FUND PARTICIPATION AGREEMENT
THIS AGREEMENT made as of the 8th day of March, 2007, by and between LORD
XXXXXX SERIES FUND, INC. (the "Fund"), a Maryland Corporation, on its behalf and
on behalf of each separate investment series thereof, whether existing as of the
date above or established subsequent thereto, (each a "Portfolio" and
collectively, the "Portfolios"), LORD XXXXXX DISTRIBUTOR LLC, a New York limited
liability company (the "Distributor"), and GENWORTH LIFE AND ANNUITY INSURANCE
COMPANY (the "Company"), a life insurance company organized under the laws of
the Commonwealth of Virginia, on its own behalf and on behalf of each separate
account of the Company ("Separate Accounts").
WHEREAS, the Fund is registered with the Securities and Exchange Commission
("SEC") under the Investment Company Act of 1940, as amended (the "'40 Act"), as
an open-end, diversified management investment company; and
WHEREAS, the Fund is organized as a series fund comprised of separate
investment series, namely the Portfolios; and
WHEREAS, the Fund was organized to act as the funding vehicle for certain
variable life insurance and/or variable annuity contracts ("Variable Contracts")
offered by life insurance companies through separate accounts of such life
insurance companies and also offers its shares to certain qualified pension and
retirement plans; and
WHEREAS, the Fund has filed and obtained approval of an application with
the SEC requesting an order granting relief from various provisions of the '40
Act and the rules thereunder to the extent necessary to permit Fund shares to be
sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated participating insurance companies
accounts ("Participating Companies") and qualified pension and retirement plans
outside the separate account context (including, without limitation, those
trusts, plans, accounts contracts or annuities described in Sections 401(a),
403(a), 403(b), 408(a), 408(b), 414(d), 457(b), 408(k), 501(c)(18) of the
Internal Revenue Code of 1986, as amended (the "Code") and any other trust,
plan, account, contract or annuity trust that is determined to be within the
scope of Treasury Regulation Section 1.817.5(f)(3)(iii) ("Plans"); and
WHEREAS, the Company has established or will establish one or more Separate
Accounts to offer Variable Contracts and is desirous of having the Fund as one
of the underlying funding vehicles for such Variable Contracts; and
WHEREAS, the Distributor is registered with the SEC as a broker-dealer
under the Securities Exchange Act of 1934, as amended and acts as the Fund's
principal underwriter; and
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WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Fund to fund the
aforementioned Variable Contracts and the Fund is authorized to sell such shares
to the Company at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, and the Distributor agree as follows:
Article I. SALE OF FUND SHARES
1.1 The Fund agrees to make Variable Contract Class shares ("Shares") of
the Fund available to the Separate Accounts of the Company for investment of
purchase payments of Variable Contracts allocated to the designated Separate
Accounts as provided in the Fund's then current prospectus and statement of
additional information. The Company agrees to purchase and redeem the Shares of
the Portfolios offered by the then current prospectus and statement of
additional information of the Fund in accordance with the provisions of such
prospectus and statement of additional information. The Company shall not permit
any person other than a Variable Contract owner (or its lawful delegate) to give
instructions to the Company which would require the Company to redeem or
exchange Shares of the Fund.
1.2 The Fund agrees to sell to the Company those Shares of the selected
Portfolios of the Fund which the Company orders, executing such orders on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of the order for the Shares of the Fund. For purposes of this
Section 1.2, the Company shall be the designee of the Fund for receipt of such
orders from the designated Separate Account and receipt by such designee shall
constitute receipt by the Fund; provided, to the extent not inconsistent with
regulatory requirements, that the Company receives the order by 4:00 p.m.
Eastern time and the Fund receives notice from the Company by telephone,
facsimile (orally confirmed) or by such other means as the Fund and the Company
may mutually agree of such order by 9:00 a.m. Eastern time on the next following
Business Day. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its net asset
value pursuant to the rules of the SEC.
1.3 The Fund agrees to redeem on the Company's request, any full or
fractional Shares of the Fund held by the Company, executing such requests on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of the request for redemption, in accordance with the provisions of
this agreement and the Fund's then current registration statement. For purposes
of this Section 1.3, the Company shall be the designee of the Fund for receipt
of requests for redemption from the designated Separate Account and receipt by
such designee shall constitute receipt by the Fund; provided, to the extent not
inconsistent with regulatory requirements, that the Company receives the request
for redemption by 4:00 p.m. Eastern time and the Fund receives notice from the
Company by telephone, facsimile (orally confirmed) or by such other means as the
Fund and the Company may mutually agree of such request for redemption by 9:00
a.m. Eastern time on the next following Business Day.
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1.4 The Fund shall furnish, on or before the ex-dividend date, notice to
the Company of any income dividends or capital gain distributions payable on the
Shares of any Portfolios of the Fund. The Company hereby elects to receive all
such income dividends and capital gain distributions as are payable on a
Portfolio's Shares in additional Shares of the Portfolio. The Fund shall notify
the Company or its designee of the number of Shares so issued as payment of such
dividends and distributions.
