PARTICIPATION AGREEMENT
-----------------------
THIS AGREEMENT, made and entered into as of the __ day of _____, 2012
by and among Symetra Life Insurance Company (hereinafter the "Company"), a
life insurance company organized under the laws of Washington, on its own
behalf and on behalf of each separate account of the Company set forth on
Schedule B hereto as may be amended from time to time (each such account
hereinafter referred to as the "Account"), and ROYCE CAPITAL FUND (hereinafter
the "Fund"), a Delaware statutory trust, and ROYCE FUND SERVICES, INC., a New
York corporation (the "Distributor").
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as (i) the investment vehicle for
separate accounts established by insurance companies for individual and group
life insurance policies and annuity contracts with variable accumulation and/or
pay-out provisions (hereinafter referred to individually and/or collectively
as "Variable Insurance Products") and (ii) the investment vehicle for certain
qualified pension and retirement plans (hereinafter "Qualified Plans"); and
WHEREAS, insurance companies desiring to utilize the Fund as an
investment vehicle under their Variable Insurance Products are required to
enter into a participation agreement with the Fund and the Distributor (the
"Participating Insurance Companies"); and
WHEREAS, shares of the Fund are divided into several series of shares,
each representing the interest in a particular managed portfolio of securities
and other assets, any one or more of which may be made available for Variable
Insurance Products of Participating Insurance Companies; and
WHEREAS, the Fund intends to offer shares of the series set forth on
Schedule A (each such series hereinafter referred to as a "Portfolio"), as may
be amended from time to time by mutual agreement of the parties hereto, under
this Agreement to the Accounts of the Company; and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission, dated July 24, 1996 (File No. 812-9988), granting
Participating Insurance Companies and Variable Insurance Product 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 Fund to be sold to and held by
Variable Insurance Products separate accounts of both affiliated and
unaffiliated life insurance companies and Qualified Plans (hereinafter the
"Shared Funding Exemptive Order"); 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 (hereinafter the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the Financial Industry Regulatory
Authority ("FINRA"); and
WHEREAS, the Distributor is the principal underwriter of the
Portfolios of the Fund; and
WHEREAS, the Company has registered or will register certain Variable
Insurance Products under the 1933 Act; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution or under authority of the Board of
Directors of the Company, on the date shown for such Account on Schedule B
hereto, to set aside and invest assets attributable to the aforesaid Variable
Insurance Products; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act or each Account is exempt from
registration pursuant to section 3(c)(1) or section 3(c)(7) under the Act;
and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on
behalf of each Account to fund certain of the aforesaid Variable Insurance
Products;
NOW, THEREFORE, in consideration of their mutual promises, the Company and the
Fund agree as follows:
ARTICLE I. Fund Shares
1.1. The Fund agrees to make available for purchase by the Company
shares of the Portfolios set forth on Schedule A and shall execute orders
placed for each Account on a daily basis at the net asset value next computed
after receipt by the Fund or its designee of such order. For purposes of this
Section 1.1, the Company or its designated agent(s) shall be the designee of
the Fund for receipt of such orders from each Account and receipt by such
designee of orders prior to the close of regular trading on the New York Stock
Exchange (generally 4:00 p.m. Eastern time) shall constitute receipt by the
Fund; provided that the Fund receives notice of such order by 10:00 a.m.
Eastern time on the next following Business Day. Notwithstanding the
foregoing, the Company or its designated agent(s) shall use its best efforts
to provide the Fund with notice of such orders by 9:00 a.m. Eastern time on
the next following Business Day. "Business Day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Fund
calculates the net asset value pursuant to the rules of the SEC, as set forth
in the Fund's Prospectus and Statement of Additional Information.
Notwithstanding the foregoing, the Board of Trustees of the Fund (hereinafter
the "Board") may refuse to permit the Fund 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 Board acting in good faith
and in light of their fiduciary duties under federal and any applicable state
laws, necessary in the best interests of the shareholders of such Portfolio.
1.2. The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their Variable Insurance Products. No
shares of any Portfolio will be sold to the general public.
1.3. The Fund will not make its shares available for purchase by any
insurance company or separate account unless an agreement containing provisions
substantially the same as Sections 2.4, 2.9, 3.4 and Article VII of this
Agreement is in effect to govern such sales.
1.4. The 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 a daily basis at the net asset value next computed after receipt
by the Fund or its designee of the request for redemption. For purposes of
this Section 1.4, the Company or its designated agent(s) shall be the designee
of the Fund for receipt of requests for redemption from each Account and
receipt by such designee shall constitute receipt by the Fund; provided that
the Fund receives notice of such request for redemption on the next following
Business Day in accordance with the timing rules described in Section 1.1.
1.5. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Fund shall be made in
accordance with the provisions of such prospectus. The Accounts of the
Company, under which amounts may be invested in the Fund, are listed on
Schedule B attached hereto and incorporated herein by reference, as such
Schedule B may be amended from time to time by mutual written agreement of all
of the parties hereto.
