--------------------------------------------------------------------------------
Exhibit 23(h)(2)
Form of Participation Agreement
--------------------------------------------------------------------------------
C-10
TABLE OF CONTENTS
Page
----
ARTICLE I. Sale of Fund Shares ...................................... 2
ARTICLE II. Representations and Warranties ........................... 4
ARTICLE III. Prospectuses and Proxy Statements: Voting ................ 6
ARTICLE IV. Sales Material and Information ........................... 8
ARTICLE V. Fees and Expenses ........................................ 10
ARTICLE VI. Diversification .......................................... 11
ARTICLE VII. Potential Conflicts ...................................... 11
ARTICLE VIII. Indemnification .......................................... 14
8.1 Indemnification By The Company .............................. 14
8.2 Indemnification By The Adviser .............................. 16
8.3 Indemnification By the Fund ................................. 17
8.4 Indemnification Procedure ................................... 18
ARTICLE IX. Applicable Law ........................................... 19
ARTICLE X. Termination .............................................. 20
10.2 Notice Requirement .......................................... 22
10.3 Effect of Termination ....................................... 22
10.4 Surviving Provisions ........................................ 23
ARTICLE XI. Notices .................................................. 23
ARTICLE XII. Miscellaneous ............................................ 23
i
o PARTICIPATION AGREEMENT
By and Among
[Insurance Company]
And
XXXXXXXXXX FUNDS III
And
XXXXXXXXXX ASSET MANAGEMENT, LLC
THIS AGREEMENT, made and entered into this ________ day of ________, ____ by and
among [Insurance Company], organized under the laws of the State of
______________ (the "Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule I to this Agreement, as may be amended
from time to time (each account referred to as the "Account"), Xxxxxxxxxx Funds
III, an open-end management investment company and business trust organized
under the laws of the State of Delaware (the "Fund") and Xxxxxxxxxx Asset
Management, LLC, a limited liability company (the "Adviser").
WHEREAS, the Fund engages in business as an open-end management investment
company and was established for the purpose of serving as the investment vehicle
for separate accounts established for variable life insurance contracts and
variable annuity contracts to be offered by insurance companies which have
entered into participation agreements substantially identical to this Agreement
(the "Participating Insurance Companies"), and
WHEREAS, beneficial Interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Fund has received an order from the Securities & Exchange
Commission (alternatively referred to as the "SEC" or the "Commission") granting
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief from the provisions of Sections
9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended,
(the "1940 Act") and Rules 6e-2(b)(15) and 6e3(T)(b)(15) thereunder, to the
extent necessary to permit shares of the Fund to be sold to and held by variable
annuity separate accounts and variable life insurance separate accounts of both
affiliated and unaffiliated Participating Insurance Companies and qualified
pension and retirement plans outside of the separate account context (the "Mixed
and Shared Funding Exemptive Order"). The parties to this Agreement agree that
the conditions or undertakings specified in the Mixed and Shared Funding
Exemptive Order and that may be imposed on the Company, the Fund and/or the
Adviser by virtue of the receipt of such order by the SEC will be incorporated
herein by reference, and such parties agree to comply with such conditions and
undertakings to the extent applicable to each such party; and
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and its shares are registered under the Securities Act of
1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable annuity
contracts (the "Contracts") under the 1933 Act; and
WHEREAS, the 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 ___________ to set aside and invest
assets attributable to the Contracts; and
WHEREAS, the Company has registered the Account as a unit investment trust under
the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule 2, as
such schedule may be amended from time to time (the "Designated Portfolios") on
behalf of the Account to fund the Contracts, and the Fund is authorized to sell
such shares to unit investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1 The Fund agrees to sell to the Company those shares of the
Designated Portfolios which each Account orders, executing
such orders on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its
designee of the order for the shares of the Fund. For purposes
of this Section 1.1, the Company will be the designee of the
Fund for receipt of such orders from each Account and receipt
by such designee will constitute receipt by the Fund; provided
that the Fund receives notice of such order by 9:00 a.m.
Central Time on the next following business day. "Business
Day" will 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.
1.2 The Company will pay for Fund shares on the next Business Day
after an order to purchase Fund shares is made in accordance
with Section 1.1 above. Payment will be in federal funds
transmitted by wire except for amounts less than $500, which
may be paid by check or by another method acceptable to the
parties.
2
1.3 The Fund agrees to make shares of the Designated Portfolios
available indefinitely for purchase at the applicable net
asset value per share by Participating Insurance Companies and
their separate accounts on those days on which the Fund
calculates its Designated Portfolio net asset value pursuant
to rules of the SEC; provided, however, that the Board of
Trustees of the Fund (the "Fund Board") 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 Board,
acting in good faith and in light of its fiduciary duties
under federal and any applicable state laws, necessary in the
best interests of the shareholders of such Portfolio.
