C. In the event of net redemptions, the Trust shall pay the redemption
proceeds in federal funds transmitted by wire before 3:00 p.m.
(Eastern time) on the next Business Day after an order to redeem
Portfolio shares is made, or as the parties may otherwise agree in
writing or by course of conduct.
1.6 Issuance and transfer of the Portfolio' shares will be by book entry only.
Share certificates will not be issued to Hartford or any Separate Account.
Shares purchased will be recorded in an appropriate title for each Separate
Account or the appropriate sub-account of each Separate Account. The Trust shall
furnish to Hartford the CUSIP number assigned to each Portfolio identified in
SCHEDULE B attached as may be amended from time to time.
1.7 The Distributor shall notify Hartford in advance of any dividends or
capital gain distributions payable on the Portfolio' shares, but by no later
than same day notice by
5
6:00 p.m. Eastern time on the declaration date (by wire or telephone, followed
by written confirmation), Hartford elects to reinvest all such dividends and
capital gain distributions in additional shares of that Portfolio. The Trust
shall notify Hartford of the number of shares issued as payment of dividends and
distributions. Hartford reserves the right to revoke this election and to
receive all such dividends and capital gain distributions in cash.
1.8 The Distributor shall provide, in a form acceptable to Hartford, the net
asset value per share of each Portfolio to Hartford on a daily basis as soon as
reasonably practical after the net asset value per share is calculated. The
Trust shall use its best efforts to make such net asset value per share
available by 6:30 p.m. Eastern time. Information specified in this Section and
Section 1.7 will be substantially in the form as set forth in attached Schedule
D.
1.9 The parties agree that the Contracts are not intended to serve as vehicles
for frequent transfers among the Portfolios in response to short-term stock
market fluctuations.
A. Accordingly, Hartford represents and warrants that:
1. all purchase and redemption orders it provides under this Article
I shall result solely from Contract Owner transactions fully
received and recorded by Hartford before the time as of which each
applicable VIP Portfolio net asset value was calculated (currently
4:00 p.m. e.s.t);
2. it will use its best efforts to discourage market timing and other
excessive or disruptive trading activity by third parties with
power to act on behalf of multiple contract owners and by
individual contract owners;
3. any annuity contract forms or variable life insurance policy forms
not in use at the time of execution of this Agreement, but added
to in the future via amendment of Schedule A hereto, will contain
language reserving to Hartford the right to refuse to accept
instructions from persons that engage in market timing or other
excessive or disruptive trading activity.
B. The Trust agrees to notify Hartford of transfer activity that the
Trust or Distributor deems to be excessive or disruptive ("Abusive
Transfer Activity"). After receiving such notice from the Trust,
Hartford agrees that it will cooperate with the Trust and Distributor
to limit Abusive Transfers to the extent permissible under the terms
and conditions of Contract owner prospectuses, Contracts and other
governing laws. The Trust and Hartford agree to amend this provision
as mutually deemed to be necessary to reflect any applicable law
changes,
C. In the event that Abusive Transfer activity, as determined by the
Trust, recurs after initial notice to Hartford, the Trust may then
terminate the offering of any affected Portfolio to any affected
Account upon sixty (60) days written notice to Hartford.
6
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 Hartford represents and warrants that:
A. The Contracts are or will be registered under the 1933 Act unless
exempt and that the registrations will be maintained to the extent
required by law.
B. The Contracts will be issued in material compliance with all
applicable federal and state laws and regulations, and will be sold
only by duly licensed and appointed parties with which Hartford has
written agreements that require, among other things, that the sale of
the Contracts shall comply in all material respects with applicable
federal and state laws and regulations and state insurance
suitability requirements.
C. Hartford is duly organized and in good standing under applicable law.
D. Hartford has legally and validly established each Separate Account
under the Connecticut Insurance Code prior to any issuance or sale as
a segregated asset account under the Connecticut Insurance Code and
has registered or, prior to any issuance or sale of the Contracts,
will register and will maintain the registration of each Separate
Account as a unit investment trust in accordance with the 1940 Act,
unless exempt from such registration.
2.2 The Trust and the Distributor represent and warrant that:
A. Portfolio shares sold pursuant to this Agreement shall be registered
under the 1933 Act and the regulations thereunder to the extent
required.
B. Portfolio shares sold pursuant to this Agreement shall be duly
authorized for issuance and sold in accordance with the laws of the
State of Connecticut and in material compliance with all applicable
federal and state securities laws and regulations.
C. The Trust is and shall remain registered under the 1940 Act and the
regulations thereunder to the extent required.
D. The Trust shall amend its registration statement under the 1933 Act
and the 1940 Act, from time to time, as required in order to effect
the continuous offering of the Portfolio' shares.
2.3 The Trust and the Distributor represent and warrant that:
A. The Trust is currently qualified as a "regulated investment company"
under Subchapter M of the Internal Revenue Code of 1986, as amended,
(the "Code") and complies with Section 817(h) of the Code and
regulations there under. The Trust and
7
Adviser will make every effort to maintain such qualification and that
both will notify Hartford immediately in writing upon having a
reasonable basis for believing that the Trust has ceased to qualify or
that the Trust might not qualify in the future.
B. The Trust is duly organized and validly existing under the laws of
the state of its organization.
C. The Trust does and will comply in all material respects with the 1940
Act.
D. The Trust has obtained an order from the SEC granting participating
Insurance companies and variable insurance product separate accounts
exemptions from the provisions of sections 9(a), 13(a), 15(a) and
15(b) of the 1940 Act, as amended, and rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares
of the Trust or its Portfolios to be sold to and held by variable
insurance product separate accounts of both affiliated and
unaffiliated life insurance companies.
2.4 The Distributor represents and warrants that:
A. It is and shall remain a member in good standing of the NASD and duly
registered as a broker-dealer with the SEC and that it sell and
distribute Trust shares in material compliance with the laws of the
State of Connecticut and with all applicable federal and state
securities laws and regulations.
ARTICLE III. PROSPECTUSES, REPORTS TO SHAREHOLDERS AND PROXY
STATEMENTS; VOTING
3.1 The Trust shall provide Hartford with as many printed copies of the current
prospectus(es), statement of additional information, proxy statements, annual
reports and semi annual reports of each Portfolio (and no other portfolio), and
any supplements or amendments to any of the foregoing, as Hartford may
reasonably request If requested by Hartford in lieu of the foregoing printed
documents, the Trust shall provide such documents in the form of camera-ready
film, computer diskettes or typeset electronic document files, all as Hartford
may reasonably request, and such other assistance as is reasonably necessary in
order for Hartford to have any of the prospectus(es), statement of additional
information, proxy statements, annual reports and semi annual reports of each
Portfolio (and no other portfolio), and any supplements or amendments to any of
the foregoing, printed in combination with such documents of other fund
companies' and/or such documents for the Contracts. Except as provided in the
following three sentences, all expenses of printing and distributing Trust
prospectuses and Statements of Additional Information shall be the expense of
Hartford. For prospectuses and Statements of Additional Information provided by
Hartford to its existing owners of Contracts in order to update disclosure
annually as required by the 1933 Act and/or the 1940 Act, the cost of printing
shall be borne by the Trust. If Hartford chooses to receive camera-ready film In
lieu of receiving printed copies of the Trust's prospectus, the Trust will
reimburse Hartford in an amount equal to the product of A and B where A is the
number of such prospectuses distributed to
8
owners of the Contracts, and B is the Trust's per unit cost of typesetting and
printing the Trust's prospectus. The same procedures shall be followed with
respect to the Trust's Statement of Additional Information. In the event that
Portfolios of the Trust are made available in Contracts that were available for
purchase before the date of this Agreement, the quantities above shall be
limited to owners of Contracts issued after the date of this Agreement.
Hartford agrees to provide the Trust or its designee with such information as
may be reasonably requested by the Trust to assure that the Trust's expenses do
not include the cost of printing any prospectuses or Statements of Additional
Information other than those actually distributed to existing owners of the
Contracts.
3.2 The Trust or its designee will provide Hartford prompt notice, generally
not less than 90 days before the effective date, of the following events having
disclosure implications for a Portfolio: (a) fund objective changes, (b)
anticipated fund mergers/substitutions, (c) fund name changes, (d) fund adviser
or sub-adviser changes: and/or (e) other changes that affect Hartford's contract
prospectuses or the distribution of fund prospectuses or reports. If the Trust
fails to provide Hartford with the required notice, and this failure causes
Hartford reasonably to incur additional expenses for facilitating the changes
and for notifying Contract owners, the Distributor will reimburse Hartford for
the difference between Hartford's actual expenses and the expenses Hartford
would have incurred had the required notice been given. This provision shall not
apply to prospectus supplements ("stickers"), requests for regulatory relief,
fund proxy statements (discussed below) or other actions that the Trust or
Distributor determine to be necessary or appropriate to keep the Trust in
material compliance with applicable laws or fiduciary obligations to
shareholders.
3.3 The Trust will provide Hartford with copies of its proxy solicitations
applicable to the Portfolio. Hartford will, to the extent required by law, (a)
distribute proxy materials applicable to the Portfolio to eligible Contract
owners, (b) solicit voting instructions from eligible Contract owners, (c) vote
the Portfolio shares in accordance with instructions received from Contract
owners; and (d) if required by law, vote Portfolio shares for which no
instructions have been received in the same proportion as shares of the
Portfolio for which instructions have been received. Participating Insurance
Companies shall be responsible for assuring that each of their separate accounts
participating in the Trust calculates voting privileges in a manner consistent
with the standards set forth on Schedule E attached hereto.
A. To the extent permitted by applicable law, Hartford reserves the
right to vote Portfolio shares held in any Separate Account in its
own right.
3.4 The Trust will comply with all provisions of the 1940 Act and the rules
thereunder requiring voting by shareholders.
9
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 Hartford shall furnish, or shall cause to be furnished, to the Trust or its
designee prior to use, each piece of sales literature or advertising prepared by
Hartford in which the Trust, the Adviser or the Distributor is described. No
sales literature or advertising will be used if the Trust, the Adviser, or the
Distributor reasonably objects to its use within ten (10) Business Days
following receipt by the Trust.
4.2 Hartford will not, without the permission of the Trust, make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the advertising or sale of the Contracts, other than information
or representations contained in: (a) the registration statement or Portfolio
prospectus(es), (b) Portfolio' annual and semi annual reports to shareholders,
(c) proxy statements for the Portfolio, or, (d) sales literature or other
promotional material approved by the Trust.
4.3 The Trust shall furnish, or shall cause to be furnished, to Hartford prior
to use, each piece of sales literature or advertising prepared by the Trust in
which Hartford, the Contracts or Separate Accounts, are described. No sales
literature or advertising will be used if Hartford reasonably objects to its use
within ten (10) Business Days following receipt by Hartford.
4.4 Neither the Trust nor the Distributor nor the Adviser will, without the
permission of Hartford, make any representations or statements on behalf of
Hartford, the Contracts, or the Separate Accounts or concerning Hartford, the
Contracts or the Separate Accounts, in connection with the advertising or sale
of the Contracts, other than the information or representations contained in:
(a) the registration statement or prospectus for the Contracts, (b) Separate
Account reports to shareholders, (c) in sales literature or other promotional
material approved by Hartford.
4.5. The Trust will provide to Hartford at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports to shareholders, proxy statements, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions and requests for no-action letters, and all amendments, that relate
to the Portfolio or its shares.
4.6 Hartford will provide to the Trust, upon the Trust's request, at least one
complete copy of all registration statements, prospectuses, statements of
additional information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions, and
requests for no action letters, and all amendments, that relate to the
Contracts.
4.7 For purposes of this Article IV, the phrase "sales literature or
advertising" includes, but is not limited to, any of the following that refer to
the Trust or any affiliate of the Trust: advertisements (such as material
published, or designed for use in, a newspaper, magazine, or other periodical,
radio, television, telephone or tape recording, videotape display, signs or
billboards, motion pictures, or other public media), sales
10
literature (I.E., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
private placement memoranda, shareholder reports, and proxy materials
ARTICLE V. DIVERSIFICATION
5.1 The Trust represents and warrants that, at all times, each Portfolio will
comply with Section 817(h) of the Code and all regulations thereunder, relating
to the diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section or
regulations. In the event a Portfolio ceases to so qualify, the Trust will
notify Hartford immediately of such event and the Adviser will take all steps
necessary to adequately diversify the Portfolio so as to achieve compliance
within the grace period afforded by Treasury Regulation Section 1.817-5.
ARTICLE VI. POTENTIAL CONFLICTS
6.1 The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Trust. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Board shall promptly inform Hartford if it
determines that an irreconcilable material conflict exists and the implications
thereof.
6.2 Hartford will report any potential or existing conflicts of which it is
aware to the Board. Hartford will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an obligation by Hartford
to inform the Board whenever contract owner voting instructions are disregarded.