1.6. The Company or its designated agent(s) will place separate
orders to purchase or redeem shares of each Portfolio. Each order shall
describe the net amount of shares and dollar amount of each Portfolio to be
purchased or redeemed. In the event of net purchases, the Company shall pay
for Portfolio shares on the next Business Day after an order to purchase
Portfolio shares is made in accordance with the provisions of Section 1.1
hereof. Payment shall be in federal funds transmitted by wire. In the event
of net redemptions, the Portfolio shall use its best efforts to pay the
redemption proceeds in federal funds transmitted by wire on the next Business
Day, in any event redemption proceeds shall be wired to the Company within
three Business Days or such longer period permitted by the 1940 Act, after an
order to redeem a Portfolio's shares is made in accordance with the provision
of Section 1.4 hereof. Notwithstanding the foregoing, if the payment of
redemption proceeds on the next Business Day would require the Portfolio to
dispose of securities or otherwise incur substantial additional costs, and if
the Portfolio has determined to settle redemption transactions for all
shareholders on a delayed basis, it reserves the right to suspend the right of
redemption or postpone the date of payment or satisfaction upon redemption
consistent with Section 22(e) of the 1940 Act and the Portfolio shall notify
in writing the person designated by the Company, or its designated agent(s)
as the recipient for such notice of such delay promptly.
1.7. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
1.8. The Fund shall make the dividends or capital gain distributions
per share payable on the Fund's shares available to the Company as soon as
reasonably practical after the dividends or capital gains are declared
(normally by 6:30 p.m. Eastern time) and shall use its best efforts to furnish
same day notice by 7:00 p.m. Eastern time (by wire or telephone, followed by
written confirmation) to the Company of any dividends or capital gain
distributions per share payable on the Fund's shares. The Company hereby
elects to receive all such dividends and capital gain distributions as are
payable on the Portfolio shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
dividends and capital gain distributions in cash. The Fund shall notify the
Company of the number of shares so issued as payment of such dividends and
distributions.
1.9. The Fund shall make the net asset value per share for each
Portfolio available to the Company or its designated agent(s) on a daily basis
as soon as reasonably practical after the net asset value per share is
calculated (normally by 6:30 p.m. Eastern time) and shall use its best efforts
to make such net asset value per share available by 7:00 p.m. Eastern time.
In the event that the Fund is unable to meet the 7:00 p.m. time stated
immediately above, then the Fund shall provide the Company with additional
time to notify the Fund of purchase or redemption orders pursuant to Sections
1.1 and 1.4, respectively, above. Such additional time shall be equal to the
additional time that the Fund takes to make the net asset values available to
the Company; provided, however, that notification must be made by 10:15 a.m.
Eastern time on the Business Day such order is to be executed regardless of
when the net asset value is made available. If the Fund provides the Company
with materially incorrect share net asset value information, the Separate
Account(s) shall be entitled to any adjustment to the number of shares
purchased or redeemed necessary to make the Separate Account(s) whole. Any
material error in the calculation of the net asset value per share, dividend
or capital gain information shall be reported promptly upon discovery to the
Company. If such material error results in an overpayment to the Separate
Account(s), the Company will use its best efforts to collect such overpayment.
If, after such efforts, the Company is not able to recover all such
overpayment, the Company will cooperate with the attempts of the Fund and/or
Distributor to recover the overpayment. Furthermore, the Distributor shall be
liable for the reasonable administrative costs incurred by the Company in
relation to the correction of any material error, provided such error is
attributable to the Fund or the Distributor. Administrative costs shall
include reasonable allocation of staff time, costs of outside service
providers, printing and postage. Non-material errors will be corrected in the
next Business Day's net asset value per share.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the interests of the
Accounts (the "Contracts") are or will be registered (or are not so registered
in proper reliance upon section 3(c)(1) or section 3(c)(7) of the 0000 Xxx)
and will maintain the registration under the 1933 Act and the regulations
thereunder to the extent required by the 1933 Act. The Company represents
that the Contracts, both registered and unregistered, will be issued in
compliance in all material respects with all applicable federal and state laws
and regulations. 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 prior to any issuance
or sale thereof as a segregated asset account under the Washington Insurance
Law and the regulations thereunder and has registered or, prior to any issuance
or sale of the Contracts, will register and will maintain the registration of
each Account as a unit investment trust in accordance with and to the extent
required by the provisions of the 1940 Act and the regulations thereunder to
serve as a segregated investment account for the Contracts or, alternatively,
the Company has not registered one or more Accounts in proper reliance upon
section 3(c)(1) or section 3(c)(7) of the 0000 Xxx. The Company shall amend
its registration statement for its contracts under the 1933 Act and the 1940
Act from time to time as required in order to effect the continuous offering
of its Contracts.
2.2. The Fund represents and warrants that Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act and the regulations
thereunder to the extent required by the 1933 Act, duly authorized for issuance
in accordance with the laws of the State of Delaware and sold in compliance
with all applicable federal and state securities laws and regulations and that
the Fund is and shall remain registered under the 1940 Act and the regulations
thereunder to the extent required by the 0000 Xxx. The Fund shall 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 shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Fund.
2.3 The Fund and the Distributor represent that the Fund is currently
qualified as a Regulated Investment Company under Subchapter M of the Internal
Revenue Code of 1986, as amended (the "Code"), and that the Fund will make
every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that the Fund or its designee will notify
the Company immediately upon having a reasonable basis for believing that a
Portfolio has ceased to so qualify or that a Portfolio might not so qualify
in the future.
2.4. The Company represents that each Account is and will continue to
be a "segregated account" under applicable provisions of the Code and that
each Contract is and will be treated as a "variable contract" under applicable
provisions of the Code and that it will make every effort to maintain such
treatments and that it will notify the Fund immediately upon having a
reasonable basis for believing that the Account or Contract has ceased to be
so treated or that they might not be so treated in the future.
2.5. The Fund represents that to the extent it decides to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act, the Fund
undertakes to have a board of trustees, a majority of whom are not interested
persons of the Fund, formulate and approve any plan under Rule 12b-1 to
finance distribution expenses in accordance with the 1940 Act.
