FUND PARTICIPATION AGREEMENT
FORETHOUGHT LIFE INSURANCE COMPANY
HARTFORD FUNDS MANAGEMENT COMPANY, LLC
HARTFORD INVESTMENT FINANCIAL SERVICES COMPANY, LLC
AND
EACH OF THE INVESTMENT COMPANIES
LISTED ON SCHEDULE A ATTACHED HERETO
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS 4
ARTICLE II. SALE OF FUND SHARES 6
ARTICLE III. REPRESENTATIONS AND WARRANTIES 11
ARTICLE IV. PROSPECTUSES AND PROXY STATEMENTS; VOTING 16
ARTICLE V. SALES MATERIAL AND INFORMATION 18
ARTICLE VI. FEES AND EXPENSES 20
ARTICLE VII. DIVERSIFICATION AND QUALIFICATION 21
ARTICLE VIII. POTENTIAL CONFLICTS AND COMPLIANCE WITH MIXED AND SHARED
FUNDING EXEMPTIVE ORDER 24
ARTICLE IX. INDEMNIFICATION 27
ARTICLE X. APPLICABLE LAW 34
ARTICLE XI. TERMINATION 34
ARTICLE XII. NOTICES 38
ARTICLE XIII. MISCELLANEOUS 39
SCHEDULE A 44
SCHEDULE B 45
FUND PARTICIPATION AGREEMENT
Among
FORETHOUGHT LIFE INSURANCE COMPANY
HARTFORD FUNDS MANAGEMENT COMPANY, LLC
HARTFORD INVESTMENT FINANCIAL SERVICES COMPANY, INC.
AND
EACH OF THE INVESTMENT COMPANIES
LISTED ON SCHEDULE A ATTACHED HERETO
THIS AGREEMENT, made and entered into as of this [ ] day of [ ], 20[ ], by and
among FORETHOUGHT LIFE INSURANCE COMPANY (the "Company"), an Indiana
corporation, on its own behalf and on behalf of each separate account set forth
on attached Schedule A, as the same may be amended from time to time (the
"Accounts"); EACH INVESTMENT COMPANY LISTED ON SCHEDULE A, as it may be amended
from time to time, each an open-end management investment company organized
under the laws of the State of Maryland (each, a "Fund" and, collectively, the
"Funds"); HARTFORD FUNDS MANAGEMENT COMPANY, LLC ("HFMC"), a
Connecticut limited
liability company; and HARTFORD INVESTMENT FINANCIAL SERVICES COMPANY, LLC
("HIFSCO"), a
Connecticut corporation. HFMC in its capacity as investment
adviser to the Funds is referred to herein as the "Adviser." HIFSCO in its
capacity as primary underwriter to the Funds is referred to herein as the
"Distributor."
WHEREAS, each Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established by insurance companies to fund variable life insurance policies
and/or variable annuity contracts; and
WHEREAS, the common stock of each Fund is divided into several separate series
of shares, each designated a "Portfolio" and representing an interest in a
particular managed portfolio of securities and other assets; and
2
WHEREAS, the Funds have obtained an order from the Securities and Exchange
Commission, dated November 1, 2000 (File No. IC-24724), granting participating
insurance companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940, as amended, (hereinafter the "1940
Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent
necessary to permit shares of the Funds to be sold to and held by variable
annuity and variable life insurance separate accounts of life insurance
companies that may or may not be affiliated with one another and qualified
pension and retirement plans ("Qualified Plans") (hereinafter the "Mixed and
Shared Funding Exemptive Order"); and
WHEREAS, each Fund is registered as an open-end management investment company
under the 1940 Act and shares of each Portfolio are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended; and
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, (the "1934 Act") and is a member in
good standing of the Financial Industry Regulatory Authority ("FINRA"); and
WHEREAS, the Company is an insurance company that has issued and plans to
continue to issue certain variable life insurance policies and variable annuity
contracts supported wholly or partially by the Accounts (the "Contracts"); and
WHEREAS, each Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company
under the insurance laws of the State of Indiana, to set aside and invest assets
attributable to the Contracts; and
3
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to continue to purchase shares in the Portfolios on behalf
of the Accounts to fund the Contracts, and each Fund is authorized to sell such
shares to unit investment trusts such as the Accounts at net asset value;
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company also intends to continue to purchase shares in other open-end
investment companies or series thereof not affiliated with the Funds (the
"Unaffiliated Funds") on behalf of the Accounts to fund the Contracts;
WHEREAS, this Agreement shall create a separate participation agreement for each
Fund, as though the Company, Adviser and Distributor had executed a separate,
identical form of participation agreement with each Fund; and
WHEREAS, except as otherwise provided in regard to that certain Rule 22c-2
Agreement among the parties hereto, this Agreement, including the any Exhibits
hereto, is intended to constitute the entire agreement by and among the parties
with respect to the specific matters dealt with herein, and supersedes all
previous agreements among the parties, written or oral, with respect to such
matters.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Funds, the Distributor and the Adviser agree as follows:
ARTICLE I. DEFINITIONS
1.1. "Business Day" shall mean any day on which the New York Stock Exchange is
open for trading and on which a Portfolio calculates its net asset value
pursuant to the rules of the Securities and Exchange Commission.
1.2. "Code" shall mean the Internal Revenue Code of 1986, as amended, and any
successor thereto.
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1.3. "Contract Owners" shall mean the owners of Contracts, as distinguished
from all other product owners.
1.4. "Independent Directors" shall mean those members of a Fund's Board of
Directors who are not interested persons of the Fund, the Distributor, the
Adviser or any sub-adviser to any of the Portfolios.
1.5. "IRS" shall mean the U.S. Internal Revenue Service.
1.6. "NAV" shall mean a Portfolio's net asset value per share ("NAV").
1.7. "Prospectus" with respect to shares of a Portfolio or with respect to a
Contract through which interests in an Account registered as a unit investment
trust under the 1940 Act are offered and issued, which interests are registered
as securities under the 1933 Act, shall mean each version of the effective
prospectus, including any supplements thereto, filed with the SEC under the 1933
Act. Unless otherwise indicated, the term "Prospectus" shall include any private
placement memo or other similar disclosure document used in connection with the
offer or sale of Contracts through which interests in unregistered Accounts are
offered and issued. With respect to any provision of this Agreement requiring a
party to take action in accordance with a Prospectus, such reference will be to
the version of the Prospectus last filed and effective prior to the taking of
such action, including any supplements thereto. The term Prospectus shall
include any statement of addition information incorporated by reference therein.
1.8. "SEC" shall mean the U.S. Securities and Exchange Commission.
1.9. "SAI" shall mean each version of the effective Statement of Additional
Information, including any supplements thereto, filed with the SEC under the
1933 Act. With respect to any provision of this Agreement requiring a party to
take action in accordance with a SAI, such reference will be to the version of
the SAI last filed and effective prior to the taking of
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such action, including any supplements thereto. The term SAI shall include any
Prospectus incorporated by reference therein.
1.10. "Valuation Time" shall mean the time as of which a Fund calculates net
asset value for the shares of its Portfolios on the relevant Business Day.
ARTICLE II. SALE OF FUND SHARES
2.1. Each Fund and the Distributor agree to sell to the Company those shares of
a Fund's Portfolios that an Account orders, executing such orders on each
Business Day at the net asset value next computed after receipt by the Fund or
its designee of the order for the shares of the Portfolios. For purposes of this
Section 2.1, the Company shall be the designee of each Fund for receipt of such
orders and receipt by such designee shall constitute receipt by the Fund,
provided that the Fund receives notice of any such order by 7:30 a.m. Eastern
time on the next following Business Day. Such notice may be communicated by
electronic transmission or facsimile to the office or person(s) designated for
such notice by each Fund.
