PARTICIPATION AGREEMENT
BY AND AMONG
SUMMIT MUTUAL FUNDS, INC.,
AMERITAS INVESTMENT CORP.
SYMETRA LIFE INSURANCE COMPANY,
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS,
AND
SYMETRA SECURITIES, INC.
TABLE OF CONTENTS
Description Page
Section 1 Available Funds 2
1.1 Availability 2
1.2 Addition, Deletion or Modification of Funds 2
1.3 No Sales to the General Public 2
Section 2 Processing Transactions 3
2.1 Timely Pricing and Orders 3
2.2 Timely Payments 3
2.3 Applicable Price 3
2.4 Dividends and Distributions 4
2.5 Book Entry 4
Section 3 Costs and Expenses 5
3.1 General 5
3.2 Parties to Cooperate 5
Section 4 Legal Compliance 5
4.1 Tax Laws 5
4.2 Insurance and Certain Other Laws 7
4.3 Securities Laws 8
4.4 Notice of Certain Proceedings and Other Circumstances 9
4.5 LIFE COMPANY To Provide Documents; Information About
SMFI 10
4.6 SMFI to Provide Documents; Information about LIFE
COMPANY 11
Section 5 Mixed and Shared Funding 12
5.1 General 12
5.2 Disinterested Directors 12
5.3 Monitoring for Material Irreconcilable Conflicts 12
5.4 Conflict Remedies 13
5.5 Notice to LIFE COMPANY 14
5.6 Information Requested by Board of Directors 15
5.7 Compliance with SEC Rules 15
5.8 Other Requirements 15
Section 6 Termination 15
6.1 Events of Termination 15
6.2 Notice Requirement for Termination 16
6.3 Funds to Remain Available 17
Description Page
6.4 Survival of Warranties and Indemnifications 17
6.5 Continuance of Agreement for Certain Purposes 17
Section 7 Parties to Cooperate Respecting Termination 17
Section 8 Assignment 18
Section 9 Notices 18
Section 10 Voting Procedures 18
Section 11 Foreign Tax Credits 19
Section 12 Indemnification 19
12.1 Of SMFI and AIC by LIFE COMPANY and UNDERWRITER 19
12.2 Of LIFE COMPANY and UNDERWRITER by SMFI and AIC 21
12.3 Effect of Notice 24
12.4 Successors 24
Section 13 Applicable Law 24
Section 14 Execution in Counterparts 24
Section 15 Severability 24
Section 16 Rights Cumulative 24
Section 17 Headings 25
Section 18 Confidentiality and Privacy 25
Section 19 Trademarks and Fund Names 25
Section 20 Parties to Cooperate 27
Section 21 Excessive Trading 27
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of October,
2006 ("Agreement"), by and among Summit Mutual Funds, Inc., a Maryland
corporation ("SMFI"), Ameritas Investment Corp., a Nebraska corporation
("AIC"), Symetra Life Insurance, Co., a Washington life insurance company
("LIFE COMPANY"), on behalf of itself and each of its segregated asset accounts
listed in Schedule A hereto, as the parties hereto may amend from time to time
(each, an "Account," and collectively, the "Accounts") and Symetra Securities,
Inc., a Washington corporation and an affiliate of LIFE COMPANY and the Symetra
underwriter of the Contracts ("UNDERWRITER") (collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, SMFI is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, SMFI consists of separate series ("Series") within its
Pinnacle series of funds, shares ("Shares") of each of which are registered
under the Securities Act of 1933, as amended (the "1933 Act") and are
currently sold to one or more separate accounts of life insurance companies
to fund benefits under variable annuity contracts and variable life insurance
contracts; and
WHEREAS, SMFI will make Shares of each Series listed on Schedule A
hereto as the Parties hereto may amend from time to time (each a "Fund";
references herein to "SMFI" includes reference to each Fund, to the extent the
context requires) available for purchase by the Accounts; and
WHEREAS, LIFE COMPANY will be the issuer of certain variable annuity
contracts and/or variable life insurance contracts ("Contracts") as set forth
on Schedule A hereto, as the Parties hereto may amend from time to time, which
Contracts (hereinafter collectively, the "Contracts"), if required by
applicable law, will be registered under the 1933 Act; and
WHEREAS, LIFE COMPANY will fund the Contracts through the Accounts,
each of which may be divided into two or more subaccounts ("Subaccounts";
references herein to an "Account" includes reference to each Subaccount
thereof to the extent the context requires); and
WHEREAS, LIFE COMPANY will serve as the depositor of the Accounts,
each of which is registered as a unit investment trust investment company
under the 1940 Act (or exempt therefrom), and the security interests deemed
to be issued by the Accounts under the Contracts will be registered as
securities under the 1933 Act (or exempt therefrom); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, LIFE COMPANY intends to purchase Shares in one or more of the
Funds on behalf of the Accounts to fund the Contracts; and
WHEREAS, UNDERWRITER is a broker-dealer registered with the SEC under
the Securities Exchange Act of 1934 ("1934 Act") and a member in good
standing of the National Association of Securities Dealers, Inc. ("NASD");
WHEREAS, AIC is a broker-dealer registered with the SEC under the
Securities Exchange Act of 1934 ("1934 Act") and a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD");
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein, the Parties hereto agree as follows:
Section 1 Available Funds
1.1 Availability
SMFI will make Shares of each Fund available to LIFE COMPANY for
purchase and redemption at net asset value and with no sales charges, subject
to the terms and conditions of this Agreement. The Board of Directors of SMFI
may refuse to sell Shares of any Fund to any person, or suspend or terminate
the offering of Shares of any Fund if such action is required by law or by
regulatory authorities having jurisdiction or if, 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, such action is deemed in the
best interests of the shareholders of such Fund.
1.2 Addition, Deletion or Modification of Funds
The Parties hereto may agree, from time to time, to add other Funds
to provide additional funding media for the Contracts, or to delete, combine,
or modify existing Funds, by amending Schedule A hereto. Upon such amendment
to Schedule A, any applicable reference to a Fund, SMFI, or its Shares herein
shall include a reference to any such additional Fund. Schedule A, as amended
from time to time, is incorporated herein by reference and is a part hereof.
1.3 No Sales to the General Public
SMFI represents and warrants that no Shares of any Fund have been or
will be sold to the general public, it being understood by the Parties that
SMFI may sell shares of any Fund to any person eligible to invest in that Fund
in accordance with applicable provisions of Section 817(h) of the Internal
Revenue Code of 1986, as amended (the "Code") and the regulations thereunder,
and that if such provisions are not applicable, then SMFI may sell shares of
any Fund to any person, including members of the general public.
Section 2 Processing Transactions
2.1 Timely Pricing and Orders
(a) SMFI or its designated agent will use its best efforts to
provide LIFE COMPANY, or its designated agent, with the net asset value per
Share for each Fund by 6:30 p.m. Eastern Standard Time on each Business Day. As
used herein, "Business Day" shall mean any day on which (i) the New York Stock
Exchange is open for regular trading (ii) SMFI calculates the Fund's net asset
value, and (iii) LIFE COMPANY is open for business.
(b) LIFE COMPANY will use the data provided by SMFI each Business
Day pursuant to paragraph (a) immediately above to calculate Account unit
values and to process transactions that receive that same Business Day's
Account unit values. LIFE COMPANY will perform such Account processing the
same Business Day, and will place corresponding orders to purchase or redeem
Shares with SMFI by 9:30 a.m. Eastern Standard Time the following Business Day;
provided, however, that SMFI shall provide additional time to LIFE COMPANY in
the event that SMFI is unable to meet the 6:30 p.m. time stated in paragraph
(a) immediately above. Such additional time shall be equal to the additional
time that SMFI takes to make the net asset values available to LIFE COMPANY.
(c) With respect to payment of the purchase price by LIFE COMPANY
and of redemption proceeds by SMFI, LIFE COMPANY and SMFI shall net purchase
and redemption orders with respect to each Fund and shall transmit one net
payment per Fund in accordance with Section 2.2, below.
(d) If SMFI provides materially incorrect Share net asset value
information (as determined under SEC guidelines), LIFE COMPANY shall be
entitled to an adjustment to the number of Shares purchased or redeemed to
reflect the correct net asset value per Share, and any reasonable out-of-
pocket expenses incurred by the LIFE COMPANY in adjusting the Share net asset
value. Any material error in the calculation or reporting of net asset value
per Share, dividend or capital gain information shall be reported promptly
upon discovery to LIFE COMPANY.
2.2 Timely Payments
LIFE COMPANY or its designated agent will wire payment for net
purchases to a custodial account designated by SMFI by 2:00 p.m. Eastern
Standard Time on the same day as the order for Shares is placed, to the
extent practicable. SMFI will wire payment for net redemptions to an account
designated by LIFE COMPANY by 2:00 p.m. Eastern Standard Time on the same day
as the Order is placed, to the extent practicable, but in any event within
five (5) calendar days after the date the order is placed in order to enable
LIFE COMPANY to pay redemption proceeds within the time specified in Section
22(e) of the 1940 Act or such shorter period of time as may be required by law.