2.6. The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states.
2.7. The Fund and the Distributor represent that the Fund is lawfully
organized and validly existing under the laws of Delaware and that the Fund
does and will comply in all material respects with the 1940 Act.
2.8. The Distributor represents and warrants that it is and shall
remain duly registered in all material respects under all applicable federal
securities laws and that it will perform its obligations for the Fund and the
Company in compliance in all material respects with the laws and regulations
of its state of domicile and any applicable state and federal securities laws
and regulations.
2.9. The Company represents and warrants that all of its trustees,
officers, employees, investment adviser, and other individuals/entities
dealing with the money and/or securities of the Fund are covered by a blanket
fidelity bond or similar coverage, in an amount equal to the greater of
$5 million or any amount required by applicable federal or state law or
regulation. The aforesaid includes coverage for larceny and embezzlement is
issued by a reputable bonding company. The Company agrees to make all
reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Fund in the event
that such coverage no longer applies.
2.10. The Company represents and warrants that it will adhere to the
Fund's policy intended to discourage shareholders from trading that could be
detrimental to long-term shareholders of the Fund (the "Policy"), as set forth
in the Fund's current prospectus ("Fund Prospectus"). The aforesaid includes
among other things, the monitoring of shareholder/participant trading activity
and the restriction of shareholder/participant trading privileges at the sub-
account level if warranted by the Policy.
2.11. The Company represents and warrants that it will adhere to all
applicable anti-money laundering rules and regulations in fulfilling its
obligations under this Agreement.
2.12. The Company, Fund and Distributor agree that all non-public
records, information, and data relating to the business of the other
(including customer names and information and portfolio holdings information)
that are exchanged or negotiated pursuant to this Agreement or in carrying out
this Agreement shall remain confidential, and shall not be voluntarily
disclosed by either party without the prior written consent of the other
party, except as may be required by law or by such party to carry out this
Agreement or an order of an court, governmental agency or regulatory body.
ARTICLE III. Prospectuses, Reports to Shareholders and Proxy Statements;
Voting
3.1(a) The Fund or its designee shall provide the Company with as many
printed copies of the Fund Prospectus as the Company may reasonably request.
If requested by the Company, in addition to providing printed copies of the
Fund Prospectus, the Fund shall provide camera-ready film or computer diskettes
containing the Fund Prospectus, or shall provide the same electronically in
..pdf format, and such other assistance as is reasonably necessary in order for
the Company once each year (or more frequently if the Fund Prospectus is
amended during the year) to have the prospectus for the Contracts (the
"Contract Prospectus") and the Fund Prospectus printed together in one
document or separately. The Company may elect to print the Fund Prospectus
in combination with other fund companies' prospectuses. For purposes hereof,
any combined prospectus including the Fund Prospectus along with the Contract
Prospectus or prospectus of other fund companies shall be referred to as a
"Combined Prospectus." For purposes hereof, the term "Fund Portion of the
Combined Prospectus" shall refer to the percentage of the number of Fund
Prospectus pages in the Combined Prospectus in relation to the total number
of pages of the Combined Prospectus.
3.1(b) The Fund shall provide the Company with as many printed
copies of the Fund's current statement of additional information (the "Fund
SAI") as the Company may reasonably request. If requested by the Company in
addition to providing printed copies of the Fund SAI, the Fund shall provide
camera-ready film or computer diskettes containing the Fund SAI, or shall
provide the same electronically in .pdf format, and such other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the Fund SAI is amended during the year) to have the statement
of additional information for the Contracts (the "Contract SAI") and the Fund
SAI printed together or separately. The Company may also elect to print the
Fund SAI in combination with other fund companies' statements of additional
information. For purposes hereof, any combined statement of additional
information including the Fund SAI along with the Contract SAI or statement of
additional information of other fund companies shall be referred to as a
"Combined SAI." For purposes hereof, the term "Fund Portion of the Combined
SAI" shall refer to the percentage of the number of Fund SAI pages in the
Combined SAI in relation to the total number of pages of the Combined SAI.
3.1(c) The Fund shall provide the Company with as many printed
copies of the Fund's annual report and semi-annual report (collectively, the
"Fund Reports") as the Company may reasonably request. If requested by the
Company in lieu of providing printed copies of the Fund Reports, the Fund
shall provide camera-ready film or computer diskettes containing the Fund's
Reports, or shall provide the same electronically in .pdf format, and such
other assistance as is reasonably necessary in order for the Company once each
year to have the annual report and semi-annual report for the Contracts
(collectively, the "Contract Reports") and the Fund Reports printed together
or separately. The Company may also elect to print the Fund Reports in
combination with other fund companies' annual reports and semi-annual reports.
For purposes hereof, any combined annual reports and semi-annual reports
including the Fund Reports along with the Contract Reports or annual reports
and semi-annual reports of other fund companies shall be referred to as
"Combined Reports." For purposes hereof, the term "Fund Portion of the
Combined Reports" shall refer to the percentage of the number of Fund Reports
pages in the Combined Reports in relation to the total number or pages of the
Combined Reports.
3.2 Expenses
3.2(a) Expenses Borne by Company. Except as otherwise provided in
this Section 3.2., all expenses of preparing, setting in type and printing
and distributing (i) Contract Prospectuses, Fund Prospectuses, and
Combined Prospectuses; (ii) Fund SAIs, Contract SAIs, and Combined SAIs;
(iii) Fund Reports, Contract Reports, and Combined Reports, and (iv) Contract
proxy material that the Company may require in sufficient quantity to be sent
to Contract owners, annuitants, or participants under Contracts (collectively,
the "Participants"), shall be the expense of the Company.
