THIS AGREEMENT is made and entered into as of the 1st day of May, 2004 by and among SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.) (the "Company"), a Delaware corporation, on its own behalf and on behalf of each separate account of the Company set forth...
THIS
AGREEMENT is made and entered into as of the 1st day of May, 2004 by and among
SUN
LIFE
ASSURANCE COMPANY OF CANADA (U.S.)
(the
"Company"), a Delaware corporation, on its own behalf and on behalf of each
separate account of the Company set forth on Schedule A hereto as may be amended
from time to time (each such account referred to as an "Account"), THE UNIVERSAL
INSTITUTIONAL FUNDS, INC. (the "Fund"), a Maryland corporation, XXXXXX XXXXXXX
& CO. INCORPORATED (the "Underwriter"), a Delaware corporation, and XXXXXX
XXXXXXX INVESTMENT MANAGEMENT INC. (the "Adviser"), a Delaware
corporation.
WHEREAS,
the Fund engages in business as an open-end management investment company and
is
available to act as (i) the investment vehicle for separate accounts established
by insurance companies for individual and group life insurance policies and
annuity contracts with variable accumulation and/or pay-out provisions
(hereinafter referred to individually and/or collectively as "Variable Insurance
Products") and (ii) the investment vehicle for certain qualified pension and
retirement plans ("Qualified Plans"); and
WHEREAS,
insurance companies desiring to utilize the Fund as an investment vehicle under
their Variable Insurance Products enter into participation agreements with
the
Fund, the Underwriter and the Adviser (the "Participating Insurance Companies");
and
WHEREAS,
shares of the Fund are divided into several series of shares, each representing
the interest in a particular managed portfolio of securities and other assets,
any one or more of which may be made available under this Agreement;
and
WHEREAS,
the Fund intends to offer shares of the series set forth on Schedule B hereto
(each such series referred to as a "Portfolio"), as such Schedule may be amended
from time to time by mutual written agreement of the parties hereto, to the
Account(s) of the Company (all references herein to "shares" of a Portfolio
shall mean the class or classes of shares specifically identified on Schedule
B); and
WHEREAS,
the Fund has obtained an order from the Securities and Exchange Commission
("SEC"), dated September 19, 1996 (File No. 812-10118), granting Participating
Insurance Companies and Variable Insurance Product separate accounts exemptions
from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended (the "1940 Act"), and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Fund
to be sold to and held by Variable Insurance Product separate accounts of both
affiliated and unaffiliated life insurance companies and Qualified Plans (the
"Shared Funding Exemptive Order"); and
WHEREAS,
the Fund is registered as an open-end management investment company under the
1940 Act and its shares are registered under the Securities Act of 1933, as
amended (the "1933 Act"); and
WHEREAS,
the Adviser is duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and any applicable state securities laws;
and
WHEREAS,
the Adviser manages the Portfolios of the Fund; and
WHEREAS,
the Underwriter is registered as a broker/dealer under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") and serves as
principal underwriter of the shares of the Fund; and
WHEREAS,
the Company offers or proposes to offer certain Variable Insurance Products
that
it has registered (or will register) under the 1933 Act (the åRegistered
Contractsæ), as well as other Variable Insurance Products that are not
registered under the 1933 Act (the åUnregistered Contracts,æ and together with
the Registered Contracts, the åContractsæ), each as set forth on Schedule A
hereto; and
WHEREAS,
each Account is a duly organized, validly existing segregated asset account,
established by resolution or under authority of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to the Contracts; and
WHEREAS,
the Company has registered (or will register) certain Accounts as unit
investment trusts under the 1940 Act that are attributable to the Registered
Contracts (the åRegistered Accountsæ), while certain other Accounts that are
attributable to the Unregistered Contracts will not be registered under the
1940
Act (the åUnregistered Accounts,æ and together with the Registered Accounts, the
åAccountsæ), each as set forth on Schedule A hereto; and
WHEREAS,
to the extent permitted by applicable insurance laws and regulations, the
Company intends to purchase shares of the Portfolios, on behalf of each Account
or sub-Account thereof (together, as applicable, an "Account"), to fund the
Contracts and the Underwriter is authorized to sell such shares to each such
Account at net asset value.