2.2. (a) Each Fund and the Distributor agree to make shares of the Portfolios
available for purchase at the applicable net asset value per share by the
Company and the Accounts on those days on which the Fund calculates its
Portfolios' net asset value pursuant to rules of the SEC, and each Fund shall
calculate such net asset value on each day which the New York Stock Exchange is
open for trading. Notwithstanding the foregoing, a Fund may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Fund acting
in good faith, necessary or appropriate in the best interests of the
shareholders of such Portfolio. All orders accepted by the Company shall be
subject to the terms of the then current Prospectus of the applicable Fund. The
Company shall use its best efforts, and shall reasonably cooperate with, a Fund
to enforce stated Prospectus policies regarding transactions in Portfolio
shares.
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The Company acknowledges that orders accepted by it in violation of a Fund's
stated policies may be subsequently revoked or canceled by the Fund and that the
Fund shall not be responsible for any losses incurred by the Company or the
Contract Owner as a result of such cancellation.
(b) The Company acknowledges that each Fund has the right to refuse any
purchase order or to suspend or terminate the offering of shares of any
Portfolio for any reason.
(c) Each Fund will not sell shares of the Portfolios to any other participating
insurance company separate account unless an agreement containing provisions the
substance of which are the same as Sections 3.1(a), 3.1(b) (except with respect
to designation of applicable law), 4.6, 4.7, 4.8 (Sections 4.6, 4.7 and 4.8
shall be required to the extent necessary by applicable law), and Article VIII
of this Agreement is in effect to govern such sales.
2.3. Each Fund agrees to redeem for cash, on the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests on
each Business Day at the NAV next computed after receipt by the Fund or its
designee of the request for redemption. For purposes of this Section 2.3, the
Company shall be the designee of the Fund for receipt of requests for redemption
and receipt by such designee shall constitute receipt by the Fund, provided that
the Fund receives notice of any such request for redemption by 9:30 a.m. Eastern
time on the next following Business Day.
2.4. The Distributor and each Fund agree that shares of the Portfolios will be
sold only to insurance companies for use in conjunction with variable life
insurance policies or variable annuities. The parties hereto acknowledge that
the arrangement contemplated by this Agreement is not exclusive; a Portfolio's
shares may be sold to other insurance companies and the cash value of the
Contracts may be invested in other investment companies.
7
2.5. (a) The Company will place orders to purchase or redeem shares of each
Portfolio separately for each Portfolio. Each order shall describe the net
amount of shares and dollar amount of each Portfolio to be purchased or
redeemed.
(b) The Company shall pay for Portfolio shares by 3:00 p.m. Eastern time on the
next Business Day after an order to purchase Portfolio shares is received in
accordance with the provisions of Section 2.1 hereof. Payment shall be in
federal funds transmitted by wire and/or by a credit for any shares redeemed the
same day as the purchase.
(c) Each Fund shall pay and transmit the proceeds of redemptions of Portfolio
shares by 3:00 a.m. Eastern Time on the next Business Day after a redemption
order is received in accordance with Section 2.3 hereof; provided, however, that
the Fund may delay payment in extraordinary circumstances to the extent
permitted under Section 22(e) of the 1940 Act. Payment shall be in federal funds
transmitted by wire and/or a credit for any shares purchased the same day as the
redemption.
2.6. Issuance and transfer of a Portfolio's shares will be by book entry only.
Stock certificates will not be issued to the Company or the Accounts. Shares
purchased from a Portfolio will be recorded in an appropriate title for the
relevant Account or the relevant sub-account of an Account. Each Fund will
furnish to the Company the CUSIP number assigned to each Portfolio identified in
Schedule A hereto, as it may be amended from time to time.
2.7. The Distributor shall notify the Company in advance, but not later than
same day notice (by electronic communication or telephone, followed by
electronic confirmation) to the Company, of any income, dividends or capital
gain distributions payable on a Portfolio's shares. 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 that Portfolio. A Fund shall
notify the Company by the end of the next following Business Day of the number
of shares so issued as payment of such dividends and distributions.
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2.8. Each Fund shall make the NAV for each Portfolio available to the Company
on each Business Day as soon as reasonably practicable after the NAV is
calculated and shall use its best efforts to make such NAV available by 6:00
p.m. Eastern time. In the event of an error in the computation of a Portfolio's
NAV or any dividend or capital gain distribution (each, a "pricing error"), the
applicable Fund shall immediately notify the Company as soon as possible after
discovery of the error. Such notification may be verbal, but shall be confirmed
promptly in writing. A pricing error shall be corrected as follows: (a) if the
pricing error results in a difference between the erroneous NAV and the correct
NAV of less than $0.01 per share, then no corrective action need be taken; (b)
if the pricing error results in a difference between the erroneous NAV and the
correct NAV equal to or greater than $0.01 per share, but less than 1/2 of 1% of
the Portfolio's NAV at the time of the error, then the Adviser shall reimburse
the Portfolio for any loss, after taking into consideration any positive effect
of such error; however, no adjustments to Contract Owner accounts need be made;
and (c) if the pricing error results in a difference between the erroneous NAV
and the correct NAV equal to or greater than 1/2 of 1% of the Portfolio's NAV at
the time of the error, then the Adviser shall reimburse the Portfolio for any
loss (without taking into consideration any positive effect of such error) and
shall reimburse the Company for the costs of adjustments made to correct
Contract owner accounts in accordance with the provisions of the Adviser's
current pricing policy. If an adjustment is necessary to correct a material
error that has caused Contract Owners to receive less than the amount to which
they are entitled, the number of shares of the applicable sub-account of such
Contract Owners will be adjusted and the amount of any underpayments shall be
credited by the Adviser to the Company for crediting of such amounts to the
applicable Contract Owner's accounts. Upon notification by the Adviser of any
overpayment due to a material error, the Company shall promptly remit to the
Adviser any overpayment that has not been paid to Contract Owners. A pricing
error within categories (b) or (c) above shall be deemed to be "materially
incorrect" or constitute a "material error" for purposes of this Agreement. The
standards set forth in this Section 2.8 are based on the parties' understanding
of the views expressed by the staff of the SEC as of the date of this Agreement.
In the event the views of the SEC staff are later modified or superseded by SEC
or judicial interpretation, the parties shall amend the foregoing provisions
9
of this Agreement to comport with the appropriate applicable standards, on terms
mutually satisfactory to all parties.
2.9. The parties agree that the Contracts are not intended to serve as vehicles
for frequent transfers among the Portfolios in response to short-term stock
market fluctuations. Each Fund and the Company agree to cooperate with one
another to deter and detect transfer activity in the Portfolios where such
activity occurs through the Contracts and has been identified either by the
Company or a Fund as abusive or following a market-timing pattern ("Abusive
Transfers").
(a) The Company agrees to provide, promptly upon request by a Fund, the
taxpayer identification number or other identifying information contained in the
Company's records, of all Contract Owners that purchased, redeemed, transferred
or exchanged shares of a Portfolio, and the amount and dates of such purchases,
redemptions, transfers and exchanges.