3.2(b) Expenses Borne by Fund
Fund Prospectuses
With respect to existing Participants, the Fund shall pay the cost of
setting in type and printing and distributing Fund Prospectuses made available
by the Company to such existing Participants in order to update disclosure as
required by the 1933 Act and/or the 1940 Act. With respect to existing
Participants, in the event the Company elects to prepare a Combined Prospectus,
the Fund shall pay the cost of setting in type and printing and distributing
the Fund Portion of the Combined Prospectus made available by the Company to
its existing Participants in order to update disclosure as required by the
1933 Act and/or the 1940 Act. In such event, the Fund shall bear the cost of
typesetting to provide the Fund Prospectus to the Company in the format in
which the Fund is accustomed to formatting prospectus. Notwithstanding the
foregoing, in no event shall the Fund pay for any such costs that exceed by
more than five (5) percent what the Fund would have paid to print such
documents. The Fund shall not pay any costs of typesetting and printing the
Fund Prospectus (or Combined Prospectus, if applicable) to prospective
Participants.
Fund SAIs, Fund Reports and Proxy Material
With respect to existing Participants, the Fund shall pay the cost of
setting in type and printing and distributing Fund SAIs, Fund Reports and Fund
proxy material made available by the Company to its existing Participants.
With respect to existing Participants, in the event the Company elects to
prepare a Combined SAI or Combined Reports, the Fund shall pay the cost of
setting in type and printing and distributing the Fund Portion of the Combined
SAI or Combined Reports, respectively, made available by the Company to its
existing Participants. In such event, the Fund shall bear the cost of
typesetting to provide the Fund SAI or Fund Reports to the Company in the
format in which the Fund is accustomed to formatting statements of additional
information and annual and semi-annual reports. Notwithstanding the foregoing,
in no event shall the Fund pay for any such costs that exceed by more than
five (5) percent what the Fund would have paid to print such documents.
The Company agrees to provide the Fund or its designee with such
information as may be reasonably requested by the Fund to assure that the
Fund's expenses do not include the cost of typesetting, printing or
distributing any of the foregoing documents other than as described above.
3.3. The Fund SAI shall be obtainable from the Fund, the Company or
such other person as the Fund may designate.
3.4. If and to the extent required by law the Company shall distribute
all proxy material furnished by the Fund to Participants to whom voting
privileges are required to be extended and shall:
(i) solicit voting instructions from Participants;
(ii) vote the Fund shares in accordance with
instructions received from Participants; and
(iii) vote Fund shares for which no instructions
have been received in the same proportion as
Fund shares of such Portfolio for which
instructions have been received,
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. 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. The Fund and the
Company shall follow the procedures, and shall have the corresponding
responsibilities, for the handling of proxy and voting instruction
solicitations, as set forth in Schedule C attached hereto and incorporated
herein by reference. Participating Insurance Companies shall be responsible
for ensuring that each of their separate accounts participating in the Fund
calculates voting privileges in a manner consistent with the standards set
forth on Schedule C, which standards will also be provided to the other
Participating Insurance Companies.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either
provide for annual meetings (except insofar as the Securities and Exchange
Commission may interpret Section 16 not to require such meetings) or 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
Securities and Exchange Commission'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 shall furnish, or shall cause to be furnished, to
the Fund or its designee, each piece of sales literature or other promotional
material prepared by the Company or any person contracting with the Company in
which the Fund or the Distributor is named, at least ten Business Days prior
to its use. No such material shall be used if the Fund, the Distributor, or
their designee reasonably objects to such use within five Business Days after
receipt of such material. Any approval on sales literature or other promotional
material that the Company develops or uses shall be in effect for one year so
long as such disclosure regarding the Fund or Distributor is the same as used
in the approved piece. The Company shall furnish to the Fund or its designee
any sales material or other promotional material with differing disclosure for
approval. In addition, Company may prepare such materials, based on
performance information supplied by third party information providers (e.g.,
Lipper, Morningstar) provided that Fund and Distributor shall not be
responsible for information supplied by such third party information providers.
4.2. Neither the Company nor any person contracting with the Company
shall 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 or the Fund Prospectus, as such registration statement or Fund
Prospectus may be amended or supplemented from time to time, or in reports or
proxy statements for the Fund, or in sales literature or other promotional
material approved by the Fund or its designee, except with the written
permission of the Fund.
4.3. The Fund or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material prepared by the Fund in which the Company or its
Account(s) are named at least ten Business Days prior to its use. No such
material shall be used if the Company or its designee reasonably objects to
such use within five Business Days after receipt of such material. Any
approval on sales literature or other promotional material that the Fund
develops or uses shall be in effect for one year so long as such disclosure
regarding the Company or its Account(s) is the same as used in the approved
piece. The Fund shall furnish to the Company any sales material or other
promotional material with differing disclosure for approval.
4.4. Neither the Fund nor the Distributor shall give any information
or make any representations 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 or prospectus for the
Contracts, as such registration statement and prospectus may be amended or
supplemented from time to time, or in published reports or solicitations for
voting instructions for each Account which are in the public domain or
approved by the Company for distribution to Participants, or in sales
literature or other promotional material approved by the Company or its
designee, except with the written permission of the Company.
4.5. Upon request, the Fund will provide to the Company at least one
complete copy of all registration statements, prospectuses, (including any
current summary prospectus, if available, as such term is defined in Rule 498),
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 such
document with the SEC or other regulatory authorities.
