EXHIBIT 26(H)(16)
PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of the 1st day of May, 2004 by and
among NATIONAL LIFE INSURANCE COMPANY, (the "Company"), a Vermont life insurance
company, on its own behalf and on behalf of each segregated asset account of the
Company set forth on Schedule A hereto as may be amended from time to time (each
separate account hereinafter referred to as the "Account"), XXXXXXX VARIABLE
SERIES II (the "Fund"), a Massachusetts business trust created under a
Declaration of Trust, as amended, XXXXXXX DISTRIBUTORS, INC. (the
"Underwriter"), a Delaware corporation, and DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC., a Delaware corporation (the "Adviser").
WHEREAS, the Fund engages in business as an open-end
management investment company and is or will be available to act as the
investment vehicle for separate accounts established for variable life insurance
and variable annuity contracts (the "Variable Insurance Products") to be offered
by insurance companies which have entered into participation agreements with the
Fund and Underwriter ("Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into
several series of shares of beneficial interest without par value, and, with
respect to certain series, classes thereof ("Shares"), and additional series of
Shares, and classes thereof, may be established, each such series of Shares
designated a "Portfolio" and representing the interest in a particular managed
portfolio of securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities
and Exchange Commission (the "SEC") granting Participating Insurance Companies
and variable annuity and variable life insurance separate accounts exemptions
from the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended (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 annuity and variable life insurance separate
accounts of both affiliated and unaffiliated life insurance companies (the
"Mixed and Shared Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and Shares of the Portfolios are
registered under the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Adviser, which serves as investment adviser to
the Fund, is duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and any applicable state securities laws;
WHEREAS, the Company has issued or will issue certain variable
life insurance and/or variable annuity contracts supported wholly or partially
by the Account (the "Contracts"), and said Contracts are listed in Schedule A
hereto, as it may be amended from time to time by mutual written agreement;
WHEREAS, the Account is duly established and maintained as a
segregated asset account, established by resolution of the Board of Directors of
the Company, on the date shown for such Account on Schedule A hereto, to set
aside and invest assets attributable to the aforesaid Contracts;
WHEREAS, the Underwriter, which serves as distributor to the
Fund, is registered as a broker dealer with the SEC under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and is a member in good
standing of the National Association of Securities Dealers, Inc. (the "NASD");
and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, the Company intends to purchase shares in the Portfolios, and
classes thereof, listed in Schedule B hereto, as it may be amended from time to
time by mutual written agreement (the "Designated Portfolios") on behalf of the
Account to fund the aforesaid Contracts, and the Underwriter is authorized to
sell such Shares to the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Adviser and the Underwriter agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Fund has granted to the Underwriter exclusive authority to
distribute the Fund's Shares, and has agreed to instruct, and has so instructed,
the Underwriter to make available to the Company for purchase, on behalf of the
Account, Fund Shares of those Designated Portfolios selected by the Underwriter.
Pursuant to such authority and instructions, and subject to Article X hereof,
the Underwriter agrees to make available to the Company for purchase on behalf
of the Account, Shares of those Designated Portfolios listed on Schedule B to
this Agreement, such purchases to be effected at net asset value in accordance
with Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) Fund
series (other than those listed on Schedule B) in existence now or that may be
established in the future will be made available to the Company only as the
Underwriter may so provide, and (ii) the Board of Trustees of the Fund (the
"Board") may refuse to sell shares of any Designated Portfolio to any person, or
suspend or terminate the offering of Fund Shares of any Designated Portfolio or
class thereof, if such action is required by law or by regulatory authorities
having jurisdiction or if, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, suspension or termination is in the best interests of the
shareholders of such Designated Portfolio.
1.2. The Fund shall redeem, at the Company's request, any full or
fractional Designated Portfolio Shares held by the Company on behalf of the
Account, such redemptions to be effected at net asset value in accordance with
Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) the Company
shall not redeem Fund Shares attributable to Contract owners except in the
circumstances permitted in Section 10.3 of this Agreement, and (ii) the Fund may
suspend the right of redemption or postpone the date of payment or satisfaction
upon redemption of Fund Shares of any Designated Portfolio to the extent
permitted by the 1940 Act, any rules, regulations or orders thereunder.
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1.3. PURCHASE AND REDEMPTION PROCEDURES
(a) The Fund hereby appoints the Company as an agent of the
Fund for the limited purpose of receiving purchase and redemption requests on
behalf of the Account (but not with respect to any Fund Shares that may be held
in the general account of the Company) for Shares of those Designated Portfolios
made available hereunder, based on allocations of amounts to the Account or
subaccounts thereof under the Contracts and other transactions relating to the
Contracts or the Account. Receipt of any such request (or relevant transactional
information therefore) on any day the New York Stock Exchange is open for
trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC (a "Business Day") by the Company as such limited agent of the
Fund prior to the time that the Fund calculates its net asset value as described
from time to time in the Fund Prospectus (which as of the date of execution of
this Agreement is 4:00 p.m. Eastern Time) shall constitute receipt by the Fund
on that same Business Day, provided that the Fund receives notice of such
request by 9:30 a.m. Eastern Time on the next following Business Day.
(b) The Company shall pay for Shares of each Designated
Portfolio on the same day that it notifies the Fund of a purchase request for
such Shares. Payment for Designated Portfolio Shares shall be made in federal
funds transmitted to the Fund by wire to be received by the Fund by the end of
the Business Day (normally, 5:00 p.m. Eastern Time) on the day the Fund is
notified of the purchase request for Designated Portfolio Shares (unless the
Fund determines and so advises the Company that sufficient proceeds are
available from redemption of Shares of other Designated Portfolios effected
pursuant to redemption requests tendered by the Company on behalf of the
Account). If federal funds are not received on time, such funds will be
invested, and Designated Portfolio Shares purchased thereby will be issued, as
soon as practicable and the Company shall promptly, upon the Fund's request,
reimburse the Fund for any charges, costs, fees, interest or other expenses
incurred by the Fund in connection with any advances to, or borrowing or
overdrafts by, the Fund, or any similar expenses incurred by the Fund, as a
result of portfolio transactions effected by the Fund based upon such purchase
request. Upon receipt of federal funds so wired, such funds shall cease to be
the responsibility of the Company and shall become the responsibility of the
Fund.