(b) Each Fund agrees to notify the Company of transfer activity that the Fund
deems to be Abusive Transfer activity. After receiving such notice from a Fund,
the Company agrees that it will cooperate with the Fund to restrict or prohibit
further purchases or exchanges of Portfolio shares by a Contract Owner who has
been identified by the Fund as having engaged in transactions of such shares
held directly or indirectly by the Company that violate the Fund's policies
established for the purpose of eliminating or reducing Abusive Transfers to the
extent permissible under the terms and conditions of Contract Owner
prospectuses, Contracts and other governing laws.
(c) Each Fund represents that it will make a good faith effort to furnish
information to the Company about each Fund not otherwise available to the
Company that is required by state insurance law to enable the Company to obtain
the authority needed to issue the Contracts in any applicable state.
2.10. The Company agrees to notify a Fund of any investment restrictions
imposed by state insurance law and contracts applicable to the Fund. The parties
agree to mutually cooperate
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with respect to any state insurance law restriction or requirement applicable to
a Fund's investments to the extent such cooperation is permissible under the
terms and conditions of Funds' prospectuses and other governing laws.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1. The Company represents and warrants that:
(a) (i) The securities deemed to be issued by the Accounts under the Contracts
are or will be registered under the 1933 Act, or are not so registered in proper
reliance upon an exemption from such registration requirements; (ii) the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws; and (iii) the Contracts will be sold only
by duly licensed and appointed parties with which the Company has written
agreements that require, among other things, that the sale of the Contracts
shall comply in all material respects with applicable FINRA Conduct Rules.
(b) (i) It is an insurance company duly organized and in good standing under
applicable law; (ii) it has legally and validly established each Account prior
to any issuance or sale of units thereof as a segregated asset account under
Indiana law; and (iii) it has registered each Account as a unit investment trust
in accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts and will maintain such registration for so
long as any Contracts are outstanding as required by applicable law or,
alternatively, the Company has not registered one or more Accounts in proper
reliance upon an exclusion from such registration requirements.
(c) It has reviewed a copy of the Mixed and Shared Funding Exemptive Order,
and, in particular, has reviewed the conditions to the requested relief set
forth therein. As long as applicable, the Company agrees to be bound by the
responsibilities of a participating insurance company as set forth in the Mixed
and Shared Funding Exemptive Order, including, without limitation, the
requirement that the Company report any potential or existing conflicts of
interest of which it is aware to each Fund's Board of Directors. The Company
will assist each
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Board of Directors in carrying out its responsibilities in monitoring such
conflicts under the Mixed and Shared Funding Exemptive Order by providing the
Board in a timely manner with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform each applicable Board whenever Contract
Owner voting instructions are disregarded and by confirming in writing, at a
Fund's request, that the Company is unaware of any such potential or existing
material irreconcilable conflicts.
(d) For purposes other than diversification under Section 817 of the Code, that
the Contracts are currently and at the time of issuance will be treated as
annuity contracts or life insurance policies under applicable provisions of the
Code, and that it will make every effort to maintain such treatment and that it
will notify the Funds, the Distributor and the Adviser 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. In addition, the Company
represents and warrants that each Account is a "segregated asset account" and
that interests in each Account are offered exclusively through the purchase of
or transfer into a "variable contract" within the meaning of such terms under
Section 817 of the Code and the regulations thereunder. The Company will use
every effort to continue to meet such definitional requirements, and it will
notify the Funds, the Distributor and the Adviser immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future. The Company represents and warrants
that it will not purchase Fund shares with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in connection
with such plans.
(e) The Company agrees to comply with its obligations under applicable
anti-money laundering ("AML") laws, rules and regulations, including but not
limited to its obligations under the United States Bank Secrecy Act of 1970, as
amended (by the USA Patriot Act of 2001 and other laws), and the rules,
regulations and official guidance issued thereunder. The Company agrees to
undertake inquiry and due diligence regarding the customers to whom the Company
offers and/or sells Shares or on whose behalf the Company purchases Shares and
that the inquiry and due diligence is reasonably designed to determine that the
Company is not
12
prohibited from dealing with any such customer by (i) any sanction administered
by the Office of Foreign Asset Control of the U.S. Department of the Treasury;
(ii) and of the Special Measures.
(f) It is currently in compliance, and will remain in compliance, with all
applicable laws, rules and regulations relating to consumer privacy, including,
but not limited to, SEC Regulation S-P and the Xxxxx-Xxxxx-Xxxxxx Act.
(g) (i) It operates in compliance with and will continue to operate in
compliance with its duties and obligations under the Rule 22c-2 Agreement with
the Funds dated [ ]as it may be amended from time to time.
(ii) It has adopted, and will at all times during the term of this
Agreement maintain, reasonable and appropriate procedures ("Late Trading
Procedures") designed to ensure that any and all orders relating to the
purchase, sale or exchange of Portfolio shares communicated to the
applicable Fund to be treated in accordance with Article I of this
Agreement as having been received on a Business Day have been received by
the Valuation Time on such Business Day and were not modified after the
Valuation Time, and that all orders received from Contract Owners but not
rescinded by the Valuation Time were communicated to the Fund or its agent
as received for that Business Day. Each transmission of orders by the
Company shall constitute a representation by the Company that such orders
are accurate and complete and relate to orders received by the Company by
the Valuation Time on the Business Day for which the order is to be priced
and that such transmission includes all orders relating to Fund shares
received from Contract Owners but not rescinded by the Valuation Time. The
Company agrees to provide each Fund or its designee with a copy of the Late
Trading Procedures and such certifications and representations regarding
the Late Trading Procedures as the Fund or its designee may reasonably
request. The Company will promptly notify the Funds in writing of any
material change to the Late Trading Procedures.
(iii) It has adopted, and will at all times during the term of this
Agreement maintain, reasonable and appropriate procedures ("Market Timing
Procedures")
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designed to minimize excessive trading in its Contracts. The Company agrees
to provide each Fund or its designee with a copy of the Market Timing
Procedures and such certifications and representations regarding the Market
Timing Procedures as the Fund or its designee may reasonably request. The
Company will promptly notify the Funds of any material change to the Market
Timing Procedures. The parties agree to make reasonable efforts to address
any conflict between the Market Timing Procedures and actions taken or
policies adopted by a Fund designed to minimize any adverse impact on other
Fund investors due to excessive trading.
3.2. Each Fund and the Distributor represent and warrant that:
(a) (i) The Portfolio shares sold pursuant to this Agreement shall be
registered under the 1933 Act; (ii) the Portfolio shares sold pursuant to this
Agreement shall be duly authorized for issuance and sold in compliance with all
applicable federal securities laws including without limitation the 1933 Act,
the 1934 Act, and the 1940 Act; (iii) the Fund is and shall remain registered
under the 1940 Act; and (iv) the Fund shall amend the registration statement for
its Portfolios' shares under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of the shares.
(b) Each Fund has adopted a plan pursuant to Rule 12b-1 under the 1940 Act for
certain classes of its shares. The parties acknowledge that each Fund reserves
the right to modify or terminate its existing plan or to adopt additional plans
pursuant to Rule 12b-1 under the 1940 Act (including with respect to its shares
for which it has not currently adopted a Rule 12b-1 plan) and to impose an
asset-based or other charge to finance distribution expenses as permitted by
applicable law and regulation. The Fund and the Adviser agree to comply with
applicable provisions and SEC interpretation of the 1940 Act with respect to any
distribution plan.
(c) Each Fund shall register and qualify the shares for sale in accordance with
the laws of the various states if and to the extent required by applicable law.
