Exhibit 8(k)
FORM OF FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made as of the ____ day of ________ , 1998, between
XXXXXXXX XXXXXXXX SERIES TRUST ("Fund"), an open-end management investment
company organized as a Massachusetts business trust, and
____________________________________________("Company"), a life insurance
company organized under the laws of the state of _____________________________,
on its own behalf and on behalf of each segregated asset account of the Company
set forth in Schedule A as attached hereto, as such Schedule A may be amended
from time to time ("Accounts").
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended ("1940 Act"), as an open-end management investment company; and
WHEREAS, the Fund is organized as a series fund and has established a
number of distinct series of shares of beneficial interest ("Series"), which
correspond to distinct portfolios of investments; and
WHEREAS, the Fund acts as an investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
to be offered by insurance companies that have entered into participation
agreements with the Fund ("Participating Insurance Companies"); and
WHEREAS, Xxxxxxxx Xxxxxxxx Asset Management Inc. ("Xxxxxxxx Xxxxxxxx") is
registered as an investment adviser under the Advisors Act of 1940, as amended,
a broker-dealer under the Securities Exchange Act of 1934, as amended ("1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. ("NASD") and serves as investment advisor and
administrator to all Series of the Fund; and
WHEREAS, the Series of the Fund offered by the Fund to the Company and the
Accounts are set forth on Schedule B attached hereto, as such Schedule B may be
amended from time to time; and
WHEREAS, the Fund intends to apply for an order ("Exemptive Order")
from the Securities and Exchange Commission ("SEC") granting Participating
Insurance Companies and their separate accounts exemptions from the provisions
of sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act and rules 6e-2(b)(15)
and 6e-3(T)(b)(15) thereunder to the extent necessary to permit shares of the
Fund to be sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance companies
and certain qualified pension and retirement plans ("Qualified Plans"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase Class H shares ("Shares") of one or
more of the Series on behalf of the Accounts to fund the Contracts, and the Fund
intends to sell such Shares to the relevant Accounts at such Shares' net asset
value;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, it is agreed between the parties as follows:
1. SALE OF SHARES. The Fund agrees to make Shares available for purchase
by the Accounts or the Company or its affiliates on behalf of the Accounts at
the Shares' net asset value as computed in accordance with the Fund's
registration statement under the Securities Act of 1933, as amended ("1933 Act")
and the 1940 Act, including the Fund's current prospectus and statement of
additional information, as amended or supplemented from time to time ("Fund
Registration Statement"). Purchases of Shares will be made in accordance with
the provisions of the Fund Registration Statement and the operational procedures
mutually agreed to by Xxxxxxxx Xxxxxxxx and the Company from time to time. The
Fund may refuse to sell Shares of any Series to any person or may suspend or
terminate the offering of Shares of any Series if such action is required by law
or by regulatory authorities having jurisdiction or is, in the sole discretion
of the trustees of the Fund, necessary in the best interests of the shareholders
of any Series.
2. REDEMPTION OF SHARES. The Fund will redeem Shares when requested by an
Account or the Company or its affiliates on behalf of the Account at the Shares'
net asset value (as computed in accordance with the Fund Registration Statement)
in accordance with the provisions of the Fund Registration Statement and the
operational procedures mutually agreed to by Xxxxxxxx Xxxxxxxx and the Company
from time to time.
3. ACCEPTANCE OF ORDERS. The Fund shall accept purchase and redemption
orders resulting from investments in and payments under the Contracts on each
Business Day, provided that such orders are received by Xxxxxxxx Xxxxxxxx or the
Fund prior to 9:00 a.m., Eastern time, on such Business Day and reflect
instructions received by the Company from Contract holders in good order prior
to the time the net asset value of the Series is calculated in accordance with
the Fund Registration Statement on the prior Business Day. Notwithstanding the
foregoing, the Company shall use its best efforts to provide Xxxxxxxx Xxxxxxxx
or the Fund with such orders by 7:30 a.m. on the Business Day following the
Business Day on which instructions are so received by the Company. Orders
reflecting instructions received by the Company in good order after the time the
net asset value of the Series is calculated will not be deemed received until
the next succeeding Business Day. The Company acts as the agent of the Fund and
Xxxxxxxx Xxxxxxxx for the limited purpose of accepting purchase and redemption
instructions from Contract holders. Xxxxxxxx Xxxxxxxx and the Fund may reject
purchase and redemption orders that are not in proper form as mutually agreed to
by Xxxxxxxx Xxxxxxxx and the Company from time to time.