2.3 Applicable Price
(a) Share purchase payments and redemption orders that result
from purchase payments, premium payments, surrenders and other transactions
under Contracts (collectively, "Contract transactions") and that LIFE
COMPANY receives prior to the close of regular trading on the New York
Stock Exchange on a Business Day will be executed at the net asset values
of the appropriate Funds next computed after receipt by SMFI or its
designated agent of the orders; unless LIFE COMPANY relies in good faith
on applicable rules under the federal securities laws, including the1940 Act,
which allow for certain Contract transactions to be processed at a later date.
For purposes of this Section 2.3(a), LIFE COMPANY shall be the designated
agent of SMFI for receipt of orders relating to Contract transactions on
each Business Day and receipt by such designated agent shall constitute
receipt by SMFI; provided that SMFI receives notice of such orders by
9:30 a.m. Eastern Standard Time on the next following Business Day or
such later time as computed in accordance with Section 2.1 (b) hereof.
(b) All other Share purchases and redemptions by LIFE COMPANY
will be effected at the net asset values of the appropriate Funds next computed
after receipt by SMFI or its designated agent of the order therefor, and such
orders will be irrevocable.
(c) Notwithstanding any provision of the Agreement to the contrary,
the Parties agree that SMFI shall determine the applicable price for Share
orders attributable to Contracts funded by unregistered Accounts in accordance
with Section 2.3(a) hereof, provided that LIFE COMPANY represents and warrants
that it is legally or contractually obligated to treat such orders in the same
manner as orders attributable to Contracts funded by registered Accounts.
Each Share order placed by LIFE COMPANY that is attributable, in whole or
in part, to Contracts funded by an unregistered Account, shall be deemed
to constitute such representation and warranty by LIFE COMPANY unless the
order specifically states to the contrary. Otherwise, SMFI shall determine
the applicable price for Share orders attributable to Contracts funded by
unregistered Accounts in accordance with Section 2.3(b) hereof. As used
herein, an Account is registered if it is registered under the 1940 Act.
2.4 Dividends and Distributions
SMFI will furnish notice by facsimile or telephone (followed by
written confirmation) on or prior to the payment date to LIFE COMPANY of
any income dividends or capital gain distributions payable on the Shares of
any Fund. LIFE COMPANY hereby elects to reinvest all dividends and capital
gains distributions in additional Shares of the corresponding Fund at the
ex-dividend date net asset values until LIFE COMPANY otherwise notifies
SMFI in writing, it being agreed by the Parties that the ex-dividend date
and the payment date with respect to any dividend or distribution will be
the same Business Day. LIFE COMPANY reserves the right to revoke this
election and to receive all such income dividends and capital gain
distributions in cash.
2.5 Book Entry
Issuance and transfer of SMFI Shares will be by book entry only. Stock
certificates will not be issued to LIFE COMPANY. Shares ordered from SMFI will
be recorded in an appropriate title for LIFE COMPANY, on behalf of its Account.
Section 3 Costs and Expenses
3.1 General
Except as otherwise specifically provided in Schedule C, attached
hereto and made a part hereof, each Party will bear, or arrange for other to
bear, all expenses incident to its performance under this Agreement.
3.2 Parties To Cooperate
Each Party agrees to cooperate with the others, as applicable, in
arranging to print, mail and/or deliver, in a timely manner, combined or
coordinated prospectuses or other materials of SMFI and the Accounts.
Section 4 Legal Compliance
4.1 Tax Laws
(a) SMFI represents and warrants that each Fund is currently
qualified as a regulated investment company ("RIC") under Subchapter M of the
Internal Revenue Code of 1986, as amended (the "Code"), and represents that it
qualifies and will maintain qualification of each Fund as a RIC. SMFI will
notify LIFE COMPANY immediately upon having a reasonable basis for believing
that a Fund has ceased to so qualify or that it might not so qualify in the
future.
(b) SMFI represents that it complies and will maintain each
Fund's compliance with the diversification requirements set forth in Section
817(h) of the Code and Section 1.817-5(b) of the regulations under the Code.
SMFI will notify LIFE COMPANY immediately upon having a reasonable basis for
believing that a Fund has ceased to so comply or that a Fund might not so
comply in the future. In the event of a breach of this Section 4.1(b) by SMFI,
it will use its best efforts to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Section 1.817-5 of the
regulations under the Code. The representations and warranties of this
Section 4.1(b) shall not apply with respect to any Fund whose beneficial
interests are held solely by owners of "pension plan contracts" within the
meaning of Section 818(a) of the Code and other persons whose federal income
tax treatment is not dependent on the Fund's compliance with the requirements
of Section 817(h) of the Code.
(c) Notwithstanding any other provision herein to the contrary,
LIFE COMPANY agrees that if the Internal Revenue Service ("IRS") asserts in
writing in connection with any governmental audit or review of LIFE COMPANY
or, to LIFE COMPANY's knowledge, of any Contract owner ("Owner"), that any
Fund has failed to comply with the diversification requirements of Section
817(h) of the Code or LIFE COMPANY otherwise becomes aware of any facts that
could give rise to any claim against SMFI or its affiliates as a result of
such a failure or alleged failure:
(i) LIFE COMPANY shall promptly notify SMFI of such assertion or
potential claim (subject to the Confidentiality provisions
of Section 18 as to any Owner);
(ii) LIFE COMPANY shall consult with SMFI as to how to minimize any
liability that may arise as a result of such failure or
alleged failure;
(iii) LIFE COMPANY shall use its best efforts to minimize any
liability of SMFI or its affiliates resulting from such failure,
including, without limitation, demonstrating, pursuant to
Treasury Regulations Section 1.817-5(a)(2), to the Commissioner
of the IRS that such failure was inadvertent;
(iv) LIFE COMPANY shall permit SMFI, its affiliates and their
legal and accounting advisors to participate in any conferences,
settlement discussions or other administrative or judicial
proceeding or contests (including judicial appeals thereof)
with the IRS, any Owner or any other claimant regarding any
claims that could give rise to liability to SMFI or
its affiliates as a result of such a failure or alleged failure;
provided, however, that LIFE COMPANY will retain control of the
conduct of such conferences discussions, proceedings, contests
or appeals;
(v) any written materials to be submitted by LIFE COMPANY to the
IRS, any Owner or any other claimant in connection with any of
the foregoing proceedings or contests (including, without
limitation, any such materials to be submitted to the IRS
pursuant to Treasury Regulations Section 1.817-5(a)(2)),
(a) shall be provided by LIFE COMPANY to SMFI (together with
any supporting information or analysis), subject to the
confidentiality provisions of Section 18, at least ten (10)
business days or such shorter period to which the Parties
hereto agree prior to the day on which such
proposed materials are to be submitted, and (b) shall not be
submitted by LIFE COMPANY to any such person without the
express written consent of SMFI which shall not be unreasonably
withheld;
(vi) LIFE COMPANY shall provide SMFI or its affiliates and their
accounting and legal advisors with such cooperation as SMFI
shall reasonably request (including, without limitation, by
permitting SMFI and its accounting and legal advisors to
review the relevant books and records of LIFE COMPANY)
in order to facilitate review by SMFI or its advisors of any
written submissions provided to it pursuant to the preceding
clause or its assessment of the validity or amount of any
claim against its arising from such a failure
or alleged failure;
(vii) LIFE COMPANY shall not with respect to any claim of the IRS or
any Owner that would give rise to a claim against SMFI or
its affiliates (a) compromise or settle any claim, (b) accept
any adjustment on audit, or (c) forego any allowable
administrative or judicial appeals, without the express
written consent of SMFI or its affiliates, which shall not
be unreasonably withheld, provided that LIFE COMPANY shall not
be required, after exhausting all administrative penalties, to
appeal any adverse judicial decision unless SMFI or its
affiliates shall have provided an opinion of independent
counsel to the effect that a reasonable basis exists for
taking such appeal; and provided further that the costs of any
such appeal shall be borne by SMFI; and
(viii) SMFI and its affiliates shall have no liability as a result
of such failure or alleged failure if LIFE COMPANY fails to
comply with any of the foregoing clauses (i) through (vii),
and such failure could be shown to have materially contributed
to the liability.