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(d) Each Fund is lawfully organized and validly existing under the laws of the
State of Maryland and that it does and will comply in all material respects with
the 1940 Act.
(f) Each Fund and the Distributor shall comply with all applicable laws and
regulations designed to prevent money laundering and, if required by such laws
or regulations, share with the Company information about individuals, entities,
organizations and countries suspected of possible terrorist or money laundering
activities.
3.3. The Adviser represents and warrants that it is and shall remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for each Fund and Portfolio in compliance in all
material respects with any applicable state and federal securities laws.
3.4. The Distributor represents and warrants that it is and shall remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for each Fund and Portfolio in compliance in all
material respects with the laws of any applicable state and federal securities
laws.
3.5. Each Fund and the Adviser represent and warrant that:
(a) All of their respective officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of a Fund are,
and shall continue to be at all times, covered by one or more blanket fidelity
bonds or similar coverage for the benefit of the Fund in an amount not less than
the minimal coverage required by Rule 17g-1 under the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bonds shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
(b) They will use their best efforts to provide the Company with 60 days'
notice of any material change affecting the Portfolios (including, but not
limited to, any material
15
change in the registration statement or prospectus affecting the Portfolios) and
any proxy solicitation affecting the Portfolios and consult with the Company in
order to implement any such change in an orderly manner, recognizing the
expenses of changes and attempting to minimize such expenses by implementing
them in conjunction with regular annual updates of the Prospectus for the
Contracts.
(c) The Funds have obtained the Mixed and Shared Funding Exemptive Order from
the SEC granting participating insurance companies and variable insurance
products separate accounts exemptions from the provisions of the 1940 Act and
the rules thereunder to the extent necessary to permit shares of the Funds
and/or their Portfolios to be sold to and held by variable insurance product
separate accounts of both affiliated and unaffiliated life insurance companies.
3.6 Notwithstanding anything possibly to the contrary in the Agreement or any
Rule 22c-2 Shareholder Information Agreement entered into by the parties, the
Funds hereby waive enforcement rights of fund policies regarding market timing
or frequent trading with respect to transfers of assets into or from Company
sponsored dynamic or static asset allocation models.
ARTICLE IV. PROSPECTUSES AND PROXY STATEMENTS; VOTING
4.1. At least annually, the Distributor shall provide the Company with as many
copies of a Fund's current Prospectus as the Company may reasonably request,
with expenses to be borne in accordance with Schedule B hereof. If requested by
the Company in lieu thereof, the Distributor or Fund shall provide such
documentation (including an electronic version of the current prospectus) and
other assistance as is reasonably necessary in order for the Company once each
year (or more frequently if the prospectus for the Fund is amended) to have the
prospectus for the Contracts and the Prospectus for the Fund printed together in
one document.
4.2. If applicable state or federal laws or regulations require that the SAI
for a Fund be distributed to all Contract Owners, then the Fund and/or the
Distributor shall provide the Company with copies of the Fund's SAI in such
quantities, with expenses to be borne in
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accordance with Schedule B hereof, as the Company may reasonably require to
permit timely distribution thereof to Contract Owners. The Distributor and/or
the Fund shall also provide an SAI to any Contract Owner or prospective owner
who requests such SAI from the Fund.
4.3. Each Fund and/or the Distributor shall provide the Company with copies of
the Fund's proxy material, reports to shareholders and other communications to
shareholders in such quantity, with expenses to be borne in accordance with
Schedule B hereof, as the Company may reasonably require to permit timely
distribution thereof to Contract Owners.
4.4. It is understood and agreed that, except with respect to information
regarding the Company provided in writing by that party, the Company shall not
be responsible for the content of the Prospectus or SAI for a Fund. It is also
understood and agreed that, except with respect to information regarding a Fund,
the Distributor, the Adviser or the Portfolios provided in writing by a Fund,
the Distributor or the Adviser, neither the Fund, the Distributor nor Adviser
are responsible for the content of the prospectus or SAI for the Contracts.
4.5. Each Fund or its designee will use its best efforts to provide the Company
with 60 days' notice of any change for a Fund or Portfolio, including but not
limited to: (a) fund objective changes; (b) anticipated fund reorganizations or
substitutions; (c) no action or exemptive requests granted by the SEC; (d) Fund
and/or Portfolio name changes; (e) Fund or Portfolio adviser, sub-adviser and/or
portfolio manager changes; and/or (f) conditions or undertakings that affect the
Company's rights or obligations under this Agreement.
4.6. If and to the extent required by law the Company shall:
(a) solicit voting instructions from Contract Owners;
(b) vote the Portfolio shares held in the Accounts in accordance with
instructions received from Contract Owners;
17
(c) vote Portfolio shares held in the Accounts for which no instructions have
been received in the same proportion as Portfolio shares for which instructions
have been received from Contract Owners, so long as and to the extent that the
SEC continues to interpret the 1940 Act to require pass-through voting
privileges for variable contract owners; and
(d) vote Portfolio shares held in its general account or otherwise in the same
proportion as Portfolio shares for which instructions have been received from
Contract Owners, so long as and to the extent that the SEC continues to
interpret the 1940 Act to require such voting by an insurance company. The
Company reserves the right to vote Portfolio shares in its own right, to the
extent permitted by law.
4.7. The Company shall be responsible for assuring that each of its separate
accounts holding shares of a Portfolio calculates voting privileges as directed
by the applicable Fund and agreed to by the Company and the Fund. Each Fund
agrees to promptly notify the Company of any changes of interpretations or
amendments of the Mixed and Shared Funding Exemptive Order.
4.8. Each Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular each Fund will either provide for annual
meetings (except insofar as the SEC may interpret Section 16 of the 1940 Act not
to require such meetings) or, as each Fund currently intends, comply with
Section 16(c) of the 1940 Act (although no Fund is one of the trusts described
in Section 16(c) of that Act) as well as with Sections 16(a) and, if and when
applicable, 16(b). Further, each Fund will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of directors or trustees and with whatever rules the SEC may
promulgate with respect thereto.
ARTICLE V. SALES MATERIAL AND INFORMATION
5.1. (a) The Company shall not give any information or make any
representations or statements on behalf of a Fund or Portfolio in connection
with the sale of the Contracts other
18
than the information or representations contained in the registration statement,
including a Fund's Prospectus or SAI, as the same may be amended or supplemented
from time to time, or in sales literature or other promotional material approved
by a Fund, the Distributor and/or the Adviser, except with the prior written
consent of the Fund, Distributor and/or Adviser, as applicable.
(b) The Company shall furnish, or cause to be furnished, to each Fund, as
applicable, prior to use each piece of sales literature or other promotional
material prepared by the Company in which a Fund, the Distributor, the Adviser
and/or any of their respective affiliates is described. No sales literature or
advertising will be used if the Fund reasonably objects to its use within ten
(10) Business Days following receipt by the Company.
(c) The Company is hereby granted a non-exclusive, royalty-free, U.S. license
to use, print, broadcast and otherwise display in any print or electronic medium
with respect to the annuity Contracts, the Fund's or the Distributor's service
marks, trade names and logos solely with respect to such sales literature or
other promotional material created and published by the Company with respect to
the Contracts. This section is subject to the terms and restrictions of the
Master Agreement among Hartford Life Insurance Company, Hartford Life and
Annuity Insurance Company and Forethought Life Insurance Company dated April 25,
2012.
