BUY-SELL AGREEMENT
THIS AGREEMENT is made on this 26th day of April, 1993 by and
among the Canada Life Insurance Company of America, a Michigan
corporation ("CLICA") on its own behalf and on behalf of its Variable
Annuity Account 2 (the "Separate Account"), Xxxxxxxx Portfolios, Inc.
(formerly Xxxxxxxx Mutual Benefit Portfolios, Inc.) (the "Fund") and J.
& X. Xxxxxxxx & Co. Incorporated ("JWSI").
WHEREAS, CLICA is a stock life insurance company incorporated
under the laws of the State of Michigan; and
WHEREAS, the Separate Account is registered as a unit
investment trust under the Investment Company Act of 1940 ("1940 Act")
and it is intended that certain variable annuity contracts (the
"Contracts"), a form of which is included herein as Exhibit A, shall be
funded through the Separate Account; and
WHEREAS, the Fund is registered as an open-end diversified
management investment company under the 1940 Act and is currently
authorized to issue six separate series of shares (the "Portfolios") and
to create additional Portfolios in the future; and
WHEREAS, JWSI is registered as an investment adviser under
the Investment Advisers Act of 1940 and is the Fund's investment adviser
pursuant to the terms of agreements between JWSI and the Fund dated
December 29, 1988 and April , 1993 ("Management Agreements"); and
WHEREAS, it is the intention of the parties to this Agreement
that the Fund will serve as the sole funding vehicle for the Separate
Account under the variable accumulation options afforded by the
Contracts;
NOW, THEREFORE, in consideration of the covenants, mutual
promises herein contained and other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties agree as follows:
1. Fund Shares.
A. CLICA agrees that the Fund will be the sole funding vehicle
for the Separate Account. The Fund agrees that, except for shares sold
to JWSI at the Fund's initial capitalization, and to The Mutual Benefit
Life Insurance Company through its Mutual Benefit Variable Contract
Account 9 ("VCA-9") on behalf of existing Mutual Benefit Life contract
owners, the Fund will sell its shares only to the Separate Account or to
other separate accounts of CLICA or any of its affiliates. CLICA and
the Fund agree that at such time that CLICA and Xxxxxxxx Financial
Services, Inc. ("SFSI") are no longer subject to the exclusivity
provisions of the Promotional Agent Distribution Agreement between CLICA
and SFSI dated _____________, 1993, CLICA may purchase shares for the
Separate Account from entities other than the Fund and the Fund may sell
its shares to entities other than the Separate Account, other separate
accounts of CLICA or its affiliates, and VCA-9.
B. The Fund agrees to sell to CLICA, on behalf of the Separate
Account, those shares of the Fund which the Separate Account orders,
executing such orders on a daily basis at the net asset value next
computed after receipt by the Fund or its designee of the order for the
shares of the Fund. For purposes of this Section, CLICA (or its
designated agent) shall be the designee of the Fund for receipt of such
orders from Policy owners and receipt by such designee by 4:00 p.m. New
York time on a Business Day, shall constitute receipt by the Fund;
provided that the Fund receives notice of such order by 9:30 a.m. New
York time on the next following Business Day. "Business Day" shall mean
any day on which the New York Stock Exchange is open for trading.
C. The Fund agrees to make Fund shares available for purchase at
the applicable net asset value per share by CLICA for the Separate
Account on those days on which the Fund calculates its net asset value
pursuant to rules of the Securities and Exchange Commission and the Fund
shall use reasonable efforts to calculate such net asset value on each
day which the New York Stock Exchange is open for trading.
Notwithstanding the foregoing, the parties to this Agreement recognize
that the Board of Directors of the Fund (hereinafter the "Directors")
may refuse to sell shares of any Portfolio to the Separate Account, 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 Directors 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. The Separate Account shall pay for the
Fund shares on the next Business Day after an order to purchase shares
is made in accordance with the provisions of this Section. Payment
shall be in federal funds transmitted by wire to the Fund's designated
custodian or by a credit for any shares redeemed.
D. The Fund agrees to redeem for cash, on CLICA's request, any
full or fractional shares of the Fund held by CLICA, 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, CLICA (or its designated agent) shall be the
designee of the Fund for receipt of requests for redemption from Policy
owners and receipt by such designee by 4:00 p.m. New York time on a
Business Day, shall constitute receipt by the Fund, provided that the
Fund receives notice of such request for redemption by 9:30 a.m. New
York time on the next following Business Day. The Fund ordinarily shall
make payment to CLICA for shares on the next business day after the Fund
receives notice from CLICA. Payment shall be in federal funds
transmitted by wire or by a debit against any shares purchased.