Should SMFI or any of its affiliates refuse to give its written
consent to any compromise or settlement of any claim or liability hereunder,
LIFE COMPANY may, in its discretion, authorize SMFI or its affiliates to act
in the name of LIFE COMPANY in, and to control the conduct of, such
conferences, discussions, proceedings, contests or appeals and all
administrative or judicial appeals thereof, and in that event SMFI or its
affiliates shall bear the fees and expenses associated with the conduct of
the proceedings that it is so authorized to control; provided, that in no
event shall LIFE COMPANY have any liability resulting from SMFI's refusal
to accept the proposed settlement or compromise with respect to any failure
caused by SMFI. As used in this Agreement, the term "affiliates" shall have
the same meaning as "affiliated person" as defined in Section 2(a)(3) of the
1940 Act.
(d) LIFE COMPANY represents and warrants that the Contracts
currently are and will be treated as annuity contracts or life insurance
contracts under applicable provisions of the Code and that it will use its
best efforts to maintain such treatment; LIFE COMPANY will notify SMFI
immediately upon having a reasonable basis for believing that any of the
Contracts have ceased to be so treated or that they might not be so treated
in the future.
(e) LIFE COMPANY represents and warrants that each Account is a
"segregated asset account" and that interests in each Account are offered
exclusively through the purchase of or transfer into a "variable contract,"
within the meaning of such terms under Section 817 of the Code and the
regulations thereunder. LIFE COMPANY will use its best efforts to continue to
meet such definitional requirements, and it will notify SMFI immediately upon
having a reasonable basis for believing that such requirements have ceased to
be met or that they might not be met in the future.
4.2 Insurance and Certain Other Laws
(a) SMFI will use its best efforts to comply with any applicable
state insurance laws or regulations, to the extent specifically requested in
writing by LIFE COMPANY, including, the furnishing of information not otherwise
available to LIFE COMPANY which is required by state insurance law to enable
LIFE COMPANY to obtain the authority needed to issue the Contracts in any
applicable state.
(b) LIFE COMPANY represents and warrants that (i) it is an insurance
company duly organized, validly existing and in good standing under the laws
of its state of incorporation and domicile and has full corporate power,
authority and legal right to execute, deliver and perform its duties and comply
with its obligations under this Agreement; (ii) it has legally and validly
established and maintains each Account as a segregated asset account under
all applicable insurance law and regulations; (iii) the Contracts comply in
all material respects with all other applicable federal and state laws and
regulations; and (iv) it will use its best efforts to comply with all
applicable state insurance laws and regulations in the sales and
administration of its Contracts.
(c) SMFI represents and warrants that it is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Maryland and has full power, authority, and legal right to execute,
deliver, and perform its duties and comply with its obligations under this
Agreement.
(d) Each party represents and warrants that it will comply with
all applicable anti-money laundering laws, regulations, rules and government
guidance, including the reporting, recordkeeping and compliance requirement
of the Bank Secrecy Act and the USA PATRIOT Act. All parties agree, when
permitted by applicable law, to promptly notify each other whenever
questionable activities or potential indication of suspicious activities or
Office of Foreign Asset Control matches are detected. Each party agrees to
investigate any potentially suspicious activity and to take appropriate
actions
4.3 Securities Laws
(a) LIFE COMPANY represents and warrants that (i) interests in
each Account pursuant to the Contracts will be registered under the 1933 Act
to the extent required by the 1933 Act, (ii) the Contracts will be duly
authorized for issuance and sold in compliance with all applicable federal
and state laws, including, without limitation, the 1933 Act, the 1934 Act,
the 1940 Act and Washington law, (iii) each Account is and will remain
registered under the 1940 Act, to the extent required by the 1940 Act,
(iv) each Account does and will comply in all material respects with the
requirements of the 1940 Act and the rules thereunder, to the extent required,
(v) each Account's 1933 Act registration statement relating to the Contracts,
together with any amendments thereto, will at all times comply in all material
respects with the requirements of the 1933 Act and the rules thereunder, (vi)
LIFE COMPANY will amend the registration statement for its Contracts under the
1933 Act and for its Accounts under the 1940 Act from time to time as required
in order to effect the continuous offering of its Contracts or as may
otherwise be required by applicable law, and (vii) each Account's prospectus,
statement of additional information, private placement memoranda and other
documents pursuant to which Contracts are offered, and any amendments or
supplements thereto (collectively, the "Account Prospectus"), will at all
times comply in all material respects with all applicable requirements of
the 1933 Act and the rules thereunder.
(b) SMFI represents and warrants that (i) Shares sold pursuant to
this Agreement will be registered under the 1933 Act to the extent required by
the 1933 Act and duly authorized for issuance and sold in compliance with
Maryland law, (ii) SMFI is and will remain registered under the 1940 Act to
the extent required by the 1940 Act, (iii) SMFI will amend the registration
statement for its Shares under the 1933 Act and itself under the 1940 Act from
time to time as required in order to effect the continuous offering of its
Shares, (iv) SMFI does and will comply in all material respects with the
requirements of the 1940 Act and the rules thereunder, (v) SMFI's 1933 Act
registration statement, together with any amendments thereto, will at all
times comply in all material respects with the requirements of the 1933 Act
and rules thereunder, and (vi) SMFI's prospectus, statement of additional
information and any amendments or supplements thereto (collectively, the
"SMFI Prospectus") will at all times comply in all material respects with all
applicable requirements of the 1933 Act and the rules thereunder.
(c) SMFI will at its expense register and qualify its Shares for
sale in accordance with the laws of any state or other jurisdiction if and to
the extent reasonably deemed advisable by SMFI.
(d) To the extent that SMFI finances distribution expenses of
any of the Shares pursuant to Rule 12b-1 of the 1940 Act, SMFI undertakes
to have its Board of Directors, a majority of whom are not "interested"
persons of the Fund, formulate and approve any plan under Rule 12b-1 to
finance distribution expenses.
(e) SMFI represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities
having access to the funds and/or securities of the Fund are and continue
to be at all times covered by a blanket fidelity bond or similar coverage
for the benefit of the Fund in an amount not less than the minimal coverage
as required currently by Rule 17g-(1) of the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
4.4 Notice of Certain Proceedings and Other Circumstances
(a) SMFI will immediately notify LIFE COMPANY of (i) the issuance
by any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to SMFIs registration statement under the
1933 Act or SMFI Prospectus, (ii) any request by the SEC for any amendment to
such registration statement or SMFI Prospectus that may affect the offering of
Shares of SMFI, (iii) the initiation of any proceedings for that purpose or for
any other purpose relating to the registration or offering of SMFI's Shares,
or (iv) any other action or circumstances that may prevent the lawful offer or
sale of Shares of any Fund in any state or jurisdiction, including, without
limitation, any circumstances in which (a) such Shares are not registered and,
in all material respects, issued and sold in accordance with applicable state
and federal law, or (b) such law precludes the use of such Shares as an
underlying investment medium of the Contracts issued or to be issued by LIFE
COMPANY. SMFI will make every reasonable effort to prevent the issuance, with
respect to any Fund, of any such stop order, cease and desist order or similar
order and, if any such order is issued, to obtain the lifting thereof at the
earliest possible time.
(b) LIFE COMPANY will immediately notify SMFI of (i) the issuance
by any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to each Account's registration statement under
the 1933 Act relating to the Contracts or each Account Prospectus, (ii) any
request by the SEC for any amendment to such registration statement or Account
Prospectus that may affect the offering of Shares of SMFI, (iii) the initiation
of any proceedings for that purpose or for any other purpose relating to the
registration or offering of each Account's interests pursuant to the Contracts,
or (iv) any other action or circumstances that may prevent the lawful offer
or sale of said interests in any state or jurisdiction, including, without
limitation, any circumstances in which said interests are not registered and,
in all material respects, issued and sold in accordance with applicable state
and federal law. LIFE COMPANY will make every reasonable effort to prevent the
issuance of any such stop order, cease and desist order or similar order and,
if any such order is issued, to obtain the lifting thereof at the earliest
possible time.
4.5 LIFE COMPANY To Provide Documents; Information About SMFI
(a) Upon SMFI's request, LIFE COMPANY will provide to SMFI or its
designated agent at least one (1) complete copy of all SEC registration
statements, Account Prospectuses, reports, any preliminary and final voting
instruction solicitation material, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to each
Account or the Contracts, contemporaneously with the filing of such document
with the SEC or other regulatory authorities.
(b) LIFE COMPANY will provide to SMFI or its designated agent at
least one (1) complete copy of each piece of sales literature or other
promotional material in which SMFI or any of its affiliates is named, at
least five (5) Business Days prior to its use or such shorter period as the
Parties hereto may, from time to time, agree upon. No such material shall be
used if SMFI or its designated agent objects to such use within five (5)
Business Days after receipt of such material or such shorter period as the
Parties hereto may, from time to time, agree upon. SMFI hereby designates
Summit Investment Partners, Inc. as the entity to receive such sales
literature, until such time as SMFI appoints another designated agent by
giving notice to LIFE COMPANY in the manner required by Section 9 hereof.
Notwithstanding the foregoing, LIFE COMPANY may utilize Morningstar, Inc.,
or other comparable third party investment company analyst, to gather
quarterly performance and fund data used in sales literature or other
promotional material in which SMFI or any of its affiliates is named rather
than obtaining such information from SMFI. If LIFE COMPANY desires to change
the third party providing this service, Life Company will receive written
authorization from SMFI before making such change.