6.3 If it is determined by a majority of the Board, or a majority of its
disinterested trustees, that a material irreconcilable conflict exists, Hartford
and other Participating Insurance Companies shall, at their expense and to the
extent reasonably practicable (as determined by a majority of the disinterested
trustees), take whatever
11
steps are necessary to remedy or eliminate the irreconcilable material conflict,
up to and including: (1) withdrawing the assets allocable to some or all of the
separate accounts from the Trust or any Portfolio and reinvesting such assets in
a different investment medium, including (but not limited to) another Portfolio
of the Trust, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (I.E., annuity contract owners,
life insurance contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected contract owners the option of making such a change; and
(2), establishing a new registered management investment company or managed
separate account.
6.4 If a material irreconcilable conflict arises because of a decision by
Hartford to disregard contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, Hartford may
be required, at the Trust's election, to withdraw the affected Account's
Investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited
to the extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested members of the Board.
Notwithstanding anything herein possibly to the contrary, "echo" voting or the
effectuation of other voting procedures consistent with the Shared Funding
Exemptive Order, shall not constitute a decision to disregard contract owner
voting instructions as contemplated hereby. Subject to section 9.2, below, any
such withdrawal and termination must take place within six (6) months after the
Trust gives written notice that this provision is being implemented, and until
the end of that six month period the Distributor and Trust shall continue to
accept and implement orders by Hartford for the purchase (and redemption) of
shares of the Trust.
6.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to Hartford conflicts with the
majority of other state regulators, then Hartford will withdraw the affected
Account's investment in the Trust and terminate this Agreement with respect to
such Account within six months after the Board informs Hartford in writing that
it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested members of the Board. Until the
end of the foregoing six month period, the Distributor and Trust shall continue
to accept and implement orders by Hartford for the purchase (and redemption) of
shares of the Trust.
6.6 For purposes of Sections 6.3 through 6.6 of this Agreement, a majority of
the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Trust be required to establish a new funding medium for the Contracts.
Hartford shall not be required by Section 6.3 to establish a new funding medium
for the Contracts if an offer to do so has been declined by vote of a majority
of Contract owners materially adversely
12
affected by the irreconcilable material conflict. In the event that the Board
determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then Hartford will withdraw the Account's
investment in the Trust and terminate this Agreement within six (6) months after
the Board informs Hartford in writing of the foregoing determination, provided,
however, that such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
6.7 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 Act or
the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Trust and/or the Participating insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable;
and (b) Sections 3.3, 3.4, 6,1, 6.2, 6.3, 6.4, and 6.5 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 VII. INDEMNIFICATION
7.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor, the
Adviser, the Trust and each of their directors. Trustees or (if
applicable), officers, employees and agents and each person, if any,
who controls the Trust within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" and individually, an
"Indemnified Party" for purposes of this Section 7.1) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of Hartford, which consent shall
not be unreasonably withheld) or expenses (including the reasonable
costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the
Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses are
related to the sale or acquisition of Portfolio shares or the
Contracts and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a disclosure
document for the Contracts or in the Contracts themselves or in sales
literature generated or approved or distributed by Hartford applicable
to the Contracts or Separate Accounts (or any amendment or supplement
to any of the foregoing) (collectively, "Company Documents" for the
purposes of this Article VII), 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 indemnity
13
shall not apply a to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance
upon and was accurately derived from written information furnished to
Hartford by or on behalf of the Trust for use in Company Documents or
otherwise for use in connection with the sale of the Contracts or
Portfolio shares; or
2. Arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived
from the registration statement, prospectus statement of additional
information or sales literature of the Trust applicable to the
Portfolio or any amendment or supplement to any of the foregoing) and
not supplied by Hartford (collectively, "Trust Documents" for purposes
of this Article VII)) or wrongful conduct of Hartford or persons under
its control, with respect to the sale or acquisition of the Contracts
or Portfolio shares; or
3. Arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Trust Documents or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Trust by
or on behalf of Hartford; or
4. Arise out of or result from any failure by Hartford to provide the
services or furnish the materials required 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 Hartford in this Agreement or
arise out of or result from any other material breach of this
Agreement by Hartford or any material breach by a Hartford-appointed
agent of the provisions required by section 2.1, above, of its written
agreement with Hartford.
B. Hartford shall not be liable under this indemnification provision
with respect to any Losses which are due to an Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Trust or the Distributor whichever is
applicable.
C. Hartford shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified Hartford in writing within
a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but
failure to notify Hartford of any such claim shall not relieve
Hartford from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought
against the Indemnified Parties, Hartford shall be entitled to
participate, at its own expense, in the
14
defense of such action. Hartford also shall be entitled to assume the
defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from Hartford to such party of
Hartford's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained by it and Hartford 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.
D. The Indemnified Parties will promptly notify Hartford of the
commencement of any litigation or proceedings against them or any of
their officers or directors in connection with the issuance or sale
of the Portfolio shares or the Contracts or the operation of the
Trust.
7.2 Indemnification by the Distributor
A. The Distributor agrees to indemnify and hold harmless Hartford and
each of its directors, officers, employees and agents and each
person, if any, who controls Hartford within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" and
individually, an "Indemnified Party" for purposes of this Section
7.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Distributor, which consent shall not be unreasonably withheld) or
expenses (including the reasonable costs of investigating or
defending any alleged loss claim, damage, liability or expense and
reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Indemnified Parties may become
subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses are related to the sale or
acquisition of the Portfolio shares or the Contracts and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in Trust Documents or
arise out of or are based upon the omission or 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 indemnity shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and was accurately derived from written information
furnished to the Trust, the Adviser, or the Distributor by or on
behalf of Hartford for use in Trust Documents or otherwise for use in
connection with the sale of the Contracts or Portfolio shares: or
2. Arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived
from Company Documents) or wrongful conduct of the Distributor or
persons under its control, with respect to the sale or distribution of
the Contracts or Portfolio shares: or
3. Arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents, or the
omission or alleged omission to state therein a material fact required
to be stated therein or
15
necessary to make the statements therein not misleading if such
statement or omission was made in reliance upon and accurately
derived from written information furnished to Hartford by or on
behalf of the Distributor or the Trust; or
4. Arise out of or result from any failure by the Distributor or the
Trust to provide the services or furnish the materials required
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 in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Distributor.
B. The Distributor shall not be liable under this indemnification
provision with respect to any Losses which are due to an Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Hartford or the Separate Account,
whichever is applicable.
C. The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Distributor in
writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Distributor of any such
claim shall not relieve the Distributor from any liability which it
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the
Distributor shall be entitled to participate, at its own expense, in
the defense thereof. The Distributor also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Distributor to such party of its
election to assume the defense thereof, the Indemnified Party shall
bear the expenses of any additional counsel retained by it, and the
Distributor 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.
D. The Indemnified Parties shall promptly notify the Distributor of the
commencement of any litigation or proceedings against them or any of
their officers or directors in connection with the issuance or sale
of the Contracts or the operation of a Separate Account.
7.3 Indemnification by the Trust
A. The Trust agrees to indemnify and hold harmless Hartford and each of
its directors, officers, employees and agents and each person, if
any, who controls Hartford within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties"
16
and individually, an "Indemnified Party" for purposes of this Section
7.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Trust, which consent shall not be unreasonably withheld) or expenses
(including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal
counsel fees incurred in connection therewith) (collectively,
"Losses"), to which the Indemnified Parties may become subject under
any statute or regulation, or at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements result from the gross negligence, bad
faith or willful misconduct of the Board or any member thereof, are
related to the operations of the Trust and:
1. arise as a result of any material failure by the Trust to provide
the services and furnish the materials under the terms of this
Agreement including a material failure, to comply with the
diversification requirements specified in Article VI of this
Agreement); or
2. arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Trust
B. The Trust shall not be liable under this indemnification provision
with respect to any Losses which are due to an Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Hartford or the Separate Account,
whichever is applicable.
C. The Trust shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust in writing
within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent),
but failure to notify the Trust of any such claim shall not relieve
the Trust from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Trust shall be entitled to
participate, at its own expense, in the defense thereof. The Trust
also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Trust to such party of its election to assume the defense thereof,
the Indemnified Party shall bear the expenses of any additional
counsel retained by it, and the Trust 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.
D. The Indemnified Parties shall promptly notify the Trust of the
commencement of any litigation or proceedings against them or any of
their officers or
17
directors in connection with the issuance or sale of the Contracts or
the operation of a Separate Account.
7.5 Any party seeking indemnification (the "Potential Indemnitee") will
promptly notify any party from whom they intend to seek indemnification (each a
"Potential Indemnitor") of all demands made and/or actions commenced against the
Potential Indemnitee which may require a Potential Indemnitor to provide such
indemnification. At its option and expense. a Potential Indemnitor may retain
counsel and control any litigation for which it may be responsible to indemnify
a Potential Indemnitee under this Agreement.
7.6 If a party is defending a claim and indemnifying another party hereto, the
indemnified party shall give the indemnifying party reasonable access during
normal business hours to its nonconfidential books and records pertaining to
such claim, and shall otherwise cooperate in the defense of any claim.
Regardless of which party defends a particular claim, the defending party shall
give the other parties written notice of any significant development in the case
as soon as practicable, and such other parties, at all times, shall have the
right to intervene in the defense of the case.
7.7 If a party is defending a claim and indemnifying another party hereto, and:
(i) a settlement proposal is made by the claimant, or (ii) the defending party
desires to present a settlement proposal to the claimant, then the defending
party promptly shall notify the Indemnified Party of such settlement proposal
together with its counsel's recommendation. If the defending party desires to
enter into the settlement and the Indemnified Party fails to consent within
thirty (30) business days (unless such period is extended, in writing, by mutual
agreement of the parties hereto), then the Indemnified Party, from the time it
fails to consent forward, shall defend the claim and shall indemnify the
defending party for all costs associated with the claim which are in excess of
the proposed settlement amount.
Regardless of which party is defending the claim: (i) if a settlement requires
an admission of liability by the non-defending party or would require the
non-defending party to either take action (other than purely ministerial action)
or refrain from taking action (due to an injunction or otherwise) (a "Specific
Performance Settlement"), the defending party may agree to such settlement only
after obtaining the express, written consent of the non-defending party. If a
non-defending party fails to consent to a Specific Performance Settlement, the
consequences described in the last sentence of the first paragraph of this
Section 7.7 shall NOT apply.
7.8 The parties shall use good faith efforts to resolve any dispute concerning
this indemnification obligation. Should those efforts fail to resolve the
dispute, the ultimate resolution shall be determined in a DE NOVO proceeding,
separate and apart from the underlying matter complained of, before a court of
competent jurisdiction. Either party may initiate such proceedings with a court
of competent jurisdiction at any time following the termination of the efforts
by such parties to resolve the dispute (termination of such efforts shall be
deemed to have occurred thirty (30) days from the commencement of the same
unless such time period is extended by the written agreement of the parties).
18
The prevailing party in such a proceeding shall be entitled to recover
reasonable attorneys' fees, costs, and expenses.
ARTICLE VIII. APPLICABLE LAW
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of
Massachusetts without
giving effect to the principles of conflicts of laws.
8.2 This Agreement, its terms and definitions, shall be subject to the
provisions of the 1933 Act, the Securities Exchange Act of 1934, and the 1940
Act, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant.
ARTICLE IX. TERMINATION
9.1 This Agreement shall continue in full force and effect until the first to
occur of:
A. Termination by any party for any reason upon sixty (60) days advance
written notice delivered to the other parties; or
B. Termination by Hartford by written notice to the Trust, the Adviser
or the Distributor with respect to any Portfolio in the event any of
the Portfolio' 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 medium
of the Contracts issued or to be issued by Hartford; or
C. Termination by Hartford upon written notice to the Trust with respect
to any Portfolio in the event that such Portfolio ceases to qualify
as a "regulated investment company" under Subchapter M of the Code or
under any successor or similar provision; or
D. Termination by Hartford upon written notice to the Trust and the
Distributor with respect to any Portfolio in the event that such
Trust fails to meet the diversification requirements specified in
Section 5.1 of this Agreement; or
E. Termination upon mutual written agreement of the parties to this
Agreement.
9.2 Effect of Termination.
A. Notwithstanding any termination of this Agreement, the Trust shall,
at the option of Hartford, continue to make available additional
shares of the Portfolio pursuant to the terms and conditions of this
Agreement, for all Contracts in effect on the effective date of
termination of this Agreement (the "Existing Contracts") unless such
further sale of Portfolio shares is proscribed by law, regulation or
applicable regulatory body.
19
Specifically, without limitation, the owners of the Existing Contracts
will be permitted to direct allocation and reallocation of investments
in the Portfolio, redeem investments in the Portfolio and invest in
the Portfolio through additional purchase payments.
B. Hartford agrees not to redeem Portfolio shares attributable to the
Contracts except (i) as necessary to implement Contract owner
initiated or approved transactions, or (ii) as required by state
and/or federal laws or regulations or judicial or other legal
precedent of general application or (iii) as permitted by an order of
the SEC. Upon request, Hartford will promptly furnish to the Trust
the opinion of counsel for Hartford to the effect that any redemption
pursuant to clause (ii) above is a legally required redemption.