1.4 The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts,
qualified pension and retirement plans or such other persons
as are permitted under applicable provisions of the Internal
Revenue Code of 1986, as amended, (the "Internal Revenue
Code"), and regulations promulgated thereunder, the sale to
which will not impair the tax treatment currently afforded the
Contracts. No shares of any Portfolio will be sold to the
general public.
1.5 The Fund will not sell Fund shares to any insurance company or
separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, and VII of this
Agreement are in effect to govern such sales.
1.6 The Fund agrees to redeem for cash, upon 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 and acceptance by the
Fund or its agent of the request for redemption. For purposes
of this Section 1.6, the Company will be the designee of the
Fund for receipt of requests for redemption from each Account
and receipt by such designee will constitute receipt by the
Fund; provided the Fund receives notice of such requests for
redemption by 9:00 a.m. Central Time on the next following
Business Day. Payment will be in federal funds transmitted by
wire to the Company's account as designated by the Company in
writing from time to time, on the same Business Day the Fund
receives notice of the redemption order from the Company,
except for amounts less than $500 which may be paid by check
or by another method acceptable to the parties. The Fund
reserves the right to delay payment of redemption proceeds,
but in no event may such payment be delayed longer than the
period permitted under Section 22(e) of the 0000 Xxx. The Fund
will not bear any responsibility whatsoever for the proper
disbursement or crediting of redemption proceeds; the Company
alone will be responsible for such action. If
3
notification of redemption is received after 9:00 a.m. Central
Time, payment for redeemed shares will be made on the next
following Business Day.
1.7 The Company agrees to purchase and redeem the shares of the
Designated Portfolios offered by the then current prospectus
of the Fund in accordance with the provisions of such
prospectus.
1.8 Issuance and transfer of the Fund's shares will be by book
entry only. Stock certificates will not be issued to the
Company or to any Account. Purchase and redemption orders for
Fund shares will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
1.9 The Fund will furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of the
declaration of any income, dividends or capital gain
distributions payable on each Designated Portfolio's shares.
The Company hereby elects to receive all such dividends and
distributions as are payable on the Portfolio shares in the
form of additional shares of that Portfolio. The Company
reserves the right to revoke this election and to receive all
such dividends and distributions in cash. The Fund will notify
the Company of the number of shares so issued as payment of
such dividends and distributions.
1.10 The Fund will make the net asset value per share for each
Designated Portfolio available to the Company on a daily basis
as soon as reasonably practical after the net asset value per
share is calculated and will use its best efforts to make such
net asset value per share available by 5:00 p.m., Central
Time, each business day.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act and that the Contracts
will be issued and sold in compliance with all applicable
federal and state laws, including state insurance suitability
requirements. The Company further represents and warrants that
it is an insurance company duly organized and in good standing
under applicable law and that it has legally and validly
established each Account as a separate account under
applicable state law and has registered each such 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 that it will maintain such registration for so
long as any Contracts are outstanding. The Company will amend
the registration statement under the 1933 Act for the
Contracts and the registration statement under the 1940 Act
for the Account from time to time as required in order to
effect the continuous offering of the Contracts or as may
otherwise be required by applicable law. The Company will
register and qualify
4
the Contracts for sale in accordance with the securities laws
of the various states only if and to the extent deemed
necessary by the Company.
2.2 The Company represents that the Contracts are currently and at
the time of issuance will be treated as annuity contracts
under applicable provisions of the Internal Revenue Code, and
that it will make every effort to maintain such treatment and
that it will notify the Fund 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.
2.3 The Company represents and warrants that it will not purchase
shares of the Designated Portfolios with assets derived from
tax-qualified retirement plans except, indirectly, through
Contracts purchased in connection with such plans.
2.4 The Fund represents and warrants that Fund shares of the
Designated Portfolios sold pursuant to this Agreement will be
registered under the 1933 Act and duly authorized for issuance
in accordance with applicable law and that the Fund is and
will remain registered under the 1940 Act for as long as such
shares of the Designated Portfolios are sold. The Fund will
amend the registration statement for its shares under the 1933
Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its shares. The Fund will
register and qualify the shares of the Designated Portfolios
for sale in accordance with the laws of the various states
only if and to the extent deemed advisable by the Fund.
2.5 The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the
Internal Revenue Code, and that it will make every effort to
maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the
Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might
not so qualify in the future.
2.6 The Fund represents that its investment objectives, policies
and restrictions comply with applicable state investment laws
as they may apply to the Fund. The Fund makes no
representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and
investment policies, objectives and restrictions) complies
with the insurance laws and regulations of any state. The
Company alone will be responsible for informing the Fund of
any insurance restrictions imposed by state insurance laws
which are applicable to the Fund. To the extent feasible and
consistent with market conditions, the Fund will adjust its
investments to comply with the aforementioned state insurance
laws upon written notice from the Company of such requirements
and proposed adjustments, it being agreed and understood that
in any such case the Fund will be
5
allowed a reasonable period of time under the circumstances
after receipt of such notice to make any such adjustment. The
Fund and the Adviser agree that they will furnish the
information required by state insurance laws so that the
Company can obtain the authority needed to issue the Contracts
in the various states.