1.5 The Fund shall make the net asset value per share for the selected
Portfolios available to the Company on a daily basis, via a mutually agreeable
form, as soon as reasonably practicable after the net asset value per share is
calculated but shall use its best efforts to make such net asset value available
by 6:30 p.m. Eastern time.
1.6 At the end of each Business Day, the Company shall use the information
described in Section 1.5 to calculate Separate Account unit values for the day.
Using these unit values, the Company shall process each such Business Day's
Separate Account transactions based on requests and premiums received by it by
the close of trading on the floor of the New York Stock Exchange (currently 4:00
p.m. Eastern time) to determine the net dollar amount of Fund Shares which shall
be purchased or redeemed at that day's closing net asset value per share. To the
extent not inconsistent with regulatory requirements, the net purchase or
redemption orders so determined shall be transmitted to the Fund by the Company
by 9:00 a.m. Eastern time on the Business Day next following the Company's
receipt of such requests and premiums in accordance with the terms of Sections
1.2 and 1.3 hereof.
1.7 If the Company's order requests the purchase of Fund Shares, the
Company shall pay for such purchase by wiring federal funds to the Fund or its
designated custodial account on the day the order is transmitted by the Company.
If the Company's order requests a net redemption resulting in a payment of
redemption proceeds to the Company, the Fund shall use its best efforts to wire
the redemption proceeds to the Company by the next Business Day, unless doing so
would require the Fund to dispose of Portfolio securities or otherwise incur
additional costs. In any event, proceeds shall be wired to the Company within
three Business Days or such longer period permitted by the '40 Act or the rules,
orders or regulations thereunder and the Fund shall notify the person designated
in writing by the Company as the recipient for such notice of such delay by 3:00
p.m. Eastern time the same Business Day that the Company transmits the
redemption order to the Fund.
1.8 The Fund agrees that all Shares of the Portfolios of the Fund will be
sold only to Participating Insurance Companies which have agreed to participate
in the Fund to fund their Separate Accounts and/or to Plans, all in accordance
with the requirements of Section 817(h) of the Code and Treasury Regulation
1.817-5. Shares of the Portfolios of the Fund will not be sold directly to the
general public.
1.9 The Fund may refuse to sell Shares of any Portfolios to any person, or
suspend or terminate the offering of the Shares of any Portfolios if such action
is required by law or by regulatory authorities having jurisdiction or is, in
the sole discretion of the Board of Directors/Trustees of the Fund (the
"Board"), deemed necessary, desirable or appropriate.
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Without limiting the foregoing, the Fund may refuse to sell Shares of any
Portfolios, or suspend or terminate the offering of the Shares of any
Portfolios, if it determines or believes that there is a significant risk that
the Fund and its shareholders may be adversely affected by short-term or
excessive trading activity, particularly activity used to try and take advantage
of short-term swings in the market. Accordingly, the Fund reserves right to
reject any purchase order, including those purchase orders with respect to
shareholders or accounts whose trading has been or may be disruptive to the Fund
or that may otherwise adversely affect the Fund. The Company agrees to use its
reasonable best efforts to render assistance to, and to cooperate with, the Fund
to achieve compliance with the Fund's policies and restrictions on short-term or
excessive trading activity as they may be amended from time to time, or to the
extent required by applicable regulatory requirements.
1.10 Issuance and transfer of Portfolio Shares will be by book entry only.
Stock certificates will not be issued to the Company or the Separate Accounts.
Shares ordered from Portfolios will be recorded in appropriate book entry titles
for the Separate Accounts.
Article II. FEES AND EXPENSES
2.1 Except as otherwise provided under this Agreement, the Fund and the
Distributor shall pay no fee or other compensation to the Company under this
Agreement, and the Company shall pay no fee or other compensation to the Fund or
the Distributor, except as made a part of this Agreement as it may be amended
from time to time with the mutual consent of the parties hereto. All expenses
incident to performance by each party of its respective duties under this
Agreement shall be paid by that party, unless otherwise specified in this
Agreement
Article III. REPRESENTATIONS AND WARRANTIES
3.1 The Company represents and warrants that it is an insurance company
duly organized and in good standing under the laws of the Commonwealth of
Virginia and that it has legally and validly established each Separate Account
as a segregated asset account under such laws.
3.2 The Company represents and warrants that it has registered or, prior to
any issuance or sale of the Variable Contracts, will register each Separate
Account as a unit investment trust ("UIT") in accordance with the provisions of
the '40 Act and cause each Separate Account to remain so registered to serve as
a segregated asset account for the Variable Contracts, unless an exemption from
registration is available.