C. In addition to the foregoing, Article VII Indemnification shall
survive any termination of this Agreement. In addition, all other
applicable provisions of this Agreement shall survive termination as
long as shares of the Trust are held on behalf of Contract owners in
accordance with section 9.2.A, except that the Trust and Distributor
shall have no further obligation to make Trust shares available in
Contracts issued after termination.
ARTICLE X. NOTICES
10.1 Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Trust:
00 Xxxxxxxxxx Xx.
Xxxxxx, XX 00000
Attention: Treasurer
If to the Distributor:
00 Xxxxxxxxxx Xx.
Xxxxxx, XX 00000
Attention: Treasurer
If to Hartford: With a copy to:
Hartford Life Insurance Co. Hartford Life Insurance Co.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Attn: Xxxx Xxxxxxx, Deputy General
President Counsel
ARTICLE X1. MISCELLANEOUS
11.1 Each party will treat as confidential any and all "Nonpublic Personal
Financial Information" and not release any Nonpublic Personal Financial
Information unless (a)
20
the other party provides written consent to do so; (b) a party is compelled to
do so by court order, subpoena or comparable request issued by any governmental
agency, regulator or other competent authority; or (c) permitted by applicable
law. Each party shell safeguard Nonpublic Personal Financial Information as
required by applicable law and provide reasonable confirmation upon request. As
used above, (i) "Nonpublic Personal Financial Information" shall refer to
personally identifiable financial information about any prospective or then
existing customer of Hartford including customer lists, names, addresses,
account numbers and any other data provided by customers to the Hartford in
connection with the purchase or maintenance of a product or service that is not
Publicly Available; and (ii) "Publicly Available" shall mean any information
that the disclosing party has a reasonable basis to believe is lawfully made
available to the general public from federal, state, or local government
records, widely distributed media, or disclosures made to the general public
that are required by federal, state, or local law. This Agreement does not
require or contemplate that Hartford will share, or that the Trust or the
Distributor will receive or maintain, any Nonpublic Personal Financial
Information of Hartford Contract Owners.
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 shall constitute one and the same instrument.
11.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
11.5 Each party shall cooperate with each other party and all appropriate
governmental authorities (including, without limitation, the SEC, the NASD and
state insurance regulators) and shall permit such authorities (and other
parties) reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
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 laws.
11.7 This Agreement or any of the rights and obligations hereunder may not be
assigned by any party without the prior written consent of all parties;
provided, however, that the Distributor may assign this Agreement or any rights
or obligations hereunder to any affiliate of or company under common control
with the Distributor, if such assignee is duly licensed and registered to
perform the obligations of the Distributor under this Agreement. Hartford shall
promptly notify the Trust and the Distributor of any change in control of
Hartford.
21
11.8 The waiver of, or failure to exercise, any right provided for in this
Agreement shall not be deemed a waiver of any further or future right under this
Agreement.
11.9 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 Board,
officers, agents nor shareholders assume any personal liability for obligations
entered into on behalf of the Trust.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in as name and on its behalf by its duly authorized representative as of the
date specified above.
HARTFORD LIFE INSURANCE COMPANY
On its behalf and each Separate Account named in
Schedule A, as may be amended from time to time
By: Xxxxxx Xxxxx
-----------------------------------------
Its Vice President
VARIABLE INSURANCE PRODUCTS FUND
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
By: Xxxxxxxxx Xxxxxxxx
-----------------------------------------
Its Treasurer, Senior Vice President
FIDELITY DISTRIBUTORS CORPORATION
By: [ILLEGIBLE]
-----------------------------------------
Its [ILLEGIBLE] Vice President
22
SCHEDULE A
SEPARATE ACCOUNTS
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED
Separate Account Three 6/22/94
23
SCHEDULE B
PARTICIPATING PORTFOLIOS
Fidelity VIP Contrafund Portfolio
Fidelity VIP Equity-Income Portfolio
Fidelity VIP Growth Portfolio
Fidelity VIP Mid Cap Portfolio
Fidelity VIP Value Strategies Portfolio
24
SCHEDULE C
ALLOCATION OF EXPENSES
PAID BY HARTFORD PAID BY THE TRUST
--------------------------------------------------------------------------------------------------------------------------
Preparing and filing the Separate Account's registration Preparing and filing the Trust's registration statement
statement
Text composition for Separate Account prospectus and Text composition for Portfolio prospectuses and supplements
supplements
Text alterations of Separate Account prospectus and Text alterations of Portfolio prospectuses and supplements
supplements
Printing Separate Account prospectuses and supplements for Printing Portfolio prospectus and supplements for use with
use with prospective Contract owners; existing Contract owners; or if requested by Hartford,
providing camera-ready film, computer diskettes or typeset
Printing Portfolio prospectuses and supplements for use with electronic document files of such documents and printing
prospective Contract owners such documents for use with existing Contract owners (1)
Text composition and printing of Separate Account statement Text composition and printing of Trust statement of
of additional information additional information (1)
Mailing and distributing Separate Account prospectuses, Printing Portfolio and Separate Account supplements and
supplements and statement of additional information to other communications related to the following transactions,
existing Contract owners as required by applicable law; only if initiated by the fund: fund substitutions, fund
closings, fund mergers and other similar fund transactions.
Mailing and distributing Separate Account prospectuses and This shall not apply to Trust-sponsored proxy statements,
supplements to prospective Contract owners; covered below.
Mailing and distributing Portfolio prospectuses and
supplements to existing and prospective Contract owners
Text composition of any annual, and semi-annual Text composition of annual and semi-annual reports of
reports of the Separate Account, printing, mailing, and the Portfolio; printing annual and semi-annual reports of
distributing any annual and semi-annual reports of the the Portfolio for existing Contract owners then invested in
Separate Account and mailing and distributing annual and the Portfolio (1)
semiannual reports of the Portfolio to existing Contract
Owners
Text composition, printing, mailing, distributing, and Text composition, printing, mailing, distributing, and
tabulation of proxy statements and voting instruction tabulation of proxy statements and voting instruction
solicitation materials to Contract owners with respect to solicitation materials to Contract owners with respect to
proxies sponsored by the Separate Accounts or sponsored by proxies sponsored by the Portfolio or the Trust
any fund managed by a third party
------------
(1) Hartford may choose to print the Portfolio' prospectus(es), statement of
additional information, and its semi annual and annual reports, or any of
such documents, in combination with such documents of other fund companies.
In this case, the Trust's share of the total expense for printing of the
combined materials shall be determined pro-rata based upon the page count
of the Portfolio' documents as compared to the total page count for the
combined materials containing all other funds offered under the Contracts,
as further limited, in the case of annual and semiannual reports, to print
quantities distributed to contract owners with contract value allocated to
the Trust as of the report date.
25
SCHEDULE D
FORMAT FOR NAV AND DIVIDEND INFORMATION
Please provide the following information when sending the nightly NAV and
Dividend Distribution Date Fax/Email:
Mutual Fund Company Name
Fund Name (no abbreviations)
Fund Number
NAV
NAV Change from Prior Day
Mil Rate
Change in Mil Rate
Ordinary Dividend Distribution
Short Term Cap Gain Distribution
Long Term Cap Gain Distribution
26
SCHEDULE E
PROXY VOTING PROCEDURE
Where Hartford agrees to appoint a proxy voting service engaged by the Fund or
the Distributor, Hartford shall reasonably cooperate with the project plans and
requests of such service. This Proxy Voting Procedure shall apply in any case in
which Hartford does not agree to appoint a proxy service engaged by the Fund or
the Distributor.
The following is a list of procedures and corresponding responsibilities for the
handling of proxies relating to the Fund by the Underwriter, the Fund and the
Company. The defined terms herein shall have the meanings assigned in the
Participation Agreement except that the term "Company" shall refer to Hartford
and any third party engaged by Hartford to perform the steps delineated below.
1. The number of proxy proposals is given to the Company by the Underwriter as
early as possible before the date set by the Fund for the shareholder meeting to
facilitate the establishment of tabulation procedures. At this time the
Underwriter will inform the Company of the Record, Mailing and Meeting dates.
This will be done verbally approximately two months before meeting.
2. Promptly after the Record Date, the Company will perform a "tape run", or
other activity, which will generate the names, addresses and number of units
which are attributed to each contract owner/policyholder (the "Customer") as of
the Record Date. Allowance should be made for account adjustments made after
this date that could affect the status of the Customers' accounts as of the
Record Date.
Note: The number of proxy statements is determined by the activities described
in Step #2. The Company will use its best efforts to call in the number of
Customers to Fidelity, as soon as possible, but no later than two weeks after
the Record Date.
3. The Fund's Annual Report no longer needs to be sent to each Customer by the
Company either before or together with the Customers' receipt of a proxy
statement. Underwriter will provide the last Annual Report to the Company
pursuant to the terms of Section 3.3 of the Agreement to which this Schedule
relates.
4. The text and format for the Voting Instruction Cards ("Cards" or "Card") is
provided to the Company by the Fund. The Company shall provide Voting
Instruction Cards for Company to personalize. The Legal Department of the
Underwriter or its affiliate ("Fidelity Legal") must approve the Card before it
is printed. Allow approximately 2-4 business days for printing information on
the Cards. Information commonly found on the Cards includes:
a. name (legal name as found on account registration)
b. address
c. Fund or account number
d. coding to state number of units
27
e. individual Card number for use in tracking and verification of
votes (already on Cards as printed by the Fund)
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
5. During this time, Fidelity Legal will develop, produce, and the Fund will
pay for the Notice of Proxy and the Proxy Statement (one document). Printed and
folded notices and statements will be sent to Company for insertion into
envelopes. Contents of envelope sent to Customers by Company will include:
a. Voting Instruction Card(s)
b. One proxy notice and statement (one document)
c. return envelope addressed to the Company or its tabulation agent
d. "urge buckslip" - optional, but recommended. (This is a small,
single sheet of paper that requests Customers to vote as quickly
as possible and that their vote is important. One copy will be
supplied by the Fund.)
e. cover letter - optional, supplied by Company and reviewed and
approved in advance by Fidelity Legal.
6. The above contents should be received by the Company approximately 3-5
business days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to Fidelity Legal by the Company
7. Package mailed by the Company.
- The Fund MUST allow at least a 15-day solicitation time to the
Company as the shareowner. (A 5-week period is recommended.)
Solicitation time is calculated as calendar days from (but NOT
including) the meeting, counting backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes place in
another department or another vendor depending on process used. An often used
procedure is to sort Cards on arrival by proposal into vote categories of all
yes, no, or mixed replies, and to begin data entry.
Note: Postmarks are not generally needed. A need for postmark information would
be due to an insurance company's internal procedure and has not been required by
Fidelity in the past.
9. Signatures on Card checked against legal name on account registration which
was printed on the Card.
28
Note: For Example, If the account registration is under "Xxxxxxx X. Xxxxx,
Trustee," then that is the exact, legal name to be printed on the Card and is
the signature needed on the Card.
10. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter, a new Card
and return envelope. The mutilated or illegible Card is disregarded and
considered to be NOT RECEIVED for purposes of vote tabulation. Any Cards that
have "kicked out" (e.g. mutilated, illegible) of the procedure are "hand
verified," i.e., examined as to why they did not complete the system. Any
questions on those Cards are usually remedied individually.
11. There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the Cards
as they first arrive into categories depending upon their vote; an estimate of
how the vote is progressing may then be calculated. If the initial estimates and
the actual vote do not coincide, then an internal audit of that vote should
occur. This may entail a recount.
12. The actual tabulation of votes is done in units which are then converted to
shares. (It is very important that the Fund receives the tabulations stated in
terms of a percentage and the number of SHARES.) Fidelity Legal must review and
approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to Fidelity
Legal on the morning of the meeting not later than 10:00 a.m. Boston time.
Fidelity Legal may request an earlier deadline if required to calculate the vote
in time for the meeting.
14. A Certification of Mailing and Authorization to Vote Shares will be required
from the Company as well as an original copy of the final vote. Fidelity Legal
will provide a standard form for each Certification.
15. The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise necessary
for legal, regulatory, or accounting purposes. Fidelity Legal will be permitted
reasonable access to such Cards.
16. All approvals and "signing-off" may be done orally, but must always be
followed up in writing.
29
SCHEDULE F
NSCC PROCEDURES
Subject to the terms and conditions of this Agreement, Hartford shall be
appointed to, and agrees to act, as a limited agent of Trust for the sole
purpose of receiving instructions from authorized parties as defined by the
Contracts for the purchase and redemption of Fund shares prior to the close of
regular trading each Business Day. A "Business Day" is defined in Article 1.1(B)
of the Agreement. Except as particularly stated in this paragraph, Hartford
shall have no authority to act on behalf of Trust or to incur any cost or
liability on its behalf.