2.7 The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the
1940 Act or otherwise, although it reserves the right to make
such payments in the future. To the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1, the Fund
undertakes to have the trustees of its Fund Board, a majority
of whom are not "interested" persons of the Fund, formulate
and approve any plan under Rule 12b-1 to finance distribution
expenses.
2.8 The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it
does and will comply in all material respects with applicable
provisions of the 0000 Xxx.
2.9 The Adviser represents and warrants that it is and will remain
duly registered under all applicable federal and state
securities laws and that it will perform its obligations for
the Fund in accordance in all material respects with the laws
of the State of California and any applicable state and
federal securities laws.
2.10 The Fund represents and warrants that all of its trustees,
officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or
securities of the Fund are and 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 the minimal
coverage as required currently by Rule 17g-(1) of the 1940 Act
or related provisions as may be promulgated from time to time.
The aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company.
ARTICLE III. Prospectuses and Proxy Statements: Voting
3.1 The Fund will provide the Company, at the Fund's expense, with
as many copies of the current Fund prospectus for the
Designated Portfolios as the Company may reasonably request
for distribution, at the Company's expense, to prospective
contract owners and applicants. The Fund will provide, at the
Fund's expense, as many copies of said prospectus as necessary
for distribution, at the Fund's expense, to existing contract
owners. The Fund will provide the copies of said prospectus to
the Company or to its mailing agent. The Company will
distribute the prospectus to existing contract owners and will
xxxx the Fund for the reasonable cost of such distribution. If
requested by the Company in lieu thereof,
6
the Fund will provide such documentation, including a final
copy of a current prospectus set in type at the Fund's
expense, and other assistance as is reasonably necessary in
order for the Company at least annually (or more frequently if
the Fund prospectus is amended more frequently) to have the
new prospectus for the Contracts and the Fund's new prospectus
printed together, in which case the Fund will pay its share of
reasonable expenses directly related to the required
disclosure of information concerning the Fund.
3.2 The Fund's prospectus will state that the statement of
additional information for the Fund is available from the
Company. The Fund will provide the Company, at the Fund's
expense, with as many copies of the statement of additional
information as the Company may reasonably request for
distribution, at the Company's expense, to prospective
contract owners and applicants. The Fund will provide, at the
Fund's expense, as many copies of said statement of additional
information as necessary for distribution, at the Fund's
expense, to any existing contract owner who requests such
statement or whenever state or federal law otherwise requires
that such statement be provided. The Fund will provide the
copies of said statement of additional information to the
Company or to its mailing agent. The Company will distribute
the statement of additional information as requested or
required and will xxxx the Fund for the reasonable cost of
such distribution.
3.3 The Fund, at its expense, will provide the Company or its
mailing agent with copies of its proxy material, if any,
reports to shareholders and other communications to
shareholders in such quantity as the Company will reasonably
require. The Company will distribute this proxy material,
reports and other communications to existing contract owners
and will xxxx the Fund for the reasonable cost of such
distribution.
3.4 If and to the extent required by law the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios held in
the Account in accordance with instructions received
from contractowners; and
(c) vote shares of the Designated Portfolios held in the
Account for which no timely instructions have been
received, in the same proportion as shares of such
Designated Portfolio for which instructions have been
received from the Company's contractowners;
7
so long as and to the extent that the SEC continues to
interpret the 1940 Act to require pass-through voting
privileges for variable contractowners. The Company reserves
the right to vote Fund shares held in any segregated asset
account in its own right, to the extent permitted by law.
Participating Insurance Companies will be responsible for
assuring that each of their separate accounts participating in
the Fund calculates voting privileges in a manner consistent
with all legal requirements, including the Mixed and Shared
Funding Exemptive Order.
3.5 The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Fund
either will provide for annual meetings (except insofar as the
SEC may interpret Section 16 of the 1940 Act not to require
such meetings) or, as the Fund currently intends, to comply
with Section 16(c) of the 1940 Act (although the Fund is not
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, the Fund will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) with
respect to periodic elections of directors and with whatever
rules the Commission may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1 The Company will furnish, or will cause to be furnished, to
the Fund or the Adviser, each piece of sales literature or
other promotional material in which the Fund or the Adviser is
named, at least ten (10) Business Days prior to its use. No
such material will be used if the Fund or the Adviser
reasonably objects to such use within five (5) Business Days
after receipt of such material.
4.2 The Company will not give any information or make any
representations or statements on behalf of the Fund or
concerning the Fund in connection with the sale of the
Contracts other than the information or representations
contained in the registration statement, prospectus or
statement of additional information for Fund shares, as such
registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time,
or in reports or proxy statements for the Fund, or in
published reports for the Fund which are in the public domain
or approved by the Fund or the Adviser for distribution, or in
sales literature or other material provided by the Fund or by
the Adviser, except with permission of the Fund or the
Adviser. The Fund and the Adviser agree to respond to any
request for approval on a prompt and timely basis. Nothing in
this Section 4.2 will be construed as preventing the Company
or its employees or agents from giving advice on investment in
the Fund.