NOW,
THEREFORE, in consideration of their mutual promises, the Company, the Fund,
the
Underwriter and the Adviser agree as follows:
ARTICLE
I. Purchase and Redemption of Fund Shares
1.1. The
Fund
and the Underwriter agree to make available for purchase by the Company shares
of the Portfolio(s) and shall execute purchase orders placed for each Account
on
each Business Day at the net asset value next computed after receipt by the
Fund
or its designee of such purchase order. For purposes of this Section 1.1, the
Company shall be the designee of the Fund and the Underwriter for receipt of
such purchase orders from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that the Fund receives notice of such
order by 10:00 a.m. Eastern time on the next following Business Day. "Business
Day" shall mean any day on which the New York Stock Exchange, Inc. is open
for
trading and on which the Fund calculates its net asset value pursuant to SEC
rules.
1.2.
The
Fund,
so long as this Agreement is in effect, agrees to make shares of the Portfolios
available for purchase at the applicable net asset value per share by the
Company and its Accounts on those days on which the Fund calculates its net
asset value pursuant to SEC rules and the Fund shall use reasonable efforts
to
calculate such net asset value on each day that the New York Stock Exchange,
Inc. is open for trading. Notwithstanding the foregoing, the Board of Directors
of the Fund (the "Board") may refuse to permit the Fund to sell shares of any
Portfolio to any person, or suspend or terminate the offering of shares of
any
Portfolio if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in good faith
and
in light of its fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such
Portfolio.
1.3.
The
Fund
and the Underwriter agree that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts and to certain
Qualified Plans in accordance with the Shared Funding Exemptive Order. No shares
of a Portfolio will be sold to the general public.
1.4.
The
Fund
and the Underwriter agree to redeem for cash, on the Company's request, any
full
or fractional shares of the Portfolio(s) held by the Company, executing such
redemption requests for each Account on each Business Day at the net asset
value
next computed after receipt by the Fund or its designee of the request for
redemption. For purposes of this Section 1.4, the Company shall be the designee
of the Fund and the Underwriter for receipt of requests for redemption from
each
Account and receipt by such designee shall constitute receipt by the Fund;
provided that the Fund receives notice of such request for redemption by 10:00
a.m. Eastern time on the next following Business Day.
1.5.
The
Company agrees that purchases and redemptions of Portfolio shares offered by
the
then current prospectus of the Fund shall be made in accordance with the
provisions of such prospectus.
1.6.
The
Company shall pay for Portfolio shares on the same Business Day when an order
to
purchase Fund shares is transmitted by the Company to the Fund in accordance
with the provisions of Section 1.1 hereof. Payment shall be in federal funds
transmitted by wire and the Company agrees to use its best efforts to transmit
such funds by no later than 2:00 p.m. Eastern time on the day of transmission.
For purposes of Sections 2.10 and 2.11, upon receipt by the Fund of the federal
funds so wired, such funds shall cease to be the responsibility of the Company
and shall become the responsibility of the Fund.
1.7.
Issuance
and transfer of the Fund's shares will be by book entry only. Share certificates
will not be issued to the Company or any Account. Shares ordered from the Fund
will be recorded in an appropriate title for each Account or the appropriate
sub-account of each Account.
1.8.
The
Fund
shall furnish same-day notice (by wire or telephone, followed by written
confirmation) to the Company of any income dividends or capital gain
distributions payable on Portfolio shares. The Company hereby elects to receive
all such income dividends and capital gain distributions as are payable on
a
Portfolio's shares in additional shares of that Portfolio. The Company reserves
the right to revoke this election and to receive all such income dividends
and
capital gain distributions in cash. The Fund shall notify the Company of the
number of shares so issued as payment of such dividends and
distributions.
1.9.
The
Fund
shall make the net asset value per share for each Portfolio available to the
Company on each Business Day as soon as reasonably practical after the net
asset
value per share is calculated (normally by 6:30 p.m. Eastern time) and shall
use
its best efforts to make such net asset value per share available by 7:00 p.m.
Eastern time.
1.10.