Until such time as Trust and Hartford are able to utilize the National
Securities Clearing Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system: Trust will use its best efforts to
provide to Hartford or its designated agent closing net asset value, change in
net asset value, dividend or daily accrual rate information and capital gain
information by 6:30 p.m. Eastern Time each Business Day. Hartford or its agent
shall use this data to calculate unit values. Unit values shall be used to
process the same Business Day's contract transactions. Orders derived from, and
in amounts equal to, instructions received by Hartford prior to the Close of
Trading on the New York Stock Exchange on any Business Day ("Day 1") shall be
transmitted without modification (except for netting or aggregating such orders)
to Trust by 9:30 a.m. Eastern Time on the next Business Day. Such trades will be
effected at the net asset value of each Fund's shares calculated as of the Close
of Trading on Day 1. Trust will not accept any order made on a conditional basis
or subject to any delay or contingency.
Until such time as Trust and Hartford are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after transmittal of an
instruction or confirmation, verify the other party's receipt of such
instruction or confirmation, and in the absence of such verification such a
party to whom an instruction or confirmation is sent shall not be liable for any
failure to act in accordance with such instruction or confirmation, and the
sending party may not claim that such an instruction or confirmation was
received by the other. Each party shall notify the other of any errors,
omissions or interruptions in, or delay or unavailability as promptly as
possible.
a) For those purchase orders not transmitted via the DCC&S Fund/SERV
system, Hartford shall complete payment to Trust or its designated
agent in federal funds no later than 3:00 P.M. on the Business Day
following the day on which the instructions are treated as having
been received by Trust pursuant to this Agreement.
b) For those redemption orders not transmitted via the DCC&S Fund/SERV
system, Trust or its designated agent shall initiate payment in
federal funds no later than 3:00 P.M. on the Business Day following
the day on which the instructions are treated as having been received
by Trust pursuant to this Agreement.
30
At such time as Trust and Hartford are able to transmit information via the
NSCC's DCC&S Fund/SERV System:
a) Orders derived from, and in amounts equal to, instructions received
by Hartford prior to the Close of Trading on Day 1 shall be
transmitted without modification (except for netting and aggregation
of such orders) via the NSCC's DCC&S Fund/SERV system to Trust no
later than 9:00 a.m. Eastern Time on the Next Business Day. Such
trades will be effected at the net asset value of each Fund's shares
calculated as of the Close of Trading on Day 1.
b) Trust and Hartford shall mutually agree there may be instances when
orders shall be transmitted to Trust via facsimile no later than 9:30
a.m. rather than through the DCC&S Fund/SERV system. In such
instances, such orders shall be transmitted to Trust via facsimile no
later than 9:00 a.m. Eastern Time on the next Business Day.
c) With respect to purchase and redemption orders received by Trust on
any Business Day for any Fund, within the time limits set forth in
this Agreement, settlement shall occur consistent with the
requirements of DCC&S Fund/SERV system.
At such time as Trust and Hartford are able to transmit information via the
DCC&S Fund/SERV system: Trust or its designated agent shall send to Hartford,
via the DCC&S Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders ("Confirmations ") on
each Business Day for which Hartford has transmitted such orders. Such
confirmations shall include the total number of shares of each Fund held by
Hartford following such net purchase or redemption. Trust, or its designated
agent, shall submit in a timely manner, such confirmations to the DCC&S
Fund/SERV system in order for Hartford to receive such confirmations no later
than 11:00 a.m. Eastern Time the next Business Day. Trust or its designated
agent will transmit to Hartford via DCC&S NETWORKING system those Networking
activity files reflecting account activity.
31
AMENDMENT NO. 1 TO
FUND PARTICIPATION AGREEMENT
Among
HARTFORD LIFE INSURANCE COMPANY,
VARIABLE INSURANCE PRODUCTS FUNDS,
and
FIDELITY DISTRIBUTORS CORPORATION
This Amendment, effective May 1, 2008, by and among Hartford Life Insurance
Company ("Hartford"), Variable Insurance Products Fund, Variable Insurance
Products Fund II, Variable Insurance Products Fund III, Variable Insurance
Products Fund IV, Variable Insurance Products Fund V (each referred to as
"Trust"), and Fidelity Distributors Corporation ("Distributor"), amends that
certain
Fund Participation Agreement (the "Agreement") dated April 1, 2005 by
the foregoing parties as follows:
1. Schedules A and B of the Agreement are deleted and replaced in their
entirety with the Schedule A and B attached hereto.
2. In all other respects, the terms of the Agreement remain unchanged and in
full force and effect.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in its name and on its behalf by its duly authorized representative as of the
date specified above.
THE HARTFORD LIFE INSURANCE COMPANY VARIABLE INSURANCE PRODUCTS FUND
By its authorized officer, VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
VARIABLE INSURANCE PRODUCTS FUND V
By its authorized officer,
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxx Xxxxxx
------------------------- -------------------------
Name: Xxxxxx Xxxxx Name: Xxxx Xxxxxx
Its: [Title] Senior Vice President Its: [Title] Treasurer, Fixed Income
Date: 4/29/08 Date: 7/30/08
By: /s/ Xxx Xxxxxx
-------------------------
Name: Xxx Xxxxxx
Its: Treasurer, Equity
Date: 7/29/08
1
FIDELITY DISTRIBUTORS CORPORATION
By its authorized officer,
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Its: [Title] Executive Vice President, Institutional
Date: 7/17/08
2
SCHEDULE A
SEPARATE ACCOUNTS
NAME OF SEPARATE ACCOUNT DATE ESTABLISHED
------------------------------------------------------------------------
Separate Account Three 06/22/1994
Separate Account Seven 04/01/1999
3
SCHEDULE B
PARTICIPATING PORTFOLIOS
Fidelity VIP Contrafund Portfolio -- Service Class 2
Fidelity VIP Dynamic Capital Appreciation Portfolio -- Service Class 2
Fidelity VIP Equity-Income Portfolio -- Service Class 2
Fidelity VIP Growth Portfolio -- Service Class 2
Fidelity VIP Mid Cap Portfolio -- Service Class 2
Fidelity VIP Value Strategies Portfolio -- Service Class 2
4
AMENDMENT NO. 2 TO
FUND PARTICIPATION AGREEMENT
Among
HARTFORD LIFE INSURANCE COMPANY,
VARIABLE INSURANCE PRODUCTS FUNDS,
And
FIDELITY DISTRIBUTORS CORPORATION
This Amendment, effective October 19, 2009, by and among Hartford Life Insurance
Company ("Hartford"), Variable Insurance Products Fund, Variable Insurance
Products Fund II, Variable Insurance Products Fund III, Variable Insurance
Products Fund IV, Variable Insurance Products Fund V (each referred to as
"Trust"), and Fidelity Distributors Corporation ("Distributor"), amends that
certain
Fund Participation Agreement (the "Agreement") dated April 1, 2005, as
amended, by the foregoing parties as follows:
1. Schedule B of the Agreement is deleted and replaced in its entirety with
the Schedule B attached hereto.
2. In all other respects, the terms of the Agreement remain unchanged and in
full force and effect.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in its name and on its behalf by its duly authorized representative as of the
date specified above.
THE HARTFORD LIFE INSURANCE COMPANY VARIABLE INSURANCE PRODUCTS FUND
By its authorized officer, VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
VARIABLE INSURANCE PRODUCTS FUND V
By its authorized officer,
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxx
-------------------------- --------------------------
Name: Xxxxxx Xxxxx Name: Xxxxx Xxxxxxxx
Its: [Title] Executive Vice President Its: [Title] Deputy Treasurer
Date: 9/3/09 Date: 9/29/09
1
FIDELITY DISTRIBUTORS CORPORATION
By its authorized officer,
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: [Title] Executive Vice President
Date: 9/16/09
2
SCHEDULE B
PARTICIPATING PORTFOLIOS
Fidelity VIP Contrafund Portfolio -- Service Class 2
Fidelity VIP Dynamic Capital Appreciation Portfolio -- Service Class 2
Fidelity VIP Equity-Income Portfolio -- Service Class 2
Fidelity VIP Growth Portfolio -- Service Class 2
Fidelity VIP Mid Cap Portfolio -- Service Class 2
Fidelity VIP Value Strategies Portfolio -- Service Class 2
Fidelity VIP Strategic Income Portfolio -- Service Class 2
3
FUND PARTICIPATION AGREEMENT
AMONG
VARIABLE INSURANCE PRODUCTS FUNDS,
FIDELITY DISTRIBUTORS CORPORATION,
AND
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
TABLE OF CONTENTS
PAGE
----------------------------------------------------------------------------------------------------
ARTICLE I. Portfolio Shares 4
ARTICLE II. Representations and Warranties 7
ARTICLE III. Prospectuses, Reports to Shareholders and Proxy Statements; Voting 8
ARTICLE IV. Sales Material and Information 10
ARTICLE V. Diversification 11
ARTICLE VI. Potential Conflicts 11
ARTICLE VII. Indemnification 13
ARTICLE VIII. Applicable Law 19
ARTICLE IX. Termination 19
ARTICLE X. Notices 20
ARTICLE XI. Miscellaneous 20
SCHEDULE A Separate Accounts and Contracts 23
SCHEDULE B Participating Portfolio 24
SCHEDULE C Allocation of Expenses 25
SCHEDULE D Format for NAV and Dividend Information 26
SCHEDULE E Proxy Voting Procedure 27
SCHEDULE F NSCC Procedures 30
2
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, effective as of this 1st day of April, 2005 by and among
Hartford Life and Annuity Insurance Company ("Hartford"), a Connecticut
corporation, on its behalf and on behalf of each separate account set forth on
attached SCHEDULE A as it may be amended from time to time (the "Separate
Accounts"); Variable Insurance Products Fund, Variable Insurance Products Fund
II, Variable Insurance Products Fund III and Variable Insurance Products Fund IV
(each referred to hereinafter as the "Trust"); and Fidelity Distributors
Corporation (the "Distributor").
WHEREAS, each Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established by insurance companies for life insurance policies and annuity
contracts; and
WHEREAS, the beneficial interest in each Trust is divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets, any one or more of which may be made available
under this Agreement, as may be amended from time to time by mutual agreement of
the parties hereto (each such series hereinafter referred to as a "Portfolio");
and
WHEREAS, each Trust has obtained an order from the Securities and Exchange
Commission, dated October 15, 1985 (File No. 812-6102) or September 17, 1986
(File No. 812-6422), granting Participating Insurance Companies and variable
annuity and variable life insurance separate accounts exemptions from the
provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company
Act of 1940, as amended, (hereinafter the "1940 Act") and Rules 6e-2(b) (15) and
6e-3(T) (b) (15) thereunder, to the extent necessary to permit shares of the
Trust to be sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance companies
(hereinafter the "Shared Funding Exemptive Order");
WHEREAS, the Distributor is registered as a broker/dealer under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), is a member in good standing
of the National Association of Securities Dealers (the "NASD") and serves as
principal underwriter of the shares of each Trust; and
WHEREAS, each Trust intends to make available shares of its Portfolios as set
forth on attached SCHEDULE B, as it may be amended from time to time by mutual
agreement of the parties (the "Portfolios"), to the Separate Accounts of
Hartford; and
WHEREAS, Fidelity Management and Research Company ("the Adviser") is registered
as an investment adviser under the Investment Advisers Act of 1940, as amended,
and any applicable state securities laws and serves as the investment adviser to
the Portfolios, and Fidelity Investments Institutional Services Company, Inc.
("FIIS") is an affiliate of the Distributor and Adviser that performs sales,
marketing and administrative services; and
3
WHEREAS, Hartford is an insurance company which has registered or will register
the variable annuities and/or variable life insurance policies funded through
the Separate Account under the Securities Act of 1933 (the "1933 Act") and the
Investment Company Act of 1940 (the "1940 Act"), unless exempt from such
registration, to be issued by Hartford for distribution (the "Contracts").
NOW, THEREFORE, in consideration of their mutual promises, Hartford, the Trust,
and the Distributor agree as follows:
ARTICLE A. FORM OF AGREEMENT
Although the parties have executed this Agreement in the form of a Master
Participation Agreement for administrative convenience, this Agreement shall
create a separate participation agreement for each Trust, as though Hartford and
the Distributor had executed a separate, identical form of participation
agreement with each Trust. No rights, responsibilities or liabilities of any
Trust shall be attributed to any other Trust.
ARTICLE I. PORTFOLIO SHARES
1.1 The Trust and the Distributor agree to make Portfolio shares available for
purchase by Hartford on behalf of the Separate Accounts on each Business Day.
The Trust will execute orders placed for each Separate Account on a daily basis
at the net asset value of each share next computed after receipt by the Trust,
or its designee, of such order as of the close of business on each Business Day.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust and Distributor for receipt of orders from each Separate
Account and receipt by Hartford constitutes receipt by the Trust,
provided that the Trust receives notice of such orders by 9:30 a.m.
(Boston time) on the next following Business Day.
B. For purposes of this Agreement, "Business Day" shall 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 each Portfolio pursuant
to the rules of the Securities and Exchange Commission ("SEC"), as
set forth in the Portfolio' prospectus.
1.2 The Board of Trustees of the Trust (the "Board"), acting in good faith and
in the exercise of its fiduciary responsibilities, may refuse to permit the
Trust to sell shares of any Portfolio to any person, or suspend or terminate the
offering of shares of any Portfolio if such action is required by law or by
regulatory authorities having jurisdiction over the sale of shares, or is, in
the sole discretion of the Board acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, necessary in the
best interests of the shareholders of such Portfolio.