3.3 The Company represents and warrants that the income, gains and losses,
whether or not realized, from assets allocated to each Separate Account are, in
accordance with the applicable Variable Contracts, to be credited to or charged
against such Separate Account without regard to other income, gains or losses
from assets allocated to any other accounts of the Company. The Company
represents and warrants that the assets of the Separate Account are and will be
kept
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separate from the General Account of the Company and any other separate accounts
the Company may have, and will not be charged with liabilities from any business
that the Company may conduct or the liabilities of any companies affiliated with
the Company.
3.4 The Company represents and warrants that the Variable Contracts will be
registered under the Securities Act of 1933 (the "'33 Act") unless an exemption
from registration is available prior to any issuance or sale of the Variable
Contracts and that the Variable Contracts will be issued and sold in compliance
in all material respects with all applicable federal and state laws. The Company
agrees to notify the Fund promptly of any investment restrictions imposed by
state insurance law applicable to the Fund.
3.5 The Company represents and warrants that the Variable Contracts are
currently and at the time of issuance will be treated as life insurance,
endowment or annuity contracts under applicable provisions of the Code, that it
will maintain such treatment and that it will notify the Fund immediately upon
having a reasonable basis for believing that the Variable Contracts have ceased
to be so treated or that they might not be so treated in the future.
3.6 The Fund represents and warrants that the Portfolio Shares offered and
sold pursuant to this Agreement will be registered under the '33 Act and sold in
accordance with all applicable federal and state laws, and the Fund shall be
registered under the '40 Act prior to and at the time of any issuance or sale of
such Shares. The Fund, subject to Section 1.9 above, shall amend its
registration statement under the '33 Act and the '40 Act from time to time as
required in order to effect the continuous offering of its Shares. The Fund
shall register and 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.
3.7 The Fund represents and warrants that each Portfolio will comply with
the diversification requirements set forth in Section 817(h) of the Code, and
the rules and regulations thereunder, including without limitation Treasury
Regulation 1.817-5, and will notify the Company immediately upon having a
reasonable basis for believing any Portfolio has ceased to comply or might not
so comply and will immediately take all reasonable steps to adequately diversify
the Portfolio to achieve compliance.
3.8 The Fund represents and warrants that each Portfolio invested in by the
Separate Account intends to elect to be treated as a "regulated investment
company" under Subchapter M of the Code, and to qualify for such treatment for
each taxable year and will notify the Company immediately upon having a
reasonable basis for believing it has ceased to so qualify or might not so
qualify in the future.
3.9 The Distributor represents and warrants that it is and will be a member
in good standing of the National Association of Securities Dealers, Inc.
("NASD") and is and will be registered as a broker-dealer with the SEC. The
Distributor further represents that it will sell and distribute Portfolio Shares
in accordance with all applicable state and federal laws and regulations,
including without limitation the '33 Act, the '34 Act and the '40 Act.
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3.10 The Distributor represents and warrants that it will remain duly
registered and licensed in all material respects under all applicable federal
and state securities laws and shall perform its obligations hereunder in
compliance in all material respects with any applicable state and federal laws.
3.11 The Fund represents and warrants that all its directors, trustees,
officers, employees, and other individuals/entities who deal with the money
and/or securities of the Fund are and shall continue to be at all times covered
by a blanket fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than that required by Rule 17g-1 under the '40 Act. The
aforesaid bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company. The Fund shall make all reasonable
efforts to see that this bond or another bond containing these same provisions
is always in effect, and each agrees to notify the Company in the event such
coverage no longer applies.
3.12 The Company represents and warrants that all of its employees and
agents who deal with the money and/or securities of the Fund are and shall
continue to be at all times covered by a blanket fidelity bond or similar
coverage in an amount not less than that required to be maintained by entities
subject to the requirements of Rule 17g-1 of the '40 Act . The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. The Company shall make all reasonable efforts to see
that this bond or another bond containing these same provisions is always in
effect, and each agrees to notify the Fund in the event such coverage no longer
applies.
Article IV. PROSPECTUS AND PROXY STATEMENTS
4.1 The Fund shall prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of the Fund.
4.2 At least annually, the Fund or its designee shall provide the Company,
free of charge, with as many copies of the current prospectus for the Shares of
the Portfolios as the Company may reasonably request for distribution to
existing Variable Contract owners whose Variable Contracts are funded by such
Shares. The Fund or its designee shall provide the Company, at the Company's
expense, with as many more copies of the current prospectus for the Shares as
the Company may reasonably request for distribution to prospective purchasers of
Variable Contracts. If requested by the Company in lieu thereof, the Fund or its
designee shall provide such documentation in a mutually agreeable form and such
other assistance as is reasonably necessary in order for the parties hereto once
a year (or more frequently if the prospectus for the Shares is supplemented or
amended) to have the prospectus for the Variable Contracts and the prospectus
for the Fund Shares and any other fund shares offered as investments for the
Variable Contracts printed together in one document (at the Company's expense,
except that the Fund will bear the commercially reasonable, prorated cost of
printing the Fund's prospectus in this format for existing Variable Contract
owners up to an amount the
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Funds would pay on a per copy basis for its own prospectuses), provided however
that the Company shall ensure that, except as expressly authorized in writing by
the Fund, no alterations, edits or changes whatsoever are made to prospectuses
or other Fund documentation after such documentation has been furnished to the
Company or its designee, and the Company shall assume liability for any and all
alterations, errors or other changes that occur to such prospectuses or other
Fund documentation after it has been furnished to the Company or its designee.