(c) The Fund will redeem Designated Portfolio Shares requested
on behalf of the Account, and make payment therefore, in accordance with the
provisions of the then current registration statement of the Fund. Payment for
Designated Portfolio Shares redeemed by the Account or the Company normally
shall be made in federal funds transmitted by wire to the Company or any other
designated person on the next Business Day after the Fund is properly notified
of the redemption order of such Shares (unless redemption proceeds are to be
applied to the purchase of Shares of other Designated Portfolios in accordance
with Section 1.3(b) of this Agreement). The Fund shall not bear any
responsibility whatsoever for the proper disbursement or crediting of redemption
proceeds by the Company, the Company alone shall be responsible for such action.
(d) Any purchase or redemption request for Designated
Portfolio Shares held or to be held in the Company's general account shall be
effected at the net asset value per share next determined after the Fund's
receipt of such request, provided that, in the case of a purchase request,
payment for Fund Shares so requested is received by the Fund in federal funds
prior to close of business for determination of such value, as defined from time
to time in the Fund Prospectus.
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1.4. The Fund shall use its best efforts to make the net asset value
per share for each Designated Portfolio available to the Company by 6:30 p.m.
Eastern Time each Business Day, and in any event, as soon as reasonably
practicable after the net asset value per share for such Designated Portfolio is
calculated, and shall calculate such net asset value in accordance with the
Fund's Prospectus. Neither the Fund, any Designated Portfolio, the Underwriter,
nor any of their affiliates shall be liable for any information provided to the
Company pursuant to this Agreement which information is based on incorrect
information supplied by the Company or any other Participating Insurance Company
to the Fund or the Underwriter.
1.5. The Fund shall furnish notice (by wire or telephone followed by
written confirmation) to the Company as soon as reasonably practicable of any
income dividends or capital gain distributions payable on any Designated
Portfolio Shares. The Company, on its behalf and on behalf of the Account,
hereby elects to receive all such dividends and distributions as are payable on
any Designated Portfolio Shares in the form of additional Shares of that
Designated Portfolio. The Company reserves the right, on its behalf and on
behalf of the Account, 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 Designated Portfolio Shares so issued as payment of such dividends and
distributions.
1.6. Issuance and transfer of Fund Shares shall be by book entry only.
Stock certificates will not be issued to the Company or the Account. Purchase
and redemption orders for Fund Shares shall be recorded in an appropriate ledger
for the Account or the appropriate subaccount of the Account.
1.7. The parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Fund's Shares may be sold to other
insurance companies (subject to Section 1.8 hereof) and to certain qualified
retirement plans, and the cash value of the Contracts may be invested in other
investment companies. (a)
1.8. The Underwriter and the Fund shall sell Fund Shares only to Participating
Insurance Companies and their separate accounts and to persons or plans
("Qualified Persons") that qualify to purchase Shares of the Fund under Section
817(h) of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder without impairing the ability of the Account to consider
the portfolio investments of the Fund as constituting investments of the Account
for the purpose of satisfying the diversification requirements of Section
817(h). The Underwriter and the Fund shall not sell Fund Shares to any insurance
company or separate account unless an agreement complying with Article VI of
this Agreement is in effect to govern such sales. The Company hereby represents
and warrants that it and the Account are Qualified Persons. The Fund reserves
the right to cease offering Shares of any Designated Portfolio in the discretion
of the Fund.
ARTICLE II . REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts (a) are or,
prior to issuance, will be registered under the 1933 Act or, alternatively (b)
are not registered because they are properly exempt from registration under the
1933 Act or will be offered exclusively in transactions that are properly exempt
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from registration under the 1933 Act. The Company further represents and
warrants that the Contracts will be issued and sold in compliance in all
material respects with all applicable federal securities and state securities
and insurance laws and that the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements. The Company
further represents and warrants that it is an insurance company duly organized
and in good standing under applicable law, that it has legally and validly
established the Account prior to any issuance or sale thereof as a segregated
asset account under applicable insurance laws, and that it (a) has registered
or, prior to any issuance or sale of the Contracts, will register the Account as
a unit investment trust in accordance with the provisions of the 1940 Act to
serve as a segregated investment account for the Contracts, or alternatively (b)
has not registered the Account in proper reliance upon an exclusion from
registration under the 1940 Act. The Company shall register and qualify the
Contracts or interests therein as securities in accordance with the laws of the
various states only if and to the extent deemed advisable by the Company.
2.2. The Fund represents and warrants that Fund Shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance in all material respects with all applicable
federal securities laws and that the Fund is and shall remain registered under
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 the shares of the Designated Portfolios. The
Fund shall register and qualify such Shares for sale in accordance with the laws
of the various states only if and to the extent deemed advisable by the Fund or
the Underwriter after taking into consideration any state insurance law
requirements that the Company advises the Fund may be applicable.
2.3. The provisions of this Section 2.3 apply to Class B Shares. The
Company agrees to provide distribution services ("Distribution Services") for
the Class B Shares of the Designated Portfolios including the following types of
services:
(1) Printing and mailing of Fund prospectuses, statements of
additional information, any supplements thereto and shareholder reports for
prospective Contract owners.
(2) Developing, preparing, printing and mailing of Fund
advertisements, sales literature and other promotional materials describing
and/or relating to the Fund and including materials intended for use within the
Company, or for broker-dealer only use or retail use.
(3) Holding seminars and sales meetings designed to promote
the distribution of Fund Shares.
(4) Obtaining information and providing explanations to
Contract owners regarding Fund investment objectives and policies and other
information about the Fund and its Portfolios, including the performance of the
Portfolios.
(5) Training sales personnel regarding the Fund.
(6) Compensating sales personnel and financial services firms
in connection with the allocation of cash values and premiums of the Contracts
to the Fund.
(7) Personal service with respect to Fund Shares attributable
to Contract accounts.
In consideration of the Company performing the Distribution Services, the
Underwriter will make quarterly payments to the Company pursuant to the Fund's
Master Distribution Plan for Class B Shares, as amended from time to time, at
the annual rate of 0.25 of 1% of the average daily net asset value of the Class
B shares of each Designated Portfolio held by the Company pursuant to this
Agreement.