4
1.3 The Trust and the Distributor agree that shares of the Trust or any of its
Portfolios will be sold only to insurance companies for use in conjunction with
variable life insurance policies or variable annuities. No shares of the Trust
or any of its Portfolios will be sold to the general public.
1.4 The Trust and the Distributor agree to redeem for cash, at Hartford's
request, any full or fractional shares of the Portfolios held by the Separate
Accounts, on a daily basis at the net asset value next computed after receipt by
the Trust or its designee of the request for redemption.
A. For the purposes of this Agreement, Hartford shall be the designee of
the Trust for receipt of redemption requests from each Separate
Account and receipt by Hartford constitutes receipt by the Trust,
provided that the Distributor receives notice of the redemption
request by 9:30 a.m. (Boston time) on the next following Business
Day. Hartford agrees to submit such orders electronically through
secured trading systems as described on Schedule F to this Agreement
or, if it is unable to submit orders electronically, Hartford shall
submit such orders through manual transmissions using the procedures
described in Schedule F to this Agreement.
1.5 Hartford agrees that purchases and redemptions of Portfolio shares offered
by the then current prospectus of the Portfolio shall be made in accordance with
the provisions of the prospectus.
A. Hartford will place separate orders to purchase or redeem shares of
each Portfolio. Each order shall describe the net amount of shares
and dollar amount of each Portfolio to be purchase or redeemed.
B. In the event of net purchases, Hartford will pay for shares in
federal funds transmitted by wire before 3:00 p.m. (Eastern time) on
the next Business Day after receipt of an order to purchase shares,
or as the parties may otherwise agree in writing or by course of
conduct.
C. In the event of net redemptions, the Trust shall pay the redemption
proceeds in federal funds transmitted by wire before 3:00 p.m.
(Eastern time) on the next Business Day after an order to redeem
Portfolio shares is made, or as the parties may otherwise agree in
writing or by course of conduct.
1.6 Issuance and transfer of the Portfolio' shares will be by book entry only.
Share certificates will not be issued to Hartford or any Separate Account.
Shares purchased will be recorded in an appropriate title for each Separate
Account or the appropriate sub-account of each Separate Account. The Trust shall
furnish to Hartford the CUSIP number assigned to each Portfolio identified in
SCHEDULE B attached as may be amended from time to time.
1.7 The Distributor shall notify Hartford in advance of any dividends or
capital gain distributions payable on the Portfolio' shares, but by no later
than same day notice by
5
6:00 p.m. Eastern time on the declaration date (by wire or telephone, followed
by written confirmation), Hartford elects to reinvest all such dividends and
capital gain distributions in additional shares of that Portfolio. The Trust
shall notify Hartford of the number of shares issued as payment of dividends and
distributions. Hartford reserves the right to revoke this election and to
receive all such dividends and capital gain distributions in cash.
1.8 The Distributor shall provide, in a form acceptable to Hartford, the net
asset value per share of each Portfolio to Hartford on a daily basis as soon as
reasonably practical after the net asset value per share is calculated. The
Trust shall use its best efforts to make such net asset value per share
available by 6:30 p.m. Eastern time. Information specified in this Section and
Section 1.7 will be substantially in the form as set forth in attached Schedule
D.
1.9 The parties agree that the Contracts are not intended to serve as vehicles
for frequent transfers among the Portfolios in response to short-term stock
market fluctuations.
A. Accordingly, Hartford represents and warrants that:
1. all purchase and redemption orders it provides under this Article
I shall result solely from Contract Owner transactions fully
received and recorded by Hartford before the time as of which each
applicable VIP Portfolio net asset value was calculated (currently
4:00 p.m. e.s.t);
2. it will use its best efforts to discourage market timing and other
excessive or disruptive trading activity by third parties with
power to act on behalf of multiple contract owners and by
individual contract owners;
3. any annuity contract forms or variable life insurance policy forms
not in use at the time of execution of this Agreement, but added
to in the future via amendment of Schedule A hereto, will contain
language reserving to Hartford the right to refuse to accept
instructions from persons that engage in market timing or other
excessive or disruptive trading activity.
B. The Trust agrees to notify Hartford of transfer activity that the
Trust or Distributor deems to be excessive or disruptive ("Abusive
Transfer Activity"). After receiving such notice from the Trust.
Hartford agrees that it will cooperate with the Trust and Distributor
to limit Abusive Transfers to the extent permissible under the terms
and conditions of Contract owner prospectuses. Contracts and other
governing laws. The Trust and Hartford agree to amend this provision
as mutually deemed to be necessary to reflect any applicable law
changes.
C. In the event that Abusive Transfer activity, as determined by the
Trust, recurs after initial notice to Hartford, the Trust may then
terminate the offering of any affected Portfolio to any affected
Account upon sixty (60) days written notice to Hartford.
6
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 Hartford represents and warrants that:
A. The Contracts are or will be registered under the 1933 Act unless
exempt and that the registrations will be maintained to the extent
required by law.
B. The Contracts will be issued in material compliance with all
applicable federal and state laws and regulations, and will be sold
only by duly licensed and appointed parties with which Hartford has
written agreements that require, among other things, that the sale of
the Contracts shall comply in all material respects with applicable
federal and state laws and regulations and state insurance
suitability requirements.
C. Hartford is duly organized and in good standing under applicable law.
D. Hartford has legally and validly established each Separate Account
under the Connecticut Insurance Code prior to any issuance or sale as
a segregated asset account under the Connecticut Insurance Code and
has registered or, prior to any issuance or sale of the Contracts,
will register and will maintain the registration of each Separate
Account as a unit investment trust in accordance with the 1940 Act,
unless exempt from such registration.
2.2 The Trust and the Distributor represent and warrant that:
A. Portfolio shares sold pursuant to this Agreement shall be registered
under the 1933 Act and the regulations thereunder to the extent
required.
B. Portfolio shares sold pursuant to this Agreement shall be duly
authorized for issuance and sold in accordance with the laws of the
State of Connecticut and in material compliance with all applicable
federal and state securities laws and regulations.
C. The Trust is and shall remain registered under the 1940 Act and the
regulations thereunder to the extent required.
D. The Trust shall amend its registration statement under the 1933 Act
and the 1940 Act, from time to time, as required in order to effect
the continuous offering of the Portfolio' shares.
2.3 The Trust and the Distributor represent and warrant that:
A. The Trust is currently qualified as a "regulated investment company"
under Subchapter M of the Internal Revenue Code of 1986, as amended,
(the "Code") and complies with Section 817(h) of the Code and
regulations there under. The Trust and
7
Adviser will make every effort to maintain such qualification and that
both will notify Hartford immediately in writing upon having a
reasonable basis for believing that the Trust has ceased to qualify or
that the Trust might not qualify in the future.
B. The Trust is duly organized and validly existing under the laws of
the state of its organization.
C. The Trust does and will comply in all material respects with the 1940
Act.
D. The Trust has obtained an order from the SEC granting participating
insurance companies and variable insurance product separate accounts
exemptions from the provisions of sections 9(a), 13(a), 15(a) and
15(b) of the 1940 Act, as amended, and rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares
of the Trust or its Portfolios to be sold to and held by variable
insurance product separate accounts of both affiliated and
unaffiliated life insurance companies.
2.4 The Distributor represents and warrants that:
A. It is and shall remain a member in good standing of the NASD and duly
registered as a broker-dealer with the SEC and that it sell and
distribute Trust shares in material compliance with the laws of the
State of Connecticut and with all applicable federal and state
securities laws and regulations.
ARTICLE III. PROSPECTUSES. REPORTS TO SHAREHOLDERS AND PROXY
STATEMENTS; VOTING
3.1 The Trust shall provide Hartford with as many printed copies of the current
prospectus(es), statement of additional information, proxy statements, annual
reports and semi annual reports of each Portfolio (and no other portfolio), and
any supplements or amendments to any of the foregoing, as Hartford may
reasonably request. If requested by Hartford in lieu of the foregoing printed
documents, the Trust shall provide such documents in the form of camera-ready
film, computer diskettes or typeset electronic document files, all as Hartford
may reasonably request, and such other assistance as is reasonably necessary in
order for Hartford to have any of the prospectus(es), statement of additional
information, proxy statements, annual reports and semi annual reports of each
Portfolio (and no other portfolio), and any supplements or amendments to any of
the foregoing, printed in combination with such documents of other fund
companies' and/or such documents for the Contracts. Except as provided in the
following three sentences, all expenses of printing and distributing Trust
prospectuses and Statements of Additional Information shall be the expense of
Hartford. For prospectuses and Statements of Additional Information provided by
Hartford to its existing owners of Contracts in order to update disclosure
annually as required by the 1933 Act and/or the 1940 Act, the cost of printing
shall be borne by the Trust. If Hartford chooses to receive camera-ready film in
lieu of receiving printed copies of the Trust's prospectus, the Trust will
reimburse Hartford in an amount equal to the product of A and B where A is the
number of such prospectuses distributed to
8
owners of the Contracts, and B is the Trust's per unit cost of typesetting and
printing the Trust's prospectus. The same procedures shall be followed with
respect to the Trust's Statement of Additional Information. In the event that
Portfolios of the Trust are made available in Contracts that were available for
purchase before the date of this Agreement, the quantities above shall be
limited to owners of Contracts issued after the date of this Agreement.
Hartford agrees to provide the Trust or its designee with such information as
may be reasonably requested by the Trust to assure that the Trust's expenses do
not include the cost of printing any prospectuses or Statements of Additional
Information other than those actually distributed to existing owners of the
Contracts.
3.2 The Trust or its designee will provide Hartford prompt notice, generally
not less than 90 days before the effective date, of the following events having
disclosure implications for a Portfolio: (a) fund objective changes, (b)
anticipated fund mergers/substitutions, (c) fund name changes, (d) fund adviser
or sub-adviser changes; and/or (e) other changes that affect Hartford's contract
prospectuses or the distribution of fund prospectuses or reports. If the Trust
fails to provide Hartford with the required notice, and this failure causes
Hartford reasonably to incur additional expenses for facilitating the changes
and for notifying Contract owners, the Distributor will reimburse Hartford for
the difference between Hartford's actual expenses and the expenses Hartford
would have incurred had the required notice been given. This provision shall not
apply to prospectus supplements ("stickers"), requests for regulatory relief,
fund proxy statements (discussed below) or other actions that the Trust or
Distributor determine to be necessary or appropriate to keep the Trust in
material compliance with applicable laws or fiduciary obligations to
shareholders.
3.3 The Trust will provide Hartford with copies of its proxy solicitations
applicable to the Portfolio. Hartford will, to the extent required by law, (a)
distribute proxy materials applicable to the Portfolio to eligible Contract
owners, (b) solicit voting instructions from eligible Contract owners, (c) vote
the Portfolio shares in accordance with instructions received from Contract
owners; and (d) if required by law, vote Portfolio shares for which no
instructions have been received in the same proportion as shares of the
Portfolio for which instructions have been received. Participating Insurance
Companies shall be responsible for assuring that each of their separate accounts
participating in the Trust calculates voting privileges in a manner consistent
with the standards set forth on Schedule E attached hereto.
A. To the extent permitted by applicable law, Hartford reserves the
right to vote Portfolio shares held in any Separate Account in its
own right.
3.4 The Trust will comply with all provisions of the 1940 Act and the rules
thereunder requiring voting by shareholders.
9
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 Hartford shall furnish, or shall cause to be furnished, to the Trust or its
designee prior to use, each piece of sales literature or advertising prepared by
Hartford in which the Trust, the Adviser or the Distributor is described. No
sales literature or advertising will be used if the Trust, the Adviser, or the
Distributor reasonably objects to its use within ten (10) Business Days
following receipt by the Trust.
4.2 Hartford will not, without the permission of the Trust, make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the advertising or sale of the Contracts, other than information
or representations contained in: (a) the registration statement or Portfolio
prospectus(es), (b) Portfolio' annual and semi annual reports to shareholders,
(c) proxy statements for the Portfolio, or, (d) sales literature or other
promotional material approved by the Trust.
4.3 The Trust shall furnish, or shall cause to be furnished, to Hartford prior
to use, each piece of sales literature or advertising prepared by the Trust in
which Hartford, the Contracts or Separate Accounts, are described. No sales
literature or advertising will be used if Hartford reasonably objects to its use
within ten (10) Business Days following receipt by Hartford.
4.4 Neither the Trust nor the Distributor nor the Adviser will, without the
permission of Hartford, make any representations or statements on behalf of
Hartford, the Contracts, or the Separate Accounts or concerning Hartford, the
Contracts or the Separate Accounts, in connection with the advertising or sale
of the Contracts, other than the information or representations contained in:
(a) the registration statement or prospectus for the Contracts, (b) Separate
Account reports to shareholders, (c) in sales literature or other promotional
material approved by Hartford.
4.5. The Trust will provide to Hartford at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports to shareholders, proxy statements, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions and requests for no-action letters, and all amendments, that relate
to the Portfolio or its shares.