4.3 The Fund shall provide the Company with copies of the Fund's proxy
statements, Fund reports to shareholders, and other Fund communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Variable Contract owners. Alternatively and in lieu thereof, the
Company may elect to print at its own expense any of the Fund's proxy
statements, Fund reports to shareholders, and other Fund communications to
shareholders.
4.4 The Fund will provide the Company with at least one complete copy of
all prospectuses, statements of additional information, annual and semi-annual
reports, proxy statements, and all amendments or supplements to any of the above
that relate to the Portfolios promptly after the filing of each such document
with the SEC or other regulatory authority. The Company will provide the Fund
with at least one complete copy of all prospectuses, statements of additional
information, annual and semi-annual reports, proxy statements, and all
amendments or supplements to any of the above promptly after the filing of each
such document with the SEC or other regulatory authority provided that the
document relates to a Separate Account and Variable Contract that include the
Fund as one of the underlying funding vehicles for such Variable Contract.
Article V. SALES MATERIALS
5.1 The Company will furnish, or will cause to be furnished, to the Fund or
the Distributor, each piece of sales literature or other promotional material in
which the Fund, the Distributor or any affiliate thereof is named, at least ten
(10) Business Days prior to its intended use. No such material shall be used
unless the Fund or the Distributor approves such material. Such approval shall
be presumed given if notice to the contrary is not received by the Company
within fifteen Business Days after receipt by the Fund or the Distributor of
such material.
5.2 The Fund or the Distributor will furnish, or will cause to be
furnished, to the Company, each piece of sales literature or other promotional
material in which the Company or its Separate Accounts are named, at least ten
(10) Business Days prior to its intended use. No such material shall be used
unless the Company approves such material. Such approval shall be presumed given
if notice to the contrary is not received by the Fund or within fifteen Business
Days after receipt by the Company of such material.
5.3 Except with the permission of the Company, neither the Fund nor the
Distributor shall give any information or make any representations on behalf of
the Company or concerning the Company, the Separate Accounts, or the Variable
Contracts other than the information or
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representations contained in the registration statement or prospectus for such
Variable Contracts, as such registration statement and prospectus may be amended
or supplemented from time to time, or in reports of the Separate Accounts for
distribution to owners of such Variable Contracts, or in sales literature or
other promotional material approved by the Company or its designee. Neither the
Fund nor the Distributor shall give such information or make such
representations or statements in a context that causes the information,
representations or statements to be false or misleading.
5.4 Except with the permission of the Fund or the Distributor, neither the
Company nor its affiliates or agents shall give any information or make any
representations or statements on behalf of the Fund, the Distributor or any
affiliate thereof or concerning the Fund, the Distributor or any affiliate
thereof, other than the information or representations contained in the
registration statements or prospectuses for the Fund, as such registration
statements and prospectuses may be amended or supplemented from time to time, or
in reports to shareholders or proxy statements for the Fund, or in sales
literature or other promotional material approved by the Fund or the Distributor
or designee thereof. Neither the Company nor its affiliates or agents shall give
such information or make such representations or statements in a context that
causes the information, representations or statements to be false or misleading.
5.5 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without limitation,
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 literature (such as any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, or 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, registration statements,
prospectuses, statements of additional information, shareholder reports and
proxy materials, and any other material constituting sales literature or
advertising under NASD rules, the '40 Act or the '33 Act.
Article VI. POTENTIAL CONFLICTS
6.1 The parties acknowledge that the Fund has received an exemptive order
from the SEC granting relief from various provisions of the '40 Act and the
rules thereunder to the extent necessary to permit the Fund Shares to be sold to
and held by variable annuity and variable life insurance separate accounts of
Participating Companies and Plans. The terms of such exemptive order (the "Mixed
and Shared Funding Exemptive Order") require the Fund and each Participating
Company and Plan to comply with conditions and undertakings substantially as
provided in this Article. In the event of any inconsistencies between the terms
of the Mixed and Shared Funding Exemptive Order and those provided for in this
Article, the conditions and undertakings imposed by the Mixed and Shared Funding
Exemptive Order shall govern this Agreement.
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6.2 The Fund's Board will monitor the Fund for the existence of any
material irreconcilable conflict between and among the interests of the Variable
Contract owners of all Participating Companies and of Plan Participants and
Plans investing in the Fund, and determine what action, if any, should be taken
in response to such conflicts. An irreconcilable material conflict may arise for
a variety of reasons, which may include: (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 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 the Fund are being
managed; (e) a difference in voting instructions given by variable annuity and
variable life insurance contract owners; (f) a decision by a Participating
Insurance Company to disregard the voting instructions of Variable Contract
owners and (g) if applicable, a decision by a Plan to disregard the voting
instructions of plan participants.