4.6. Upon request, 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 investment in an Account or Contract contemporaneously with the
filing of such document with the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following: advertisements (such as material published, or designed for use in,
a newspaper, magazine, or other periodical, radio, television, telephone or
tape recording, videotape display, signs or billboards, motion pictures, or
other public media), sales literature (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 registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials.
ARTICLE V. [Reserved]
ARTICLE VI. Diversification
6.1. The Fund represents, that it and each Portfolio will comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section
or Regulations. In the event a Portfolio ceases to so qualify, the Fund will
take all reasonable steps (a) to notify the Company of such breach and (b) to
adequately diversify the Portfolio so as to achieve compliance within the
grace period afforded by Regulation 817-5.
ARTICLE VII. Potential Conflicts
7.1. The 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: (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 variable annuity contract owners and variable life
insurance contract owners; 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.
7.2. The Company will report any potential or existing material
irreconcilable conflicts of which it is aware to the Board. The Company will
assist the Board in carrying out its responsibilities under the Shared Funding
Exemptive Order, by providing the Board 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 the Board whenever
contract owner voting instructions are disregarded.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested directors, that a material irreconcilable conflict exists,
the Company and other Participating Insurance Companies shall, 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: (1)
withdrawing the assets allocable to some or all of the Separate 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 Contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity contract owners, life insurance
policy 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. No charge or penalty will be imposed as a result of such
withdrawal. The Company agrees that it bears the responsibility to take
remedial action in the event of a Board determination of an irreconcilable
material conflict and the cost of such remedial action, and these
responsibilities will be carried out with a view only to the interests of
Contract owners.
7.4. 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 Fund's election, to withdraw the
affected Account's investment in the Fund and terminate this Agreement with
respect to such Account (at the Company's expense); 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 disinterested members of the Board. No charge or penalty will be imposed
as a result of such withdrawal. The Company agrees that it bears the
responsibility to take remedial action in the event of a Board determination
of an irreconcilable material conflict and the cost of such remedial action,
and these responsibilities will be carried out with a view only to the
interests of Contract owners.
7.5. For purposes of Sections 7.3 and 7.4 of this Agreement, a
majority of the disinterested members of the Board shall 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 shall not be required by Section 7.3 or 7.4 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 materially adversely
affected by the irreconcilable material conflict.
7.6. 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 Shared Funding Exemptive Order) on
terms and conditions materially different from those contained in the Shared
Funding Exemptive Order, then the 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.
7.7 The Company and the Distributor shall at least annually submit to
the Board of the Fund such reports, materials or data as the Board may
reasonably request so that the Board may fully carry out the obligations
imposed upon them by the provisions hereof, and said reports, materials and
data shall be submitted more frequently if deemed appropriate by the Board.
All reports received by the Board of potential or existing conflicts, and all
Board action with regard to determining the existence of a conflict, notifying
Participating Insurance Companies of a conflict, and determining whether any
proposed action adequately remedies a conflict, shall be properly recorded in
the minutes of the Board or other appropriate records, and such minutes or
other records shall be made available to the SEC upon request.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
8.1(a) The Company agrees to indemnify and hold harmless the Fund and
each member of its Board and officers, and the Distributor and each director
and officer of the Distributor, and each person, if any, who controls the Fund
or the Distributor within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, "Indemnified
Party," for purposes of this Section 8.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Company) or litigation (including legal and other expenses),
to which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or
the Contracts and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any
material fact contained in the registration
statement or prospectus for the Contracts or
contained in the Contracts or sales literature
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 indemnify
shall not apply as to any Indemnified Party
if such statement or omission or such alleged
statement or omission was made in reliance
upon and in conformity with information
furnished to the Company by or on behalf of
the Fund for use in the registration statement
or prospectus 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
(ii) arise out of or as a result of any
statements or representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature of
the Fund not supplied by the Company or
persons under its control and other than
statements or representations authorized by
the Fund or the Distributor) or unlawful
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 or as a result of any
untrue statement or alleged untrue statement of a
material fact contained in a registration
statement, prospectus, or sales literature of
the Fund or any amendment thereof or
supplement thereto or the omission or alleged
omission to state therein a material fact
required to be stated therein or necessary to
make the statements therein not misleading if
such 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
(iv) arise as a result of any failure by
the Company to provide the services and furnish the
materials under the terms of this Agreement; or
(v) arise out of or result from any material
breach of any representation and/or warranty made by
the Company in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Company.
8.1(b). Notwithstanding Section 8.1(a) above, the Company shall not
be liable under this indemnification provision with respect to any losses,
claims, damages, liabilities or litigation incurred or assessed against an
Indemnified Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement.
8.1(c). Notwithstanding Section 8.1(a) above, the Company shall not
be liable under this indemnification provision with respect to any claim made
against an Indemnified Party unless such Indemnified Party shall have notified
the Company in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall have
been served upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but failure to
notify the Company of any such claim shall not relieve the Company from any
liability which it may have to the Indemnified Party against whom such action
is brought unless the Company is materially prejudiced by failure to notify.
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 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.
8.1(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 the Fund shares or the Contracts or the operation
of the Fund.