4.3 The Fund or the Adviser will furnish, or will cause to be
furnished, to the Company or its designee, each piece of sales
literature or other promotional
8
material in which the Company or its separate account is
named, at least ten (10) Business Days prior to its use. No
such material will be used if the Company reasonably objects
to such use within five (5) Business Days after receipt of
such material.
4.4 The Fund and the Adviser will not give any information or make
any representations or statements on behalf of the Company or
concerning the Company, each Account, or the Contracts other
than the information or representations contained in a
registration statement, prospectus or statement of additional
information for the Contracts, as such registration statement,
prospectus and statement of additional information may be
amended or supplemented from time to time, or in published
reports for each Account or the Contracts which are in the
public domain or approved by the Company for distribution to
contractowners, or in sales literature or other material
provided by the Company, except with permission of the
Company. The Company agrees to respond to any request for
approval on a prompt and timely basis.
4.5 The Fund will provide to the Company at least one complete
copy of all registration statements, prospectuses, statements
of additional information, reports, proxy statements, sales
literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares,
contemporaneously with the filing of each such document with
the SEC or the NASD.
4.6 The Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses, statements
of additional information, reports, solicitations for voting
instructions, sales literature and other promotional
materials, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate
to the Contracts or each Account, contemporaneously with the
filing of each such document with the SEC or the NASD.
4.7 For purposes of this Article IV, the phrase "sales literature
or 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,
(i.e., on-line networks such as the Internet or other
electronic messages), 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
9
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 the NASD rules, the 1933 Act
or the 0000 Xxx.
4.8 The Fund and the Adviser hereby consent to the Company's use
of the names Xxxxxxxxxx, Xxxxxxxxxx Funds III, Xxxxxxxxxx
Variable Series and Xxxxxxxxxx Asset Management, in connection
with marketing the Contracts, subject to the terms of Sections
4.1 and 4.2 of this Agreement. Such consent will terminate
with the termination of this Agreement.
ARTICLE V. Fees and Expenses
5.1 The Fund will pay no fee or other compensation to the Company
under this Agreement, except as provided below: (a) if the
Fund or any Designated Portfolio adopts and implements a plan
pursuant to Rule 12b-1 under the 1940 Act to finance
distribution expenses, then, subject to obtaining any required
exemptive orders or other regulatory approvals, the Fund may
make payments to the Company or to the underwriter for the
Contracts if and in such amounts agreed to by the Fund in
writing; (b) the Fund may pay fees to the Company for services
provided to contractowners that are not primarily intended to
result in the sale of shares of the Designated Portfolio or of
underlying Contracts.
5.2 All expenses incident to performance by the Fund of this
Agreement will be paid by the Fund to the extent permitted by
law. All shares of the Designated Portfolios will be duly
authorized for issuance and registered in accordance with
applicable federal law and, to the extent deemed advisable by
the Fund, in accordance with applicable state law, prior to
sale. The Fund will bear the expenses for the cost of
registration and qualification of the Fund's shares;
preparation and filing of the Fund's prospectus, statement of
additional information and registration statement, proxy
materials and reports; setting the Fund's prospectus in type;
setting in type and printing proxy materials and reports to
contractowners (including the costs of printing a Fund
prospectus that constitutes an annual report); the preparation
of all statements and notices required by any federal or state
law; all taxes on the issuance or transfer of the Fund's
shares; any expenses permitted to be paid or assumed by the
Fund pursuant to a plan, if any, under Rule 12b-1 under the
1940 Act; and all other typesetting, printing and distribution
expenses as set forth in Article III of this Agreement.
10
ARTICLE VI. Diversification
6.1 The Fund will at all times invest money from the Contracts in
such a manner as to ensure that the Contracts will be treated
as variable annuity contracts under the Internal Revenue Code
and the regulations issued thereunder. Without limiting the
scope of the foregoing, the Fund will comply with Section
817(h) of the Internal Revenue Code and Treasury Regulation
1.817-5, as amended from time to time, relating to the
diversification requirements for variable annuity, endowment,
or life insurance contracts and any amendments or other
modifications to such Section or Regulation in accordance with
guidelines provided by the Company prior to the execution of
this Agreement and as necessary thereafter. In the event of a
breach of this Article VI by the Fund, it will take all
reasonable steps: (a) to notify the Company of such breach;
and (b) to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Treasury
Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
7.1 The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the
contractowners of all separate accounts investing in the Fund.
An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a
public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant
proceeding; (d) the manner in which the investments of any
Portfolio are being managed; (e) a difference in voting
instructions given by Participating Insurance Companies or by
variable annuity and variable life insurance contractowners;
or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Fund Board will promptly
inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof. A
majority of the Fund Board will consist of persons who are not
"interested" persons of the Fund.