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4. PAYMENT FOR PURCHASES AND REDEMPTIONS. Purchase orders shall be paid
for in federal funds transmitted by wire no later than the Business Day that the
Fund receives notice of the order. The Fund shall use its best efforts to send
redemption proceeds in federal funds transmitted by wire no later than the next
Business Day after the Fund received notice of the order, unless doing so would
cause the Fund to dispose of portfolio securities or otherwise incur additional
costs. In any event, the Fund will wire proceeds of redemption orders to the
Company within the period required under the 1940 Act or the rules, orders or
regulations thereunder.
5. LIMITATION ON SALES OF SHARES. The Fund agrees that its Shares will be
sold only to Participating Insurance Companies and their separate accounts
and/or to Qualified Plans, all in accordance with Section 817(h) of the Internal
Revenue Code and applicable Treasury Regulations. No shares of any Series will
be sold directly to the general public. The Company agrees that Shares will be
used only for the purposes of funding the Contracts and Accounts listed in
Schedule A, as amended from time to time.
6. BOOK ENTRY. Issuance and transfer of Shares will be by book entry only.
Share certificates will not be issued to the Company or any Account. Shares
ordered from the Fund will be recorded in the appropriate title for each
Account.
7. NOTICE OF DIVIDENDS AND DISTRIBUTIONS; NET ASSET VALUE. The Fund will
furnish prompt notice to the Company of any income, dividends or capital gain
distribution payable on Shares. The Company hereby elects to receive all such
income dividends and capital gain distributions payable on Shares in additional
Shares of the same Series. The Fund shall notify the Company of the number of
Shares so issued as payment of such dividends and distributions. The Fund shall
make the net asset value per share of each Portfolio available to the Company on
a daily basis as soon as reasonably practical after the net asset value per
share is calculated.
8. COMPANY REPORTS, The Company agrees to provide the Fund or its designee
on a daily basis with the amount of shares of each Portfolio purchased and sold
by each owner of the Contracts (and information identifying each Contract
owner's PaineWebber Investment Executive) and such other information concerning
transactions in shares of the Fund by the Contract owners as the Fund shall
reasonably request.
9. UNIFORM APPLICATION OF PASS-THROUGH VOTING AND CONFLICTS OF INTEREST.
The Fund agrees that all Participating Insurance Companies shall have the same
obligations and responsibilities regarding pass-through voting and conflicts of
interest as the Company has under this Agreement.
10. PASS-THROUGH VOTING. With respect to Contracts and Accounts that are
subject to the 1940 Act, so long as and to the extent that the SEC interprets
the 1940 Act to require pass-through voting privileges to Contract owners
(including, for purposes of this section, policy owners whose cash values are
invested in Shares through the Accounts), the Company will provide pass-through
voting privileges to Contract owners. The Fund shall require all Participating
Insurance Companies to calculate voting privileges in the same manner and the
Company will be responsible for assuring that the Accounts calculate voting
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privileges in the manner established by the Fund. With respect to each Account,
the Company will vote Shares held by the Account and for which no timely voting
instructions are received from the Contract owners, as well as Shares held by
the Account that are owned by the Company for its general account, in the same
proportion as the Company votes Shares held by the Account for which timely
voting instructions are received from Contract owners. The Company and its
agents will in no way recommend or oppose or interfere with the solicitation of
proxies for Shares held by Contract owners without the prior written consent of
the Fund, which may be withheld in the Fund's sole discretion.
11. REPRESENTATIONS. (a) The Company represents and warrants that it is an
insurance company duly organized and in good standing under the laws of its
state of incorporation and that it has legally and validly established each
Contract and Account.
(b) The Company represents and warrants that it has registered or, prior
to any issuance or sale of the Contracts, will register each Account as a unit
investment trust ("UIT") in accordance with the provisions of the 1940 Act and
cause each Account to remain so registered to serve as a segregated asset
account for the Contracts unless an exemption from registration is available.
(c) The Company represents and warrants that the Contracts will be
registered under the 1933 Act unless and exemption from registration is
available prior to any issuance or sale of the Contracts and that the Contracts
will be issued and sold in compliance in all material respects with applicable
federal and state laws and further that the sale of the Contracts shall comply
in all material respects with state insurance law suitability requirements.