8.2. Indemnification by the Distributor
8.2(a). The Distributor agrees, with respect to each Portfolio that it
serves as principal underwriter, to indemnify and hold harmless the Company
and each of 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" and individually, "Indemnified Party," for purposes
of this Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Distributor) or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, 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 operation of
the Distributor or the Fund 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
sales literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reliance upon and in conformity
with information furnished to the Distributor or the
Fund by or on behalf of the Company for use in the
registration statement or prospectus for the Fund or
in sales literature (or any amendment or supplement)
or otherwise for use in connection with the sale of
the Contracts or Portfolio shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the registration statement, prospectus or sales
literature for the Contracts not supplied by the Distributor
or persons under its control and other than statements or
representations authorized by the Company) or unlawful
conduct of the Distributor or persons under its control,
with respect to the sale or distribution of the Contracts or
Portfolio shares; or
(iii) arise out of or as a result of any untrue
statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, or sales
literature 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
under the terms of this Agreement; or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the Distributor
in this Agreement or arise out of or result from any other
material breach of this Agreement by the Fund or the
Distributor; including without limitation any failure by the
Fund to comply with the conditions of Article VI hereof.
8.2(b).The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as may arise from
such Indemnified Party's willful misfeasance, bad faith, or gross negligence
in the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties under this
Agreement.
8.2(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 Distributor from any liability which
it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the 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.
8.2(d). The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its
officers, trustees or directors in connection with this Agreement, the
issuance or sale of the Contracts with respect to the operation of each
Account, or the sale or acquisition of shares of the Fund.
8.2(e). It is understood that these indemnities shall have no effect
on any other agreement or arrangement between the Fund and/or its series and
the Distributor.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2. 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 Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason upon six-months
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the
Fund and the Distributor 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.
Reasonable advance notice of election to terminate shall be furnished
by the Company, said termination to be effective ten (10) days after
receipt of notice unless the Fund makes available a sufficient number
of shares to reasonably meet the requirements of the Account within
said ten (10) day period; or
(c) termination by the Company by written notice to the
Fund and the Distributor 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 medium
of the Contracts issued or to be issued by the Company. The
terminating party shall give prompt notice to the other parties of its
decision to terminate; or
(d) termination by the Company by written notice to the
Fund and the Distributor with respect to any Portfolio in the event
that such Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code or under any successor or
similar provision, or if the Company reasonably believes that the
Fund may fail to so qualify; or
(e) termination by the Company by written notice to the
Fund and the Distributor with respect to any Portfolio in the event
that such Portfolio fails to meet the diversification requirements
specified in Article VI hereof; or
(f) termination by either the Fund or the Distributor by
written notice to the Company if the Distributor or the Fund shall
determine, in its sole judgment exercised in good faith, that the
Company and/or its affiliated companies has suffered a material
adverse change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity and as a result ability to perform
obligations under this Agreement is materially impaired, provided
that the Fund or the Distributor will give the Company sixty
(60) days' advance written notice of such determination of its intent
to terminate this Agreement, and provided further that after
consideration of the actions taken by the Company and any other
changes in circumstances since the giving of such notice, the
determination of the Fund or the Distributor shall continue to apply
on the 60th day since giving of such notice, then such 60th day shall
be the effective date of termination; or
(g) termination by the Company by written notice to the
Fund and the Distributor, if the Company shall determine, in its sole
judgment exercised in good faith, that either the Fund or the
Distributor (with respect to the appropriate Portfolio) has suffered
a material adverse change in its business, operations, financial
condition or prospects since the date of this Agreement or is the
subject of material adverse publicity; provided that the Fund or the
Distributor will give the Company sixty (60) days' advance written
notice of such determination of its intent to terminate this
Agreement, and provided further that after consideration of the
actions taken by the Company and any other changes in circumstances
since the giving of such notice, the determination of the Company
shall continue to apply on the 60th day since giving of such notice,
then such 60th day shall be the effective date of termination; or
(h) termination by the Company in the event that formal
administrative proceedings are instituted against the Fund or
Distributor by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body in respect of the sale of
shares of the Fund to the Company, provided, however, that the Company
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 or the Distributor to perform its obligations
under this Agreement; or
(i) termination by the Fund or the Distributor by written
notice to the Company, if the Company gives the Fund and the
Distributor the written notice specified in Section 1.6 hereof and at
the time such notice was given there was no notice of termination
outstanding under any other provision of this Agreement; provided,
however any termination under this Section 10.1(h) shall be effective
sixty (60) days after the notice specified in Section 1.6 was given;
or
(j) termination by any party upon the other party's breach
of any representation in Section 2 or any material provision of this
Agreement, which breach has not been cured to the satisfaction of the
terminating party within ten (10) days after written notice of such
breach is delivered to the Fund or the Company, as the case may be;
or
(k) termination by the Fund or the Distributor by written
notice to the Company in the event an Account or Contract is not
registered or sold in accordance with applicable federal or state law
or regulation, or the Company fails to provide pass-through voting
privileges as specified in Section 3.4; provided that the Fund or the
Distributor will give the Company sixty (60) days' advance written
notice of such intent.
10.2. Effect of Termination. Notwithstanding any termination of this
Agreement, the Fund shall 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")
unless such further sale of Fund shares is proscribed by law, regulation or
applicable regulatory body, or unless the Fund determines that liquidation of
the Fund following termination of this Agreement is in the best interests of
the Fund and its shareholders. Specifically, without limitation, the owners
of the Existing Contracts shall be permitted to direct reallocation of
investments in the Fund, redemption of investments in the Fund and/or
investment in the Fund upon the making of additional purchase payments under
the Existing Contracts. The parties agree that this Section 10.2 shall not
apply to any terminations under Article VII and the effect of such Article
VII terminations shall be governed by Article VII of this Agreement.