7.2 The Company will report any potential or existing conflicts of
which it is aware to the Fund Board. The Company agrees to
assist the Fund Board in carrying out its responsibilities, as
delineated in the Mixed and Shared Funding Exemptive Order, by
providing the Fund Board with all information reasonably
necessary for the Fund Board to consider any issues raised.
This includes, but is not limited to, an obligation by the
Company to inform the Fund Board whenever contractowner voting
instructions are to be disregarded. The Fund Board will record
in its
11
minutes, or other appropriate records, all reports received by
it and all action with regard to a conflict.
7.3 If it is determined by a majority of the Fund Board, or a
majority of its disinterested trustees, that an irreconcilable
material conflict exists, the Company and other Participating
Insurance Companies will, at their expense and to the extent
reasonably practicable (as determined by a majority of the
disinterested trustees), take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, up
to and including: (a) withdrawing the assets allocable to some
or all of the Accounts from the Fund or any Portfolio and
reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio of the Fund,
or submitting the question whether such segregation should be
implemented to a vote of all affected contractowners and, as
appropriate, segregating the assets of any appropriate group
(i.e., variable annuity contractowners or variable life ----
insurance contractowners of one or more Participating
Insurance Companies) that votes in favor of such segregation,
or offering to the affected contractowners the option of
making such a change; and (b) establishing a new registered
management investment company or managed separate account.
7.4 If a material irreconcilable conflict arises because of a
decision by the Company to disregard contractowner voting
instructions, and such disregard of voting instructions could
conflict with the majority of contractowner voting
instructions, and the Company's judgment represents a minority
position or would preclude a majority vote, the Company may be
required, at the Fund's election, to withdraw the affected
subaccount of the Account's investment in the Fund and
terminate this Agreement with respect to such subaccount;
provided, however, that such withdrawal and termination will
be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority
of the disinterested trustees of them Fund Board. 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 the Fund gives written notice to the Company that
this provision is being implemented. Until the end of such
six-month period the Adviser and Fund will, to the extent
permitted by law and any exemptive relief previously granted
to the Fund, continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the
Fund.
7.5 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
insurance regulators, then the Company will withdraw the
affected subaccount of the Account's investment in the Fund
and terminate this Agreement with respect to such subaccount;
provided, however, that such withdrawal and
12
termination will be limited to the extent required by the
foregoing irreconcilable material conflict as determined by a
majority of the disinterested directors of the Fund Board. 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 the Fund gives written
notice to the Company that this provision is being
implemented. Until the end of such six-month period the
Advisor and Fund will, to the extent permitted by law and any
exemptive relief previously granted to the Fund, continue to
accept and implement orders by the Company for the purchase
(and redemption) of shares of the Fund.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Fund Board will
determine whether any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the
Fund be required to establish a new funding medium for the
Contracts. The Company will not be required by Section 7.3 to
establish a new funding medium for the Contracts if an offer
to do so has been declined by vote of a majority of
contractowners affected by the irreconcilable material
conflict.
7.7 The Company will at least annually submit to the Fund Board
such reports, materials or data as the Fund Board may
reasonably request so that the Fund Board may fully carry out
the duties imposed upon it as delineated in the Mixed and
Shared Funding Exemptive Order, and said reports, materials
and data will be submitted more frequently if deemed
appropriate by the Fund Board.
7.8 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) the Fund
and/or the Participating Insurance Companies, as appropriate,
will take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to
the extent such rules are applicable; and (b) Sections 3.4,
3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement will
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.
13
ARTICLE VIII. Indemnification
8.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the
Fund, the Adviser, and each person, if any, who
controls or is associated with the Fund or the
Adviser within the meaning of such terms under the
federal securities laws and any director, trustee,
officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes
of this Section 8.1) against any and all losses,
claims, expenses, damages, 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,
regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements:
(1) arise out of or are based upon any untrue
statements or alleged untrue statements of
any material fact contained in the
registration statement, prospectus or
statement of additional information for 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 or
necessary to make such statements not
misleading in light of the circumstances in
which they were made; provided that this
agreement to indemnify will 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 behalf of the Adviser or
the Fund for use in the registration
statement, prospectus or statement of
additional information for the Contracts or
in the Contracts or sales literature (or any
amendment or supplement) or otherwise for
use in connection with the sale of the
Contracts or Fund shares; or
(2) arise out of or as a result of statements or
representations by or on behalf of the
Company (other than statements or
representations contained in the Fund
registration statement, prospectus,
statement of additional information or sales
literature or other promotional material of
the Fund, or any amendment or supplement to
the foregoing, not supplied by the Company
or persons under its
14
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
(3) arise out of any untrue statement or alleged
untrue statement of a material fact
contained in the Fund registration
statement, prospectus, statement of
additional information or sales literature
or other promotional material of the Fund
(or amendment or supplement) or the omission
or alleged omission to state therein a
material fact required to be stated therein
or necessary to make such statements not
misleading in light of the circumstances in
which they were made, if such a 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
persons under its control; or
(4) 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
(5) arise out of 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 by the
Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.4
hereof. This indemnification will be in addition to any
liability that the Company otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.1(a) if such loss, claim, damage, liability
or litigation is due to the willful misfeasance, bad
faith, or gross negligence in the performance of such
party's duties under this Agreement, or by reason of
such party's reckless disregard of its obligations or
duties under this Agreement.