(d) The Company represents and warrants that the Contracts are currently
and at the time of issuance will be treated as life insurance, endowment or
annuity contracts under applicable provisions of the Internal Revenue Code, that
it will maintain such treatment and that it will notify the Fund immediately
upon having a reasonable basis for believing that the Contracts have ceased to
be so treated or that they might not be so treated in the future.
(e) The Fund represents and warrants that the Shares offered and sold
pursuant to this Agreement will be registered under the 1933 Act to the extent
required by that Act and sold in accordance with all applicable federal and
state laws, and that the Fund shall be registered under the 1940 Act to the
extent required by that Act, prior to and at the time of any issuance or sale of
such Shares. The Fund shall qualify its Shares for sale in accordance with the
laws of the various states only if and to the extent deemed advisable by the
Fund.
(f) The Fund represents and warrants that each Series will comply with the
diversification requirements set forth in Section 817(h) of the Internal Revenue
Service and applicable regulations thereunder and will notify the Company
immediately upon having a reasonable basis for believing any Series has ceased
to comply or might not so comply and will immediately take all reasonable steps
to adequately diversify the Series to achieve compliance.
(g) The Fund represents and warrants that each Series in which the
Accounts invest is currently qualified as a "regulated investment company" under
Subchapter M of the Internal Revenue Code and will maintain such qualification.
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The Fund will notify the Company immediately upon having a reasonable basis for
believing any Series has ceased to comply or might not so comply in the future.
12. INDEMNIFICATION. (a) The Fund agrees to indemnify, defend and hold the
Company, its officers, directors, employees and agents and any person who
controls the Company within the meaning of Section 15 of the 1933 Act (referred
to in this Section 11(a) collectively as "Indemnified Parties"), free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities, amounts paid in settlement with the consent of the Fund and any
counsel fees incurred in connection therewith) which the Indemnified Parties may
incur under the 1933 Act, or under common law or otherwise, (i) arising out of
or based upon any alleged untrue statement of a material fact contained in the
Fund Registration Statement or arising out of or based upon any alleged omission
to state a material fact required to be stated in the Fund Registration
Statement or necessary to make the statements therein not misleading, except
insofar as such claims, demands, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished in
writing by or on behalf of the Company to the Fund for use in the Fund
Registration Statement or otherwise for use in connection with the sale of
Contracts or Shares; (ii) arising out of or based upon statements or
representations (other than statements or representations made in reliance upon
and in conformity with information furnished in writing by or on behalf of the
Company) or wrongful conduct of the Fund or persons under its control concerning
the sale or distribution of the Contracts or Shares; (iii) arising out of or
based upon any alleged omission to state a material fact required to be stated
in the registration statement for the Contracts (including any amendment or
supplement to the prospectus or statement of additional information) ("Contract
Registration Statement") or necessary to make the statements therein not
misleading, if such claims, demands, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished in
writing by or on behalf of the Fund to the Company for use in the Contract
Registration Statement; or (iv) arise out of or result from any material breach
of the representations and/or warranties made by the Fund in this Agreement or
any other material breach of this Agreement by the Fund. In no event shall
anything contained herein be so construed as to protect the Company against any
liability to the Fund or to the shareholders of any Series to which the Company
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations under this Agreement.
(b) The Fund shall not be liable to the Company under this indemnity
agreement with respect to any claim made against the Company or any other
Indemnified Party unless the Company or other such person shall have notified
the Fund in writing of the claim within a reasonable time after the summons or
other first written notification giving information of the nature of the claim
shall have been served upon the Indemnified Party (or after the Indemnified
Party shall have received notice of service on any designated agent). However,
failure to notify the Fund of any claim shall not relieve the Fund from any
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liability which it may have to an Indemnified Party otherwise than on account of
this indemnity agreement. The Fund shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume the defense of any suit
brought to enforce any claims subject to this indemnity agreement. If the Fund
elects to assume the defense of any such claim, the defense shall be conducted
by counsel chosen by the Fund and satisfactory to the Indemnified Parties in the
suit whose approval shall not be unreasonably withheld. In the event that the
Fund elects to assume the defense of any suit and retain counsel, the
Indemnified Parties shall bear the fees and expenses of any additional counsel
retained by them. If the Fund does not elect to assume the defense of a suit, it
will reimburse the Indemnified Parties for the reasonable fees and expenses of
any counsel retained by them.