5.2. (a) Each Fund, the Distributor and the Adviser shall not give any
information or make any representations on behalf of the Company or concerning
the Company, the Accounts, or the Contracts other than the information or
representations contained in a registration statement, including the prospectus
or SAI, for the Contracts, as the same may be amended or supplemented from time
to time, or in sales literature or other promotional material approved by the
Company or its designee, except with the prior written consent of the Company.
(b) Each Fund, the Distributor and the Adviser shall furnish, or cause to be
furnished, to the Company prior to use each piece of sales literature or other
promotional material prepared by the Fund, the Distributor and the Adviser in
which the Company and/or any
19
of its affiliates is described. No piece of such sales literature or other
promotional material shall be used by the Fund, the Distributor and the Adviser
without the prior approval of the Company, which approval will not be
unreasonably withheld. The Company agrees that it will use its best efforts to
respond promptly to any request by a Fund, the Distributor or the Adviser for
such prior approval.
5.3. For purposes of this Article V and Article IX, the phrase "sales
literature and other promotional material" includes, but is not limited to,
advertisements (such as material published, or designed for use in, a newspaper,
magazine, or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures, or other public media;
e.g., on-line networks such as the Internet or other electronic media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and shareholder reports, and proxy
materials (including solicitations for voting instructions) and any other
material constituting sales literature or advertising under the FINRA rules, the
1933 Act or the 0000 Xxx.
5.4. At the request of any party to this Agreement, each other party will make
available to the requesting party's independent auditors and/or representatives
of the appropriate regulatory agencies, all records, data and access to
operating procedures that may be reasonably requested in connection with
compliance and regulatory requirements related to this Agreement or any party's
obligations under this Agreement.
ARTICLE VI. FEES AND EXPENSES
6.1. Each Fund, the Distributor and the Adviser shall pay no fee or other
compensation to the Company under this Agreement, and the Company shall pay no
fee or other compensation to a Fund, the Distributor or the Adviser under this
Agreement; provided, however, that (a) the parties will bear their own expenses
as reflected in Schedule B and other provisions of this
20
Agreement, and (b) the parties may enter into other agreements relating to the
Company's investment in a Fund or Portfolio, including services agreements.
Notwithstanding the foregoing, pursuant to the distribution plans adopted by
each Fund pursuant to Rule 12b-1 under the 1940 Act, and as contemplated by
Section 3.2(b) of this Agreement, each Fund or Portfolio or class of shares
thereof may pay the Distributor and the Distributor may pay the Company for
activities primarily intended to result in the sale of Contracts or of Fund
shares to the Accounts through which such Contracts are issued. Similarly, if a
Fund or any Portfolio or any class of shares thereof adopts and implements a
shareholder service plan pursuant to Rule 12b-1 under the 1940 Act, or
otherwise, then the Fund or the appropriate Portfolio or class of shares thereof
shall pay the Distributor and the Distributor shall pay the Company, for
activities related to personal services and/or maintenance of Contract Owner
accounts as permitted by such plan.
ARTICLE VII. DIVERSIFICATION AND QUALIFICATION
7.1. Each Fund, the Distributor and the Adviser represent and warrant that each
Fund and each Portfolio thereof will at all times comply with Section 817(h) of
the Code and Treasury Regulation Section 1.817-5 or any other regulations
promulgated under Section 817(h), as amended from time to time, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any amendments or
other modifications or successor provisions to such Section or Regulations. Each
Fund, the Distributor or the Adviser will notify the Company immediately upon
having a reasonable basis for believing that a Fund or any Portfolio has ceased
to comply with the Section 817(h) diversification or might not so comply in the
future. To the extent that a Fund or Portfolio ceases to so qualify, the Fund
and the Adviser will use their best efforts to take all steps necessary to
adequately diversify the affected Portfolio so as to achieve compliance within
the grace period afforded by Treasury Regulation Section 1.817-5.
7.2. Each Fund, the Distributor and the Adviser represent and warrant that each
Fund and each Portfolio is currently qualified as a Regulated Investment Company
under Subchapter M of the Code, and that each Portfolio will maintain such
qualification (under Subchapter M or any successor or similar provisions) as
long as this Agreement is in effect. Each Fund, the
21
Distributor or the Adviser will notify the Company immediately upon having a
reasonable basis for believing that a Fund or any Portfolio has ceased to comply
with the Subchapter M qualification requirements or might not so comply in the
future.
7.3. Without in any way limiting the effect of Sections 9.2, 9.3 and 9.4 hereof
and without in any way limiting or restricting any other remedies available to
the Company, the Adviser or the Distributor will pay all costs associated with
or arising out of any failure, or any anticipated or reasonably foreseeable
failure, of a Fund or any Portfolio to comply with Sections 7.1 or 7.2, hereof,
including all costs associated with reasonable and appropriate corrections or
responses to any such failure; such costs may include, but are not limited to,
the costs involved in creating, organizing, and registering a new investment
company as a funding medium for the Contracts and/or the costs of obtaining
whatever regulatory authorizations are required to substitute shares of another
investment company for those of the failed Portfolio (including but not limited
to an order pursuant to Section 26(c) of the 1940 Act). In addition, the
Distributor or the Adviser shall bear the costs of bringing Contracts into
compliance with section 817(h) of the Code following a diversification failure,
and the costs of adverse tax consequences to affected Contract holders if the
Contracts cannot be brought into compliance.
7.4. The Company agrees that if the IRS asserts in writing in connection with
any governmental audit or review of the Company (or, to the Company's knowledge,
of any Contract owner) that any Portfolio has failed to comply with the
diversification requirements of Section 817(h) of the Code or the Company
otherwise becomes aware of any facts that could give rise to any claim against a
Fund, the Distributor or the Adviser as a result of such a failure or alleged
failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser
of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as
to how to minimize any liability that may arise as a result of such failure or
alleged failure;
22
(c) The Company shall use its best efforts to minimize any liability of the
Fund, the Distributor and the Adviser resulting from such failure, including,
without limitation, demonstrating, pursuant to Treasury Regulations, Section
1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any
Contract owner or any other claimant in connection with any of the foregoing
proceedings or contests (including, without limitation, any such materials to be
submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2))
shall be provided by the Company to the Fund, the Distributor and the Adviser
(together with any supporting information or analysis) within at least two (2)
business days prior to submission;
(e) The Company shall provide the Fund, the Distributor and the Adviser with
such cooperation as the Fund, the Distributor and the Adviser shall reasonably
request (including, without limitation, by permitting the Fund, the Distributor
and the Adviser to review the relevant books and records of the Company) in
order to facilitate review by the Fund, the Distributor and the Adviser of any
written submissions provided to it or its assessment of the validity or amount
of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract
owner that would give rise to a claim against the Fund, the Distributor and the
Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit,
or (iii) forego any allowable administrative or judicial appeals, without the
express written consent of the Fund, the Distributor and the Adviser, which
shall not be unreasonably withheld; provided that, the Company shall not be
required to appeal any adverse judicial decision unless the Fund and the Adviser
shall have provided an opinion of independent counsel to the effect that a
reasonable basis exists for taking such appeal; and further provided that the
Fund, the Distributor and the Adviser shall bear the costs and expenses,
including reasonable attorney's fees, incurred by the Company in complying with
this clause (f).