(c) Neither LIFE COMPANY nor any of its affiliates, will give any
information or make any representations or statements on behalf of or
concerning SMFI or its affiliates in connection with the sale of the Contracts
other than (i) the information or representations contained in the registration
statement, including the SMFI Prospectus contained therein, relating to Shares,
as such registration statement and SMFI Prospectus may be amended from time
to time; or (ii) in reports or proxy materials for SMFI; or (iii) in published
reports for SMFI that are in the public domain and approved by SMFI for
distribution; or (iv) in sales literature or other promotional material
approved by SMFI, except with the express written permission of SMFI.
(d) LIFE COMPANY shall adopt and implement procedures reasonably
designed to ensure that information concerning SMFI and its affiliates that
is intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Owners) ("broker only
materials") is so used, and neither SMFI nor any of its affiliates shall be
liable for any losses, damages or expenses relating to the improper use of
such broker only materials.
(e) For the purposes of this Section 4.5, the phrase "sales
literature or other promotional material" includes, but is not limited to,
advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone or
tape recording, videotape display, signs or billboards, motion pictures, or
other public media, (e.g., on-line networks such as the Internet or other
electronic messages), sales literature (i.e., any written communication
distributed or made generally available to customers or the public, including
brochures, circulars, research reports, market letters, form letters., seminar
texts, reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other communications
distributed or made generally available to some or all agents or employees,
registration statements, prospectuses, statements of additional information,
shareholder reports, and proxy materials and any other material constituting
sales literature or advertising under the NASD rules, the 1933 Act or the
0000 Xxx.
4.6 SMFI To Provide Documents; Information About LIFE COMPANY
(a) SMFI will provide to LIFE COMPANY at least one (1) complete
copy of all SEC registration statements, SMFI Prospectuses, reports, any
preliminary and final proxy material, applications for exemptions, requests
for no-action letters, and all amendments to any of the above, that relate to
SMFI or the Shares of a Fund, contemporaneously with the filing of such
document with the SEC or other regulatory authorities.
(b) SMFI will provide to LIFE COMPANY camera ready copy of all
SMFI prospectuses and printed copies, in an amount specified by LIFE COMPANY,
of SMFI statements of additional information, proxy materials, periodic reports
to shareholders and other materials required by law to be sent to Owners who
have allocated any Contract value to a Fund. SMFI will provide such copies to
LIFE COMPANY in a timely manner so as to enable LIFE COMPANY, as the case may
be, to print and distribute such materials within the time required by law to
be furnished to Owners. The form of the prospectus and statement of additional
information provided by SMFI to the LIFE COMPANY shall be the final form of
prospectus and statement of additional information as filed with the Securities
and Exchange Commission. The prospectus shall include only those Funds
identified in Schedule A.
(c) SMFI will provide to LIFE COMPANY or its designated agent at
least one (1) complete copy of each piece of sales literature or other
promotional material in which LIFE COMPANY, or any of its respective affiliates
is named, or that refers to the Contracts, at least five (5) Business Days
prior to its use or such shorter period as the Parties hereto may, from time
to time, agree upon. No such material shall be used if LIFE COMPANY or its
designated agent objects to such use within five (5) Business Days after
receipt of such material or such shorter period as the Parties hereto may,
from time to time, agree upon. LIFE COMPANY shall receive all such sales
literature until such time as it appoints a designated agent by giving
notice to SMFI in the manner required by Section 9 hereof.
(d) Neither SMFI nor any of its affiliates will give any
information or make any representations or statements on behalf of or
concerning LIFE COMPANY, each Account, or the Contracts other than (i) the
information or representations contained in the registration statement,
including each Account Prospectus contained therein, relating to the
Contracts, as such registration statement and Account Prospectus may be
amended from time to time; or (ii) in published reports for the Account or
the Contracts that are in the public domain and approved by LIFE COMPANY for
distribution; or (iii) in sales literature or other promotional material
approved by LIFE COMPANY or its affiliates, except with the express written
permission of LIFE COMPANY.
(e) SMFI shall cause its Symetra underwriter to adopt and implement
procedures reasonably designed to ensure that information concerning
LIFE COMPANY, and its respective affiliates that is intended for use only by
brokers or agents selling the Contracts (i.e., information that is not
intended for distribution to Owners) ("broker only materials") is so used,
and neither LIFE COMPANY, nor any of its respective affiliates shall be liable
for any losses, damages or expenses relating to the improper use of such
broker only materials.
(f) For purposes of this Section 4.6, the phrase "sales literature
or other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration
statements, prospectuses, statements of additional information, shareholder
reports, and proxy materials and any other material constituting sales
literature or advertising under the NASD rules, the 1933 Act or the 1940 Act.
Section 5 Mixed and Shared Funding
5.1 General.
SMFI has received an order from the SEC to exempting it from certain
provisions of the 1940 Act and rules thereunder so that SMFI may be available
for investment by certain other entities, including, without limitation,
separate accounts funding variable annuity contracts or variable life insurance
contracts, separate accounts of insurance companies unaffiliated with LIFE
COMPANY, and trustees of qualified pension and retirement plans (collectively,
"Mixed and Shared Funding"). The Parties recognize that the SEC has imposed
terms and conditions for such orders that are substantially identical to many
of the provisions of this Section 5. Sections 5.2 through 5.8 below shall
apply pursuant to such an exemptive order granted to SMFI. SMFI hereby
notifies LIFE COMPANY that it may be appropriate to include in the prospectus
pursuant to which a Contract is offered disclosure regarding the potential
risks of Mixed and Shared Funding.
5.2 Disinterested Directors.
SMFI agrees that its Board of Directors shall at all times consist of
directors a majority of whom (the "Disinterested Directors") are not
interested persons of SMFI within the meaning of Section 2(a)(19) of the 1940
Act and the rules thereunder and as modified by any applicable orders of the
SEC, except that if this condition is not met by reason of the death,
disqualification, or bona fide resignation of any director, then the operation
of this condition shall be suspended (a) for a period of forty-five (45) days
if the vacancy or vacancies may be filled by the Board;(b) for a period of
sixty (60) days if a vote of shareholders is required to fill the vacancy or
vacancies; or (c) for such longer period as the SEC may prescribe by order
upon application.
5.3 Monitoring for Material Irreconcilable Conflicts.
SMFI agrees that its Board of Directors will monitor for the existence
of any material irreconcilable conflict between the interests of the Owners in
all separate accounts of life insurance companies utilizing SMFI
("Participating Insurance Companies"), including each Account, and
participants in all qualified retirement and pension plans investing
in SMFI ("Participating Plans"). LIFE COMPANY agrees to inform the Board of
Directors of SMFI of the existence of or any potential for any such material
irreconcilable conflict of which it is aware. The concept of a "material
irreconcilable conflict" is not defined by the 1940 Act or the rules
thereunder, but the Parties recognize that such a conflict may arise for a
variety of reasons, including, without limitation:
(a) an action by any state insurance or other regulatory
authority;
(b) a change in applicable federal or state insurance, tax or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance, tax
or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant
proceeding;
(d) the manner in which the investments of any Fund are being
managed;
(e) a difference in voting instructions given by variable annuity
contract and variable life insurance contract Owners or by Participants of
different Participating Insurance Companies;
(f) a decision by a Participating Insurance Company to disregard
the voting instructions of Owners; or
(g) a decision by a Participating Plan to disregard the voting
instructions of Plan participants.
Consistent with the SEC's requirements in connection with exemptive
orders of the type referred to in Section 5.1 hereof, LIFE COMPANY will assist
the Board of Directors in carrying out its responsibilities by providing the
Board of Directors with all information reasonably necessary for the Board of
Directors to consider any issue raised, including information as to a decision
by LIFE COMPANY to disregard voting instructions of Owners. LIFE COMPANY's
responsibilities in connection with the foregoing shall be carried out with
a view only to the interests of Owners.
5.4 Conflict Remedies.
(a) It is agreed that if it is determined by a majority of the
members of the Board of Directors or a majority of the Disinterested Directors
that a material irreconcilable conflict exists, LIFE COMPANY will, if it is a
Participating Insurance Company for which a material irreconcilable conflict
is relevant, at its own expense and to the extent reasonably practicable (as
determined by a majority of the Disinterested Directors), take whatever steps
are necessary to remedy or eliminate the material irreconcilable conflict,
which steps may include, but are not limited to:
(i) withdrawing the assets allocable to some or all of the Accounts
from SMFI or any Fund and reinvesting such assets in a
different investment medium, including another Fund of SMFI,
or submitting the question whether such segregation should be
implemented to a vote of all affected Owners and,
as appropriate, segregating the assets of any particular
group (e.g., annuity Owners, life insurance Owners or all
Owners) that votes in favor of such segregation, or offering
to the affected Owners the option of making such a
change; and
(ii) establishing a new registered investment company of the type
defined as a "management company" in Section 4(3) of the 1940
Act or a new separate account that is operated as a
management company.