The
Company shall not redeem Fund shares attributable to the Contracts (as distinct
from Fund shares attributable to the Company's assets held in the Account)
except (i) as necessary to implement Contract owner initiated or approved
transactions, (ii) as required by state and/or federal laws or regulations
or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally Required Redemption") or (iii) as permitted by an order of
the
SEC pursuant to Section 26(c) of the 1940 Act. Upon request, the Company will
promptly furnish to the Fund 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 Contracts, the Company shall not
prevent Contract owners from allocating payments to a Portfolio that was
otherwise available under the Contracts without first giving the Fund thirty
(30) days prior written notice of its intention to do so.
ARTICLE
II. Representations and Warranties
2.1.
The
Company represents and warrants that: (i) it is an insurance company duly
organized and in good standing under applicable law; (ii) it has legally and
validly established each Account prior to any issuance or sale thereof as a
segregated asset account under applicable laws and regulations; and (iii) it
has
registered or, prior to any issuance or sale of the Registered Contracts, will
register and will thereafter maintain the registration of each Registered
Account as a unit investment trust in accordance with the provisions of the
1940
Act to serve as a segregated investment account for the Registered Contracts;
(iv) the Unregistered Accounts are exempt from the registration requirements
of
the 1940 Act under the provisions of Section 3(c)(1) or 3(c)(7) thereof; and
(v)
the Unregistered Accounts are exempt from the provisions of Section 12(d)(1)
of
the 1940 Act under the provisions of Section 12(d)(1)(E) of the 1940 Act. The
Company further represents and warrants that: (i) the Registered Contracts
are
or will be registered and shall remain registered under the 1933 Act; (ii)
the
Unregistered Contracts are exempt from the registration requirements of the
1933
Act under the provisions of Section 4(2) thereof; and (iii) the Contracts will
be issued in compliance in all material respects with all applicable federal
and
state laws. The Company shall amend the registration statement for the
Registered Accounts and the Registered Contracts under the 1940 Act and the
1933
Act, respectively, from time to time as required in order to effect the
continuous offering of the Registered Contracts; moreover, the Company will
notify the Fund immediately
in writing of any changes in facts or circumstances leading the Company to
believe that any of the exemptions described above with respect to the
Unregistered Contracts or Unregistered Accounts are not applicable as
represented.
2.2.
The
Fund
and the Underwriter represent and warrant that Fund shares sold pursuant to
this
Agreement shall be registered under the 1933 Act, duly authorized for issuance
and sold in compliance with the laws of the State of Maryland and all applicable
federal and state 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 its shares. The Fund shall
register and qualify the shares for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund. The
Fund
shall notify the Company of each state or jurisdiction in which the Fund shares
cannot be sold because such shares are not either qualified for sale or exempt
from the requirements of the relevant securities laws.
2.3.
The
Fund
represents that it is currently qualified as a Regulated Investment Company
under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), and that it will make every effort to maintain such qualification
(under Subchapter M or any successor or similar provision) and that it will
notify the Company immediately upon having a reasonable basis for believing
that
it has ceased to so qualify.
2.4.
The
Company represents and warrants that each Account is and will continue to be
a
"segregated asset account" under applicable provisions of the Code and
applicable Treasury Regulations promulgated thereunder and that each Contract
is
and will continue to be treated as a "variable contract" under applicable
provisions of the Code and applicable Treasury Regulations promulgated
thereunder. The Company further represents and warrants that it will make every
effort to maintain such treatment and that it will notify the Fund immediately
upon having a reasonable basis for believing that any Account or Contract has
ceased to be so treated or that any Account or Contract might not be so treated
in the future.
2.5.
The
Fund
represents that to the extent that it decides to finance distribution expenses
pursuant to Rule 12b-1 under the 1940 Act, the Fund undertakes to have the
Board, a majority of whom are not interested persons of the Fund, formulate
and
approve any plan under Rule 12b-1 to finance distribution expenses.
2.6.
The
Fund
makes no representation as to whether any aspect of its operations (including,
but not limited to, fees and expenses and investment policies) complies with
the
insurance laws or regulations of the various states.
2.7.