10.3. The Company shall not redeem Fund shares attributable to the
Contracts (as distinct from Fund shares attributable to the Company's assets
held in the Account) except (i) as necessary to implement Contract Owner
initiated or approved transactions, or (ii) as required by state and/or
federal laws or regulations or judicial or other legal precedent of general
application (hereinafter referred to as a "Legally Required Redemption") or
(iii) as permitted by an order of the SEC pursuant to Section 26(b) of the
1940 Act. Upon request, the Company will promptly furnish to the Fund the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund and the Distributor) to the effect that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Contracts,
the Company shall not prevent Contract Owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first
giving the Fund or the appropriate Distributor 90 days prior written notice of
its intention to do so.
10.4. Notwithstanding any termination of this Agreement pursuant to
Article X hereof, all rights and obligations arising under Article VIII of
this Agreement shall survive.
..
ARTICLE XI. 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 party.
If to the Fund:
Royce Capital Fund
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
If to the Distributor:
Royce Fund Services, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
If to the Company:
Symetra Life Insurance Company
000 000xx Xxx XX, Xxxxx 0000
Legal SC-11
Attn: Legal Counsel
Xxxxxxxx, XX 00000
ARTICLE XII. Foreign Tax Credits
The Fund and the Distributor agree to consult with the Company
concerning whether any Portfolio of the Fund qualifies to provide a foreign
tax credit pursuant to Section 853 of the Code.
ARTICLE XIII. Information Sharing
13.1. Company agrees to provide to Distributor or its designee, upon
written request, the taxpayer identification number ("TIN"), if known, of any
or all shareholders of the Fund. Company also agrees to provide the number of
shares, dollar value, date, name or other identifier (including broker
identification number) of any investment professional(s) associated with the
shareholder or account (if known), and transaction type (purchase, redemption,
transfer or exchange) of every purchase, redemption, transfer, or exchange of
Shares held through an account maintained by Company during the period covered
by the request. Requests must set forth a specific period, generally not to
exceed 90 days from the date of the request, for which transaction information
is sought. Distributor or its designee may request transaction information
older than 90 days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose
of eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
Company agrees to transmit the requested information that is on its
books and records to Distributor or its designee promptly, but in any event
not later than five (5) business days, or as otherwise agreed to by the
parties, after receipt of a request. If the requested information is not on
the Company's books and records, Company agrees to (i) provide or arrange to
provide to the Fund the requested information pertaining to shareholders who
hold accounts with an indirect intermediary; or (ii) if directed by
Distributor, block further purchases of Shares from such indirect intermediary.
In such instance, Company agrees to inform Distributor whether it plans to
perform (i) or (ii). Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the parties.
To the extent practicable, the format for any transaction information provided
to Royce should be consistent with the NSCC Standardized Data Reporting Format.
For purposes of this provision, an "indirect intermediary" has the same
meaning as in SEC Rule 22c-2 under the 0000 Xxx.
13.2. Distributor agrees not to use the information received for
marketing or any other similar purpose without the prior written consent of
Company.
13.3. Company agrees to execute written instructions from Distributor
to restrict or prohibit further purchases (including shares acquired by
exchanges) of Shares by a shareholder that has been identified by Distributor
or its designee as having engaged in transactions in the Shares (directly or
indirectly through the Company's account) that violates policies established
by the Fund.
13.4. Instructions must include the TIN, if known, and the specific
restriction(s) to be executed. If the TIN is not known, the instructions must
include an equivalent identifying number of the shareholder(s) or account(s)
or other agreed upon information to which instruction relates.
13.5. Company agrees to execute instruction as soon as practicable,
but not later than five (5) business days, or as otherwise agreed to by the
parties, after receipt of the instructions by the Company.
13.6. Company must provide written confirmation to Distributor that
instructions have been executed. Company agrees to provide confirmation as
soon as reasonably practicable, but not later than ten (10) business days
after the instructions have been executed.
ARTICLE XIV. Miscellaneous
14.1. 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 Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
14.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize such
names and addresses and other confidential information until such time as it
may come into the public domain without the express written consent of the
affected party.
14.3. 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.
14.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
14.5. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
14.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
the FINRA and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
14.7. 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.
14.8. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Distributor may assign this
Agreement or any rights or obligations hereunder to any affiliate of or
company under common control with the Distributor, if such assignee is duly
licensed and registered to perform the obligations of the Distributor under
this Agreement.
14.9 The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee copies of the following reports:
(a) the Company's annual statement (prepared under
statutory accounting principles) and annual report (prepared under
generally accepted accounting principles ("GAAP"), if any), as soon
as practical and in any event within 90 days after the end of each
fiscal year;
(b) the Company's June 30th quarterly statements
(statutory) (and GAAP, if any), as soon as practical and in any event
within 45 days after the end of each semi-annual period:
(c) any financial statement, proxy statement, notice or
report of the Company sent to stockholders and/or policyholders, as
soon as practical after the delivery thereof to stockholders and/or
policyholders;
(d) any registration statement (without exhibits) and
financial reports of the Company filed with the SEC or any state
insurance regulator, as soon as practical after the filing thereof;
(e) any other public report submitted to the Company by
independent accountants in connection with any annual, interim or
special audit made by them of the books of the Company, as soon as
practical after the receipt thereof.
14.10. The Company hereby acknowledges that the Fund has notified the
Company that it may be appropriate for its separate account prospectuses or
offering memoranda to contain disclosure regarding the potential risks of
mixed and shared funding.
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
hereto as of the date specified above.
_________________________ on behalf of itself and each of its Accounts named
in Schedule B hereto, as amended from time to time.
SYMETRA LIFE INSURANCE COMPANY\
By:_____________________
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
ROYCE FUND SERVICES, INC.