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The Company shall perform all record keeping services (the
"Record Keeping Services") with respect to the Contracts, including, without
limitation, the following:
(a) Maintaining separate records for each Contract owner,
which shall reflect the Designated Portfolio shares purchased and redeemed and
Designated Portfolio share balances of such Contract owners. The Company will
maintain omnibus accounts with each Designated Portfolio on behalf of Contract
owners, and such accounts shall be in the name of the Company (or its nominee)
as the record owner of shares owned by such Contract owners.
(b) Disbursing or crediting to Contract owners all proceeds of
redemptions of shares of the Designated Portfolios and processing all dividends
and other distributions reinvested in shares of the Designated Portfolios.
(c) Preparing and transmitting to Contract owners , as
required by law, periodic statements showing the total number of shares owned,
purchases and redemptions of Designated Portfolio shares and dividends and other
distributions paid, and such other information as may be required, from time to
time, by Contract owners.
(d) Maintaining and preserving all records required by law to
be maintained and preserved in connection with providing the foregoing services
for Contract owners.
(e) Generating written confirmations to Contract owners, to
the extent required by law.
(f) Administering the distribution to existing Contract owners
of Fund prospectuses, proxy materials, periodic reports to shareholders and
other materials that the Designated Portfolios provide to their shareholders (
the printing and distribution expense to be borne as set forth on Schedule C).
(g) Aggregating and transmitting purchase and redemption
orders to the Designated Portfolios on behalf of the Contract owners.
In consideration of the Company performing the Record Keeping Services,
the Fund agrees to pay the Company, quarterly, a record keeping fee at the
annual rate of 0.15 of 1% of the average daily net assets of the Class B Shares
of each Designated Portfolio held by the Company pursuant to this Agreement. The
Company represents and agrees that no charge imposed by it on Contract owners is
specifically intended or designed to compensate the Company for the Record
Keeping Services.
2.4. The Fund makes no representations as to whether any aspect of its
operations, including, but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states, except that the Fund represents that the investment policies, fees and
expenses of the Designated Portfolios, are and shall at all times remain in
compliance with the insurance laws of the state of organization of the Company
set forth on the first page (the "State") to the extent required to perform this
Agreement. The Company will advise the Fund in writing as to any requirements of
State insurance law that affect the Designated Portfolios, and the Fund will be
deemed to be in compliance with this Section 2.4 so long as the Fund complies
with such advice of the Company.
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2.5. The Fund represents that it is a Massachusetts business trust duly
organized and validly existing under the laws of the Commonwealth of
Massachusetts and that the Designated Portfolios do and will comply in all
material respects with all applicable provisions of the 1940 Act.
2.6. The Underwriter represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the shares of
the Designated Portfolios in accordance with any applicable state and federal
securities laws.
2.7. The Adviser represents and warrants that it is and shall remain
duly registered as an investment adviser under all applicable federal and state
securities laws and that it shall perform its obligations for the Fund in
compliance in all material respects with any applicable state and federal
securities laws.
2.8. The Fund, the Adviser and the Underwriter represent and warrant
that all of their trustees, directors, officers, employees, investment advisers,
and other individuals or entities dealing with the money and/or securities of
the Fund are and shall continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund in an amount not less than
the minimum coverage as required currently by Rule 17g-1 of the 1940 Act or such
related provisions as may be promulgated from time to time. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
2.9. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals or entities
employed or controlled by the Company dealing with the money and/or securities
of the Account are covered by a blanket fidelity bond or similar coverage for
the benefit of the Account, in an amount not less than $15 million. The
aforesaid bond includes coverage for larceny and embezzlement and is issued by a
reputable bonding company. The Company agrees to hold for the benefit of the
Fund and to pay to the Fund any amounts lost from larceny, embezzlement or other
events covered by the aforesaid bond to the extent such amounts properly belong
to the Fund pursuant to the terms of this Agreement. 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 and the
Underwriter in the event that such coverage no longer applies.
2.10. The Company represents and warrants that all shares of the
Designated Portfolios purchased by the Company will be purchased on behalf of
one or more unmanaged separate accounts that offer interests therein that are
registered under the 1933 Act and upon which a registration fee has been or will
be paid or that are unregistered because the interests are exempt from
registration under the 1933 Act, and the Company acknowledges that the Fund
intends to rely upon this representation and warranty for purposes of
calculating SEC registration fees payable with respect to such Shares of the
Designated Portfolios pursuant to Form 24F-2 or any similar form or SEC
registration fee calculation procedure that allows the Fund to exclude Shares so
sold for purposes of calculating its SEC registration fee. The Company will
certify the amount of any Shares of the Designated Portfolios purchased by the
Company on behalf of any separate account offering interests not subject to
registration under the 1933 Act. The Company agrees to cooperate with the Fund
on no less than an annual basis to certify as to its continuing compliance with
this representation and warranty.
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2.11. The Company represents and warrants as follows:
1. The Company has in place an anti-money laundering program
("AML program") that does now and will continue to comply with applicable laws
and regulations, including the relevant provisions of the USA PATRIOT Act (Pub.
L. No. 107-56 (2001)) and the regulations issued thereunder by the U.S. Treasury
Department and the rules of the National Association of Securities Dealers,
Inc., as applicable.
2. The Company has in place - and has conducted due diligence
pursuant to - policies, procedures and internal controls reasonably designed (a)
to verify the identity of the Contract owners that invest in the Account, and
(b) to identify those Contract owners' sources of funds, and have no reason to
believe that any of the invested funds were derived from illegal activities.
3. The Company has, after undertaking reasonable inquiry, no
information or knowledge that (a) any Contract owner that invests in the
Account, or (b) any person or entity controlling, controlled by or under common
control with such Contract owner is an individual or entity or in a country or
territory that is on an Office of Foreign Assets Control ("OFAC") list or
similar list of sanctioned or prohibited persons maintained by a U.S.
governmental or regulatory body.
The Company further agrees promptly to notify the Fund and the Underwriter
should it become aware of any change in the above representations and
warranties.
The Company agrees to require any broker-dealer/insurance agency that
distributes the Contracts to have an AML Program in substantial compliance with
the foregoing.
In addition, the Underwriter and the Fund hereby provide notice to the Company
that the Underwriter and/or the Fund reserve the right to make inquiries of and
request additional information from the Company regarding its AML program.