4.6 Hartford will provide to the Trust, upon the Trust's request, at least one
complete copy of all statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, and requests for
no action letters, and all amendments, that relate to the Contracts.
4.7 For purposes of this Article IV, the phrase "sales literature or
advertising" includes, but is not limited to, any of the following that refer to
the Trust or any affiliate of the Trust: advertisements (such as material
published, or designed for use in, a newspaper, magazine, or other periodical,
radio, television, telephone or tape recording, videotape display, signs or
billboards, motion pictures, or other public media), sales
10
literature (I.E., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
private placement memoranda, shareholder reports, and proxy materials
ARTICLE V. DIVERSIFICATION
5.1 The Trust represents and warrants that, at all times, each Portfolio will
comply with Section 817(h) of the Code and all regulations thereunder, relating
to the diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section or
regulations. In the event a Portfolio ceases to so qualify, the Trust will
notify Hartford immediately of such event and the Adviser will take all steps
necessary to adequately diversify the Portfolio so as to achieve compliance
within the grace period afforded by Treasury Regulation Section 1.817-5.
ARTICLE VI. POTENTIAL CONFLICTS
6.1 The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Trust. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Board shall promptly inform Hartford if it
determines that an irreconcilable material conflict exists and the implications
thereof.
6.2 Hartford will report any potential or existing conflicts of which it is
aware to the Board. Hartford will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an obligation by Hartford
to inform the Board whenever contract owner voting instructions are disregarded.
6.3 If it is determined by a majority of the Board, or a majority of its
disinterested trustees, that a material irreconcilable conflict exists, Hartford
and other Participating Insurance Companies shall, at their expense and to the
extent reasonably practicable (as determined by a majority of the disinterested
trustees), take whatever
11
steps are necessary to remedy or eliminate the irreconcilable material conflict,
up to and including: (1) withdrawing the assets allocable to some or all of the
separate accounts from the Trust or any Portfolio and reinvesting such assets in
a different investment medium, including (but not limited to) another Portfolio
of the Trust, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (I.E., annuity contract owners,
life insurance contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected contract owners the option of making such a change; and
(2), establishing a new registered management investment company or managed
separate account.
6.4 If a material irreconcilable conflict arises because of a decision by
Hartford to disregard contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, Hartford may
be required, at the Trust's election, to withdraw the affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited
to the extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested members of the Board.
Notwithstanding anything herein possibly to the contrary, "echo" voting or the
effectuation of other voting procedures consistent with the Shared Funding
Exemptive Order, shall not constitute a decision to disregard contract owner
voting instructions as contemplated hereby. Subject to section 9.2, below, any
such withdrawal and termination must take place within six (6) months after the
Trust gives written notice that this provision is being implemented, and until
the end of that six month period the Distributor and Trust shall continue to
accept and implement orders by Hartford for the purchase (and redemption) of
shares of the Trust.
6.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to Hartford conflicts with the
majority of other state regulators, then Hartford will withdraw the affected
Account's investment in the Trust and terminate this Agreement with respect to
such Account within six months after the Board informs Hartford in writing that
it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested members of the Board. Until the
end of the foregoing six month period, the Distributor and Trust shall continue
to accept and implement orders by Hartford for the purchase (and redemption) of
shares of the Trust.
6.6 For purposes of Sections 6.3 through 6.6 of this Agreement, a majority of
the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Trust be required to establish a new funding medium for the Contracts.
Hartford shall not be required by Section 6.3 to establish a new funding medium
for the Contracts if an offer to do so has been declined by vote of a majority
of Contract owners materially adversely
12
affected by the irreconcilable material conflict. In the event that the Board
determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then Hartford will withdraw the Account's
investment in the Trust and terminate this Agreement within six (6) months after
the Board informs Hartford in writing of the foregoing determination, provided,
however, that such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
6.7 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 Act or
the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Trust and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable;
and (b) Sections 3.3, 3.4, 6.1, 6.2, 6.3, 6.4, and 6.5 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 VII. INDEMNIFICATION
7.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor, the
Adviser, the Trust and each of their directors, Trustees or (if
applicable), officers, employees and agents and each person, if any,
who controls the Trust within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" and individually, an
Indemnified Party" for purposes of this Section 7.1) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of Hartford, which consent shall
not be unreasonably withheld) or expenses (including the reasonable
costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the
Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses are
related to the sale or acquisition of Portfolio shares or the
Contracts and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a disclosure
document for the Contracts or in the Contracts themselves or in
sales literature generated or approved or distributed by Hartford
applicable to the Contracts or Separate Accounts (or any amendment
or supplement to any of the foregoing) (collectively, "Company
Documents" for the purposes of this Article VII), 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
indemnity
13
shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in
reliance upon and was accurately derived from written information
furnished to Hartford by or on behalf of the Trust for use in
Company Documents or otherwise for use in connection with the
sale of the Contracts or Portfolio shares; or
2. Arise out of or result from statements or representations (other
than statements or representations contained in and accurately
derived from the registration statement, prospectus, statement of
additional information or sales literature of the Trust applicable
to the Portfolio (or any amendment or supplement to any of the
foregoing) and not supplied by Hartford (collectively, "Trust
Documents" for purposes of this Article VII)) or wrongful conduct
of Hartford or persons under its control, with respect to the sale
or acquisition of the Contracts or Portfolio shares; or
3. Arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Trust Documents or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in
reliance upon and accurately derived from written information
furnished to the Trust by or on behalf of Hartford; or
4. Arise out of or result from any failure by Hartford to provide the
services or furnish the materials required 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 Hartford in this Agreement
or arise out of or result from any other material breach of this
Agreement by Hartford or any material breach by a
Hartford-appointed agent of the provisions required by section
2.1, above, of its written agreement with Hartford.
B. Hartford shall not be liable under this indemnification provision
with respect to any Losses which are due to an Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Trust or the Distributor whichever is
applicable.
C. Hartford shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified Hartford in writing within
a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but
failure to notify Hartford of any such claim shall not relieve
Hartford from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought
against the Indemnified Parties, Hartford shall be entitled to
participate, at its own expense, in the
14
defense of such action. Hartford also shall be entitled to assume the
defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from Hartford to such party of
Hartford's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained by it, and Hartford 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.
D. The Indemnified Parties will promptly notify Hartford of the
commencement of any litigation or proceedings against them or any of
their officers or directors in connection with the issuance or sale
of the Portfolio shares or the Contracts or the operation of the
Trust.
7.2 Indemnification by the Distributor
A. The Distributor agrees to indemnify and hold harmless Hartford and
each of its directors, officers, employees and agents and each
person, if any, who controls Hartford within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" and
individually, an "Indemnified Party" for purposes of this Section
7.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Distributor, which consent shall not be unreasonably withheld) or
expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, liability or expense and
reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Indemnified Parties may become
subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses are related to the sale or
acquisition of the Portfolio shares or the Contracts and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in Trust Documents
or arise out of or are based upon the omission or 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 indemnity shall not apply as to any Indemnified Party if
such statement or omission or such alleged statement or omission
was made in reliance upon and was accurately derived from written
information furnished to the Trust, the Adviser, or the
Distributor by or on behalf of Hartford for use in Trust Documents
or otherwise for use in connection with the sale of the Contracts
or Portfolio shares; or
2. Arise out of or result from statements or representations (other
than statements or representations contained in and accurately
derived from Company Documents) or wrongful conduct of the
Distributor or persons under its control, with respect to the sale
or distribution of the Contracts or Portfolio shares; or
3. Arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents, or
the omission or alleged omission to state therein a material fact
required to be stated therein or
15
necessary to make the statements therein not misleading if such
statement or omission was made in reliance upon and accurately
derived from written information furnished to Hartford by or on
behalf of the Distributor or the Trust; or
4. Arise out of or result from any failure by the Distributor or the
Trust to provide the services or furnish the materials required
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 in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Distributor.
B. The Distributor shall not be liable under this indemnification
provision with respect to any Losses which are due to an Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Hartford or the Separate Account,
whichever is applicable.
C. The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Distributor in
writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Distributor of any such
claim shall not relieve the Distributor from any liability which it
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this Indemnification provision. In case
any such action is brought against the Indemnified Parties, the
Distributor shall be entitled to participate, at its own expense, in
the defense thereof. The Distributor also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Distributor to such party of its
election to assume the defense thereof, the Indemnified Party shall
bear the expenses of any additional counsel retained by it, and the
Distributor 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.
D. The Indemnified Parties shall promptly notify the Distributor of the
commencement of any litigation or proceedings against them or any of
their officers or directors in connection with the issuance or sale
of the Contracts or the operation of a Separate Account.
7.3 Indemnification by the Trust
A. The Trust agrees to indemnify and hold harmless Hartford and each of
its directors, officers, employees and agents and each person, if
any, who controls Hartford within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties"
16
and individually, an "Indemnified Party" for purposes of this Section
7.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Trust, which consent shall not be unreasonably withheld) or expenses
(including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal
counsel fees incurred in connection therewith) (collectively,
"Losses"), to which the Indemnified Parties may become subject under
any statute or regulation, or at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements result from the gross negligence, bad
faith or willful misconduct of the Board or any member thereof, are
related to the operations of the Trust and:
1. arise as a result of any material failure by the Trust to
provide the services and furnish the materials under the
terms of this Agreement including a material failure, to
comply with the diversification requirements specified in
Article VI of this Agreement); or
2. arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Trust
B. The Trust shall not be liable under this indemnification provision
with respect to any Losses which are due to an Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Hartford or the Separate Account,
whichever is applicable.
C. The Trust shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust in writing
within a reasonable time after the summons or other first legal
process giving information of the nature of the Claim shall have been
served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent),
but failure to notify the Trust of any such claim shall not relieve
the Trust from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Trust shall be entitled to
participate, at its own expense, in the defense thereof. The Trust
also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Trust to such party of its election to assume the defense thereof,
the Indemnified Party shall bear the expenses of any additional
counsel retained by it, and the Trust 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.
D. The Indemnified Parties shall promptly notify the Trust of the
commencement of any litigation or proceedings against them or any of
their officers or
17
directors in connection with the issuance or sale of the Contracts or
the operation of a Separate Account.
7.5 Any party seeking indemnification (the "Potential Indemnitee") will
promptly notify any party from whom they intend to seek indemnification (each a
"Potential Indemnitor") of all demands made and/or actions commenced against the
Potential Indemnitee which may require a Potential Indemnitor to provide such
indemnification. At its option and expense, a Potential Indemnitor may retain
counsel and control any litigation for which it may be responsible to indemnify
a Potential Indemnitee under this Agreement.
7.6 If a party is defending a claim and indemnifying another party hereto, the
indemnified party shall give the indemnifying party reasonable access during
normal business hours to its nonconfidential books and records pertaining to
such claim, and shall otherwise cooperate in the defense of any claim.
Regardless of which party defends a particular claim, the defending party shall
give the other parties written notice of any significant development in the case
as soon as practicable, and such other parties, at all times, shall have the
right to intervene in the defense of the case.
7.7 If a party is defending a claim and indemnifying another party hereto, and:
(i) a settlement proposal is made by the claimant, or (ii) the defending party
desires to present a settlement proposal to the claimant, then the defending
party promptly shall notify the Indemnified Party of such settlement proposal
together with its counsel's recommendation. If the defending party desires to
enter into the settlement and the Indemnified Party fails to consent within
thirty (30) business days (unless such period is extended, in writing, by mutual
agreement of the parties hereto), then the Indemnified Party, from the time it
fails to consent forward, shall defend the claim and shall indemnify the
defending party for all costs associated with the claim which are in excess of
the proposed settlement amount.
Regardless of which party is defending the claim: (i) if a settlement requires
an admission of liability by the non-defending party or would require the
non-defending party to either take action (other than purely ministerial action)
or refrain from taking action (due to an injunction or otherwise) (a "Specific
Performance Settlement"), the defending party may agree to such settlement only
after obtaining the express, written consent of the non-defending party. If a
non-defending party fails to consent to a Specific Performance Settlement, the
consequences described in the last sentence of the first paragraph of this
Section 7.7 shall NOT apply.
7.8 The parties shall use good faith efforts to resolve any dispute concerning
this indemnification obligation. Should those efforts fail to resolve the
dispute, the ultimate resolution shall be determined in a DE NOVO proceeding,
separate and apart from the underlying matter complained of, before a court of
competent jurisdiction. Either party may initiate such proceedings with a court
of competent jurisdiction at any time following the termination of the efforts
by such parties to resolve the dispute (termination of such efforts shall be
deemed to have occurred thirty (30) days from the commencement of the same
unless such time period is extended by the written agreement of the parties).
18
The prevailing party in such a proceeding shall be entitled to recover
reasonable attorneys' fees, costs, and expenses.
ARTICLE VIII. APPLICABLE LAW
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of
Massachusetts without
giving effect to the principles of conflicts of laws.