By:______________________________
Name: Xxxx X. Xxxxxxxxx
Title: President
ROYCE CAPITAL FUND
By: _______________________________
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
SCHEDULE A
PORTFOLIOS OF ROYCE CAPITAL FUND
FUNDS AVAILABLE FOR
PURCHASE BY COMPANY
Royce Capital Fund - Micro-Cap Portfolio
Royce Capital Fund - Small-Cap Portfolio
SCHEDULE B
SEPARATE ACCOUNTS AND CONTRACTS
Separate Account
Symetra Separate Account VL (unregistered)
Resource Variable Account B
Contracts
Symetra Variable Corporate Owned Life Insurance
Symetra True Variable Annuity
SCHEDULE C
PROXY VOTING PROCEDURES
The following is a list of procedures and corresponding responsibilities for
the handling of proxies and voting instructions relating to the Fund. The
defined terms herein shall have the meanings assigned in the Participation
Agreement except that the term "Company" shall also include the department or
third party assigned by the Company to perform the steps delineated below.
1. The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting
to enable the Company to consider and prepare for the solicitation of
voting instructions from owners of the Contracts and to facilitate the
establishment of tabulation procedures. At this time the Fund will
inform the Company of the Record, Mailing and Meeting dates. This
will be done verbally approximately two months before meeting.
2. Promptly after the Record Date, the Company will perform a "tape run",
or other activity, which will generate the names, addresses and number
of units which are attributed to each contract owner/policyholder
(the "Customer") as of the Record Date. Allowance should be made for
account adjustments made after this date that could affect the status
of the Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to
call in the number of Customers to the Fund , as soon as possible, but
no later than two weeks after the Record Date.
3. The text and format for the Voting Instruction Cards ("Cards" or
"Card") is provided to the Company by the Fund. The Company, at its
expense, shall produce and personalize the Voting Instruction Cards.
The Fund or its affiliate must approve the Card before it is printed.
Allow approximately 2-4 business days for printing information on the
Cards. Information commonly found on the Cards includes:
a. name (legal name as found on account registration)
b. address
c. fund or account number
d. coding to state number of units
e. individual Card number for use in tracking and verification
of votes (already on Cards as printed by the Fund).
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
4. During this time, the Fund will develop, produce and pay for the
Notice of Proxy and the Proxy Statement (one document). Printed and
folded notices and statements will be sent to Company for insertion
into envelopes (envelopes and return envelopes are provided and paid
for by the Company). Contents of envelope sent to Customers by the
Company will include:
a. Voting Instruction Card(s)
b. One proxy notice and statement (one document)
c. return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
d. "urge buckslip" - optional, but recommended. (This is a
small, single sheet of paper that requests Customers to vote
as quickly as possible and that their vote is important. One
copy will be supplied by the Fund.)
e. cover letter - optional, supplied by Company and reviewed and
approved in advance by the Fund.
5. The above contents should be received by the Company approximately
3-5 business days before mail date. Individual in charge at Company
reviews and approves the contents of the mailing package to ensure
correctness and completeness. Copy of this approval sent to the Fund.
6. Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the
Company as the shareowner. (A 5-week period is recommended.)
Solicitation time is calculated as calendar days from (but not
including,) the meeting, counting backwards.
7. Collection and tabulation of Cards begins. Tabulation usually takes
place in another department or another vendor depending on process
used. An often used procedure is to sort Cards on arrival by proposal
into vote categories of all yes, no, or mixed replies, and to begin
data entry.
Note: Postmarks are not generally needed. A need for postmark information
would be due to an insurance company's internal procedure and has not been
required by the Fund in the past.
8. Signatures on Card checked against legal name on account registration
which was printed on the Card.
Note: For example, if the account registration is under "Xxxx X.
Xxxxx, Trustee," then that is the exact legal name to be printed on
the Card and is the signature needed on the Card.
9. If Cards are mutilated, or for any reason are illegible or are not
signed properly, they are sent back to Customer with an explanatory
letter and a new Card and return envelope. The mutilated or illegible
Card is disregarded and considered to be not received for purposes of
vote tabulation. Any Cards that have been "kicked out" (e.g.
mutilated, illegible) of the procedure are "hand verified," i.e.,
examined as to why they did not complete the system. Any questions on
those Cards are usually remedied individually.
10. There are various control procedures used to ensure proper tabulation
of votes and accuracy of that tabulation. The most prevalent is to
sort the Cards as they first arrive into categories depending upon
their vote; an estimate of how the vote is progressing may then be
calculated. If the initial estimates and the actual vote do not
coincide, then an internal audit of that vote should occur. This
may entail a recount.
11. The actual tabulation of votes is done in units which is then
converted to shares. (It is very important that the Fund receives the
tabulations stated in terms of a percentage and the number of
shares.) The Fund must review and approve tabulation format.
12. Final tabulation in shares is verbally given by the Company to the
Fund on the morning of the meeting not later than 10:00 a.m. Eastern
time. The Fund may request an earlier deadline if reasonable and if
required to calculate the vote in time for the meeting.
13. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final
vote. The Fund will provide a standard form for each Certification.
14. The Company will be required to box and archive the Cards received
from the Customers. In the event that any vote is challenged or if
otherwise necessary for legal, regulatory, or accounting purposes,
the Fund will be permitted reasonable access to such Cards.
15. All approvals and "signing-off' may be done orally, but must always
be followed up in writing.
L:\COMMON\ktroise\Agreements\Royce.Symetra 2.6.11.doc