(c) The Indemnified Parties promptly will notify the
Company of the commencement of any litigation,
proceedings, complaints or actions by regulatory
authorities against them in connection with the
issuance or sale of the Fund shares or the Contracts
or the operation of the Fund.
15
8.2 Indemnification By The Adviser
(a) The Adviser agrees to indemnify and hold harmless the
Company and each person, if any, who controls or is
associated with the Company within the meaning of
such terms under the federal securities laws and any
director, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes
of this Section 8.2) 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 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:
(1) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the registration
statement, prospectus or statement of
additional information for the Fund or sales
literature or other promotional material 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 or necessary to make
such statements not misleading in light of
the circumstances in which they were made;
provided that this agreement to indemnify
will 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 Adviser or Fund
by or on behalf of the Company for use in
the registration statement, prospectus or
statement of additional information for the
Fund or in sales literature of the Fund (or
any amendment or supplement thereto) or
otherwise for use in connection with the
sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts
or in the Contract or Fund registration
statements, prospectuses or statements of
additional information or sales literature
or other promotional material for the
Contracts or of the Fund, or any amendment
or supplement to the foregoing, not supplied
by the Adviser or the Fund or persons under
the control of the Adviser or the Fund
respectively) or wrongful conduct of the
Adviser or the Fund or persons under the
control of the Adviser or the Fund
16
respectively, with respect to the sale or
distribution of the Contracts or Fund
shares; or
(3) arise out of any untrue statement or alleged
untrue statement of a material fact
contained in a registration statement,
prospectus, statement of additional
information or sales literature or other
promotional material covering the Contracts
(or any amendment or supplement thereto), or
the omission or alleged omission to state
therein a material fact required to be
stated or necessary to make such statement
or statements not misleading in light of the
circumstances in which they were made, if
such statement or omission was made in
reliance upon and in conformity with
information furnished to the Company by or
on behalf of the Adviser or the Fund or
persons under the control of the Adviser or
the Fund; or
(4) arise as a result of any failure by the Fund
or the Adviser to provide the services and
furnish the materials under the terms of
this Agreement; or
(5) arise out of or result from any material
breach of any representation and/or warranty
made by the Adviser or the Fund in this
Agreement, or arise out of or result from
any other material breach of this Agreement
by the Adviser or the Fund;
except to the extent provided in Sections 8.2(b) and 8.4
hereof.
(b) No party will be entitled to indemnification under
Section 8.2(a) if such loss, claim, damage, liability
or litigation is due to the willful misfeasance, bad
faith, or gross negligence in the performance of such
party's duties under this Agreement, or by reason of
such party's reckless disregard or its obligations or
duties under this Agreement.
(c) The Indemnified Parties will promptly notify the
Adviser and the Fund of the commencement of any
litigation, proceedings, complaints or actions by
regulatory authorities against them in connection
with the issuance or sale of the Contracts or the
operation of the Account.
8.3 Indemnification By the Fund
(a) The Fund agrees to indemnify and hold harmless the
Company and each person, if any, who controls or is
associated with the Company within the
17
meaning of such terms under the federal securities laws and
any director, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this
Section 8.3) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement
with the written consent of the Fund) or litigation (including
reasonable 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 operations of the
Fund and:
(i) arise as a result of any failure by the Fund
to provide the services and furnish the
materials under the terms of this Agreement;
or
(ii) arise out of or result from any material
breach of any representation and/or warranty
made by the Fund in this Agreement or arise
out of or result from any other material
breach of this Agreement by the Fund; or
(iii) arise out of or result from the incorrect or
untimely calculation or reporting of the
daily net asset value per share or dividend
or capital gain distribution rate;
except to the extent provided in Sections 8.3(b) and 8.4
hereof.
(b) No party will be entitled to indemnification under Section
8.3(a) if such loss, claim, damage, liability or litigation is
due to the willful misfeasance, bad faith, or gross negligence
in the performance of such party's duties under this
Agreement, or by reason of such party's reckless disregard of
its obligations and duties under this Agreement.
(c) The Indemnified Parties will promptly notify the Fund of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection
with the issuance or sale of the Contracts or the operation of
the Account.