ARTICLE III . PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Underwriter shall provide the Company with as many copies of
the Fund's current prospectus (describing only the Designated Portfolios listed
on Schedule B) as the Company may reasonably request. If requested by the
Company in lieu thereof, the Fund shall provide such documentation (including a
final copy of the new prospectus on computer diskette or other electronic means
at the Fund's expense) and other assistance as is reasonably necessary in order
for the Company once each year (or more frequently if the prospectus for a
Designated Portfolio is amended) to have the prospectus for the Contracts and
the prospectus for the Designated Portfolios printed together in one document.
Expenses with respect to the foregoing shall be borne as provided under Article
V.
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3.2. The Fund's prospectus shall state that the current Statement of
Additional Information ("SAI") for the Fund is available from the Company (or in
the Fund's discretion, from the Fund), and the Fund shall provide a copy of such
SAI to any owner of a Contract who requests such SAI and to the Company in such
quantities as the Company may reasonably request. Expenses with respect to the
foregoing shall be borne as provided under Article V.
3.3. The Fund shall provide the Company with copies of its proxy
material, reports to shareholders, and other communications to shareholders of
the Designated Portfolios in such quantity as the Company shall reasonably
require for distributing to Contract owners. Expenses with respect to the
foregoing shall be borne as provided under Article V.
3.4. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the shares of each Designated Portfolio in
accordance with instructions received from Contract owners; and
(iii) vote shares of each Designated Portfolio for which no
instructions have been received in the same proportion as fund shares of such
Designated 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 or to the extent
otherwise required by law. The Company reserves the right to vote shares of each
Designated Portfolio held in any segregated asset account in its own right, to
the extent permitted by law.
3.5. The Fund reserves the right, upon prior written notice to the
Company (given at the earliest practicable time), to take all actions, including
but not limited to, the dissolution, termination, merger and sale of all assets
of the Fund or any Designated Portfolio upon the sole authorization of the
Board, to the extent permitted by the laws of the Commonwealth of Massachusetts
and the 1940 Act.
3.6. Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in a Designated
Portfolio calculates voting privileges as required by the Mixed and Shared
Funding Exemptive Order and consistent with any reasonable standards that the
Fund may adopt and provide in writing.
3.7. It is understood and agreed that, except with respect to
information regarding the Fund, the Underwriter, the Adviser or Designated
Portfolios provided in writing by the Fund, the Underwriter or the Adviser, none
of the Fund, the Underwriter or the Adviser is responsible for the content of
the prospectus or statement of additional information for the Contracts.
3.8. The Company shall comply with any applicable privacy and notice
provisions of 15 U.S.C. xx.xx. 6801-6827 and any applicable regulations
promulgated thereunder (including but not limited to 17 C.F.R. Part 248) as they
may be amended.
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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 that the Company develops or uses and in which the Fund (or a
Designated Portfolio thereof) or the Adviser or the Underwriter is named. No
such material shall be used until approved by the Fund or its designee, and the
Fund will use its best efforts for it or its designee to review such sales
literature or promotional material within ten Business Days after receipt of
such material. The Fund or its designee reserves the right to reasonably object
to the continued use of any such sales literature or other promotional material
in which the Fund (or a Designated Portfolio thereof) or the Adviser or the
Underwriter is named, and no such material shall be used if the Fund or its
designee so objects.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus or SAI for
the Fund Shares, as such registration statement and prospectus or SAI 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 or by the Underwriter, except with the permission of the
Fund or the Underwriter or the designee of either.
4.3. The Fund and the Underwriter, or their designee, shall furnish, or
shall cause to be, furnished, to the Company, each piece of sales literature or
other promotional material that it develops or uses and in which the Company,
and/or its Account, is named. No such material shall be used until approved by
the Company, and the Company will use its best efforts to review such sales
literature or promotional material within ten Business Days after receipt of
such material. The Company reserves the right to reasonably object to the
continued use of any such sales literature or other promotional material in
which the Company and/or its Account is named, and no such material shall be
used if the Company so objects.
4.4. The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company, the
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), or SAI for the Contracts, as
such registration statement, prospectus, or SAI may be amended or supplemented
from time to time, or in published reports for the Account which are in the
public domain or approved by the Company for distribution to Contract owners, or
in sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of
all registration statements, prospectuses, SAIs, 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(s) with the SEC or other regulatory authorities.
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4.6. The Company will provide to the Fund at least one complete copy of
all registration statements, prospectuses (which shall include an offering
memorandum, if any, if the Contracts issued by the Company or interests therein
are not registered under the 1933 Act), SAIs, reports, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions or substitutions, requests for no-action letters, and all amendments
to any of the above, that relate to the Contracts or the Account,
contemporaneously with the filing of such document(s) with the SEC or other
regulatory authorities. The Company shall provide to the Fund and the
Underwriter any complaints received from the Contract owners pertaining to the
Fund or the Designated Portfolio.
4.7. The Fund will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Designated Portfolio,
and of any material change in the Fund's registration statement, particularly
any change resulting in a change to the registration statement or prospectus for
any Account. The Fund will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or
registration statement, in an orderly manner. The Fund will make reasonable
efforts to attempt to have changes affecting Contract prospectuses become
effective simultaneously with the annual updates for such prospectuses.
4.8. For purposes of this Article IV, the phrase "sales literature and
other promotional materials" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, internet website (or other electronic
media), 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, 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, SAIs, shareholder reports,
proxy materials, and any other communications distributed or made generally
available with regard to the Fund.
ARTICLE V . FEES AND EXPENSES
5.1. Except as specifically provided in Section 2.3 of this Agreement,
the Fund, the Adviser and the Underwriter shall pay no fee or other compensation
to the Company under this Agreement, although the parties hereto will bear
certain expenses in accordance with Schedule C and other provisions of this
Agreement.
5.2. All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund, except and as further provided in Schedule
C. The cost of setting the Fund's prospectus in type, setting in type and
printing the Fund's proxy materials and reports to shareholders (including the
costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices relating to the Fund required by any
federal or state law, and all taxes on the issuance or transfer of the Fund's
Shares shall be borne by the parties hereto as set forth in Schedule C.
5.3. The expenses of distributing the Fund's prospectus to new and
existing owners of Contracts issued by the Company and of distributing the
Fund's proxy materials and reports to Contract owners shall be borne by the
parties hereto as set forth in Schedule C.