The
Fund
represents that it is lawfully organized and validly existing under the laws
of
the State of Maryland and that it does and will comply in all material respects
with the 1940 Act.
2.8.
The
Adviser represents and warrants that it is and shall remain duly registered
in
all material respects under all applicable federal and state securities laws
and
that it will perform its obligations for the Fund in compliance in all material
respects with the laws of its state of domicile and any applicable state and
federal securities laws.
2.9.
The
Underwriter represents and warrants that it is and shall remain duly registered
in all material respects under all applicable federal and state securities
laws
and that it will perform its obligations for the Fund in compliance in all
material respects with the laws of its state of domicile and any applicable
state and federal securities laws.
2.10.
The
Fund,
the Underwriter and the Adviser each represents and warrants that all of its
directors, officers, employees, and other individuals/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 currently required
by
Rule 17g-1 of the 1940 Act or related provisions as may be promulgated from
time
to time. The aforesaid blanket fidelity bond shall include coverage for larceny
and embezzlement and shall be issued by a reputable bonding company. The Fund,
the Underwriter and the Adviser each 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 Company in the event that such coverage no
longer applies.
2.11.
The
Company represents and warrants that all of its directors, officers, employees,
investment advisers, and other individuals/entities dealing with the money
and/or securities of the Account(s) are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit of the
Company and/or the Account(s) that is reasonable and customary in light of
the
Company's obligations under this Agreement. The aforesaid includes coverage
for
larceny and embezzlement and shall be issued by a reputable bonding company
in
an amount not less than $5 million. 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, the Underwriter and the Adviser
in the event that such coverage no longer applies.
ARTICLE
III. Prospectuses, Reports to Shareholders and Proxy Statements;
Voting
3.1.
The
Fund
or its designee shall provide the Company with as many printed copies of the
Fund's current prospectus and statement of additional information (and
all
amendments or supplements to either document) as
the
Company may reasonably request. If requested by the Company, in lieu of
providing printed copies the Fund shall provide camera-ready film or computer
diskettes containing the Fund's prospectus and statement of additional
information, and such other assistance as is reasonably necessary in order
for
the Company once each year (or more frequently if the prospectus and/or
statement of additional information for the Fund is amended during the year)
to
have the prospectus or other disclosure document for the Contracts and the
Fund's prospectus (and statement of additional information for the Fund and
the
statement of additional information for the Registered Contracts) printed
together in one document. Alternatively, the Company may print the Fund's
prospectus and/or its statement of additional information in combination with
other fund companies' prospectuses and statements of additional information.
3.2.
Except
as
provided in this Section 3.2, all expenses of printing and distributing Fund
prospectuses and statements of additional information shall be the expense
of
the Company. For prospectuses and statements of additional information (and
all
amendments or supplements to either document) provided by the Company to its
Contract owners ("Existing Contract Owners"), in order to provide or update
disclosure as required by the 1933 Act and/or the 1940 Act, the cost of printing
shall be borne by the Fund. If the Company chooses to receive camera-ready
film
or computer diskettes in lieu of receiving printed copies of the Fund's
prospectus, the Fund shall bear the cost of typesetting to provide the Fund's
prospectus to the Company in the format in which the Fund is accustomed to
formatting prospectuses, and the Company shall bear the expense of adjusting
or
changing the format to conform with any of its prospectuses or other disclosure
documents. In such event, the Fund will reimburse the Company in an amount
equal
to the product of "x" and "y", where "x" is the number of such disclosure
documents distributed to Existing Contract Owners and "y" is the Fund's per
unit
cost of printing the Fund's prospectus. [QUESTION: I don’t understand this next
sentence: The same procedures shall be followed with respect to the Fund's
statement of additional information.] The Company agrees to provide the Fund
or
its designee with such information as may be reasonably requested by the Fund
to
assure that the Fund's expenses do not include the costs of printing,
typesetting or distributing any prospectuses or statements of additional
information other than the costs of printing those prospectuses or statements
of
additional information actually distributed to Existing Contract
Owners.
3.3.
The
statement of additional information of the Fund shall be obtainable from the
Fund, the Underwriter, the Company or such other person as the Fund may
designate. [QUESTION: Will the Fund designate the Company as a source for
obtaining the SAI?]