E. Transfer of Portfolio shares will be by book entry. No stock
certificates will be issued to the Separate Account unless the Separate
Account so requests. Shares of each Portfolio will be recorded in an
appropriate title for the corresponding Sub- account on the books of
CLICA. If, however, state law requires transfer other than by book
entry, then the Fund agrees to provide the required form of transfer.
F. The Fund shall make the net asset value per share for each
Portfolio available to CLICA on a daily basis as soon as reasonably
practicable after the net asset value per share is calculated. The Fund
will instruct its recordkeeper to use all reasonable efforts to make
such net asset value per share available by 5:30 p.m. New York time, but
in no event later than 6 p.m. New York time. Notwithstanding the
foregoing, the parties to this Agreement recognize that the Fund is
ultimately responsible for the pricing of its own shares.
G. The Fund shall furnish notice on the ex-dividend date to
CLICA of any dividend or distribution payable on any shares underlying
Sub-accounts. All of such dividends and distributions as are payable on
shares of a Portfolio recorded in the title for the corresponding
Sub-account shall be automatically reinvested in additional shares of
that Portfolio at the net asset value computed on its dividend or
distribution payable date. The Fund shall notify CLICA of the number of
shares so issued.
2. Representations and Warranties of the Fund. The Fund
and JWSI hereby represent and warrant that:
A. The Fund is duly incorporated and in good standing under the
laws of the State of Maryland;
B. The Fund is duly registered under the 1940 Act as an open-end
diversified management investment company;
C. All actions necessary to authorize the execution, delivery
and performance of this Agreement and all transactions contemplated
hereunder have been taken or will be taken prior to any sale hereunder;
D. A Registration Statement on Form N-1A relating to the Fund,
including a Prospectus and statement of additional information, has been
prepared and filed with the SEC in accordance with applicable provisions
of the Securities Act of 1933 ("1933 Act") and the 1940 Act, and is
effective;
E. The Registration Statement does not include any untrue
statements of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
F. The Fund will use its best efforts to ensure that the
Registration Statement continues to conform in all material respects to
the requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the SEC thereunder and its best efforts to ensure that at
no time will the Registration Statement include an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
G. The Fund will promptly furnish CLICA with copies of the
Fund's Registration Statement, all amendments and exhibits thereto, each
definitive Prospectus, each Prospectus supplement, and each periodic
report under the 1940 Act, as filed with the SEC;
H. The Fund will promptly advise CLICA of any proposed amendment
to the Registration Statement or supplement to the Prospectus and shall
provide CLICA with a copy of such proposed amendment or supplement in
advance of the filing with the SEC of such amendment or supplement to
permit CLICA's review of such amendment or supplement, unless legal or
regulatory requirements would make such review impractical;
I. The Fund and JWSI represent that each Portfolio except for
the Xxxxxxxx Xxxxxxxxx Global Portfolio, which expects to be, is
currently qualified as a Regulated Investment Company under Subchapter M
of the Internal Revenue Code of 1986, as amended ("Code"), that they
will use reasonable effort to maintain such qualification (under
Subchapter M or any successor or similar provision), and that they will
notify CLICA immediately upon having a reasonable basis for believing
that a Portfolio has ceased to so qualify or that it might not so
qualify in the future, and that it provide to CLICA not later than 14
days following the end of each calendar quarter, a report showing each
Portfolio's continued qualification;
J. The Fund and JWSI represent that each Portfolio except for
the Xxxxxxxx Xxxxxxxxx Global Portfolio, which expects to be, is
currently in compliance with the provisions of Section 817(h) of the
Code and regulations thereunder concerning diversification of the assets
of the Portfolios of the Fund, and that they will use reasonable effort
to maintain such compliance (under Section 817(h) or any successor or
similar provision), provided that CLICA will promptly advise the Fund of
any changes in such provisions after the date of this Agreement, and
that it will provide to CLICA, not later than 14 days following the end
of each calendar quarter, a report showing each Portfolio's continued
compliance;
K. The Fund will as directed in writing by CLICA make every
effort to comply with the requirements of the State of Michigan
concerning permissible investments for the Separate Account;
L. The Fund shall pay all its expenses incidental to its
performance under this Agreement. The Fund shall see to it that its
shares are continuously registered and authorized for issue in
accordance with any applicable federal and state laws for so long as
this Agreement is in effect, and for so long as CLICA may purchase
shares of the Fund. Without limiting the generality of the foregoing,
the Fund shall bear any expenses in connection with the cost of
maintaining registration of Fund shares and a current registration
statement, proxy materials, any solicitation of Fund proxies, the
preparation of all statements and notices required by any federal or
state law, and taxes imposed upon the Fund on the issue or transfer of
the Fund's shares subject to this Agreement, to the extent such expenses
are incurred. The parties shall cooperate in the printing of the
prospectuses of the Fund and of any disclosure documents related to the
Contracts; however, the cost of printing prospectuses shall not be borne
by the Fund; and
M. The Fund and JWSI represent and warrant that each of the
Fund's officers and employees that is a "covered person" as defined in
Rule 17g-1 under the 1940 Act shall at all times be covered by a blanket
fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than the amount of coverage required by Section 17(g) of
the 1940 Act and Rule 17g-1 thereunder. The aforesaid bond shall cover
larceny and embezzlement and shall be issued by a reputable fidelity
insurance company.
