FUND PARTICIPATION AGREEMENT
THIS FUND PARTICIPATION AGREEMENT ("Agreement") is made as of the day
of December, 2016, by and among: Xxxxxxx Variable Products, Inc. (the "Fund"), a
Maryland corporation, on its behalf and on behalf of each Portfolio (as defined
below); Xxxxx Xxxxx Distributors, Inc. ("EVD"); and Forethought Life Insurance
Company (the "Company"), a life insurance company organized under the laws of
the State of Indiana, on behalf of itself and certain of its segregated asset
accounts (each an "Account" and together the "Accounts").
WHEREAS, the Company has entered into a Participation Agreement, dated
October 23, 2015, with the Fund and Xxxxxxx Investment Distributors, Inc.
("CID") (the "Xxxxxxx Agreement"). Pursuant to the Xxxxxxx Agreement, the
Accounts identified therein may invest in the Fund and its separate investment
series listed in the Xxxxxxx Agreement (each a "Portfolio" and together the
"Portfolios"), which are currently distributed by CID;
WHEREAS, Xxxxxxx Research and Management ("CRM"), an affiliate of Xxxxx
Xxxxx Corp. and EVD, has agreed to purchase substantially all of the business
assets of Xxxxxxx Investment Management, Inc., investment adviser to the Fund,
("CIM"), subject to various closing conditions (the "Transaction"). In the
Transaction, which will close once the conditions to closing have been satisfied
(the "Transaction Date"), CRM will assume only specified business assets of CIM
and will not assume any of CIM's liabilities. The Transaction Date is
anticipated to be on or about December 30, 2016;
WHEREAS, as of the Transaction Date, CRM will become the investment
adviser to the Fund, EVD will become the Fund's principal underwriter, and CID
will no longer distribute Fund shares or otherwise provide services to the Fund;
and
WHEREAS, the Company and the Accounts desire to continue to invest in the
Fund and the Portfolios, and the Fund and the Portfolios desire to continue to
make their shares available for purchase to the Company and the Accounts
following the closing of the Transaction.
NOW THEREFORE, in consideration of the mutual benefits and promises
contained herein, the parties hereto agree as follows:
SECTION 1. The parties hereto hereby (i) adopt all terms of the Xxxxxxx
Agreement and (ii) affirm all respective agreements made in the Xxxxxxx
Agreement, all effective as of the Transaction Date, and (iii) agree that the
terms of the Xxxxxxx Agreement that relate to CID will now relate to EVD, except
as otherwise provided herein.
SECTION 2. The Fund represents and warrants that (i) the Portfolio shares
offered and sold pursuant to this agreement are registered under the Securities
Act of 1933, as amended and sold in accordance with all applicable federal and
state laws, and the Fund is registered under the Investment Company Act of 1940,
as amended; (ii) each Portfolio will comply with the diversification
requirements set forth in Section 817(h) of the Internal Revenue Code ("Code"),
and the rules and regulations thereunder, including without limitation Treasury
Regulation Section1.817-5 and (iii) each Portfolio invested in by an Account
intends to elect to be treated as a "regulated investment company" under
Subchapter M of the Code, and will make every effort to maintain such
qualification (under Subchapter M or an successor or similar provision).
SECTION 3. EVD represents that it is and warrants that it shall remain
duly registered as a broker-dealer under all applicable federal and state
securities laws and agrees that it shall
1
perform its obligations to the Fund in compliance in all material respects with
the laws of The Commonwealth of Massachusetts and any applicable state and
federal securities laws. EVD further represents that it is a member in good
standing of the Financial Industry Regulatory Authority, Inc.
SECTION 4. Company confirms that all of its representations, warranties
and conditions in the Xxxxxxx Agreement continue in full force and effect.
SECTION 5. The parties agree that EVD shall only assume liability under
the Agreement as of the Transaction Date, and EVD and its affiliates shall have
no liability whatsoever (including, without limitation, any indemnification
obligation) for any act or omission of CID prior to the Transaction date, or for
any costs, expenses, loses, damages, liabilities of any kind whatsoever, arising
prior to the Transaction Date.
SECTION 6. As of the Transaction Date, the Fund and the Portfolios will
rely on an exemptive order from the U.S. Securities and Exchange Commission to
permit shares of the Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of participating insurance companies
that may or may not be affiliated with one another, qualified pension and
retirement plans and other permitted investors ("Mixed and Shared Funding
Exemptive Order"), a copy of which the Fund agrees to provide the Company upon
request, and the Company hereby agrees to be bound by the terms and conditions
of the Mixed and Shared Funding Exemptive Order.
SECTION 7. All notices to EVD pursuant to the Agreement shall be sent as
follows:
Xxxxx Xxxxx Distributors, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Chief Legal Officer
SECTION 8. The occurrence of the Transaction on the Transaction Date is a
condition precedent to the effectiveness of the terms of this Agreement.
SECTION 9. This Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument. The parties agree that this Agreement
will be considered signed when the signature of a party is delivered by
facsimile transmission or delivered by scanned image (e.g. .pdf, .tiff, jpg,
..jpeg or other file extension) as an attachment to an email. Such facsimile or
scanned image may include this Agreement in its entirety or a standalone
signature page, either of which shall have the same effect as an original
signature and shall be considered definitive evidence of the final agreement
between the parties.
2
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Agreement as of the date and year first above written.
FORETHOUGHT LIFE INSURANCE COMPANY XXXXX XXXXX DISTRIBUTORS, INC.
By: By:
----------------------------------- -----------------------------------
Name: Name:
Title: Title:
XXXXXXX VARIABLE PRODUCTS, INC.
By:
-----------------------------------
Name:
Title:
3