6.3 The Company will report any potential or existing conflicts to the
Board. The Company will be obligated to assist the Board in carrying out its
duties and responsibilities under the Mixed and Shared Funding Exemptive Order
by providing the Board with all information reasonably necessary for the Board
to consider any issues raised. The responsibility includes, but is not limited
to, an obligation by the Company to inform the Board whenever it has determined
to disregard Variable Contract owner voting instructions.
6.4 If a majority of the Board, or a majority of its disinterested Board
members, determines that a material irreconcilable conflict exists with regard
to contract owner investments in the Fund, the Board shall give prompt notice of
the conflict and the implications thereof to all Participating Companies and
Plans. If the Board determines that the Company is a relevant Participating
Company or Plan with respect to said conflict, the Company shall at its sole
cost and expense, and to the extent reasonably practicable (as determined by a
majority of the disinterested Board members), take such action as is necessary
to remedy or eliminate the irreconcilable material conflict. Such necessary
action may include but shall not be limited to: (a) withdrawing the assets
allocable to some or all of the Separate Accounts from the Fund or any Portfolio
thereof and reinvesting those assets in a different investment medium, which may
include another Portfolio of the Fund, or another investment company; (b)
submitting the question as to whether such segregation should be implemented to
a vote of all affected Variable Contract owners and as appropriate, segregating
the assets of any appropriate group (i.e., variable annuity or variable life
insurance contract owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected Variable
Contract owners the option of making such a change; and (c) establishing a new
registered management investment company (or series thereof) or managed separate
account. If a material irreconcilable conflict arises because of the Company's
decision to disregard Variable Contract owner voting instructions, and that
decision represents a minority position or would preclude a majority vote, the
Company may be required, at the election of the Fund to withdraw the Separate
Account's investment in the Fund, and no charge or penalty will be imposed as a
result of such withdrawal. The responsibility to take such remedial action shall
be carried out with a view only to the interests of the Variable Contract
owners.
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For the purposes of this Article, a majority of the disinterested members
of the Board shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict but in no event will the Fund or
its investment adviser (or any other investment adviser of the Fund) be required
to establish a new funding medium for any Variable Contract. Further, the
Company shall not be required by this Article to establish a new funding medium
for any Variable Contracts if any offer to do so has been declined by a vote of
a majority of Variable Contract owners materially and adversely affected by the
irreconcilable material conflict.
6.5 The Board's determination of the existence of an irreconcilable
material conflict and its implications shall be made known promptly and in
writing to the Company.
6.6 No less than annually, the Company shall submit to the Board such
reports, materials or data as the Board may reasonably request so that the Board
may fully carry out its obligations. Such reports, materials, and data shall be
submitted more frequently if deemed appropriate by the Board.
6.7 If and to the extent that the SEC promulgates new rules or regulations
with respect to mixed or shared funding on terms and conditions materially
different from those contained in the Mixed and Shared Funding Exemptive Order,
then (a) the Fund and/or the Participating Insurance Companies as appropriate,
shall take such steps as may be necessary to comply with such rules and
regulations, as adopted, to the extent such rules are applicable; and (b) this
Article VI shall be deemed to incorporate such new terms and conditions, and any
term or condition of this Article VI that is inconsistent therewith, shall be
deemed to be succeeded thereby.
6.8 The Company acknowledges it has been advised by the Fund that it may be
appropriate for the Company to disclose the potential risks of mixed and shared
funding in prospectuses or other applicable disclosure documents.
Article VII. VOTING
7.1 The Company will provide pass-through voting privileges to all Variable
Contract owners so long as the SEC continues to interpret the '40 Act as
requiring pass-through voting privileges for Variable Contract owners.
Accordingly, the Company, where applicable, will vote Shares of the Portfolio
held in its Separate Accounts in a manner consistent with voting instructions
timely received from its Variable Contract owners. The Company will be
responsible for assuring that each of its Separate Accounts that participates in
the Fund calculates voting privileges in a manner consistent with other
Participating Insurance Companies. The Company will vote Shares for which it has
not received timely voting instructions, as well as Shares it owns, in the same
proportion as its votes those Shares for which it has received voting
instructions. The Company and its agents shall not oppose or interfere with the
solicitation of proxies for Fund Shares held for such Variable Contract owners.