3. Representations and Warranties of JWSI. JWSI represents
and warrants that:
A. It will vote Fund shares which it owns in the same proportion
as instructions received from owners of variable contracts backed by the
Fund;
B. It will not vote to elect a Director of the Fund unless the
composition of the Board of Directors of the Fund is in compliance with
the 1940 Act; and
C. JWSI agrees that in connection with the Fund's compliance
with Section 817(h) of the Code and any regulations thereunder,
concerning diversification of the assets of the Portfolios of the Fund,
(i) JWSI will provide CLICA within 14 days of the end of each quarter of
the Fund's fiscal year, a statement of each Portfolio's assets and (ii)
JWSI will provide CLICA with a copy of the procedures that have been
established by JWSI for the purpose of ascertaining and monitoring the
Fund's compliance with the diversification requirements of Section
817(h) and regulations thereunder.
4. Representations and Warranties of CLICA. CLICA
represents and warrants that:
A. All actions necessary to authorize the execution, delivery
and performance of this Agreement and all transactions contemplated
hereunder have been taken;
B. All actions required to authorize investment by the Separate
Account in the Fund have been taken;
C. It will comply with applicable law, including state insurance
law, in connection with its obligations hereunder;
D. It will provide to Contract owners voting privileges with
respect to Fund shares attributable to the variable annuity contracts of
such Contract owners. Pass-through voting privileges will be calculated
with reference to the number of shares of the Fund attributable to a
particular Contract or pursuant to any other method of calculation
recommended by the SEC or its staff. CLICA will vote its own shares and
shares for which no instructions have been received in the same
proportion as instructions received from Contract owners for that
Portfolio;
E. The shares of the Fund qualify as an eligible investment for
the Separate Account; and
F. The Separate Account has been established in accordance with
Section 925 of the Michigan Insurance Code and applicable regulations of
the Michigan Administrative Code.
(i) Section 925 provides that the income, if any, and gains or
losses realized or unrealized on the Separate Account will be
credited to or charged against the amount allocated to the
Separate Account in accordance with the Contracts, without regard
to CLICA's other income, gains or losses.
(ii) Regulation 500.624 of the Michigan Administrative Code
provides that the Separate Account shall not be charged with
liabilities arising out of other separate accounts or out of other
business of CLICA unless the liabilities have a specific and
determinable relation to or dependence upon the Separate Account.
(iii) The Contracts provide that although CLICA owns the assets
in the Separate Account, these assets are held separately from
CLICA's other assets and are not part of CLICA's general account;
and the assets in the Separate Account are used to support the
operation of and provide the variable values and benefits for the
Contracts and similar policies. Further, the Contracts provide
that the portion of the assets of the Separate Account equal to
the reserves and other contract liabilities of the Separate
Account will not be charged with liabilities that arise from any
other business that CLICA conducts. CLICA has the right to
transfer to its general account any assets of the Separate Account
which are in excess of such reserves and other liabilities.
(iv) Based on the foregoing, CLICA believes that the portion of
the assets of the Separate Account equal to the reserves and other
contract liabilities of the Separate Account will not be charged
with liabilities that arise from any other business that CLICA
conducts.