3.4.
The
Fund,
at its expense, shall provide the Company with copies of its proxy statements,
reports to shareholders, and other communications (except for prospectuses
and
statements of additional information, which are covered in Section 3.1) to
shareholders in such quantity as the Company shall reasonably require for
distributing to Existing Contract Owners. The Fund shall not pay any costs
of
distributing such proxy materials, reports to shareholders and other
communications to prospective Contract owners.
3.5.
The
Company shall not pay any costs of distributing proxy materials furnished by
the
Fund to Contract owners to whom voting privileges are required to be extended.
If and to the extent required by law, the Company shall distribute, at the
Fund’s expense, all proxy materials furnished by the Fund (including the Fund’s
Annual Report, if such Annual Report must be distributed together with the
proxy
materials) to Contract owners to whom voting privileges are required to be
extended and shall:
(i) solicit
voting instructions from Contract owners;
(ii) vote
the
Portfolio shares in accordance with instructions received from Contract owners;
and
(iii) vote
Portfolio shares for which no instructions have been received in the same
proportion as Portfolio shares for which instructions have been
received;
so
long
as and to the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners. The Company
reserves the right to vote Portfolio shares held in any segregated asset account
in its own right, to the extent permitted by law. If the Company is required
to
solicit voting instructions, the Fund and the Company shall follow the
procedures, and shall have the corresponding responsibilities, for the handling
of proxies and voting instruction solicitations, as set forth in Schedule C
attached hereto and incorporated herein by reference. Participating Insurance
Companies shall be responsible for ensuring that each of their separate accounts
participating in the Fund (and for which the soliciting of voting instructions
is required) calculates voting privileges in a manner consistent with the
standards set forth on Schedule C, which standards will also be provided to
the
other Participating Insurance Companies.
3.6.
The
Fund
will comply with all provisions of the 1940 Act requiring voting by
shareholders, and in particular the Fund will either provide for annual meetings
(except insofar as the SEC may interpret Section 16 of the 1940 Act not to
require such meetings) or comply with Section 16(c) of the 1940 Act (although
the Fund is not one of the trusts described in Section 16(c) of the 0000 Xxx)
as
well as with Section 16(a) of the 1940 Act and, if and when applicable, Section
16(b) of the 1940 Act. Further, the Fund will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) of the 1940 Act with respect
to periodic elections of directors and with whatever rules the SEC may
promulgate with respect thereto.
ARTICLE
IV. Sales Material and Information
4.1.
The
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee, each piece of sales literature or other promotional material in which
the Fund, the Underwriter or the Adviser is named, at leastfive (5) Business
Days prior to its use. No such material shall be used without the prior approval
of the Fund or its designee. The Fund shall use its reasonable best efforts
to
review any such material as soon as practicable after receipt and no later
than
five (5) Business Days after receipt of such material.
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 for the Fund shares, as such registration
statement or prospectus may be amended or supplemented from time to time, or
in
reports or proxy statements for the Fund which are in the public domain or
approved by the Fund for distribution to Fund shareholders, or in sales
literature or other promotional material approved by the Fund or its designee,
except with the permission of the Fund.
4.3.
The
Fund
or its designee shall furnish, or shall cause to be furnished, to the Company
or
its designee, each piece of sales literature or other promotional material
in
which the Company and/or its Account(s) or Contract(s) are named at leastfive
(5) Business Days prior to its use. No such material shall be used without
the
prior approval of the Company or its designee. The Company shall use reasonable
efforts to review any such materials as soon as practicable after receipt and
no
later than five (5) Business Days after receipt of such material.
4.4.
Neither
the Fund, the Underwriter nor the Adviser shall give any information or make
any
representations on behalf of the Company or concerning the Company, each
Account, or the Contracts, other than the information or representations
contained in a registration statement, prospectus, offering memorandum or other
disclosure document for the Contracts, as such documents may be amended or
supplemented from time to time, or in reports or proxy statements for each
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 promptly provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares and are relevant
to
the Company or the Contracts. With respect to all the above documents that
must
be filed with the SEC, NASD or any other regulatory authority, the Fund will
provide such documents to the Company promptly after filing.