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ARTICLE VIII. CONTRACT HOLDER INFORMATION
8.1 AGREEMENT TO PROVIDE CONTRACT HOLDER INFORMATION PURSUANT TO RULE 22c-2
(a) To the extent required by Rule 22c-2 under the 1940 Act, the
Company agrees to provide the Fund, upon written request, the taxpayer
identification number ("TIN"), if known, of any or all Contract holders and the
amount, date, name or other identifier of any investment professional(s)
associated with the Contract holder(s) or account(s) (if known), and transaction
type (purchase, redemption, transfer or exchange) of every purchase, redemption,
transfer or exchange of shares of the Portfolio(s) held through one or more
account(s) maintained by the Company during the period covered by the request
("transaction information").
(b) Requests must set forth a specific period, not to exceed ninety
(90) business days from the date of the request, for which transaction
information is sought. The Fund may request transaction information older than
ninety (90) business days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares of
the Portfolio(s) issued by the Fund.
(c) The Company agrees to transmit the requested transaction
information that is on its books and records to the Fund or its designee
promptly, but in any event not later than five (5) business days after receipt
of a request. If the requested transaction information is not on the Company's
books and records, the Company agrees to: (i) provide or arrange to provide to
the Fund the requested transaction information from Contract holders who hold an
account with an indirect intermediary; or (ii) if directed by the Fund, block
further purchases of shares of the Portfolio(s) from such indirect intermediary.
In such instance, the Company agrees to inform the Fund whether it plans to
perform (i) or (ii). Responses required by this paragraph must be communicated
in writing and in a format mutually agreed upon by the parties. To the extent
practicable, the format for any transaction information provided to the Fund
should be consistent with the NSCC Standardized Data Reporting Format. For
purposes of this provision, an "indirect intermediary" has the same meaning as
in SEC Rule 22c-2 under the Investment Company Act.
8.2 AGREEMENT TO RESTRICT TRADING; INSTRUCTIONS; CONFIRMATIONS
(a) To the extent required by Rule 22c-2 the Company agrees to execute
written instructions from the Fund to restrict or prohibit further purchases or
exchanges of shares of the Portfolio(s) by a Contract holder that has been
identified by the Fund as having engaged in transactions of Portfolio shares
(directly or indirectly through the Company's account) that violate market
timing or frequent trading policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding Portfolio
shares issued by the Fund.
(b) Instructions must include the TIN, if known, and the specific
restrictions(s) to be executed. If the TIN is not known, the instructions must
include an
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equivalent identifying number of the Contract holder(s) or account(s) or other
agreed upon information to which the instruction relates.
(c) The Company agrees to execute instructions as soon as reasonably
practicable, but not later than five (5) business days after receipt of the
instructions by the Company.
(d) The Company must provide written confirmation to the Fund that
instructions have been executed. The Company agrees to provide confirmation as
soon as reasonably practicable, but not later than ten (10) business days after
the instructions have been executed.
8.3 LIMITATIONS ON USE OF INFORMATION
The Fund agrees not to use any transaction information received from the
Company solely pursuant to this Agreement for marketing or any other similar
purpose without the prior written consent of the Company, except where it is
required to do so under law, rule, or regulation.
Article IX. INDEMNIFICATION
9.1 INDEMNIFICATION BY THE COMPANY.
(a) Subject to Section 9.3 below, the Company agrees to indemnify and hold
harmless the Fund and the Distributor, and each of their trustees, directors,
members, principals, officers, partners, employees and agents and each person,
if any, who controls the Fund or the Distributor within the meaning of Section
15 of the '33 Act (collectively, the "Indemnified Parties" for purposes of this
Article) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company, which
consent shall not be unreasonably withheld) or litigation (including legal and
other expenses), to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Fund's Shares or the Variable
Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statement or prospectus for the Variable Contracts
or contained in the Variable Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by or on
12
behalf of an Indemnified Party for use in the registration
statement or prospectus for the Variable Contracts or in the
Variable Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of
the Variable Contracts or Fund Shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature of the
Fund not supplied by the Company, or persons under its control)
or wrongful conduct of the Company or persons under its control,
with respect to the sale or distribution of the Variable
Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement,
prospectus, or sales literature of the Fund or any amendment
thereof or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading if such statement or omission or such alleged
statement or omission was made in reliance upon and in
conformity with information furnished to the Fund by or on
behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arises out of information or instructions from the Company or
its agents concerning the purchase, redemption, transfer or
other transaction in Fund Shares; or
(vi) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company.
(b) The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against an Indemnified Party as such may arise from such 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 or duties under this Agreement.
(c) The Company 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 Company 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 Company of any such claim shall not
relieve the Company from any liability which it may have to the Indemnified
Party against whom such action is brought
13
otherwise than on account of this indemnification provision. In case any such
action is brought against an Indemnified Party, the Company shall be entitled to
participate at its own expense in the defense of such action. The Company also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Company to such party of
the Company's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Company 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.