-11-
5.4 The Company will develop, implement and maintain policies and
procedures reasonably designed to prevent the use of the Accounts by persons
engaged in market timing, short-term trading or excessive trading, which
policies and procedures shall be reasonably acceptable to the Fund, the Adviser
and the Underwriter. If the Company proposes to modify such policies and
procedures following their implementation, the Company will first discuss its
proposal with the Fund, the Adviser and the Underwriter and will not materially
modify such policies and procedures without the written consent of the Fund, the
Adviser and the Underwriter.
In addition to the foregoing, the Company will develop, implement and
maintain procedures as necessary or appropriate to further any specific policies
and procedures of the Fund, the Adviser or the Underwriter for one or more
Designated Portfolios in regard to market timing, short-term trading or
excessive trading.
The Company represents and warrants that it has reserved sufficient
flexibility in the Contracts to impose such limitations and restrictions on
transfers and purchases of the underlying investments for the Contracts,
including specifically the Designated Portfolios, as may be necessary to
implement the policies and procedures referred in this Section 5.4.
If, notwithstanding the foregoing, the Fund, the Adviser or the
Underwriter notifies the Company that a pattern or patterns of transactions
involving market timing, short-term trading or excessive trading in one or more
Accounts is having or may have, in their sole discretion, an adverse effect on a
Designated Portfolio, the Company will promptly take such actions and implement
such procedures as are appropriate to prevent such trading. The parties hereto
acknowledge that, if necessary, such actions and procedures may include the
identification of Account participants engaged in such trading and the
imposition of complete or partial restrictions on their requests to purchase
shares of the Designated Portfolio.
The Company acknowledges that all orders accepted by the Company for
the Accounts are subject to the obligations of the Company in this Section 5.4,
including the obligation to prevent the use of the Accounts for market timing,
short-term trading or excessive trading, and that the Fund, the Adviser or the
Underwriter may take such actions as it deems to be in the best interests of
shareholders of the Designated Portfolios to enforce such obligations and to
otherwise prevent such trading in shares of the Designated Portfolios,
including, among other things, the right to revoke, reject or cancel purchase
orders for shares of the Designated Portfolios made by the Company. Any such
revocation, rejection or cancellation may be made in whole or in part, it being
understood that the Fund, the Adviser and the Underwriter are not required to
isolate objectionable trades.
The Fund, the Adviser and the Underwriter shall not be responsible for
any losses or costs incurred by the Company, the Account or Account participants
as a result of the revocation, rejection or cancellation orders made by the
Company in furtherance of the enforcement of their policy to prevent market
timing, short-term trading and excessive trading in shares of the Designated
Portfolios.
5.5 The Company agrees that the Fund, the Underwriter and the Adviser
shall bear no responsibility for any act of any unaffiliated fund or the
investment adviser or underwriter thereof.
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ARTICLE VI . DIVERSIFICATION AND QUALIFICATION
6.1. The Fund will invest the assets of each Designated Portfolio in
such a manner as to ensure that the Contracts will be treated as annuity or life
insurance contracts, whichever is appropriate, under the Code and the
regulations issued thereunder (or any successor provisions). Without limiting
the scope of the foregoing, the Fund will, with respect to each Designated
Portfolio, comply with Section 817(h) of the Code and Treasury Regulation
ss.1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, and any amendments or other modifications or successor provisions to
such Section or Regulations. In the event of a breach of this Article VI by the
Fund, it will take all reasonable steps (a) to notify the Company of such breach
and (b) to adequately diversify the affected Designated Portfolio so as to
achieve compliance within the grace period afforded by Treasury Regulation
ss.1.817-5.
6.2. The Fund represents that each Designated Portfolio is or will be
qualified as a Regulated Investment Company under Subchapter M of the Code, and
that it will make every effort to maintain such qualification (under Subchapter
M or any successor or similar provisions) and that it will notify the Company
immediately upon having a reasonable basis for believing that a Designated
Portfolio has ceased to so qualify or that it might not so qualify in the
future.
6.3. The Company represents that the Contracts are currently, and at
the time of issuance shall be, treated as life insurance or annuity insurance
contracts, under applicable provisions of the Code, and that it will make every
effort to maintain such treatment, and that it will notify the Fund and the
Underwriter immediately upon having a reasonable basis for believing the
Contracts have ceased to be so treated or that they might not be so treated in
the future. The Company agrees that any prospectus offering a contract that is a
"modified endowment contract" as that term is defined in Section 7702A of the
Code (or any successor or similar provision), shall identify such contract as a
modified endowment contract.
ARTICLE VII . POTENTIAL CONFLICTS
7.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict among 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 insurance laws or regulations;
(c) a tax ruling or provision of the Internal Revenue Code or the regulations
thereunder; (d) any other development relating to the tax treatment of insurers,
Contract or policy owners or beneficiaries of variable annuity contracts or
variable life insurance policies; (e) the manner in which the investments of any
Designated Portfolio are being managed; (f) a difference in voting instructions
given by variable annuity contract holders, on the one hand, and variable life
insurance policy owners, on the other hand, or by the contract holders or policy
owners of different Participating Insurance Companies; or (g) a decision by a
Participating Insurance Company to disregard the voting instructions of its
Contract owners. The Board shall promptly inform the Company by written notice
if it determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. The Company and the Adviser will report any potential or existing
conflicts of which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, by providing the Board with all information reasonably
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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. At least annually, and more
frequently if deemed appropriate by the Board, the Company shall submit to the
Adviser, and the Adviser shall at least annually submit to the Board, such
reports, materials and data as the Board may reasonably request so that the
Board may fully carry out the obligations imposed upon it by the conditions
contained in the Mixed and Shared Funding Exemptive Order; and said reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Board. The responsibility to report such information and conflicts to the
Board will be carried out with a view only to the interests of the Contract
owners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested members, 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 Board members), 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 Designated Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Designated 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 contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected contract owners the option of making such a change; and
(2) establishing a new registered management investment company or managed
separate account.
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 any Designated Portfolio and terminate this Agreement with respect
to such Account; 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.
The Company will bear the cost of any remedial action, including such withdrawal
and termination. Any such withdrawal and termination must take place within six
(6) months after the Fund gives written notice that this provision is being
implemented, and until the end of that six month period the Fund shall continue
to accept and implement orders by the Company for the purchase (and redemption)
of shares of such Designated Portfolio.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the Fund and terminate this Agreement with
respect to such Account within six months after the Board informs the Company in
writing that it has determined that such decision has created an irreconcilable
material conflict; provided, however, that such withdrawal and termination shall
be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
Until the end of the foregoing six month period, the Fund shall continue to
accept and implement orders by the Company for the purchase (and redemption) of
shares of such Designated Portfolios.