(b) If the material irreconcilable conflict arises because of
LIFE COMPANY's decision to disregard Owner voting instructions and that
decision represents a minority position or would preclude a majority vote,
LIFE COMPANY may be required, at SMFI's election, to withdraw each Account's
investment in SMFI or any Fund. No charge or penalty will be imposed as a
result of such withdrawal. Any such withdrawal must take place within six
(6) months after SMFI gives notice to LIFE COMPANY that this provision is
being implemented, and until such withdrawal SMFI shall continue to accept
and implement orders by LIFE COMPANY for the purchase and redemption of
Shares of SMFI.
(c) If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to LIFE COMPANY
conflicts with the majority of other state regulators, then LIFE COMPANY
will withdraw each Account's investment in SMFI within six (6) months after
SMFI's Board of Directors informs LIFE COMPANY that it has determined that
such decision has created a material irreconcilable conflict, and until such
withdrawal SMFI shall continue to accept and implement orders by LIFE COMPANY
for the purchase and redemption of Shares of SMFI. No charge or penalty will
be imposed as a result of such withdrawal.
(d) LIFE COMPANY agrees that any remedial action taken by it in
resolving any material irreconcilable conflict will be carried out at its
expense and with a view only to the interests of Owners.
(e) For purposes hereof, a majority of the Disinterested Directors
will determine whether or not any proposed action adequately remedies any
material irreconcilable conflict. In no event, however, will SMFI or any of
its affiliates be required to establish a new funding medium for any Contracts.
LIFE COMPANY will not be required by the terms hereof to establish a new
funding medium for any Contracts if an offer to do so has been declined by
vote of a majority of Owners materially adversely affected by the material
irreconcilable conflict.
5.5 Notice to LIFE COMPANY.
SMFI will promptly make known in writing to LIFE COMPANY the Board of
Directors' determination of the existence of a material irreconcilable
conflict, a description of the facts that give rise to such conflict and the
implications of such conflict.
5.6 Information Requested by Board of Directors.
LIFE COMPANY and SMFI (or its investment adviser) will at least
annually submit to the Board of Directors of SMFI such reports, materials or
data as the Board of Directors may reasonably request so that the Board of
Directors may fully carry out the obligations imposed upon it by the provisions
hereof or any exemptive order granted by the SEC to permit Mixed and Shared
Funding, and said reports, materials and data will be submitted at any
reasonable time deemed appropriate by the Board of Directors. All reports
received by the Board of Directors of potential or existing conflicts, and all
Board of Directors actions with regard to determining the existence of a
conflict, notifying Participating Insurance Companies and Participating Plans
of a conflict, and determining whether any proposed action adequately remedies
a conflict, will be properly recorded in the minutes of the Board of Directors
or other appropriate records, and such minutes or other records will be made
available to the SEC upon request.
5.7 Compliance with SEC Rules.
If, at any time during which SMFI is serving as an investment medium
for variable life insurance Contracts, 1940 Act Rules 6e-3(T) or, if
applicable, 6e-2 are amended or Rule 6e-3 is adopted to provide exemptive
relief with respect to Mixed and Shared Funding. SMFI agrees that it will
comply with the terms and conditions thereof and that the terms of this
Section 5 shall be deemed modified if and only to the extent required in
order also to complywith the terms and conditions of such exemptive relief
that is afforded by any of said rules that are applicable.
5.8 Other Requirements.
SMFI will require that each Participating Insurance Company and
Participating Plan enter into an agreement with SMFI that contains in
substance the same provisions as are set forth in Sections 4.1(b), 4.1(d),
4.3(a), 4.4(b), 4.5(a), 5, and 10 of this Agreement.
Section 6 Termination
6.1 Events of Termination.
Subject to Section 6.4 below, this Agreement will terminate as to a
Fund:
(a) at the option of any party, with or without cause with
respect to the Fund, upon six (6) months advance written notice to the other
parties, or, if later, upon receipt of any required exemptive relief from the
SEC, unless otherwise agreed to in writing by the parties; or
(b) at the option of SMFI upon institution of formal proceedings
against LIFE COMPANY or its affiliates by the NASD, the SEC, any state
insurance regulator or any other regulatory body regarding LIFE COMPANY's
obligations under this Agreement or related to the sale of the Contracts, the
operation of each Account, or the purchase of Shares, if, in each case, SMFI
reasonably determines that such proceedings, or the facts on which such
proceedings would be based, have a material likelihood of imposing material
adverse consequences on the Fund with respect to which the Agreement is to be
terminated; or
(c) at the option of LIFE COMPANY upon institution of formal
proceedings against SMFI, its underwriter, or its investment adviser by the
NASD, the SEC, or any state insurance regulator or any other regulatory body
regarding SMFI's obligations under this Agreement or related to the operation
or management of SMFI or the purchase of SMFI Shares, if, in each case,
LIFE COMPANY reasonably determines that such proceedings, or the facts on
which such proceedings would be based, have a material likelihood of
imposing material adverse consequences on LIFE COMPANY, or the Subaccount
corresponding to the Fund with respect to which the Agreement is to be
terminated; or
(d) at the option of any Party in the event that (i) the Fund's
Shares are not registered, where required, and, in all material respects,
issued and sold in accordance with any applicable federal or state law, or
(ii) such law precludes the use of such Shares as an underlying investment
medium of the Contracts issued or to be issued by LIFE COMPANY; or
(e) upon termination of the corresponding Subaccount's investment
in the Fund pursuant to Section 5 hereof; or
(f) at the option of LIFE COMPANY if the Fund ceases to qualify
as a RIC under Subchapter M of the Code or under successor or similar
provisions, or if LIFE COMPANY reasonably believes that the Fund may fail
to so qualify; or
(g) at the option of LIFE COMPANY if the Fund fails to comply with
Section 817(h) of the Code or with successor or similar provisions, as
applicable, or if LIFE COMPANY reasonably believes that the Fund may fail to
so comply; or
(h) at the option of SMFI if the Contracts issued by LIFE COMPANY
cease to qualify as annuity contracts or life insurance contracts under the
Code (other than by reason of the Fund's noncompliance with Section 817(h) or
Subchapter M of the Code) or if interests in an Account under the Contracts
are not registered, where required, and, in all material respects, are not
issued or sold in accordance with any applicable federal or state law; or
(i) upon another Party's material breach of any provision of this
Agreement.
6.2 Notice Requirement for Termination.
No termination of this Agreement will be effective unless and until
the Party terminating this Agreement gives prior written notice to the other
Party to this Agreement of its intent to terminate, and such notice shall set
forth the basis for such termination. Furthermore:
(a) in the event that any termination is based upon the provisions
of Sections 6.1(a) or 6.1(e) hereof, such prior written notice shall be given
at least six (6) months in advance of the effective date of termination unless
a shorter time is agreed to by the Parties hereto;
(b) in the event that any termination is based upon the provisions
of Sections 6.1(b) or 6.1(c) hereof, such prior written notice shall be given
at least ninety (90) days in advance of the effective date of termination
unless a shorter time is agreed to by the Parties hereto; and
(c) in the event that any termination is based upon the provisions
of Sections 6.1(d), 6.1(f), 6.1(g), 6.1(h) or 6.1(i) hereof, such prior written
notice shall be given as soon as possible within twenty-four (24) hours after
the terminating Party learns of the event causing termination to be required.
6.3 Funds To Remain Available.
Notwithstanding any termination of this Agreement, SMFI will, at the
option of LIFE COMPANY, continue to make available additional shares of the
Fund pursuant to the terms and conditions of this Agreement, for all Contracts
in effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, without limitation, the
owners of the Existing Contracts will be permitted to reallocate investments
in the Fund (as in effect on such date), redeem investments in the Fund and/or
invest in the Fund upon the making of additional purchase payments under the
Existing Contracts. The parties agree that this Section 6.3 will not apply to
any terminations under Section 5 and the effect of such terminations will be
governed by Section 5 of this Agreement.
6.4 Survival of Warranties and Indemnifications.
All warranties and indemnifications will survive the termination of
this Agreement.
6.5 Continuance of Agreement for Certain Purposes.
If any Party terminates this Agreement with respect to any Fund
pursuant to Sections 6.1(b), 6.1(c), 6.1(d), 6.1(f), 6.1(g), 6.1 (h) or 6.1(i)
hereof, this Agreement shall nevertheless continue in effect as to any Shares
of that Fund that are outstanding as of the date of such termination (the
"Initial Termination Date"). This continuation shall extend to the earlier of
the date as of which an Account owns no Shares of the affected Fund or a date
(the "Final Termination Date") six (6) months following the Initial
Termination Date, except that LIFE COMPANY may, by written notice shorten
said six (6) month period in the case of a termination pursuant to Sections
6.1(d), 6.1(f), 6.1(g), 6.1 (h) or 6.1(i).