9.2 INDEMNIFICATION BY THE FUND AND THE DISTRIBUTOR.
(a) Subject to Section 9.3 below, the Fund and the Distributor agree to
indemnify and hold harmless the Company and each of its directors, officers,
employees, and agents and each person, if any, who controls the Company within
the meaning of Section 15 of the '33 Act (collectively, the "Indemnified
Parties" for the purposes of this Article) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Fund and the Distributor, which consent shall not be unreasonably
withheld) or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's Shares or the Variable Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus of the Fund (or any
amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished to the Fund or the Distributor by or
on behalf of the Company for use in the registration statement or
prospectus for the Fund (or any amendment or supplement) or
otherwise for use in connection with the sale of the Variable
Contracts or Fund Shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for the
Variable Contracts not supplied by the Fund or the Distributor or
persons under its control) or wrongful conduct of the Fund or the
Distributor or persons under its control, with respect to the
sale or distribution of the Variable Contracts or Fund Shares; or
14
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement or
prospectus covering the Variable Contracts, or any amendment
thereof or supplement thereto or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if such
statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information
furnished to the Company for inclusion therein by or on behalf of
the Fund or the Distributor; or
(iv) arise as a result of a failure by the Fund or the Distributor to
provide the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund or the
Distributor in this Agreement or arise out of or result from any
other material breach of this Agreement by the Fund or the
Distributor; or
(vi) arise out of the failure of the Fund or any Portfolio to comply
with the diversification requirements set forth in Section 817(h)
of the Code or to qualify as a "regulated investment company"
under Subchapter M of the Code.
(b) The Fund or the Distributor shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such 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.
(c) The Fund or the Distributor, as the case may be, 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 Fund or
the Distributor, as the case may be, 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 Fund or the Distributor of any such claim
shall not relieve the Fund or 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 Fund or the Distributor shall be entitled
to participate at its own expense in the defense thereof. The Fund or 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 Fund or the
Distributor to such party of the Fund's or the Distributor's election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Fund or the Distributor will not
be liable to such
15
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.
9.3 INDEMNIFICATION FOR ERRORS. In the event of any error or delay with
respect to information regarding the purchase, redemption, transfer or
registration of Shares of the Fund, the parties agree that each is obligated to
make the Separate Accounts and/or the Fund, respectively, whole for any error or
delay that it causes, subject in the case of pricing errors to the Funds'
policies on materiality of pricing errors. In addition, each party agrees that
neither will receive compensation from the other for the costs of any
reprocessing necessary as a result of an error or delay. Each party agrees to
provide the other with prompt notice of any errors or delays of the type
referred to in this Section.
Article X. TERM; TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions herein.
10.2 This Agreement shall terminate in accordance with the following
provisions:
(a) At the option of the Company or the Fund at any time from the date
hereof upon one hundred eighty (180) days notice, unless a shorter
time is agreed to by the parties;
(b) At the option of the Company, if Fund Shares are not reasonably
available to meet the requirements of the Variable Contracts as
determined by the Company. Prompt notice of election to terminate
shall be furnished by the Company, said termination to be effective
ten days after receipt of notice unless the Fund makes available a
sufficient number of Shares to reasonably meet the requirements of the
Variable Contracts within said ten-day period;
(c) At the option of the Company, upon the institution of formal
proceedings against the Fund or the Distributor by the SEC, the
National Association of Securities Dealers, Inc., or any other
regulatory body, the expected or anticipated ruling, judgment or
outcome of which would, in the Company's reasonable judgment,
materially impair the Fund's or the Distributor's ability to meet and
perform their respective obligations and duties hereunder. Prompt
notice of election to terminate shall be furnished by the Company with
said termination to be effective upon receipt of notice;
(d) At the option of the Fund, upon the institution of formal proceedings
against the Company by the SEC, the NASD, or any other regulatory
body, the expected or anticipated ruling, judgment or outcome of which
would, in the Fund's reasonable judgment, materially impair the
Company's ability to meet and perform its
16
obligations and duties hereunder. Prompt notice of election to
terminate shall be furnished by the Fund with said termination to be
effective upon receipt of notice;
(e) In the event the Fund's Shares are not registered, issued or sold in
accordance with applicable state or federal law, or such law precludes
the use of such Shares as the underlying investment medium of Variable
Contracts issued or to be issued by the Company. Termination shall be
effective upon such occurrence without notice;
(f) At the option of the Fund if the Variable Contracts cease to qualify
as annuity contracts or life insurance contracts, as applicable, under
the Code, or if the Fund reasonably believes that the Variable
Contracts may fail to so qualify. Termination shall be effective upon
receipt of notice by the Company;
(g) At the option of the Company, upon the Fund's and/or Distributor's
breach of any material provision of this Agreement, which breach has
not been cured to the satisfaction of the Company within ten days
after written notice of such breach is delivered to the Fund;
(h) 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 ten days after written notice of such
breach is delivered to the Company;
(i) At the option of the Fund, if the Variable Contracts are not
registered, issued or sold in accordance with applicable federal
and/or state law. Termination shall be effective immediately upon such
occurrence without notice;
(j) In the event this Agreement is assigned without the prior written
consent of the Company, the Fund, and the Distributor, termination
shall be effective immediately upon such occurrence without notice.