-14-
7.6. For purposes of Sections 7.3 through 7.6 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 to establish a new
funding medium for the Contract 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. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw an Account's investment in any
Designated Portfolio and terminate this Agreement within six (6) months after
the Board informs the Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
7.7. If and to the extent the Mixed and Shared Funding Exemption Order
or any amendment thereto contains terms and conditions different from Sections
3.4, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement, then the Fund and/or
the Participating Insurance Companies, as appropriate, shall take such steps as
may be necessary to comply with the Mixed and Shared Funding Exemptive Order,
and Sections 3.4, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in the Mixed and Shared Funding
Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2
and Rule 6e-3(T) are amended, or Rule 6e-3 or any similar rule is adopted, to
provide exemptive relief from any provision of the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as defined in
the Mixed and Shared Funding Exemptive Order) on terms and conditions materially
different from those contained in the Mixed and Shared Funding Exemptive Order,
then (a) the Fund and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3 or any similar rule, as adopted, to the extent such
rules are applicable; and (b) Sections 3.4, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of
this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
ARTICLE VIII . INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
(a) The Company agrees to indemnify and hold harmless the
Fund, the Adviser and the Underwriter and each of its trustees, directors,
trustees and officers, and each person, if any, who controls the Fund, the
Adviser or Underwriter within the meaning of Section 15 of the 1933 Act or who
is under common control with the Underwriter (collectively, the "Indemnified
Parties" 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 Shares of the Designated Portfolios or
the Contracts; and:
-15-
(i) arise out of or are based upon any untrue
statement or alleged untrue statements of any material fact contained in the
registration statement, prospectus (which shall include an offering memorandum,
if any), or SAI 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 in writing to the Company by
or on behalf of the Fund for use in the registration statement, prospectus or
SAI 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 are based upon any untrue
statement or alleged untrue statements of any material fact contained in the
registration statement, prospectus (which shall include an offering memorandum,
if any), or SAI covering insurance products sold by the Company or any insurance
company which is an affiliate thereof, or any amendments or supplements thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of the Fund
for use in the registration statement, prospectus or SAI covering insurance
products sold by the Company or any insurance company which is an affiliate
thereof, or any amendments or supplements thereto; or
(iii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus, SAI, or sales literature of the Fund not
supplied by the Company or persons under its control) or wrongful conduct of the
Company or its agents or persons under the Company's authorization or control,
or any affiliate thereof, with respect to the sale or distribution of the
Contracts or Fund Shares; or
(iv) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a registration statement,
prospectus, SAI, 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
information furnished to the Fund by or on behalf of the Company; or
(v) arise out of or are based upon any untrue
statements or alleged untrue statements of any material fact contained in any
registration statement, prospectus, statement of additional information or sales
literature for any fund not affiliated with the Fund ("Unaffiliated Fund"), or
arise out of or are based upon 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 otherwise pertain to or arise in
connection with the availability of any Unaffiliated Fund as an underlying
funding vehicle in respect of the Contracts, or arise out of or are based upon
any act or omission on the part of the investment adviser or underwriter of an
Unaffiliated Fund; or
-16-
(vi) arise as a result of any material failure by the
Company to provide the services and furnish the materials under the terms of
this Agreement (including a failure, whether unintentional or in good faith or
otherwise, to comply with the qualification requirements specified in Article VI
of this Agreement); or
(vii) 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, as limited by and in accordance with the provisions of Sections 8.1(b),
8.1(c) and 8.1(d) hereof.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of its obligations or duties under this Agreement.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability that it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Company
has been materially prejudiced by such failure to give notice. In case any such
action is brought against an Indemnified Party, the Company shall be entitled to
participate, at its own expense, in the defense of such action. The Company also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action and to settle the claim at its own expense;
provided, however, that no such settlement shall, without the Indemnified
Parties' written consent, include any factual stipulation referring to the
Indemnified Parties or their conduct. After notice from the Company to such
party of the Company's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Company will not be liable to such party under this Agreement for any
legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation, but, in case the Company does not elect to assume the defense of
any such suit, the Company will reimburse the Fund, such officers, trustees and
directors or controlling person or persons, defendant or defendants in such
suit, for the reasonable fees and expenses of any counsel retained by them.
(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.
-17-
8.2. INDEMNIFICATION BY THE UNDERWRITER
(a) The Underwriter agrees 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" 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 Underwriter) 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 Shares of the
Designated Portfolios or the Contracts; and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
registration statement or prospectus or SAI or sales literature 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 Underwriter or Fund by or on behalf of the Company for use in the
registration statement, prospectus or SAI for the Fund or in sales literature
(or 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 statements or
representations (other than statements or representations contained in the
registration statement, prospectus, SAI or sales literature for the Contracts
not supplied by the Underwriter or persons under its control) or wrongful
conduct of the Fund or Underwriter or persons under their control, with respect
to the sale or distribution of the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a registration statement,
prospectus, SAI or sales literature 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 to the Company by or on behalf
of the Fund or the Underwriter; or
(iv) arise as a result of any failure by the Fund or
the Underwriter to provide the services and furnish the materials under the
terms of this Agreement (including a failure of the Fund, whether unintentional
or in good faith or otherwise, to comply with the diversification and other
qualification requirements specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the Underwriter in this Agreement
or arise out of or result from any other material breach of this Agreement by
the Underwriter;
-18-
as limited by and in accordance with the provisions of Sections 8.2(b), 8.2(c)
and 8.2(d) hereof.
(b) The Underwriter shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance or such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company, the Fund, the Adviser, the Underwriter
or the Account, whichever is applicable.
(c) The Underwriter 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 Underwriter 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 Underwriter of
any such claim shall not relieve the Underwriter 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, except to the extent that the
Underwriter has been prejudiced by such failure to give notice. In case any such
action is brought against the Indemnified Party, the Underwriter will be
entitled to participate, at its own expense, in the defense thereof. The
Underwriter also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action and to settle the claim at its own
expense; provided, however, that no such settlement shall, without the
Indemnified Parties' written consent, include any factual stipulation to the
Indemnified Parties or their conduct. After notice from the Underwriter to such
party of the Underwriter'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 Underwriter will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
(d) The Company agrees promptly to notify the Underwriter of
the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the Contracts
or the operation of the Account.