(c) The Company agrees to indemnify, defend, and hold the Fund, its
officers, trustees, employees and agents and any person who controls the Fund
within the meaning of Section 15 of the 1933 Act (in this Section 11(b),
referred to collectively as "Indemnified Parties") , free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending against such claims, demands or liabilities,
amounts paid in settlement with the consent of the Company and any counsel fees
incurred in connection therewith) which the Indemnified Parties may incur under
the 1933 Act or under common law or otherwise (i) arising out of or based upon
any alleged untrue statement of a material fact contained in the Contract
Registration Statement or in the Contracts themselves or in any sales literature
generated or approved by the Company on behalf of the Contracts or Accounts or
arising out of or based upon any alleged omission to state a material fact in
connection with such information required to be stated in the Contract
Registration Statement, Contracts or such sales literature necessary to make the
statements therein not misleading, except insofar as such claims, demands,
liabilities or expenses arise out of or are based upon any such untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished in writing by or on behalf of the Fund to
the Company for use in the Contract Registration Statement, the Contracts or
such sales literature or otherwise for use in connection with the sale of
Contracts or Shares; (ii) arising out of or based upon statements or
representations (other than statements made in reliance upon and in conformity
with information furnished in writing by or on behalf of the Fund) or wrongful
conduct of the Company or persons under its control concerning the sale or
distribution of the Contracts or Shares; (iii) arising out of or based upon any
alleged omission to state a material fact required to be stated in the Fund
Registration Statement or necessary to make the statements therein not
misleading, if such claims, demands, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished in
writing by or on behalf of the Company to the Fund for use in the Fund
Registration Statement; or (iv) arise out of or result from any material breach
of the representations and/or warranties made by the Company in this Agreement
or any other material breach of this Agreement by the Company.
(d) The Company shall not be liable to the Fund under this indemnity
agreement with respect to any claim made against the Fund or any other
Indemnified Party unless the Fund or other such person shall have notified the
Company in writing of the claim within a reasonable time after the summons or
other first written notification giving information of the nature of the claim
shall have been served upon the Indemnified Party (or after the Indemnified
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Party shall have received notice of service on any designated agent). However,
failure to notify the Company of any claim shall not relieve the Company from
any liability which it may have to an Indemnified Party otherwise than on
account of this indemnity agreement. The Company shall be entitled to
participate, at its own expense, in the defense or, if it so elects, to assume
the defense of any suit brought to enforce any claims subject to this indemnity
agreement. , If the Company elects to assume the defense of any such claim, the
defense shall be conducted by counsel chosen by the Company and satisfactory to
the Indemnified Parties in the suit whose approval shall not be unreasonably
withheld. In the event that the Company elects to assume the defense of a suit
and retain counsel, the Indemnified Parties shall bear the fees and expenses of
any additional counsel retained by them. If the Company does not elect to assume
the defense of any suit, it will reimburse the Indemnified Parties for the
reasonable fees and expenses of any counsel retained by them.
(e) These indemnification provisions shall survive termination of this
Agreement.
13. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS OF THE FUND.
The trustees of the Fund and the shareholders of its Series shall not be liable
for any obligations of the Fund or any Series under this Contract, and the
Company agrees that, in asserting any rights or claims under this Contract, it
shall look only to the assets and property of the Fund or the particular Series
in settlement of such right or claims, and not to such trustees or shareholders.
14. POTENTIAL CONFLICTS. (a) The trustees of the Fund will monitor the
operations of the Fund for the existence of any material irreconcilable conflict
among the interests of all Contract owners of all separate accounts investing in
each Series of the Fund. An irreconcilable conflict may arise, among other
things, from (a) an action by any sate insurance regulatory authority; (b) a
change in applicable insurance laws or regulations; (c) a tax ruling or
provision of the Internal Revenue Code or the regulations thereunder; (d) any
other development relating to the tax treatment of insurers, contract holders or
policy owners or beneficiaries of variable annuity or variable life insurance
products; (e) the manner in which the investments of any Series are managed; (f)
a difference in voting instructions given by variable annuity contract owners,
on the one hand, and variable life insurance policy owners on the other hand, or
by the contract holders or policy owners of different Participating Insurance
Companies; or (g) a decision by an insurer to override the voting instructions
of participating contract owners.
(b) The Company is responsible for reporting any potential or existing
conflicts to the trustees of the Fund. The Company will be responsible for
assisting the trustees in carrying out their responsibilities under this Section
14(b) and Section 14(a), by providing the trustees with all information
reasonably necessary for them to consider the issues raised. The Fund will also
request its investment adviser to report to the trustees any such conflict which
comes to the attention of the adviser.