10.3 Notwithstanding any termination of this Agreement pursuant to Section
10.2 hereof, the Fund at the option of the Company will continue to make
available additional Fund Shares, as provided below, pursuant to the terms and
conditions of this Agreement, for all Variable Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts or the Company, whichever shall have legal authority to do
so, shall be permitted to reallocate investments in the Fund, redeem investments
in the Fund and/or invest in the Fund upon the payment of additional premiums
under the Existing Contracts.
Article XI. NOTICES
Any notice hereunder shall be given by registered or certified mail return
receipt requested 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.
17
If to the Fund:
Lord Xxxxxx Family of Funds
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
with a copy to:
Lord, Xxxxxx & Co. LLC
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
If to the Distributor:
Lord Xxxxxx Distributor LLC
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
If to the Company:
Genworth Life and Annuity Insurance Company
0000 Xxxx Xxxxx Xxxxxx, Xxxx. #0
Xxxxxxxx, XX 00000
Attention: General Counsel, Securities
Notice shall be deemed given on the date of receipt by the addressee as
evidenced by the return receipt.
Article XII. MISCELLANEOUS
12.1 PRIVACY. Each party hereto acknowledges that, by reason of its
performance under this Agreement, it shall have access to, and shall receive
from the other party (and its affiliates, partners and employees), the
confidential information of the other party (and its affiliates, partners and
employees), including but not limited to the "nonpublic personal information" of
their consumers within the meaning of SEC Regulation S-P (collectively,
"Confidential Information"). Each party shall hold all such Confidential
Information in the strictest confidence and shall use such Confidential
Information solely in connection with its performance under this Agreement and
for the business purposes set forth in this Agreement. Under no circumstances
may a party cause any Confidential Information of the other party to be
disclosed to any third party or reused or redistributed without the other
party's prior written consent.
18
12.2 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together shall constitute one and the
same instrument.
12.3 SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.4 GOVERNING LAW. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of New
York. It shall also be subject to the provisions of the federal securities laws
and the rules and regulations thereunder and to any orders of the SEC granting
exemptive relief therefrom and the conditions of such orders.
12.5 LIABILITY. This Agreement has been executed on behalf of the Fund by
the undersigned officer of the Fund in his or her capacity as an officer of the
Fund. The obligations of this Agreement shall be binding upon the assets and
property of the Fund and each respective Portfolio thereof only and shall not be
binding on any Director/Trustee, officer or shareholder of the Fund
individually. In addition, notwithstanding any other provision of this
Agreement, no Portfolio shall be liable for any loss, expense, fee, charge or
liability of any kind relating to or arising from the actions or omissions of
any other Portfolio or from the application of this Agreement to any other
Portfolio. It is also understood that each of the Portfolios shall be deemed to
be entering into a separate Agreement with the Company so that it is as if each
of the Portfolios had signed a separate Agreement with the Company and that a
single document is being signed simply to facilitate the execution and
administration of the Agreement.
12.6 INQUIRIES AND INVESTIGATIONS. 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 reasonable access to its books and records in connection with
any investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
12.7 SUBCONTRACTORS, AGENTS OR AFFILIATES. The Company may hire or make
arrangements for subcontractors, agents or affiliates to perform the services
set forth in this Agreement. The Company shall provide the Fund with written
notice of the names of any subcontractors, agents or affiliates the Company
hires or arranges to perform such services, and any specific operational
requirements that arise as a result of such arrangement. The Company agrees that
it is and will be responsible for the acts and omissions of its subcontractors,
affiliates, and agents and that the indemnification provided by the Company in
Section 9 of this Agreement shall be deemed to cover the acts and omissions of
such subcontractors, affiliates, and agents to the same extent as if they were
the acts or omissions of the Company.
12.8 CLIENT LISTS. The Company hereby consents to the Distributor's, the
Fund's, or its investment adviser's use or reference to the Company's name in
connection with any full, partial or representative list of clients.
19
12.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior agreement and
understandings relating to the subject matter hereof.
12.10 AMENDMENT, WAIVER AND OTHER MATTERS. Neither this Agreement, nor any
provision hereof, may be amended, waived, modified or terminated in any manner
except by a written instrument properly authorized and executed by all parties
hereto. 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.
SIGNATURES ON NEXT PAGE
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IN WITNESS WHEREOF, the parties have caused their duly authorized officers to
execute this Fund Participation Agreement as of the date and year first above
written.
LORD XXXXXX SERIES FUND, INC.
By:
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President and Secretary
LORD XXXXXX DISTRIBUTOR LLC
By: Lord, Xxxxxx & Co. LLC, its
Managing Member
By:
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member and General Counsel
GENWORTH LIFE AND ANNUITY INSURANCE
COMPANY
By:
------------------------------------
Name: Xxxxxxxx X. Stiff
Title: Senior Vice President
21