23
ARTICLE VIII. POTENTIAL CONFLICTS AND COMPLIANCE WITH MIXED AND
SHARED FUNDING EXEMPTIVE ORDER
8.1. Each Fund's Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the Contract Owners of all
separate accounts investing in the Fund. An irreconcilable material conflict may
arise for a variety of reasons, including, but not limited to: (a) an action by
any state insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar action
by insurance, tax, or securities regulatory authorities; (c) an administrative
or judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio is being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners or by contract owners of different Participating Insurance
Companies; or (f) a decision by a Participating Insurance Company to disregard
the voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
8.2. The Company will monitor its operations and those of the Funds for
purposes of identifying any actual or potential material irreconcilable
conflicts between the interests of the Contract Owners of all separate accounts
investing in a Fund. The Company will report any potential or existing conflicts
of which it is aware to the applicable Board. The Company will assist each Board
in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, by providing the Board at least annually with all information
reasonably necessary for the Board to consider any issues raised. This includes,
but is not limited to, an obligation by the Company to (i) inform the Board
whenever Contract Owner voting instructions are to be disregarded and (ii)
provide such other information and reports as the Board may reasonably request.
Such responsibilities shall be carried out by the Company with a view only to
the interests of its Contract Owners.
24
8.3. If it is determined by a majority of a Board, or a majority of its
Independent Directors, that a material irreconcilable conflict exists due to
issues relating to the Contracts, the Company and other Participating Insurance
Companies shall, at their expense and to the extent reasonably practicable (as
determined by a majority of the Independent Directors), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, up to and
including: (1) withdrawing the assets allocable to some or all of the separate
accounts from a Fund or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Fund or Portfolio, or
submitting the question whether such segregation should be implemented to a vote
of all affected Contract Owners and, as appropriate, segregating the assets of
any appropriate group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
Contract Owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account. Such
actions will be taken by the Company with a view only to the interests of its
Contract Owners.
8.4. If a material irreconcilable conflict arises because of a decision by the
Company to disregard Contract Owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the affected Fund's election, to withdraw the Account's
investment in the Fund and terminate this Agreement; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
Independent Directors. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place within six (6)
months after a Fund gives written notice that this provision is being
implemented, and until the end of that six-month period the Adviser, the
Distributor and the Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund.
8.5. If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state
25
regulators, then the Company will withdraw the Account's investment in a Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the Independent
Directors. No charge or penalty will be imposed as a result of such withdrawal.
Until the end of the foregoing six-month period, a Fund shall continue to accept
and implement orders by the Company for the purchase (and redemption) of shares
of the Fund.
8.6. For purposes of Sections 8.3 through 8.5 of this Agreement, a majority of
the Independent Directors shall determine whether any proposed action adequately
remedies any irreconcilable material conflict, but in no event will a Fund be
required to establish a new funding medium for the Contracts. The Company shall
not be required by Section 8.3 to establish a new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority of
Contract Owners affected by the irreconcilable material conflict. In the event
that the Board determines that any proposed action does not adequately remedy
any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Fund and terminate this Agreement within six (6)
months after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as
determined by a majority of the Independent Directors.
8.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act
or the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Shared Funding
Exemptive Order, then (a) each Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable: and (b) Sections 4.5, 4.6, 4.7, 8.1, 8.2, 8.3,
8.4, and 8.5 of this Agreement shall
26
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or
adopted.
8.8 The parties hereto agree that the conditions or undertakings required by
the Mixed and Shared Funding Exemptive Order that may be imposed on any party
hereto by virtue of such order by the SEC: (i) shall apply only upon the sale of
shares of the applicable Portfolios to the Account(s) (and then only to the
extent required under the 1940 Act); (ii) will be incorporated herein by
reference; and (iii) all parties hereto agree to comply with such conditions and
undertakings to the extent applicable to each such party notwithstanding any
provision of this Agreement to the contrary.
ARTICLE IX. INDEMNIFICATION
9.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless each Fund, the
Distributor and the Adviser and each of their respective officers and directors
or trustees and each person, if any, who controls the Fund, the Distributor or
the Adviser within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 9.1) against any and all
losses, claims, expenses, damages and liabilities (including amounts paid in
settlement with the written consent of the Company) or litigation (including
reasonable 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, expenses, damages or liabilities (or actions in respect
thereof) or settlements are related to the sale or acquisition of the Fund's
shares or the 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 or SAI covering the Contracts or contained in the Contracts or
sales literature or other promotional material for the 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
27
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 in writing to the Company by
or on behalf of the Adviser, Distributor or Fund for use in the
registration statement or prospectus for the Contracts or in the Contracts
or sales literature or other promotional material (or any amendment or
supplement to any of the foregoing) or otherwise for use in connection with
the sale of the 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, SAI or sales literature or other promotional material 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 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, SAI, or
sales literature or other promotional material of a 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 a statement or omission was
made in reliance upon information furnished in writing 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 required under the terms of this
Agreement; or
(v) arise out of or result from any material breach of this Agreement by
the Company, including without limitation Section 3.11 and Section 8.6
hereof,
as limited by and in accordance with the provisions of Sections 9.1(b) and
9.1(c) hereof.
(b) The Company shall not be liable under this indemnification provision with
respect to any losses, claims, expenses, 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 negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of its obligations or duties under this Agreement or
to any of the Indemnified Parties.
28
(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 that it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this indemnification
provision, except to the extent that the Company has been prejudiced by such
failure to give notice. In case any such action is brought against the
Indemnified Parties, 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.
(d) The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of Fund shares or the Contracts or the operation of a Fund.
9.2. Indemnification by the Adviser
(a) The Adviser agrees to indemnify and hold harmless the Company and its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 9.2) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in settlement with the
written consent of the Adviser) or litigation (including reasonable legal and
29
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 a Fund's shares or the
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 or SAI or sales literature or other promotional material of a
Fund prepared by the Fund or the Adviser (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 in writing to the Adviser or the Fund by or on behalf of the
Company for use in the registration statement, Prospectus or SAI for the
Fund or in sales literature or other promotional material (or any amendment
or supplement to any of the foregoing) or otherwise for use in connection
with the sale of the 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, SAI or sales literature or other promotional material for the
Contracts not supplied by the Adviser or persons under its control) or
wrongful conduct of a Fund or the Adviser or persons under their control,
with respect to the sale or distribution of the 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, SAI, or
sales literature or other promotional material covering the 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 statement or statements therein not misleading, if
such statement or omission was made in reliance upon information furnished
in writing to the Company by or on behalf of the Adviser or a Fund; or
(iv) arise as a result of any failure by a Fund or the Adviser to provide
the services and furnish the materials required under the terms of this
Agreement (including a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification and other qualification
requirements specified in Article VII of this Agreement); or
30
(v) arise out of or result from any material breach of this Agreement by
the Adviser or the Fund; or
(vi) arise out of or result from the incorrect or untimely calculation or
reporting by a Fund or the Adviser of the daily net asset value per share
(subject to Section 2.8 of this Agreement) or dividend or capital gain
distribution rate;
as limited by and in accordance with the provisions of Sections 9.2(b) and
9.2(c) hereof.
(b) The Adviser shall not be liable under this indemnification provision with
respect to any losses, claims, expenses, damages, liabilities or litigation to
which an Indemnified Party would otherwise be subject by reason of (i) any
violation of insurance law, compliance with which is a responsibility of the
Company under this Agreement or as to which the Company failed to inform the
Adviser or (ii) such Indemnified Party's willful misfeasance, bad faith, or
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of its obligations or duties under
this Agreement or to any of the Indemnified Parties.