8.3. INDEMNIFICATION BY THE FUND
(a) The Fund agrees 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" for purposes of this Section 8.3) against any and all
losses, claims, expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Fund) or litigation (including legal
and other expenses) to which the Indemnified Parties may be required to pay or
may become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, expenses, damages, liabilities or expenses (or
actions in respect thereof) or settlements, are related to the operations of the
Fund and:
-19-
(i) arise as a result of any failure by the Fund to
provide the services and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or otherwise, to
comply with the diversification and other qualification requirements specified
in Article VI of this Agreement); or
(ii) arise out of or result from any material breach
of any representation and/or warranty made by the Fund in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Fund;
as limited by and in accordance with the provisions of Sections 8.3(b), 8.3(c)
and 8.3(d) hereof.
(b) The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
the Company, the Fund, the Adviser, the Underwriter or the Account, whichever is
applicable.
(c) The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve the Fund 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, except to the extent the Fund has
been prejudiced by such failure to give notice. In case any such action is
brought against the Indemnified Parties, the Fund will be entitled to
participate, at its own expense, in the defense thereof. The Fund also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action and to settle the claim at its own expense; provided,
however, that no such settlement shall, without the Indemnified Parties' written
consent include any factual stipulation referring to the Indemnified Parties or
their conduct. After notice from the Fund to such party of the Fund's election
to assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
(d) The Company, the Adviser and the Underwriter agree
promptly to notify the Fund of the commencement of any litigation or proceeding
against it or any of its respective officers or trustees in connection with the
Agreement, the issuance or sale of the Contracts, the operation of any Account,
or the sale or acquisition of Shares of the Fund.
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 Commonwealth of
Massachusetts.
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9.2. This Agreement shall be subject to the applicable 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, any Mixed and Shared
Funding Exemptive Order) and the terms hereof shall be interpreted and construed
in accordance therewith. If, in the future, the Mixed and Shared Funding
Exemptive Order should no longer be necessary under applicable law, then Article
VII shall no longer apply.
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 with respect to
some or all Designated Portfolios, by three (3) months advance written notice
delivered to the other parties; or
(b) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter based upon the Company's reasonable and good
faith determination that Shares of any Designated Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(c) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter in the event any of the Designated Portfolio's
Shares are not registered, issued or sold in accordance with applicable state
and/or federal securities laws or such law precludes the use of such Shares as
the underlying investment media of the Contracts issued or to be issued by the
Company; or
(d) termination by the Fund, the Adviser or Underwriter in the
event that formal administrative proceedings are instituted against the Company
or any affiliate by the NASD, the SEC, the Insurance Commissioner or like
official of any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the Contracts, the
operation of any Account, or the purchase of the Fund's Shares; provided,
however, that the Fund, the Adviser or Underwriter determines in its sole
judgment exercised in good faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the Company to perform its
obligations under this Agreement; or
(e) termination by the Company in the event that formal
administrative proceedings are instituted against the Fund, the Adviser or
Underwriter by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body; 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 Underwriter to perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter with respect to any Designated Portfolio in the
event that such Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M or fails to comply with the Section 817(h) diversification
requirements specified in Article VI hereof, or if the Company reasonably
believes that such Designated Portfolio may fail to so qualify or comply; or
(g) termination by the Fund, the Adviser or Underwriter by
written notice to the Company in the event that the Contracts fail to meet the
qualifications specified in Article VI hereof; or
-21-
(h) termination by any of the Fund, the Adviser or the
Underwriter by written notice to the Company, if any of the Fund, the Adviser or
the Underwriter respectively, shall determine, in their sole judgment exercised
in good faith, that the Company has suffered a material adverse change in its
business, operations, financial condition, insurance company rating or prospects
since the date of this Agreement or is the subject of material adverse
publicity; or
(i) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter, if the Company shall determine, in its sole
judgment exercised in good faith, that the Fund, the Adviser or the Underwriter
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 that material adverse change or publicity will
have a material effect on the Fund's or the Underwriter's ability to perform its
obligation under this Agreement; or
(j) termination by the Company upon any substitution of the
Shares of another investment company or series thereof for Shares of a
Designated Portfolio of the Fund in accordance with the terms of the Contracts,
provided that the Company has given at least 45 days prior written notice to the
Fund and Underwriter of the date of substitution; or
(k) termination by any party in the event that the Fund's
Board of Trustees determines that a material irreconcilable conflict exists as
provided in Article VII; or
(l) at the option of the Company, as one party, or the Fund,
the Adviser and the Underwriter, as one party, upon the other party's material
breach of any provision of this Agreement upon 30 days' written notice and the
opportunity to cure within such notice period; or
(m) at the option of the Fund or the Adviser in the event the
Contracts are not treated as life insurance or annuity contracts under
applicable provisions of the Code.
10.2. Notwithstanding any termination of this Agreement, the Fund and
the Underwriter shall, at the option of the Company, continue, for a one year
period from the date of termination and from year to year thereafter if deemed
appropriate by the Fund and the Adviser, to make available additional Shares of
a Designated Portfolio pursuant to the terms and conditions of this Agreement,
for all Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts"), unless the
Underwriter elects to compel a substitution of other securities for the Shares
of the Designated Portfolios. Specifically, the owners of the Existing Contracts
may be permitted to reallocate investments in the Designated Portfolios, redeem
investments in the Designated Portfolios and/or invest in the Designated
Portfolios upon the making of additional purchase payments under the Existing
Contracts (subject to any such election by the Underwriter). 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. The parties further agree that this Section 10.2 shall not apply
to any terminations under Section 10.1(d),(g) or (m) of this Agreement.
-22-
10.3. The Company shall not redeem Fund Shares attributable to the
Contracts (as opposed to Fund Shares attributable to the Company's assets held
in the Account) except (i) as necessary to implement Contract owner initiated or
approved transactions, (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"), (iii) as permitted
by an order of the SEC pursuant to Section 26(c) of the 1940 Act, but only if a
substitution of other securities for the Shares of the Designated Portfolios is
consistent with the terms of the Contracts, or (iv) as permitted under the terms
of the Contract. Upon request, the Company will promptly furnish to the Fund and
the Underwriter reasonable assurance that any redemption pursuant to clause (ii)
above is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terms of the Contacts, the Company shall not prevent
Contract owners from allocating payments to a Designated Portfolio that was
otherwise available under the Contracts without first giving the Fund or the
Underwriter 45 days notice of its intention to do so.