5. Indemnification.
A. The Fund and JWSI will indemnify and hold harmless CLICA and
the Separate Account against any and all losses, claims, damages,
liabilities or expenses (including, without limitation, any expenses
reasonably incurred in investigating or defending against any litigation
commenced or threatened, or any claim) to which CLICA or the Separate
Account may become subject arising out of or based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement or Prospectus relating to the Fund or any
amendment or supplement thereto; (ii) 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; or (iii) any
material breach of any representation and/or warranty made by the Fund
or JWSI in this Agreement or any material breach of this Agreement by
the Fund or JWSI; provided, however, JWSI and the Fund shall not be
liable in any such case under (i) and (ii) above to the extent that any
such loss, claim, damage, liability or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission in the Registration Statement or Prospectus relating to
the Fund made in good faith reliance upon and in conformity with written
information furnished by CLICA or the Separate Account specifically for
use in the preparation thereof.
B. CLICA will indemnify and hold harmless the Fund and JWSI
against any and all losses, claims, damages, liabilities, or expense
(including without limitation, any expense reasonably incurred in
investigating or defending against any litigation commenced or
threatened, or any claim) to which the Fund or JWSI becomes subject
arising out of or based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the registration statement
or prospectus relating to the Contracts or any amendment or supplement
thereto, or (ii) 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; or (iii) any material breach of any
representation and/or warranty made by CLICA in this Agreement or of any
material breach of this Agreement by CLICA; provided, however, that
CLICA shall not be liable in any such case under (i) and (ii) above to
the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in the registration statement
or prospectus relating to the Contracts made in good faith reliance upon
and in conformity with written information furnished by the Fund or JWSI
specifically for use in the preparation thereof; and that CLICA shall
not be liable to the extent that any such loss, claim, damage, liability
or expense arises out of or is based upon the Fund's failure to comply
with the investment policies and restrictions set forth in its
Registration Statement.
C. Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action by a third party,
such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof. The omission so to
notify the indemnifying party shall not relieve it from liability which
it may have to any indemnified party under this Section 5, except to the
extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a
result of the failure to give such notice; however, it shall not relieve
it otherwise. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, to assume the
defense thereof, with counsel satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party
of its election to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation.
6. Term of Agreement. This Agreement shall continue in
full force and effect for a period of five (5) years from the effective
date of this Agreement, unless otherwise agreed upon by the parties to
terminate sooner or if terminated for such reasons as set forth in
Section 7 below. After such 5 year period, it will be deemed extended
thereafter from year to year, subject to termination at will by any
party hereto upon 60 days prior written notice to the other party.
7. Termination. This Agreement shall terminate:
A. At the option of CLICA, upon the institution of formal
proceedings against the Fund, JWSI, or SFSI by the SEC, the National
Association of Securities Dealers, Inc. ("NASD"), any state securities
or insurance department or any other regulatory body provided that CLICA
determines in good faith in its sole judgment, that such institution
will have a material adverse impact upon the Fund or JWSI's ability to
perform its obligations under this Agreement; or
B. At the option of the Fund, upon the institution of formal
proceedings against The Canada Life Assurance Company ("CLA"), CLICA or
Canada Life of America Financial Services, Inc. ("CLAFS") brought by a
Canadian regulatory authority, the SEC, the NASD, or any formal
proceedings involving a material matter brought by any state securities
or state insurance department or any other regulatory body regarding
CLICA or CLAFS provided that the Fund determines in good faith in its
sole judgment that such institution will have a material adverse impact
upon CLA's or CLICA's ability to perform its obligations under this
Agreement; or
C. At the option of the Fund, if there is a material adverse
change in the financial condition of CLA or CLICA; or
D. At the option of the Fund, if there is material adverse
publicity regarding CLA or CLICA; or
E. At the option of CLICA, if the Fund fails to meet the
diversification requirements in Section 817(h) of the Code and the
regulations thereunder; or
F. At the option of CLICA, if there is a material adverse change
in the financial condition of the Fund or JWSI; or
G. At the option of CLICA, if there is material adverse
publicity regarding the Fund or JWSI; or
H. At the option of CLICA, if JWSI hires a sub-adviser for a
Portfolio of the Fund without the prior written consent of CLICA. CLICA
agrees that Xxxxxxxx Xxxxxxxxx Co. shall act as sub-adviser for the
Xxxxxxxx Xxxxxxxxx Global Portfolio of the Fund; or
I. If such action is required by law or by regulatory
authorities having jurisdiction or is, in the discretion of the Board of
Directors of CLICA or the Board of Directors of the Fund acting in good
faith and in light of their fiduciary duties under applicable federal
and state laws, necessary in the best interests of the shareholders of
the Fund or Contract owners;
J. At the option of CLICA or the Fund, upon the termination of
the Management Agreements; or
K. At the option of CLICA or the Fund, if the Promotional Agent
Distribution Agreement terminates.