8.4 Indemnification Procedure
Any person obligated to provide indemnification under this
Article VIII ("Indemnifying Party" for the purpose of this
Section 8.4) will not be liable under the indemnification
provisions of this Article VIII with respect to any claim made
against a party entitled to indemnification under this Article
("Indemnified Party" for the purpose of this Section 8.4)
unless such Indemnified Party will have
18
notified the Indemnifying Party in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim will have been served
upon such Indemnified Party (or after such party will have
received notice of such service on any designated agent), but
failure to notify the Indemnifying Party of any such claim
will not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of the
indemnification provision of this Article VIII, except to the
extent that the failure to notify results in the failure of
actual notice to the Indemnifying Party and such Indemnifying
Party is damaged solely as a result of failure to give such
notice. In case any such action is brought against the
Indemnified Party, the Indemnifying Party will be entitled to
participate, at its own expense, in the defense thereof. The
Indemnifying Party also will be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the
action. After notice from the Indemnifying Party to the
Indemnified Party of the Indemnifying Party's election to
assume the defense thereof, the Indemnified Party will bear
the fees and expenses of any additional counsel retained by
it, and the Indemnifying Party 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, unless: (a) the Indemnifying Party and
the Indemnified Party will have mutually agreed to the
retention of such counsel; or (b) the named parties to any
such proceeding (including any impleaded parties) include both
the Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. The Indemnifying Party will not be liable for
any settlement of any proceeding effected without its written
consent but if settled with such consent or if there is a
final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify the Indemnified Party from and against
parties to this Agreement will be entitled to the benefits of
the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VII will
survive any termination of this Agreement.
ARTICLE IX. Applicable Law
9.1 This Agreement will be construed and the provisions hereof
interpreted under and in accordance with the laws of the State
of California.
9.2. This Agreement will be subject to the provisions of the 1933
Act, the 1934 Act and the 1940 Act, and the rules and
regulations and citings 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 will be
interpreted and construed in accordance therewith.
19
ARTICLE X. Termination
10.1 This Agreement will terminate:
(a) at the option of any party, with or without cause,
with respect to some or all of the Portfolios, upon
one (1) year's advance written notice to the other
parties or, if later, upon receipt of any required
exemptive relief or orders From the SEC, unless
otherwise agreed in a separate written agreement
among the parties; or
(b) at the option of the Company, upon receipt of written
notice by the other parties, with respect to any
Portfolio if shares of the Portfolio are not
reasonably available to meet the requirements of the
Contracts as determined in good faith by the Company;
or
(c) at the option of the Company, upon receipt of written
notice by 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 Company; or
(d) at the option of the Fund, upon receipt of written
notice by the other parties, upon institution of
formal proceedings against the Company by the NASD,
the SEC, the insurance commission 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 administration of the Contracts, the
operation of the Account, or the purchase of the Fund
shares, provided that the Fund determines in its sole
judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on
the Company's ability to perform its obligations
under this Agreement; or
(e) at the option of the Company, upon receipt of written
notice by the other parties, upon institution of
formal proceedings against the Fund or the Adviser by
the NASD, the SEC, or any state securities or
insurance department or any other regulatory body,
provided that the Company determines in its sole
judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on
the Fund's or the Adviser's ability to perform its
obligations under this Agreement; or
(f) at the option of the Company, upon receipt of written
notice by the other parties, if the Fund ceases to
qualify as a Regulated Investment Company
20
under Subchapter M of the Internal Revenue Code, or
under any successor or similar provision, or if the
Company reasonably and in good faith believes that
the Fund may fail to so qualify; or
(g) at the option of the Company, upon receipt of written
notice by the other parties, with respect to any
Portfolio if the Fund fails to meet the
diversification requirements specified in Article VI
hereof or if the Company reasonably and in good faith
believes the Fund may fail to meet such requirements;
or
(h) at the option of any party to this Agreement, upon
written notice to the other parties, upon another
party's material breach of any provision of this
Agreement; or
(i) at the option of the Company, if the Company
determines in its sole judgment exercised in good
faith, that either the Fund or the Adviser has
suffered a material adverse change in its business,
operations or financial condition since the date of
this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse
impact upon the business and operations of the
Company, such termination to be effective sixty (60)
days after receipt by the other parties of written
notice of the election to terminate; or
(j) at the option of the Fund or, the Adviser, if the
Fund or Adviser respectively, determines in its sole
judgment exercised in good faith, that the Company
has suffered a material adverse change in its
business, operations or financial condition since the
date of this Agreement or is the subject of material
adverse publicity which is likely to have a material
adverse impact upon the business and operations of
the Fund or the Adviser, such termination to be
effective sixty (60) days after receipt by the other
parties of written notice of the election to
terminate; or
(k) at the option of the Company or the Fund upon receipt
of any necessary regulatory approvals and/or the vote
of the contract owners having an interest in the
Account (or any subaccount) to substitute the shares
of another investment company for the corresponding
Portfolio shares of the Fund in accordance with the
terms of the Contracts for which those Portfolio
shares had been selected to serve as the underlying
investment media. The Company will give sixty (60)
days' prior written notice to the Fund of the date of
any proposed vote or other action taken to replace
the Fund's shares; or
21
(l) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a
majority of the disinterested Fund Board members,
that an irreconcilable material conflict exists among
the interests of: (1) all contract owners of variable
insurance products of all separate accounts; or (2)
the interests of the Participating Insurance
Companies investing in the Fund as set forth in
Article VII of this Agreement; or
(m) at the option of the Fund in the event any of the
Contracts are not issued or sold in accordance with
applicable federal and/or state law. Termination will
be effective immediately upon such occurrence without
notice.