(c) The Adviser 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 Adviser 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 Adviser of any such claim shall not relieve
the Adviser from any liability that it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this indemnification
provision, except to the extent that the Adviser has been prejudiced by such
failure to give notice. In case any such action is brought against the
Indemnified Parties, the Adviser will be entitled to participate, at its own
expense, in the defense thereof. The Adviser also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Adviser to such party of the Adviser'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 Adviser will not be liable to
such
31
party under this Agreement for any legal or other expenses subsequently incurred
by such party independently in connection with the defense thereof other than
reasonable costs of investigation.
(d) The Company agrees promptly to notify the Adviser of the commencement of
any litigation or proceedings against it or any of its officers or directors in
connection with the issuance or sale of the Contracts or the operation of the
Account.
9.3. Indemnification by the Distributor
(a) The Distributor agrees to indemnify and hold harmless the Company and its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 9.3) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in settlement with the
written consent of the Distributor) or litigation (including reasonable 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 a Fund's shares or the
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 or SAI or sales literature or other promotional material of a
Fund prepared by the Distributor (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 in writing to the Distributor by or on behalf of the Company for
use in the registration statement, Prospectus or SAI for a Fund or in sales
literature or other promotional material (or any amendment or supplement to
any of the foregoing) or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
32
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the registration statement,
prospectus, SAI or sales literature or other promotional material for the
Contracts not supplied by the Distributor or persons under its control) or
wrongful conduct of the Distributor or persons under its control, with
respect to the sale or distribution of the 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, SAI, or
sales literature or other promotional material covering the 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 statement or statements therein not misleading, if
such statement or omission was made in reliance upon information furnished
in writing to the Company by or on behalf of the Distributor; or
(iv) arise as a result of any failure by the Distributor to provide the
services and furnish the materials required under the terms of this
Agreement; or
(v) arise out of or result from any material breach of this Agreement by
the Distributor; or
as limited by and in accordance with the provisions of Sections 9.3(b) and
9.3(c) hereof.
(b) The Distributor shall not be liable under this indemnification provision
with respect to any losses, claims, expenses, 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 negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of its obligations or duties under this Agreement or
to any of the Indemnified Parties.
(c) The Distributor shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the
33
Distributor from any liability that it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this indemnification
provision, except to the extent that the Distributor has been prejudiced by such
failure to give notice. In case any such action is brought against the
Indemnified Parties, the Distributor will be entitled to participate, at its own
expense, in the defense thereof. The Distributor also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Distributor to such party of 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 Distributor
will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation.
(d) The Company agrees promptly to notify the Distributor of the commencement
of any litigation or proceedings against it or any of its officers or directors
in connection with the issuance or sale of the Contracts or the operation of the
Account.
ARTICLE X. APPLICABLE LAW
10.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of
Connecticut, without
regard to the
Connecticut conflict of laws provisions.
10.2. This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE XI. TERMINATION
11.1. This Agreement shall terminate:
34
(a) at the option of any party, with or without cause, with respect to some or
all Portfolios, upon ninety (90) days' prior written notice delivered to the
other parties; or
(b) at the option of the Company by written notice to the other parties with
respect to any Portfolio based upon the Company's determination that shares of
such Portfolio are not reasonably available to meet the requirements of the
Contracts; or
(c) at the option of the Company by written notice to the other parties with
respect to any Portfolio in the event any of the Portfolio's shares are not
registered, issued or sold in accordance with applicable state and/or federal
law or such law precludes the use of such shares as the underlying investment
media of the Contracts issued or to be issued by the Company; or
(d) at the option of a Fund, the Distributor or the Adviser in the event that
formal administrative proceedings are instituted against the Company by FINRA,
the SEC, the Insurance Commissioner or like official of any state or any other
regulatory body regarding the Company's duties under this Agreement or related
to the sale of the Contracts, the operation of any Account, or the purchase of
Fund shares, if, in each case, the Fund, Distributor or Adviser, as the case may
be, reasonably determines in its sole judgment exercised in good faith, that any
such administrative proceedings will have a material adverse effect upon the
ability of the Company to perform its obligations under this Agreement; or
(e) at the option of the Company in the event that formal administrative
proceedings are instituted against a Fund, the Distributor or the Adviser by
FINRA, the SEC, or any state securities or insurance department or any other
regulatory body, if the Company reasonably determines in its sole judgment
exercised in good faith, that any such administrative proceedings will have a
material adverse effect upon the ability of the Fund, the Distributor or the
Adviser to perform their obligations under this Agreement; or
35
(f) at the option of the Company by prior written notice to a Fund with respect
to any Portfolio if the Company reasonably believes that the Portfolio will fail
to meet the Section 817(h) diversification requirements or Subchapter M
qualifications specified in Article VII hereof; or
(g) at the option of any non-defaulting party hereto in the event of a material
breach of this Agreement by any party hereto (the "defaulting party") other than
as described in Section 11.1(a)-(h); provided, that the non-defaulting party
gives written notice thereof to the defaulting party, with copies of such notice
to all other non-defaulting parties, and if such breach shall not have been
remedied within thirty (30) days after such written notice is given, then the
non-defaulting party giving such written notice may terminate this Agreement by
giving thirty (30) days' written notice of termination to the defaulting party;
or
(h) At the option of a Fund or the Adviser if the Contracts cease to qualify as
annuity contracts or life insurance contracts, as applicable, under the Code, or
if the Fund or Adviser reasonably believe that the Contracts may fail to so
qualify; or
(i) At the option of a Fund or the Adviser, if the Contracts are not registered
(if registration is required), issued or sold in accordance with applicable
federal and/or state law; or
(j) At the option of the party from which consent was not obtained, in the
event this Agreement is assigned without the prior written consent of all
parties hereto; or
(k) At the option of a Fund, by a vote of the majority of the Fund's Board,
Adviser or Company, upon a reasonable determination by the Fund's Board that a
material irreconcilable conflict exists among the interests of (i) all Contract
owners of all Separate Accounts, or (ii) the interests of Participating
Companies investing in the Fund; or
(l) At any time upon written agreement of all parties to this Agreement.
36
11.2. This Agreement may be terminated as to one or more Funds or one or more
Portfolios of a Fund (but less than all Portfolios) by delivery of an amended
Schedule A deleting such Fund or Portfolio pursuant to Section 13.12 hereof, in
which case termination as to such deleted Fund or Portfolio shall take effect
thirty (30) days after the date of such delivery. The execution and delivery of
an amended Schedule A that deletes one or more Funds or one or more Portfolios
shall constitute a termination of this Agreement only with respect to such
deleted Fund or Portfolio and shall not affect the obligations of the Company
and any Fund hereunder with respect to the other Funds and Portfolios set forth
in Schedule A, as amended from time to time.
11.3. Notice Requirement
No termination of this Agreement shall be effective unless and until the party
terminating this Agreement gives prior written notice to all other parties of
its intent to terminate, which notice shall set forth the basis for the
termination. Furthermore,
(a) in the event any termination is based upon the provisions of Article VIII,
or the provisions of Section 11.1(a) of this Agreement, the prior written notice
shall be given in advance of the effective date of termination as required by
those provisions unless such notice period is shortened by mutual written
agreement of the parties;
(b) in the event any termination is based upon the provisions of Section
11.1(d), 11.1(e) or 11.1(g) of this Agreement, the prior written notice shall be
given at least sixty (60) days before the effective date of termination; and
(c) in the event any termination is based upon the provisions of Section
11.1(b), 11.1(c), 11.1(f), 11.1(h), 11.1(i), 11.1(j) or 11.1(k), the prior
written notice shall be given in advance of the effective date of termination,
which date shall be determined by the party sending the notice.