8.2 This Agreement, its terms and definitions, shall be subject to the
provisions of the 1933 Act, the Securities Exchange Act of 1934, and the 1940
Act, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant.
ARTICLE IX. TERMINATION
9.1 This Agreement shall continue in full force and effect until the first to
occur of:
A. Termination by any party for any reason upon sixty (60) days advance
written notice delivered to the other parties; or
B. Termination by Hartford by written notice to the Trust, the Adviser
or the Distributor with respect to any Portfolio in the event any of
the Portfolio' 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 medium
of the Contracts issued or to be issued by Hartford; or
C. Termination by Hartford upon written notice to the Trust with respect
to any Portfolio in the event that such Portfolio ceases to qualify
as a "regulated investment company" under Subchapter M of the Code or
under any successor or similar provision; or
D. Termination by Hartford upon written notice to the Trust and the
Distributor with respect to any Portfolio in the event that such
Trust fails to meet the diversification requirements specified in
Section 5.1 of this Agreement; or
E. Termination upon mutual written agreement of the parties to this
Agreement.
9.2 Effect of Termination.
A. Notwithstanding any termination of this Agreement, the Trust shall,
at the option of Hartford, continue to make available additional
shares of the Portfolio pursuant to the terms and conditions of this
Agreement, for all Contracts in effect on the effective date of
termination of this Agreement (the "Existing Contracts") unless such
further sale of Portfolio shares is proscribed by law, regulation or
applicable regulatory body.
19
Specifically, without limitation, the owners of the Existing
Contracts will be permitted to direct allocation and reallocation of
investments in the Portfolio, redeem investments in the Portfolio and
invest in the Portfolio through additional purchase payments.
B. Hartford agrees not to redeem Portfolio shares attributable to the
Contracts except (i) as necessary to implement Contract owner
initiated or approved transactions, or (ii) as required by state
and/or federal laws or regulations or judicial or other legal
precedent of general application or (iii) as permitted by an order of
the SEC. Upon request, Hartford will promptly furnish to the Trust
the opinion of counsel for Hartford to the effect that any redemption
pursuant to clause (ii) above is a legally required redemption.
C. In addition to the foregoing, Article VII Indemnification shall
survive any termination of this Agreement. In addition, all other
applicable provisions of this Agreement shall survive termination as
long as shares of the Trust are held on behalf of Contract owners in
accordance with section 9.2.A, except that the Trust and Distributor
shall have no further obligation to make Trust shares available in
Contracts issued after termination.
ARTICLE X. NOTICES
10.1 Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Trust:
00 Xxxxxxxxxx Xx.
Xxxxxx, XX 00000
Attention: Treasurer
If to the Distributor:
00 Xxxxxxxxxx Xx.
Xxxxxx, XX 00000
Attention: Treasurer
If to Hartford: With a copy to:
Hartford Life Insurance Co. Hartford Life Insurance Co.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, President Attn: Xxxx Xxxxxxx, Deputy General Counsel
ARTICLE XI. MISCELLANEOUS
11.1 Each party will treat as confidential any and all "Nonpublic Personal
Financial Information" and not release any Nonpublic Personal Financial
Information unless
20
(a) the other party provides written consent to do so; (b) a party is compelled
to do so by court order, subpoena or comparable request issued by any
governmental agency, regulator or other competent authority; or (c) permitted by
applicable law. Each party shall safeguard Nonpublic Personal Financial
Information as required by applicable law and provide reasonable confirmation
upon request. As used above, (i) "Nonpublic Personal Financial Information"
shall refer to personally identifiable financial information about any
prospective or then existing customer of Hartford including customer lists,
names, addresses, account numbers and any other data provided by customers to
the Hartford in connection with the purchase or maintenance of a product or
service that is not Publicly Available; and (ii) "Publicly Available" shall mean
any information that the disclosing party has a reasonable basis to believe is
lawfully made available to the general public from federal, state, or local
government records, widely distributed media, or disclosures made to the general
public that are required by federal, state, or local law. This Agreement does
not require or contemplate that Hartford will share, or that the Trust or the
Distributor will receive or maintain, any Nonpublic Personal Financial
Information of Hartford Contract Owners.
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 shall constitute one and the same instrument.
11.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
11.5 Each party shall cooperate with each other party and all appropriate
governmental authorities (including, without limitation, the SEC, the NASD and
state insurance regulators) and shall permit such authorities (and other
parties) reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
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 laws.
11.7 This Agreement or any of the rights and obligations hereunder may not be
assigned by any party without the prior written consent of all parties;
provided, however, that the Distributor may assign this Agreement or any rights
or obligations hereunder to any affiliate of or company under common control
with the Distributor, if such assignee is duly licensed and registered to
perform the obligations of the Distributor under this Agreement. Hartford shall
promptly notify the Trust and the Distributor of any change in control of
Hartford.
21
11.8 The waiver of, or failure to exercise, any right provided for in this
Agreement shall not be deemed a waiver of any further or future right under this
Agreement.
11.9 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 Board,
officers, agents nor shareholders assume any personal liability for obligations
entered into on behalf of the Trust.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in as name and on its behalf by its duly authorized representative as of the
date specified above.
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
On its behalf and each Separate Account named in
Schedule A, as may be amended from time to time
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Its Vice President
VARIABLE INSURANCE PRODUCTS FUND
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------
Its Treasurer, Senior Vice President
Xxxxxxxxx Xxxxxxxx
FIDELITY DISTRIBUTORS CORPORATION
By: [ILLEGIBLE]
-----------------------------------
Its Executive Vice President
22
SCHEDULE A
SEPARATE ACCOUNTS
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED
Separate Account Three 6/22/94
23
SCHEDULE B
PARTICIPATING PORTFOLIOS
Fidelity VIP Contrafund Portfolio
Fidelity VIP Equity-Income Portfolio
Fidelity VIP Growth Portfolio
Fidelity VIP Mid Cap Portfolio
Fidelity VIP Value Strategies Portfolio
24
SCHEDULE C
ALLOCATION OF EXPENSES
PAID BY HARTFORD PAID BY THE TRUST
--------------------------------------------------------------------------------------------------------------------------
Preparing and filing the Separate Account's registration Preparing and filing the Trust's registration statement
statement
Text composition for Separate Account prospectus and Text composition for Portfolio prospectuses and supplements
supplements
Text alterations of Separate Account prospectus and Text alterations of Portfolio prospectuses and supplements
supplements
Printing Separate Account prospectuses and supplements for Printing Portfolio prospectus and supplements for use with
use with prospective Contract owners; existing Contract owners; or if requested by Hartford,
providing camera-ready film, computer diskettes or typeset
Printing Portfolio prospectuses and supplements for use with electronic document files of such documents and printing
prospective Contract owners such documents for use with existing Contract owners (1)
Text composition and printing of Separate Account statement Text composition and printing of Trust statement of
of additional information additional information (1)
Mailing and distributing Separate Account prospectuses, Printing Portfolio and Separate Account supplements and
supplements and statement of additional information to other communications related to the following transactions,
existing Contract owners as required by applicable law; only if initiated by the fund: fund substitutions, fund
closings, fund mergers and other similar fund transactions.
Mailing and distributing Separate Account prospectuses and This shall not apply to Trust-sponsored proxy statements,
supplements to prospective Contract owners; covered below.
Mailing and distributing Portfolio prospectuses and
supplements to existing and prospective Contract owners
Text composition of any annual and semi-annual reports of Text composition of annual and semi-annual reports or the
the Separate Account, printing, mailing, and distributing Portfolio; printing annual and semi-annual reports of the
any annual and semi-annual reports of the Separate Account Portfolio for existing Contract owners then invested in the
and mailing and distributing annual and semiannual reports Portfolio (1)
of the Portfolio to existing Contract Owners
Text composition, printing, mailing, distributing, and Text composition, printing, mailing, distributing. and
tabulation of proxy statements and voting instruction tabulation or proxy statements and voting instruction
solicitation materials to Contract owners with respect to solicitation materials to Contract owners with respect to
proxies sponsored by the Separate Accounts or sponsored by proxies sponsored by the Portfolio or the Trust
any fund managed by a third party
------------
(1) Hartford may choose to print the Portfolio' prospectus(es), statement of
additional information, and its semi annual and annual reports, or any of
such documents. In combination with such documents of other fund companies.
In this case, the Trust's share of the total expense for printing of the
combined materials shall be determined pro-rata based upon the page count
of the Portfolio' documents as compared to the total page count for the
combined materials containing all other funds offered under the Contracts,
as further limited. In the case of annual and semiannual reports, to print
quantities distributed to contract owners with contract value allocated to
the Trust as of the report date.
25
SCHEDULE D
FORMAT FOR NAV AND DIVIDEND INFORMATION
Please provide the following information when sending the nightly NAV and
Dividend Distribution Date Fax/Email:
Mutual Fund Company Name
Fund Name (no abbreviations)
Fund Number
NAV
NAV Change from Prior Day
Mil Rate
Change in Mil Rate
Ordinary Dividend Distribution
Short Term Cap Gain Distribution
Long Term Cap Gain Distribution
26
SCHEDULE E
PROXY VOTING PROCEDURE
Where Hartford agrees to appoint a proxy voting service engaged by the Fund or
the Distributor, Hartford shall reasonably cooperate with the project plans and
requests of such service. This Proxy Voting Procedure shall apply in any case in
which Hartford does not agree to appoint a proxy service engaged by the Fund or
the Distributor.
The following is a list of procedures and corresponding responsibilities for the
handling of proxies relating to the Fund by the Underwriter, the Fund and the
Company. The defined terms herein shall have the meanings assigned in the
Participation Agreement except that the term "Company" shall refer to Hartford
and any third party engaged by Hartford to perform the steps delineated below.
1. The number of proxy proposals is given to the Company by the
Underwriter as early as possible before the date set by the Fund for
the shareholder meeting to facilitate the establishment of
tabulation procedures. At this time the Underwriter will inform the
Company of the Record, Mailing and Meeting dates. This will be done
verbally approximately two months before meeting.
2. Promptly after the Record Date, the Company will perform a "tape
run", or other activity, which will generate the names, addresses
and number of units which are attributed to each contract
owner/policyholder (the "Customer") as of the Record Date. Allowance
should be made for account adjustments made after this date that
could affect the status of the Customers' accounts as of the Record
Date.
Note: The number of proxy statements is determined by the activities
described in Step #2. The Company will use its best efforts to call
in the number of Customers to Fidelity, as soon as possible, but no
later than two weeks after the Record Date.
3. The Fund's Annual Report no longer needs to be sent to each Customer
by the Company either before or together with the Customers' receipt
of a proxy statement. Underwriter will provide the last Annual
Report to the Company pursuant to the terms of Section 3.3 of the
Agreement to which this Schedule relates.
4. The text and format for the Voting Instruction Cards ("Cards" or
"Card") is provided to the Company by the Fund. The Company shall
provide Voting Instruction Cards for Company to personalize. The
Legal Department of the Underwriter or its affiliate ("Fidelity
Legal") must approve the Card before it is printed. Allow
approximately 2-4 business days for printing information on the
Cards. Information commonly found on the Cards includes:
a. name (legal name as found on account registration)
b. address
c. Fund or account number
d. coding to state number of units
27
e. individual Card number for use in tracking and verification
of votes (already on Cards as printed by the Fund)
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
5. During this time, Fidelity Legal will develop, produce, and the Fund
will pay for the Notice of Proxy and the Proxy Statement (one
document). Printed and folded notices and statements will be sent to
Company for insertion into envelopes. Contents of envelope sent to
Customers by Company will include:
a. Voting Instruction Card(s)
b. One proxy notice and statement (one document)
c. return envelope addressed to the Company or its tabulation
agent
d. "urge buckslip"- optional, but recommended. (This is a small,
single sheet of paper that requests Customers to vote as
quickly as possible and that their vote is important. One copy
will be supplied by the Fund.)
e. cover letter - optional, supplied by Company and reviewed and
approved in advance by Fidelity Legal.
6. The above contents should be received by the Company approximately
3-5 business days before mail date. Individual in charge at Company
reviews and approves the contents of the mailing package to ensure
correctness and completeness. Copy of this approval sent to Fidelity
Legal by the Company
7. Package mailed by the Company.
- The Fund MUST allow at least a 15-day solicitation time to the
Company as the shareowner. (A 5-week period is recommended.)
Solicitation time is calculated as calendar days from (but NOT
including) the meeting, counting backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes
place in another department or another vendor depending on process
used. An often used procedure is to sort Cards on arrival by
proposal into vote categories of all yes, no, or mixed replies, and
to begin data entry.
Note: Postmarks are not generally needed. A need for postmark
information would be due to an insurance company's internal
procedure and has not been required by Fidelity in the past.
9. Signatures on Card checked against legal name on account registration which
was printed on the Card.
28
Note: For Example. If the account registration is under "Xxxxxxx X.
Xxxxx, Trustee," then that is the exact legal name to be printed on
the Card and is the signature needed on the Card.