(c) If a majority of the trustees of the Fund or a majority of its
disinterested trustees determine that a material irreconcilable conflict exists
involving the Company, the Company shall, at its expense and to the extent
reasonably practicable (as determined by a majority of the disinterested
trustees), take whatever steps are necessary to eliminate the irreconcilable
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material conflict, including withdrawing the assets allocable to some or all of
the separate accounts from the Fund or any Series and reinvesting such assets in
a different investment medium, including another Series of the Fund, offering to
the affected Contract owners the option of making such a change or establishing
a new funding medium, including a registered investment company.
For purposes of this Section 14(c), the trustees or the disinterested
trustees shall determine whether any proposed action adequately remedies any
irreconcilable material conflict. In the event of a determination of the
existence of an irreconcilable material conflict, the trustees shall cause the
Fund to take such action, such as the establishment of one or more additional
Series, as they in their sole discretion determine to be in the interest of all
shareholders and Contract owners in view of all applicable factors, such as the
cost, feasibility, tax, regulatory and other considerations. In no event will
the Fund be required by this Section 14(c) to establish a new funding medium for
any Contract.
The Company shall not be required by this Section 14(c) to establish a new
funding medium for any Contract if an offer to do so has been declined by a vote
of a majority of the Contract owners materially adversely affected by the
material irreconcilable conflict. The Company will recommend to its Contract
owners that they decline an offer to establish a new funding medium only if the
Company believes it is in the best interests of the Contract owners.
15. DURATION AND TERMINATION. This Agreement shall become effective as of
the date hereof and shall continue in force until terminated as set forth below:
(a) At the option of either party, upon 90 days' notice, unless a shorter
time is agreed to by the parties;
(b) At the option of either party, upon the institution of formal
proceedings against the other party by the SEC, the NASD or any other regulatory
body, the expected or anticipated outcome of which would, in the judgment of the
terminating party, materially impair the other party's ability to meet and
perform its obligations under this Agreement. Prompt notice of an election to
terminate under this provision shall be furnished by the terminating party and
shall be effective upon receipt.
(c) In the event the Fund's Shares are not registered, issued or sold in
accordance with applicable federal or state law or such law precludes the use of
Shares as the underlying investment medium of the Contracts, the Company may
terminate this Agreement effective upon giving notice to the Fund.
(d) In the event the Contracts cease to qualify as annuity contracts or
life insurance contracts, as applicable under the Code or if the Fund reasonably
believes that the Contracts may fail to so qualify, the Fund may terminate this
Agreement effective upon giving notice to the Company.
(e) At the option of the Fund, upon the Company's breach of any material
provision of this Agreement, which breach has not been cured to the satisfaction
of the Fund within 10 days after written notice of such breach is delivered to
the Company.
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(f) At the option of the Company, upon the Fund's breach of any material
provision of this Agreement, which breach has not been cured to the satisfaction
of the Company within 10 days after written notice of such breach is delivered
to the Fund.
(g) At the option of the Fund, if the Contracts are not registered, issued
or sold in accordance with applicable federal and/or state law. Termination
shall be effective immediately without notice.
(h) If this Agreement is assigned without the prior written consent of the
other party, termination shall be effective immediately without notice.
16. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
17. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Delaware and the 1940 Act, except that Section 13 shall
be construed in accordance with the laws of the Commonwealth of Massachusetts.
To the extent that the applicable laws of the State of Delaware or the
Commonwealth of Massachusetts conflict with the applicable provisions of the
l940 Act, the latter shall control.
18. NOTICE. Any notice required or permitted to be given by either party to the
other shall be deemed sufficient upon receipt in writing at the other party's
principal offices.
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19. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. 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. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. As used in this
Agreement, the terms "assignment" shall have the same meaning as such terms have
in the l940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated as of the day and year first above
written.
ATTEST: XXXXXXXX XXXXXXXX SERIES TRUST
_____________________________ By: _____________________________
ATTEST:
_____________________________ By: _____________________________
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SCHEDULE A
Accounts of Company Participating in Series of Xxxxxxxx Xxxxxxxx Series
Trust:
Name of Separate Account Date Established
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SCHEDULE B
Series of Xxxxxxxx Xxxxxxxx Series Trust offered to Accounts of Company:
Strategic Income Portfolio
Global Income Portfolio
High Income Portfolio
Balanced Portfolio
Growth and Income Portfolio
Tactical Allocation Portfolio
Growth Portfolio
Small Cap Portfolio
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