10.2 Notice Requirement
(a) No termination of this Agreement, except a
termination under Section 10.1(m) of this Agreement,
will 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 will set forth the basis for the
termination.
(b) In the event that any termination of this Agreement
is based upon the provisions of Article VII, such
prior written notice will be given in advance of the
effective date of termination as required by such
provisions.
10.3 Effect of Termination
(a) Notwithstanding any termination of this Agreement,
the Fund and the Adviser will, at the option of the
Company, continue to make available additional shares
of the Fund 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 will be permitted to reallocate
investments in the Designated Portfolios (as in
effect on such date), redeem investments in the
Designated Portfolios and/or invest in the Designated
Portfolios upon the making of additional purchase
payments under the Existing Contracts. The parties
agree that this Section 10.3 will not apply to any
terminations under Article VII and the effect of such
Article VII terminations will be governed by Article
VII of this Agreement.
22
10.4 Surviving Provisions
Notwithstanding any termination of this Agreement, each
party's obligations under Article VIII to indemnify other
parties will survive and not be affected by any termination of
this Agreement. In addition, with respect to Existing
Contracts, all provisions of this Agreement also will survive
and not be affected by any termination of this Agreement.
ARTICLE XI. Notices
Any notice will be deemed duly 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:
_______________________________
_______________________________
_______________________________
If to the Fund:
Xxxxxxxxxx Funds III
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: _______________
_______________
If to the Adviser:
Xxxxxxxxxx Asset Management, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: _______________
_______________
ARTICLE XII. Miscellaneous
12.1 All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against
the Fund as neither the trustees, officers, agents or
shareholders assume any personal liability for obligations
entered into on behalf of the Fund.
23
12.2 The Fund and the Adviser acknowledge that the identities of
the customers of the Company or any of its affiliates
(collectively the "Protected Parties" for purposes of this
Section 12.2), information maintained regarding those
customers, and all computer programs and procedures developed
by the Protected Parties or any of their employees or agents
in connection with the Company's performance of its duties
under this Agreement are the valuable property of the
Protected Parties. The Fund and the Adviser agree that if they
come into possession of any list or compilation of the
identities of or other information about the Protected
Parties' customers, or Any other property of the Protected
Parties, other than such information as may be independently
developed or compiled by the Fund or the Adviser from
information supplied to them by the Protected Parties'
customers who also maintain accounts directly with the Fund or
the Adviser, the Fund and the Adviser will hold such
information or property in confidence and refrain from using,
disclosing or distributing any of such information or other
property except: (a) with the Company's prior written consent;
or (b) as required by law or judicial process. The Fund and
the Adviser acknowledge that any breach of the agreements in
this Section 12.2 would result in immediate and irreparable
harm to the Protected Parties for which there would be no
adequate remedy at law and agree that in the event of such a
breach, the Protected Parties will be entitled to equitable
relief by way of temporary and permanent injunctions, as well
as such other relief as any court of competent jurisdiction
deems appropriate.
12.3 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.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one
and the same instrument.
12.5 If any provision of this Agreement will be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of the Agreement win not be affected thereby.
12.6 This Agreement will not be assigned by any party hereto
without the prior written consent of all the parties.
12.7 Each party to this Agreement will cooperate with each other
party and all appropriate governmental authorities (including
without limitation the SEC, the NASD and state insurance
regulators) and will permit each other and 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.
24
12.8 Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary
corporate or board action, as applicable, by such party and
when so executed and delivered this Agreement will be the
valid and binding obligation of such party enforceable in
accordance with its terms.
12.9 The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect changes in or relating
to the Contracts, the Accounts or the Portfolios of the Fund
or other applicable terms of this Agreement.
25
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the date specified below.
[INSURANCE COMPANY]
SEAL By: ______________________________
XXXXXXXXXX FUNDS III
SEAL By: ______________________________
XXXXXXXXXX ASSET
MANAGEMENT, LLC
SEAL By: ______________________________
26
Schedule 1
PARTICIPATION AGREEMENT
By and Among
[INSURANCE COMPANY]
And
XXXXXXXXXX FUNDS III
And
XXXXXXXXXX ASSET MANAGEMENT, LLC
The following separate accounts of [Insurance Company] are permitted in
accordance with the provisions of this Agreement to invest in Portfolios of the
Fund shown in Schedule 2:
[name of separate account and date the account was established]
__________, ____
27
Schedule 2
PARTICIPATION AGREEMENT
By and Among
[INSURANCE COMPANY]
And
XXXXXXXXXX FUNDS III
And
XXXXXXXXXX ASSET MANAGEMENT, LLC
The Separate Account(s) shown on Schedule I may invest in the following
Portfolios of the Xxxxxxxxxx Funds III:
[Names of Xxxxxxxxxx Funds III Portfolios]
__________, ____
28