10. If Cards are mutilated, or for any reason are illegible or are not
signed properly, they are sent back to Customer with an explanatory
letter, a new Card and return envelope. The mutilated or illegible
Card is disregarded and considered to be NOT RECEIVED for purposes
of vote tabulation. Any Cards that have "kicked out" (e.g.
mutilated, illegible) of the procedure are "hand verified," i.e.,
examined as to why they did not complete the system. Any questions
on those Cards are usually remedied individually.
11. There are various control procedures used to ensure proper
tabulation of votes and accuracy of that tabulation. The most
prevalent is to sort the Cards as they first arrive into categories
depending upon their vote; an estimate of how the vote is
progressing may then be calculated. If the initial estimates and the
actual vote do not coincide, then an internal audit of that vote
should occur. This may entail a recount.
12. The actual tabulation of votes is done in units which are then
converted to shares. (It is very important that the Fund receives
the tabulations stated in terms of a percentage and the number of
SHARES.) Fidelity Legal must review and approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to
Fidelity Legal on the morning of the meeting not later than 10:00
a.m. Boston time. Fidelity Legal may request an earlier deadline if
required to calculate the vote in time for the meeting.
14. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final
vote. Fidelity Legal will provide a standard form for each
Certification.
15. The Company will be required to box and archive the Cards received
from the Customers. In the event that any vote is challenged or if
otherwise necessary for legal, regulatory, or accounting purposes,
Fidelity Legal will be permitted reasonable access to such Cards.
16. All approvals and "signing-off"may be done orally, but must always
be followed up in writing.
29
SCHEDULE F
NSCC PROCEDURES
Subject to the terms and conditions of this Agreement, Hartford shall be
appointed to, and agrees to act, as a limited agent of Trust for the sole
purpose of receiving instructions from authorized parties as defined by the
Contracts for the purchase and redemption of Fund shares prior to the close of
regular trading each Business Day. A "Business Day" is defined in Article 1.1(B)
of the Agreement. Except as particularly stated in this paragraph, Hartford
shall have no authority to act on behalf of Trust or to incur any cost or
liability on its behalf.
Until such time as Trust and Hartford are able to utilize the National
Securities Clearing Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system: Trust will use its best efforts to
provide to Hartford or its designated agent closing net asset value, change in
net asset value, dividend or daily accrual rate information and capital gain
information by 6:30 p.m. Eastern Time each Business Day. Hartford or its agent
shall use this data to calculate unit values. Unit values shall be used to
process the same Business Day's contract transactions. Orders derived from, and
in amounts equal to, instructions received by Hartford prior to the Close of
Trading on the New York Stock Exchange on any Business Day ("Day 1") shall be
transmitted without modification (except for netting or aggregating such orders)
to Trust by 9:30 a.m. Eastern Time on the next Business Day. Such trades will be
effected at the net asset value of each Fund's shares calculated as of the Close
of Trading on Day 1. Trust will not accept any order made on a conditional basis
or subject to any delay or contingency.
Until such time as Trust and Hartford are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after transmittal of an
instruction or confirmation, verify the other party's receipt of such
instruction or confirmation, and in the absence of such verification such a
party to whom an instruction or confirmation is sent shall not be liable for any
failure to act in accordance with such instruction or confirmation, and the
sending party may not claim that such an instruction or confirmation was
received by the other. Each party shall notify the other of any errors,
omissions or interruptions in, or delay or unavailability as promptly as
possible.
a) For those purchase orders not transmitted via the DCC&S Fund/SERV
system, Hartford shall complete payment to Trust or its designated
agent in federal funds no later than 3:00 P.M. on the Business Day
following the day on which the instructions are treated as having
been received by Trust pursuant to this Agreement.
b) For those redemption orders not transmitted via the DCC&S Fund/SERV
system, Trust or its designated agent shall initiate payment in
federal funds no later than 3:00 P.M. on the Business Day following
the day on which the instructions are treated as having been received
by Trust pursuant to this Agreement.
30
At such time as Trust and Hartford are able to transmit information via the
NSCC's DCC&S Fund/SERV System:
a) Orders derived from, and in amounts equal to, instructions received
by Hartford prior to the Close of Trading on Day 1 shall be
transmitted without modification (except for netting and aggregation
of such orders) via the NSCC's DCC&S Fund/SERV system to Trust no
later than 9:00 a.m. Eastern Time on the Next Business Day. Such
trades will be effected at the net asset value of each Fund's shares
calculated as of the Close of Trading on Day 1.
b) Trust and Hartford shall mutually agree there may be instances when
orders shall be transmitted to Trust via facsimile no later than 9:30
a.m. rather than through the DCC&S Fund/SERV system. In such
instances, such orders shall be transmitted to Trust via facsimile no
later than 9:30 a.m. Eastern Time on the next Business Day.
c) With respect to purchase and redemption orders received by Trust on
any Business Day for any Fund, within the time limits set forth in
this Agreement, settlement shall occur consistent with the
requirements of DCC&S Fund/SERV system.
At such time as Trust and Hartford are able to transmit information via the
DCC&S Fund/SERV system: Trust or its designated agent shall send to Hartford,
via the DCC&S Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders ("Confirmations") on each
Business Day for which Hartford has transmitted such orders. Such confirmations
shall include the total number of shares of each Fund held by Hartford following
such net purchase or redemption. Trust, or its designated agent, shall submit in
a timely manner, such confirmations to the DCC&S Fund/SERV system in order for
Hartford to receive such confirmations no later than 11:00 a.m. Eastern Time the
next Business Day. Trust or its designated agent will transmit to Hartford via
DCC&S NETWORKING system those Networking activity files reflecting account
activity.
31
[FIDELITY INVESTMENTS LOGO]
May 16, 2007
Hartford Life & Annuity Insurance Company
Xx. Xxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: Participation Agreement among Variable Insurance Products Fund, Variable
Insurance Products Fund II, Variable Insurance Products Fund III and
Variable Insurance Products Fund IV, Fidelity Distributors Corporation (the
"Underwriter") and Insurance Company (the "Company"), dated April 1, 2005,
as amended (the "Participation Agreement")
Dear Xx. Xxxxx:
The Company, the Underwriter and the above referenced Variable Insurance
Products Funds (the "Current Funds") are parties to the above-referenced
Participation Agreement. As explained in the notice sent to you on May 3, 2007,
Fidelity is in the process of reorganizing some of the portfolios of the Current
Funds (the "Affected Portfolios") for administrative purposes. In connection
with this reorganization, the Affected Portfolios will be moved into
corresponding "shell" portfolios of a new Variable Insurance Products Fund V
("Fund V"). A list of all of the Affected Portfolios covered by the
reorganization and the corresponding Fund V portfolios is set forth on the
attached Exhibit.
In connection with this change, we are asking for your consent to (1) the
amendment of the Participation Agreement to add Fund V as a "Fund" party under
the terms of the Participation Agreement (the "Amendment") and (2) the
assignment of all of the Current Funds' rights, benefits and obligations under
the Participation Agreement with respect to the Affected Portfolios to Fund V,
with respect to the corresponding portfolios of Fund V, and the release of the
Current Funds from the obligations so assigned (the "Assignment"). The
Participation Agreement will remain in full force and effect in accordance with
its terms, as so amended and assigned herein.
Your signature below will indicate the Company's consent to the Amendment and
Assignment of the Participation Agreement as set forth above, to become
effective immediately upon consummation of the reorganization.
Thank you for your prompt attention to this matter. If for some reason we cannot
obtain your signature prior to the reorganization, and the Company submits
orders or instructions under the Participation Agreement thereafter, we will
deem the Company to have consented to these matters. Please do not hesitate to
contact your Fidelity Relationship Manager or Key Account Manager if you have
any questions.
Fidelity Investments Institutional 000 Xxxxx Xxxxxx
Services Company, Inc. Xxxxxxxxxx, XX 00000
Very truly yours,
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
VARIABLE INSURANCE PRODUCTS FUND,
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III,
VARIABLE INSURANCE PRODUCTS FUND IV, and
VARIABLE INSURANCE PRODUCTS FUND V
By: /s/ Xxxxxxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Treasurer
The Undersigned Consents to the Amendment and Assignment of the Participation
Agreement as of this day of 2007:
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Executive Vice President
Please keep one copy and return the other to:
Xxxxxx Xxxxxx
Director, Contracts Management
Fidelity Investments
000 Xxxxx Xxxxxx, X0X
Xxxxxxxxxx XX 00000
AMENDMENT NO. 1 TO
FUND PARTICIPATION AGREEMENT
Among
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY,
VARIABLE INSURANCE PRODUCTS FUNDS,
and
FIDELITY DISTRIBUTORS CORPORATION
This Amendment, effective May 1, 2008, by and among Hartford Life and Annuity
Insurance Company ("Hartford"), Variable Insurance Products Fund, Variable
Insurance Products Fund II, Variable Insurance Products Fund III, Variable
Insurance Products Fund IV, Variable Insurance Products Fund V (each referred to
as "Trust"), and Fidelity Distributors Corporation ("Distributor"), amends that
certain
Fund Participation Agreement (the "Agreement") dated April 1, 2005 by
the foregoing parties as follows:
1. Schedules A and B of the Agreement are deleted and replaced in their
entirety with the Schedule A and B attached hereto.
2. In all other respects, the terms of the Agreement remain unchanged and in
full force and effect.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in its name and on its behalf by its duly authorized representative as of the
date specified above.
THE HARTFORD LIFE AND ANNUITY VARIABLE INSURANCE PRODUCTS FUND
INSURANCE COMPANY VARIABLE INSURANCE PRODUCTS FUND II
By its authorized officer, VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
VARIABLE INSURANCE PRODUCTS FUND V
By its authorized officer,
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxx Xxxxxx
------------------------- -------------------------
Name: Xxxxxx Xxxxx Name: Xxxx Xxxxxx
Its: [Title] Senior Vice President Its: [Title] Treasurer, Fixed Income
Date: 4/29/08 Date: 7/30/08
By: /s/ Xxx Xxxxxx
-------------------------
Name: Xxx Xxxxxx
Its: Treasurer, Equity
Date:
1
FIDELITY DISTRIBUTORS CORPORATION
By its authorized officer,
By: /s/ Xxxx Xxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxx
Its: [Title] Executive Vice President,
Institutional
Date: 7/17/08
2
SCHEDULE A
SEPARATE ACCOUNTS
NAME OF SEPARATE ACCOUNT DATE ESTABLISHED
---------------------------------------------------------------------------
Separate Account Three 06/22/1994
Separate Account Seven 12/08/1986
3
SCHEDULE B
PARTICIPATING PORTFOLIOS
Fidelity VIP Contrafund Portfolio -- Service Class 2
Fidelity VIP Dynamic Capital Appreciation Portfolio -- Service Class 2
Fidelity VIP Equity-Income Portfolio -- Service Class 2
Fidelity VIP Growth Portfolio -- Service Class 2
Fidelity VIP Mid Cap Portfolio -- Service Class 2
Fidelity VIP Value Strategies Portfolio -- Service Class 2
4
AMENDMENT NO. 2 TO
FUND PARTICIPATION AGREEMENT
Among
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY,
VARIABLE INSURANCE PRODUCTS FUNDS,
and
FIDELITY DISTRIBUTORS CORPORATION
This Amendment, effective October 19, 2009, by and among Hartford Life and
Annuity Insurance Company ("Hartford"), Variable Insurance Products Fund,
Variable Insurance Products Fund II, Variable Insurance Products Fund III,
Variable Insurance Products Fund IV, Variable Insurance Products Fund V (each
referred to as "Trust"), and Fidelity Distributors Corporation ("Distributor"),
amends that certain Fund Participation Agreement (the "Agreement") dated April
1, 2005, as amended, by the foregoing parties as follows:
1. Schedule B of the Agreement is deleted and replaced in its entirety with
the Schedule B attached hereto.
2. In all other respects, the terms of the Agreement remain unchanged and in
full force and effect.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in its name and on its behalf by its duly authorized representative as of the
date specified above.
THE HARTFORD LIFE AND ANNUITY VARIABLE INSURANCE PRODUCTS FUND
INSURANCE COMPANY VARIABLE INSURANCE PRODUCTS FUND II
By its authorized officer, VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
VARIABLE INSURANCE PRODUCTS FUND V
By its authorized officer,
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------- ----------------------
Name: Xxxxxx Xxxxx Name: Xxxxx Xxxxxxxx
Its: [Title] Executive Vice President Its: [Title] Deputy Treasurer
Date: 9/3/09 Date: 9/29/09
1
FIDELITY DISTRIBUTORS CORPORATION
By its authorized officer,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: [Title] Executive Vice President
Date: 9/16/09
2
SCHEDULE B
PARTICIPATING PORTFOLIOS
Fidelity VIP Contrafund Portfolio -- Service Class 2
Fidelity VIP Dynamic Capital Appreciation Portfolio -- Service Class 2
Fidelity VIP Equity-Income Portfolio -- Service Class 2
Fidelity VIP Growth Portfolio -- Service Class 2
Fidelity VIP Mid Cap Portfolio -- Service Class 2
Fidelity VIP Value Strategies Portfolio -- Service Class 2
Fidelity VIP Strategic Income Portfolio -- Service Class 2
3