10.4. Notwithstanding any termination of this Agreement, each party's
obligation under Article VIII to indemnify the other parties 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:
Xxxxxxx Variable Series II
Two International Place
Boston, MA 02110-4103
Attn.: Secretary
If to the Company:
National Life Insurance Company
National Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
If to Underwriter:
Xxxxxxx Distributors, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
If to the Adviser:
Deutsche Investment Management Americas Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
-23-
ARTICLE XII . MISCELLANEOUS
12.1. The Fund's name is the designation of the Board for the time
being under a Declaration of Trust, as amended, and all persons dealing with the
Fund must look solely to the property of the Fund, and in the case of a series
company, the respective Designated Portfolios listed on Schedule B hereto as
though each such Designated Portfolio had separately contracted with the Company
and the Underwriter for the enforcement of any claims against the Fund. The
parties agree that neither the Board, officers, agents or shareholders of the
Fund assume any personal liability or responsibility for obligations entered
into by or on behalf of the Fund. No Portfolio shall be liable for any
obligations properly attributable to any other Portfolio.
12.2. 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 without the express written consent
of the affected party until such time as such information has come into the
public domain.
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. This Agreement incorporates the entire understanding and
agreement among the parties hereto, and supersedes any and all prior
understandings and agreements between the parties hereto with respect to the
subject matter hereof.
12.6. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the State Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity
operations of the Company are being conducted in a manner consistent with the
State variable annuity laws and regulations and any other applicable law or
regulations.
-24-
12.8. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies, and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.9. 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.
12.10. The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee upon request 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) filed with any state or federal regulatory body or
otherwise made available to the public, as soon as practicable and in any event
within 90 days after the end of each fiscal year; and
(b) any registration statement (without exhibits) and
financial reports of the Company filed with the Securities and Exchange
Commission or any state insurance regulatory, as soon as practicable after the
filing thereof.
12.11. All persons are expressly put on notice of the Fund's Agreement
and Declaration of Trust and all amendments thereto, all of which are on file
with the Secretary of the Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability contained therein. This Agreement has been
executed by and on behalf of the Fund by its representatives as such
representatives and not individually, and the obligations of the Fund with
respect to a Designated Portfolio hereunder are not binding upon any of the
trustees, officers or shareholders of the Fund individually, but are binding
upon only the assets and property of such Designated Portfolio. All parties
dealing with the Fund with respect to a Designated Portfolio shall look solely
to the assets of such Designated Portfolio for the enforcement of any claims
against the Fund hereunder.
12.12. The Company is expressly put on notice that prospectus
disclosure regarding the potential risks of mixed and shared funding may be
appropriate.
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 and
its seal to be hereunder affixed hereto as of the date first above written.
COMPANY: NATIONAL LIFE INSURANCE COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
-25-
FUND: XXXXXXX VARIABLE SERIES II
By:
-----------------------------------------
Title:
--------------------------------------
UNDERWRITER: XXXXXXX DISTRIBUTORS, INC.
By:
-----------------------------------------
Title:
--------------------------------------
ADVISER: DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By:
-----------------------------------------
Title:
--------------------------------------
-26-
SCHEDULE A
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED BY
BOARD OF DIRECTORS AND CONTRACTS FUNDED BY SEPARATE ACCOUNT
1. National Variable Life Insurance Account, established February 1, 1985,
which will offer the Portfolios in two contracts:
VariTrak Variable Universal Life Insurance
Sentinel Estate Provider Survivorship Variable Universal Life Insurance
2. National Variable Annuity Account II, established November 1, 1996,
which will offer the Portfolios in one contract:
Sentinel Advantage Variable Annuity
A
SCHEDULE B
DESIGNATED PORTFOLIOS
AND CLASSES THEREOF
DESIGNATED PORTFOLIO CLASS
1. SVS Dreman High Return Equity Portfolio B 2. SVS Dreman Small Cap Value
Portfolio B
SCHEDULE C
EXPENSES
========================================== ======================================================= ===========================
ITEM FUNCTION PARTY RESPONSIBLE FOR
EXPENSE
========================================== ======================================================= ===========================
FUND PROSPECTUS
------------------------------------------ ------------------------------------------------------- ---------------------------
Update Typesetting Fund
------------------------------------------ ------------------------------------------------------- ---------------------------
New Sales: Printing Company
Distribution Company
------------------------------------------ ------------------------------------------------------- ---------------------------
Existing Owners: Printing Fund
Distribution Fund
------------------------------------------ ------------------------------------------------------- ---------------------------
------------------------------------------ ------------------------------------------------------- ---------------------------
STATEMENTS OF ADDITIONAL INFORMATION Same as Prospectus
------------------------------------------ ------------------------------------------------------- ---------------------------
------------------------------------------ ------------------------------------------------------- ---------------------------
PROXY MATERIALS OF THE FUND Typesetting Fund
Printing Fund
Distribution Fund
------------------------------------------ ------------------------------------------------------- ---------------------------
------------------------------------------ ------------------------------------------------------- ---------------------------
ANNUAL REPORTS AND OTHER COMMUNICATIONS
WITH SHAREHOLDERS OF THE FUND
------------------------------------------ ------------------------------------------------------- ---------------------------
All Typesetting Fund
------------------------------------------ ------------------------------------------------------- ---------------------------
Marketing1 Printing Company
Distribution Company
------------------------------------------ ------------------------------------------------------- ---------------------------
Existing Owners: Printing Fund
Distribution Fund
------------------------------------------ ------------------------------------------------------- ---------------------------
OPERATIONS OF FUND All operations and related expenses, including the Fund
cost of registration and qualification of the Fund's
shares, preparation and filing of the Fund's
prospectus and registration statement, proxy
materials and reports, the preparation of all
statements and notices required by any federal or
state law and all taxes on the issuance of the Fund's
shares, and all costs of management of the business
affairs of the Fund.
========================================== ======================================================= ===========================
(1) Solely as it relates to the contracts listed on Schedule A, as it is
attached to the same Agreement as this Schedule C.
C