In the event that JWSI shall cease to serve as the Fund's
investment adviser, the obligations of JWSI hereunder shall terminate,
provided only that any liability for action taken by JWSI in accordance
with its representations, warranties, and obligations hereunder during
the period that JWSI served as investment adviser to the Fund shall
survive such termination.
8. Plan Name. JWSI, CLICA and the Fund agree that the name
"Trillium" and all property rights thereunder, are owned by CLICA which
will enter into a license agreement with SFSI to permit the Name's use.
9. Miscellaneous; Books and Records.
A. The terms and conditions of this Agreement shall be
interpreted and construed in accordance with the provisions of the
federal securities laws and rules and regulations thereunder.
B. The Fund shall immediately notify CLICA of the issuance by
any regulatory body of any stop order with respect to the Fund's
Registration Statement or the initiation of any proceeding relating to
the offer or sale of shares of the Fund in any state or jurisdiction.
C. Each party hereto shall cooperate with each other party and
all appropriate governmental authorities 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.
D. The Fund agrees that all records and other data pertaining to
the Contracts are the exclusive property of CLICA and that any such
records and other data shall be furnished to CLICA by the Fund upon
termination of this Agreement for any reason whatsoever. This shall not
preclude the Fund from keeping copies of such data or records for its
own files to the extent that the Fund is required to keep such records
in order to meet any applicable legal or regulatory requirements. CLICA
shall have the right to inspect, audit and copy all pertinent records
pertaining to the Contracts.
10. Severability and Governing Law. If any provisions of
this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be interpreted in accordance
with the laws of the State of Michigan.
11. Notices. Any notice required under this Agreement shall
deemed to have been given to CLICA and the Separate Account if mailed to
Secretary, Canada Life Insurance Company of America, 0000 Xxxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxxx 00000, and notice given to the Fund (Attention:
Treasurer) and JWSI (Attention: General Counsel) if mailed to J. & X.
Xxxxxxxx & Co. Incorporated at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other address furnished to the other party pursuant
hereto.
12. Provision Surviving Termination.
A. Notwithstanding any termination of this Agreement, and
regardless of the cause or reason for such termination, the provisions
of Section 5 of this Agreement (Indemnification) shall survive and be
binding upon JWSI, the Fund, and CLICA for a period of ten years
following such termination.
B. Upon termination of this Agreement, as long as the Fund is in
existence, the Fund shall, so long as Contracts in effect on the
effective date of termination of this Agreement ("Existing Contracts")
remain outstanding, continue to make additional Portfolio shares
available pursuant to the terms of this Agreement for all Existing
Contracts. The Fund agrees to provide CLICA and the Separate Account
with the daily net asset value of each of the Portfolios for as long as
there are Existing Contract owners with Contract values allocated to a
Sub-Account of the Separate Account which invests in such Portfolio.
13. Headings. The descriptive headings of this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
14. Waivers. The waiver by any party of a breach of any
other party of any of the provisions of this Agreement shall not operate
or be deemed as a waiver of any other provision of this Agreement or of
any subsequent breach thereof by any party.
15. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto or separate
counterparts, each complete set of which, when so executed and delivered
by the parties shall constitute one and the same instrument.
16. Entire Agreement; Modifications; Amendments. This
Agreement constitutes the entire agreement between the parties hereto
and may not be modified or amended except as herein noted or in a
written instrument executed by all parties hereto. Notwithstanding the
foregoing, the parties to this Agreement acknowledge that the parties
may execute a letter of intent regarding the resolution of certain
matters in connection with the Fund's obligations under Section 1.F. of
this Agreement.
17. Assignment. No party hereto may assign any of its
rights pursuant to this Agreement without the prior written consent of
the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
Attest: CANADA LIFE INSURANCE COMPANY
OF AMERICA, on its own behalf
and on behalf of its Variable
Annuity Account 2
______________________________ By: _________________________
Secretary
Attest:
______________________________ By: _________________________
Secretary
Attest: XXXXXXXX PORTFOLIOS, INC.
______________________________ By: _________________________
Secretary
Attest: J. & X. XXXXXXXX & CO.
INCORPORATED
______________________________ By: _________________________
Secretary