Section 7 Parties To Cooperate Respecting Termination
The Parties hereto agree to cooperate and give reasonable assistance
to one another in taking all necessary and appropriate steps for the purpose
of ensuring that an Account owns no Shares of a Fund after the Final
Termination Date with respect thereto, or, in the case of a termination
pursuant to Section 6.1(a), the termination date specified in the notice of
termination. Such steps may include combining the affected Account with
another Account, substituting other mutual fund shares for those of the
affected Fund, or otherwise terminating participation by the Contracts in
such Fund.
Section 8 Assignment
This Agreement may not be assigned by any Party, except with the
written consent of each other Party.
Section 9 Notices
Notices and communications required or permitted by this Agreement
will be given by means mutually acceptable to the Parties concerned. Each
other notice or communication required or permitted by this Agreement will
be given to the following persons at the following addresses and facsimile
numbers, or such other persons, addresses or facsimile numbers as the Party
receiving such notices or communications may subsequently direct in
writing:
Symetra Life Insurance Company
Symetra Securities, Inc.
000 000xx Xxx. XX, Xxxxx 0000
` Xxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxxxxx X. Xxxxxxxxx
Legal Department
w/ copy to the General Counsel
Summit Mutual Funds, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Facsimile: 513-632-1697
Attn: Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxxxxx
Ameritas Investment Corp.
0000 "X" Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx
Section 10 Voting Procedures
Subject to the cost allocation procedures set forth in Section 3
hereof, LIFE COMPANY will distribute all proxy material furnished by SMFI to
Owners and/or Policyholders to whom pass-through voting privileges are required
to be extended and will solicit voting instructions from Owners. LIFE COMPANY
will vote Shares in accordance with timely instructions received from Owners.
LIFE COMPANY will vote Shares that are (a) not attributable to Owners to whom
pass-through voting privileges are extended, or (b) attributable to Owners,
but for which no timely instructions have been received, in the same
proportion as Shares for which said instructions have been received from
Owners, so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for Owners. Neither LIFE
COMPANY nor any of its affiliates will in any way recommend action in
connection with or oppose or interfere with the solicitation of proxies for
the Shares held for such Owners. LIFE COMPANY reserves the right to vote
shares held in any Account in its own right, to the extent permitted by law.
LIFE COMPANY shall be responsible for assuring that each of its Accounts
holding Shares calculates voting privileges in a manner consistent with that
of other Participating Insurance Companies or in the manner required by the
Mixed and Shared Funding exemptive order obtained by SMFI. SMFI will notify
LIFE COMPANY of any changes of interpretations or amendments to Mixed and
Shared Funding exemptive order it obtains. SMFI will comply with all
provisions of the 1940 Act requiring voting by shareholders, and in
particular, SMFI either will provide for annual meetings (except insofar as
the SEC may interpret Section 16 of the 1940 Act not to require such meetings)
or will comply with Section 16(c) of the 1940 Act (although SMFI is not one of
the trusts described in Section 16(c) of that Act) as well as with Sections
16(a) and, if and when applicable, 16(b). Further, SMFI will act in accordance
with the SEC's interpretation of the requirements of Section 16(a) with respect
to periodic elections of directors and with whatever rules the SEC may
promulgate with respect thereto.
Section 11 Foreign Tax Credits
SMFI agrees to consult in advance with LIFE COMPANY concerning any
decision to elect or not to elect pursuant to Section 853 of the Code to pass
through the benefit of any foreign tax credits to its shareholders.
Section 12 Indemnification
12.1 Of SMFI and AIC by LIFE COMPANY and UNDERWRITER.
(a) Except to the extent provided in Sections 12.1(b) and 12.1(c),
below, LIFE COMPANY and UNDERWRITER agree to indemnify and hold harmless SMFI,
AIC, their affiliates, and each person, if any, who controls SMFI, AIC, or
their affiliates within the meaning of Section 15 of the 1933 Act and each of
their respective directors and officers, (collectively, the "Indemnified
Parties" for purposes of this Section 12.1) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of LIFE COMPANY and UNDERWRITER) or actions in respect thereof
(including, to the extent reasonable, legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
actions:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in any Account's 1933 Act registration
statement, any Account Prospectus, the Contracts, or
sales literature or advertising for the Contracts
(or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; provided, that this agreement to
indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon
and in conformity with information furnished to
LIFE COMPANY or UNDERWRITER by or on behalf of
SMFI or AIC for use in any Account's 1933 Act,
registration statement, any Account Prospectus,
the Contracts, or sales literature or advertising or
otherwise for use in connection with the sale of
Contracts or Shares (or any amendment or supplement
to any of the foregoing); or
(ii) arise out of or as a result of any other statements
or representations (other than statements or
representations contained in SMFI's 1933 Act
registration statement, SMFI Prospectus, sales
literature or advertising of SMFI, or any amendment
or supplement to any of the foregoing,
not supplied for use therein by or on behalf of
LIFE COMPANY, UNDERWRITER or their respective
affiliates and on which such persons have reasonably
relied) or the negligent, illegal or fraudulent
conduct of LIFE COMPANY, UNDERWRITER or their
respective affiliates or persons under their control
(including, without limitation, their employees and
"Associated Persons," as that term is defined in
paragraph (m) of Article I of the NASD's
By-Laws), in connection with the sale or distribution
of the Contracts or Shares; or
(iii) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in SMFI's 1933 Act registration statement,
SMFI Prospectus, sales literature or advertising
of SMFI, or any amendment or supplement to any of
the foregoing, or the omission or alleged omission
to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading if such a statement or
omission was made in reliance upon and in conformity
with information furnished to SMFI, AIC or their
affiliates by or on behalf of LIFE COMPANY,
UNDERWRITER or their respective affiliates for use
in SMFI's 1933 Act registration statement, SMFI
Prospectus, sales literature or advertising of SMFI,
or any amendment or supplement to any of the
foregoing; or
(iv) arise as a result of any failure by LIFE COMPANY or
UNDERWRITER to perform the obligations, provide the
services and furnish the materials required of them
under the terms of this Agreement, or any material
breach of any representation and/or warranty made
by LIFE COMPANY or UNDERWRITER in this Agreement or
arise out of or result from any other
material breach of this Agreement by LIFE COMPANY
or UNDERWRITER; or
(v) arise as a result of failure by the Contracts issued
by LIFE COMPANY to qualify as annuity contracts or
life insurance contracts under the Code, otherwise
than by reason of any Fund's failure to comply
with Subchapter M or Section 817(h) of the Code.
(b) Neither LIFE COMPANY nor UNDERWRITER shall be liable under
this Section 12.1 with respect to any losses, claims, damages, liabilities or
actions to which an Indemnified Party would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance by that
Indemnified Party of its duties or by reason of that Indemnified Party's
reckless disregard of obligations or duties (i) under this Agreement, or
(ii) LIFE COMPANY, UNDERWRITER, each Account or Owners.
(c) Neither LIFE COMPANY nor UNDERWRITER shall be liable under this
Section 12.1 with respect to any action against an Indemnified Party unless
SMFI or AIC shall have notified LIFE COMPANY and UNDERWRITER in writing within
a reasonable time after the summons or other first legal process giving
information of the nature of the action 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 LIFE COMPANY
and UNDERWRITER of any such action shall not relieve LIFE COMPANY and
UNDERWRITER from any liability which they may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
Section 12.1. Except as otherwise provided herein, in case any such action is
brought against an Indemnified Party, LIFE COMPANY and UNDERWRITER shall be
entitled to participate, at their own expense, in the defense of such action
and also shall be entitled to assume the defense thereof, with counsel
approved by the Indemnified Party named in the action, which approval shall
not be unreasonably withheld. After notice from LIFE COMPANY or UNDERWRITER to
such Indemnified Party of LIFE COMPANY's or UNDERWRITER's election to assume
the defense thereof, the Indemnified Party will cooperate fully with LIFE
COMPANY and UNDERWRITER and shall bear the fees and expenses of any additional
counsel retained by it, and neither LIFE COMPANY nor UNDERWRITER will be
liable to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof, other than reasonable costs of
investigation.