37
11.4. Effect of Termination
Notwithstanding any termination of this Agreement, other than as a result of a
failure by either a Fund or a Portfolio or the Company to meet Section 817(h) of
the Code diversification requirements, each Fund, the Distributor and the
Adviser shall, at the option of the Company, continue to make available
additional shares of the Fund or Portfolio pursuant to the terms and conditions
of this Agreement, for all 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 shall be
permitted to reallocate investments in a Fund or Portfolio, redeem investments
in a Fund or Portfolio and/or invest in a Fund or Portfolio upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 11.4 shall not apply to any terminations under Article VIII
and the effect of such Article VIII terminations shall be governed by Article
VIII of this Agreement.
11.5. Surviving Provisions
Notwithstanding any termination of this Agreement, each party's obligations
under Article IX to indemnify other parties shall survive and not be affected by
any termination of this Agreement. In addition, with respect to Existing
Contracts, all provisions of this Agreement shall also survive and not be
affected by any termination of this Agreement.
ARTICLE XII. NOTICES
Any notice shall be sufficiently given when sent by registered or certified mail
to the other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the other
parties.
If to the Company:
Forethought Life Insurance Company
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx, EVP, Chief Investment Officer
38
If to the Adviser:
Hartford Funds Management Company, LLC
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: 000-000-0000
If to the Distributor:
Hartford Investment Financial Services Company, LLC
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: 000-000-0000
If to a Fund:
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax No.: 000-000-0000
ARTICLE XIII. MISCELLANEOUS
13.1. Confidentiality. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by one party to one or more of the other parties regarding its business
and operations. All confidential information provided by a party hereto,
including non-public personal information within the meaning of SEC Regulation
S-P and/or the Xxxxx-Xxxxx-Xxxxxx Act, whichever is applicable, shall be used by
any other party hereto solely for the purpose of rendering services pursuant to
this Agreement and, except as may be required in carrying out this Agreement,
shall not be disclosed to any third party without the prior written consent of
such providing party. Without limiting the foregoing, no party hereto shall
disclose any information that another party has designated as proprietary. The
foregoing shall not be applicable to any information that is required to be
disclosed by any auditor of the parties hereto, by judicial or administrative
process or otherwise by applicable law or regulation.
39
13.2. Captions. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
13.3. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together shall constitute one and the
same instrument.
13.4. Interpretation. In connection with the operation of this Agreement, the
Company, the Adviser, the Distributor and any Fund may agree from time to time
on such provisions interpretative of or in addition to the provisions of this
Agreement with respect to any party as may in their joint opinion be consistent
with the general tenor of this Agreement. Any such interpretative or additional
provisions shall be in a writing signed by all parties and shall be annexed
hereto, provided that no such interpretative or additional provisions shall
contravene any applicable federal or state regulations or any provision of the
articles of incorporation or analogous governing document of any party. No
interpretative or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement or affect any
other party.
13.5. Survival of Terms. 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.
13.6. Assignment. This Agreement shall be binding on and shall inure to the
benefit of each Fund severally, the Distributor, the Adviser and the Company,
and their respective successors and assigns, provided that neither the Company,
the Distributor, the Adviser nor any Fund may assign this Agreement or any of
its rights or obligations hereunder without the prior written consent of the
other parties.
13.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
FINRA and state insurance
40
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.
13.8. 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.
13.9. The Company agrees that the obligations assumed by the Funds, the
Distributor and the Adviser pursuant to this Agreement shall be limited in any
case to the applicable Fund or Portfolio, the Distributor and/or the Adviser and
their respective assets and the Company shall not seek satisfaction of any such
obligation from any other Fund or Portfolio, from the shareholders of any Fund
or Portfolio, or from the Distributor or the Adviser, the Directors, officers,
employees or agents of the Funds, the Distributor or the Adviser, or any of
them.
13.10. The Funds, the Distributor and the Adviser agree that the obligations
assumed by the Company pursuant to this Agreement shall be limited in any case
to the Company and its assets and neither the Funds, the Distributor nor the
Adviser shall seek satisfaction of any such obligation from the shareholders of
the Company, the directors, officers, employees or agents of the Company, or any
of them.
13.11. No provision of this Agreement may be waived, amended or terminated
except by a statement in writing signed by the party against which enforcement
of such waiver, amendment or termination is sought; provided, however, that
Schedule A shall be deemed to be automatically amended based on the list of
underlying funds (or series) of the Fund and the mutually acceptable class of
shares thereof, if any, as reflected in Separate Account registration statements
for the Company, as filed with the Securities and Exchange Commission from time
to time. Schedule A
41
may be amended from time to time to add one or more Funds or one or more
Portfolios of one or more Funds, by each applicable Fund's execution and
delivery to the other parties of an amended Schedule A, and the execution of
such amended Schedule A by the other parties, in which case such amendment shall
take effect immediately upon execution by the other parties. Schedule A may also
be amended from time to time to delete one or more Funds or one or more
Portfolios (but less than all of the Portfolios) of one or more Funds, by each
applicable Fund's execution and delivery to the other parties of an amended
Schedule A, in which case such amendment shall take effect thirty (30) days
after such delivery, unless otherwise agreed by the parties in writing.
13.12. No provision of this Agreement may be deemed or construed to modify or
supersede any contractual rights, duties, or indemnifications, as between the
Adviser and one or more Funds, and the Distributor and one or more Funds.
13.13. The parties mutually acknowledge that this Agreement represents the
collective drafting efforts of each party and therefore any ambiguity shall not
be interpreted against the interests of any party.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified on the cover page of this Agreement.
42
FORETHOUGHT LIFE INSURANCE COMPANY
By its authorized officer,
By:
-----------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President,
Chief Investment Officer
HARTFORD FUNDS MANAGEMENT COMPANY, LLC
By its authorized officer,
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: General Counsel
HARTFORD INVESTMENT FINANCIAL SERVICES COMPANY, LLC
By its authorized officer,
By:
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
EACH INVESTMENT COMPANY LISTED ON SCHEDULE A
By its authorized officer,
By:
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Chief Legal Officer
43
SCHEDULE A
INVESTMENT COMPANIES
Hartford Capital Appreciation HLS Fund
Hartford Dividend and Growth HLS Fund
Hartford Growth HLS Fund
Hartford High Yield HLS Fund
Hartford Index HLS Fund
Hartford International Opportunities HLS Fund
Hartford Portfolio Diversifier HLS Fund
Hartford Total Return Bond HLS Fund
Hartford Value HLS Fund
SEPARATE ACCOUNTS
Forethought Life Insurance Company Separate Account A
PORTFOLIO HOLDINGS
With respect to the Hartford Portfolio Diversifier HLS Fund, the Fund, Adviser
and Distributor agree to make available specific Portfolio Holdings described
below that are publicly available for use by Company. Such Portfolio Holdings
will be made available on Portfolio Diversifer Fund rebalancing and futures roll
dates. The Portfolio Holdings will be continuously available provided any assets
of Forethought variable annuity contracts are invested in the Hartford Portfolio
Diversifier HLS Fund.
Portfolio Holdings:
1. S&P 500 Sleeve Amount
2. BarcAgg Sleeve Amount
3. Target Cash Amount
4. Long-term Options Sleeve Amount
5. Futures Sleeve Notional Amount
44