12.2 Of LIFE COMPANY and UNDERWRITER by SMFI and AIC.
(a) Except to the extent provided in Sections 12.2(c), 12.2(d)
and 12.2(e), below, SMFI and AIC agree to indemnify and hold harmless LIFE
COMPANY, UNDERWRITER, their respective affiliates, and each person, if any,
who controls LIFE COMPANY, UNDERWRITER or their respective affiliates within
the meaning of Section 15 of the 1933 Act and each of their respective
directors and officers, (collectively, the "Indemnified Parties" for purposes
of this Section 12.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of SMFI and/or
AIC) or actions in respect thereof (including, to the extent reasonable, legal
and other expenses), to which the Indemnified Parties may become subject under
any statute, regulation, at common law, or otherwise, insofar as such losses,
claims, damages, liabilities or actions:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact
contained in SMFI's 1933 Act registration statement,
SMFI Prospectus or sales literature or
advertising of SMFI (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 SMFI or its affiliates by or on behalf of LIFE
COMPANY, UNDERWRITER or their respective affiliates
for use in SMFI's 1933 Act registration
statement, SMFI Prospectus, or in sales literature
or advertising or otherwise for use in connection
with the sale of Contracts or Shares (or any
amendment or supplement to any of the foregoing);
or
(ii) arise out of or as a result of any other statements or
representations (other than statements or
representations contained in any Account's 1933 Act
registration statement, any Account Prospectus,
sales literature or advertising for the Contracts,
or any amendment or supplement to any of the foregoing,
not supplied for use therein by or on behalf of
SMFI, AIC or their affiliates and on which such
persons have reasonably relied) or the negligent,
illegal or fraudulent conduct of SMFI, AIC or their
affiliates or persons under their control (including,
without limitation, their employees and
"Associated Persons" as that term is defined in
Section (m) of Article I of the NASD By-Laws), in
connection with the sale or distribution of SMFI
Shares; or
(iii) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in any Account's 1933 Act registration
statement, any Account Prospectus,sales literature or
advertising covering the Contracts, or any
amendment or supplement to any of the foregoing, 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 statement or omission was made in reliance
upon and in conformity with information furnished to
LIFE COMPANY, UNDERWRITER or their respective
affiliates by or on behalf of SMFI or AIC for use
in any Account's 1933 Act registration statement,
any Account Prospectus, sales literature or
advertising covering the Contracts, or any
amendment or supplement to any of the foregoing; or
(iv) arise as a result of any failure by SMFI to perform
the obligations, provide the services and furnish
the materials required of it under the terms of this
Agreement, or any material breach of any
representation and/or warranty made by SMFI in this
Agreement or arise out of or result from any other
material breach of this Agreement by SMFI.
(b) Except to the extent provided in Sections 12.2(c), 12.2(d) and
12.2(e) hereof, SMFI and AIC agree to indemnify and hold harmless the
Indemnified Parties from and against any and all losses, claims, damages,
liabilities (including amounts paid in settlement thereof with, the written
consent of SMFI and/or AIC) or actions in respect thereof (including, to the
extent reasonable, legal and other expenses) to which the Indemnified Parties
may become subject directly or indirectly under any statute, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or actions
directly or indirectly result from or arise out of the failure of any Fund
to operate as a regulated investment company in compliance. with (i)
Subchapter M of the Code and regulations thereunder, or (ii) Section 817(h)
of the Code and regulations thereunder, including, without limitation, any
income taxes and related penalties, rescission charges, liability under state
law to Owners asserting liability against LIFE COMPANY pursuant to the
Contracts, the costs of any ruling and closing agreement or other settlement
with the IRS, and the cost of any substitution by LIFE COMPANY of Shares of
another investment company or portfolio for those of any adversely affected
Fund as a funding medium for each Account that LIFE COMPANY reasonably deems
necessary or appropriate as a result of the noncompliance.
(c) Neither SMFI nor AIC shall be liable under this Section
12.2 with respect to any losses, claims, damages, liabilities or actions to
which an Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance by that
Indemnified Party of its duties or by reason of such Indemnified Party's
reckless disregard of its obligations and duties (i) under this Agreement,
or (ii) to SMFI or AIC.
(d) Neither SMFI nor AIC shall be liable under this Section
12.2 with respect to any action against an Indemnified Party unless the
Indemnified Party shall have notified SMFI and/or AIC in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the action 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 SMFI or AIC
of any such action shall not relieve SMFI or AIC from any liability which it
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this Section 12.2. Except as otherwise provided
herein, in case any such action is brought against an Indemnified Party, SMFI
and/or AIC will be entitled to participate, at its own expense, in the defense
of such action and also shall be entitled to assume the defense thereof (which
shall include, without limitation, the conduct of any ruling request and
closing agreement or other settlement proceeding with the IRS), with counsel
approved by the Indemnified Party named in the action, which approval shall
not be unreasonably withheld. After notice from SMFI and/or AIC to such
Indemnified Party of SMFI's or AIC's election to assume the defense thereof,
the Indemnified Party will cooperate fully with SMFI and AIC and shall bear
the fees and expenses of any additional counsel retained by it, and SMFI and
AIC will not be liable to such Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof, other than reasonable
costs of investigation.
12.3 Effect of Notice.
Any notice given by the indemnifying Party to an Indemnified Party
referred to in Sections 12.1 (c) or 12.2(d) above of participation in or
control of any action by the indemnifying Party will in no event be deemed to
be an admission by the indemnifying Party of liability, culpability or
responsibility, and the indemnifying Party will remain free to contest
liability with respect to the claim among the Parties or otherwise.
12.4 Successors.
A successor by law of any Party shall be entitled to the benefits of
the indemnification contained in this Section 12.
Section 13 Applicable Law
This Agreement will be construed and the provisions hereof interpreted
under and in accordance with Ohio law, without regard for that state's
principles of conflict of laws.
Section 14 Execution in Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
Section 15 Severability
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will
not be affected thereby.
Section 16 Rights Cumulative
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, that the Parties are entitled to under federal and
state laws.
Section 17 Headings
The Table of Contents and headings used in this Agreement are for
purposes of reference only and shall not limit or define the meaning of the
provisions of this Agreement.
Section 18 Confidentiality and Privacy
(a) SMFI acknowledges that the identities of the customers of LIFE
COMPANY or any of its affiliates (collectively, the "LIFE COMPANY Protected
Parties" for proposes of this Section 18), information maintained regarding
those customers, and all computer programs and procedures or other information
developed by the LIFE COMPANY Protected Parties or any of their employees or
agents in connection with LIFE COMPANY's performance of its duties under this
Agreement are the valuable property of the LIFE COMPANY Protected Parties.
SMFI agrees that if it comes into possession of any list or compilation of the
identities of or other information about the LIFE COMPANY Protected Parties'
customers, or any other information or property of the LIFE COMPANY Protected
Parties, other than such information as may be independently developed or
compiled by SMFI from information supplied to it by the LIFE COMPANY Protected
Parties' customers who also maintain accounts directly with SMFI, SMFI will
hold such information or property in confidence and refrain from using,
disclosing or distributing any of such information or other property except:
(a) with LIFE COMPANY'S prior written consent; or (b) as required by law or
judicial process. LIFE COMPANY acknowledges that the identities of the
customers of SMFI or any of its affiliates (collectively, the "SMFI Protected
Parties" for purposes of this Section 18), information maintained regarding
those customers, and all computer programs and procedures or other information
developed by the SMFI Protected Parties or any of their employees or agents in
connection with SMFI's performance of its duties under this Agreement are the
valuable property of the SMFI Protected Parties. LIFE COMPANY agrees that if
it comes into possession of any list or compilation of the identities of or
other information about the SMFI Protected Parties' customers or any other
information or property of the SMFI Protected Parties, other than such
information as may be independently developed or compiled by LIFE COMPANY
from information supplied to it by the SMFI Protected Parties' customers who
also maintain accounts directly with LIFE COMPANY, LIFE COMPANY will hold such
information or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with SMFI's
prior written consent; or (b) as required by law or judicial process. Each
party acknowledges that any breach of the agreements in this Section 18 would
result in immediate and irreparable harm to the other parties for which there
would be no adequate remedy at law and agree that in the event of such a
breach, the other parties will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as any court
of competent jurisdiction deems appropriate.
(b) The parties each warrant and represent that their conduct under
this Agreement shall comply with the Xxxxx-Xxxxx-Xxxxxx Act, Regulation S-P
(17 C.F.R. [section sign]248), and all other applicable federal and state
laws concerning customer confidentiality, and that no party will share
customers' non-public personal information with third parties, except as
allowed by applicable laws. This section shall survive termination of
this Agreement."
Section 19 Trademarks and Fund Names
(a) Summit Investment Partners, Inc. ("Summit" or "licensor"), an
affiliate of SMFI, owns all right, title and interest in and to the name,
trademark and service xxxx "Summit Pinnacle" and such other tradenames,
trademarks and service marks as may be set forth on Schedule B, as amended
from time to time by written notice from Summit to LIFE COMPANY (the "Summit
licensed marks" or the "licensor's licensed marks") and is authorized to use
and to license other persons to use such marks. LIFE COMPANY and its affiliates
are hereby granted a non-exclusive license to use the Summit licensed marks in
connection with LIFE COMPANY's performance of the services contemplated under
this Agreement, subject to the terms and conditions set forth in this Section
19.
(b) The grant of license to LIFE COMPANY and its affiliates ( the
"licensee") shall terminate automatically upon termination of this Agreement.
Upon automatic termination, the licensee shall cease to use the licensor's
licensed marks, except that LIFE COMPANY shall have the right to continue to
service any outstanding Contracts bearing any of the Summit licensed marks.
Upon Summit's elective termination of this license, LIFE COMPANY and its
affiliates shall immediately cease to issue any new annuity or life insurance
contracts bearing any of the Summit licensed marks and shall likewise cease
any activity which suggests that it has any right under any of the Summit
licensed marks or that it has any association with Summit, except that LIFE
COMPANY shall have the right to continue to service outstanding Contracts
bearing any of the Summit licensed marks.
(c) The licensee shall obtain the prior written approval of the
licensor for the public release by such licensee of any materials bearing the
licensor's licensed marks. The licensor's approvals shall not be unreasonably
withheld.
(d) During the term of this grant of license, a licensor may
request that a licensee submit samples of any materials bearing any of the
licensor's licensed marks which were previously approved by the licensor but,
due to changed circumstances, the licensor may wish to reconsider. If, on
reconsideration, or on initial review, respectively, any such samples fail to
meet with the written approval of the licensor, then the licensee shall
immediately cease distributing such disapproved materials. The licensor's
approval shall not be unreasonably withheld, and the licensor, when requesting
reconsideration of a prior approval, shall assume the reasonable expenses of
withdrawing and replacing such disapproved materials. The licensee shall
obtain the prior written approval of the licensor for the use of any new
materials developed to replace the disapproved materials, in the manner set
forth above.
(e) The licensee hereunder: (i) acknowledges and stipulates that,
to the best of the knowledge of the licensee, the licensor's licensed marks are
valid and enforceable trademarks and/or service marks and that such licensee
does not own the licensor's licensed marks and claims no rights therein other
than as a licensee under this Agreement; (ii) agrees never to contend otherwise
in legal proceedings or in other circumstances; and (iii) acknowledges and
agrees that the use of the licensor's licensed marks pursuant to this grant of
license shall inure to the benefit of the licensor.
(f) LIFE COMPANY and UNDERWRITER understand that (i) the S&P 500
Index[registered trademark symbol] and the S&P MidCap 400 Index[registered
trademark symbol] are trademarks of The XxXxxx-Xxxx Companies, Inc.; the
Xxxxxxx 2000 Index is a trademark/service xxxx of the Xxxxx Xxxxxxx Company;
Nasdaq and related marks are trademarks or service marks of The Nasdaq Stock
Market, Inc.; and Xxxxxx Xxxxxxx Capital International is the licensor of the
EAFE Index trademark; (ii) these trademarks have been licensed for use by SMFI;
and (iii) the Funds are not sponsored, endorsed, sold or promoted by any of
the licensing organizations, and they make no representation or warranty
regarding the Funds, and bear no liability with respect to the Funds. LIFE
COMPANY and UNDERWRITER agree to comply with any requirements of the licensing
organizations regarding the use of their trademarks in any prospectuses, sales
literature or other promotional material.
Section 20 Parties to Cooperate
Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including, without limitation, the
SEC, the NASD and state insurance regulators) and will permit each other and
such authorities reasonable access to its books and records (including copies
thereof) in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
Section 21 Excessive Trading
(a) The Parties acknowledge and agree that excessive trading can
disrupt management of the Fund and raise its expenses. In particular, the
Funds may have difficulty implementing their long-term investment strategies
if they are forced to maintain a higher level of their assets in cash to
accommodate significant short-term trading activity resulting from market
timing. A Fund may bear increased administrative costs due to asset level
and investment volatility that accompanies patterns of short-term trading
activity. SMFI has adopted policies to discourage excessive trading of the
Funds' shares. SMFI defines "excessive trading" in the prospectus and
statement of additional information.
(b) LIFE COMPANY represents and warrants that the Contracts to be
funded by investments of the Accounts in one or more of the Funds contain
provisions permitting LIFE COMPANY to restrict excessive or potentially
abusive transfers in at least one of the following ways:
- Limitations on the ability to have exchanges effected other
than by mail in the event of excessive or abusive transfers;
- Limitations on transfers into any investment option within
30 days of having transferred out of it (other than in
connection with an automatic transfer program);
- Limitations on any transfers among sub-accounts within 30 days
of prior transfer (other than in connection with an automatic
transfer program); or
- Limitations on any transfers on a day when net transfers into
or out of a sub-account would have the effect of increasing or
reducing the assets of the Fund by more than 1% without the
express permission of the adviser to that Fund.
(c) LIFE COMPANY also represents and warrants that the Contract
prospectuses contain language describing its policies regarding excessive
trading.
(d) SMFI will monitor daily trading activities of each Fund for
excessive trading or potentially abusive exchanges. LIFE COMPANY agrees that
it will use reasonable efforts to implement the market timing policies set
forth in each Contract's prospectus and the market timing policies set forth
in each Fund's prospectus. Notwithstanding the foregoing, SMFI acknowledges
and agrees that LIFE COMPANY may not be able to detect every instance of market
timing and may not be able to eliminate market timing in the Funds, but Life
COMPANY agrees to notify SMFI of each instance that it does detect such market
timing.
(e) SMFI will notify LIFE COMPANY if it detects such trading or
exchanges from LIFE COMPANY'S Accounts. Upon notification from SMFI, LIFE
COMPANY will use its best efforts to exercise its rights under the Contracts
to impose limitations in a way that stops excessive or potentially abusive
exchanges by one or a group of investors consistent with the Contracts'
market timing policies and procedures as reflected in the Contracts'
prospectuses.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized officers signing below.
SUMMIT MUTUAL FUNDS, INC.
Attest:___________________________By:___________________________________
Name: Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Title: President
AMERITAS INVESTMENT CORP.
Attest:___________________________By:__________________________________
Name: Name: Xxxxxxx X. Xxxxxxx
Title: Title: Vice President and
Chief Compliance
Officer
SYMETRA LIFE INSURANCE COMPANY,
on behalf of itself and its
separate accounts
Attest:___________________________By:____________________________________
Name: Name: Xxxxx X. Xxxxxxxxxxxx
Title: Title: Vice President
SYMETRA SECURITIES, INC.
Attest:___________________________By:_____________________________________
Name: Name: Xxxxx X. Xxxxxxxx
Title: Title: Vice President
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
Summit Mutual Funds, Inc. Pinnacle Series:
Summit S&P 500 Index Portfolio
Summit S&P MidCap 400 Index Portfolio
Summit Balanced Index Portfolio
Summit Xxxxxx Aggregate Bond Index Portfolio
Summit Nasdaq - 100 Index Portfolio
Summit EAFE International Index Portfolio
Summit Xxxxxxx 2000 Small Cap Index Portfolio - Class F
SEPARATE ACCOUNTS UTILIZING THE FUNDS
Symetra Separate Account C
UNREGISTERED SEPARATE ACCOUNTS UTILIZING THE FUNDS
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
Symetra Focus[registered trademark symbol] Variable Annuity
SCHEDULE B
SUMMIT TRADEMARKS
Summit and Design
SCHEDULE C
EXPENSE ALLOCATIONS
Life Company SMFI /AIC
--------------------------------------------------------------------------------------------
preparing and filing the Account's preparing and filing the Fund's registration
registration statement statement
text composition for Account text composition for Fund prospectuses
prospectuses and supplements and supplements
------------------------------------------------------------------------------------- ------
text alterations of prospectuses text alterations of prospectuses (Fund) and
(Account) and supplements (Account) supplements (Fund)
printing Account and Fund prospectuses a camera ready Fund prospectus
and supplements
--------------------------------------------------------------------------------------------
text composition and printing Account SAIs text composition and printing Fund SAIs
mailing and distributing Account SAIs to mailing and distributing Fund SAIs to policy
policy owners upon request by policy owners owners upon request by policy owners
--------------------------------------------------------------------------------------------
mailing and distributing prospectuses text composition of annual and semi-annual
(Account and Fund) and supplements reports (Fund)
(Account and Fund) to policy owners of
record as required by Federal Securities Laws
and to prospective purchasers
text composition (Account), printing, mailing,
and distributing annual and semi-annual
reports for Account (Fund and Account as,
applicable)
--------------------------------------------------------------------------------------------
text composition, printing, mailing, text composition, printing, mailing,
distributing, and tabulation of proxy distributing and tabulation of proxy
statements and voting instruction solicitation statements and voting instruction solicitation
materials to policy owners with respect to materials to policy owners with respect to
proxies related to the Account proxies related to the Fund
--------------------------------------------------------------------------------------------
preparation, printing and distributing sales
material and advertising relating to the Funds,
insofar as such materials relate to the
Contracts and filing such materials with and
obtaining approval from, the SEC, the NASD,
any state insurance regulatory authority, and
any other appropriate regulatory authority, to
the extent required