4.6.
The
Company will provide to the Fund, to the extent applicable, at least one
complete copy of all registration statements, prospectuses, statements of
additional information, offering memoranda or other disclosure documents,
reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate to investment
in
the Fund or the Portfolios under the Contracts.
4.7.
For
purposes of this Article IV, the phrase "sales literature or other promotional
material" includes, but is not limited to, any of the following 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, telephone or tape recording, videotape display, signs or
billboards, motion pictures, or other public media), sales literature
(i.e.,
any
written communication distributed or made generally available to customers
or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), [LET’S DISCUSS -- the parties may not
want the following categories of documents to be subject to the review and
approval requirements of sections 4.1 and 4.3: educational or training materials
or other communications distributed or made generally available to some or
all
agents or employees, and registration statements, offering memoranda,
prospectuses, statements of additional information or other disclosure
documents, shareholder reports, and proxy materials.]
4.8. The
Fund
will provide the Company with as much notice as is reasonably practicable of
any
proxy solicitation for any Portfolio, and of any material change in the Fund's
registration statement, particularly any change that may cause a change to
the
registration statement, prospectus,
or other disclosure document for
any
Account or Contract. 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
registration statement, prospectus, or other disclosure document 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.
ARTICLE
V. Fees and Expenses
5.1.
The
Fund
shall pay no fee or other compensation to the Company under this Agreement,
except that if the Fund or any Portfolio adopts and implements a service plan
and/or a plan pursuant to Rule 12b-1, then the Underwriter may make payments
to
the Company or to the underwriter for the Contracts pursuant to such plans
if
and in amounts agreed to by the Underwriter in writing.
5.2.
All
expenses incident to performance by the Fund under this Agreement shall be
paid
by the Fund. The Fund shall see to it that all its shares are registered and
authorized for issuance in accordance with applicable federal law and, if and
to
the extent deemed advisable by the Fund, in accordance with applicable state
laws prior to their sale. Except as otherwise set forth in Section 3.2 of this
Agreement, the Fund shall bear the expenses for the 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, setting
the
prospectus in type, setting in type and printing the proxy materials and reports
to shareholders, distributing proxy materials to Contract owners, the
preparation of all statements and notices required by any federal or state
law,
and all taxes on the issuance or transfer of the Fund's shares.
5.3.
The
Company shall bear the
expenses of distributing the Fund's prospectus, statement of additional
information, and reports to owners of Contracts issued by the Company.
The
Company shall also bear the expenses of distributing the Fund's prospectus,
statement of additional information, and reports to prospective owners of
Contracts issued by the Company.
ARTICLE
VI. Diversification
6.1.
The
Fund
will at all times comply with Section 817(h) of the Code and Treasury Regulation
1.817-5, relating to the diversification requirements for annuity, endowment,
or
life insurance contracts and any amendments or other modifications to such
Section or Regulations. In the event the Fund ceases to so qualify, it will
immediately (a) notify the Company of such event and (b) take action to
adequately diversify the Fund so as to achieve compliance within the grace
period afforded by Regulation 1.817-5.
ARTICLE
VII. Potential Conflicts
7.1.
The
Board
will monitor the Fund for the existence of any material irreconcilable conflict
between the interests of the contract owners of all separate accounts investing
in the Fund. An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or securities laws
or regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Portfolio
are being managed; (e) a difference in voting instructions given by contract
owners; or (f) a decision by a Participating Insurance Company to disregard
the
voting instructions of contract owners. The Fund shall promptly inform the
Company if the Board determines that an irreconcilable material conflict exists
and the implications thereof.
7.2.
The
Company 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 Shared Funding Exemptive Order by providing the
Board
with all information reasonably necessary for the Board to consider any issues
raised. This includes, but is not limited to, an obligation by the Company
to
inform the Board whenever Contract owner voting instructions are disregarded.
The
Company agrees that these responsibilities will be carried out with a view
only
to the interests of 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
directors), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the separate accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment medium,
including (but not limited to) another portfolio of the Fund, or submitting
the
question whether such segregation should be implemented to a vote of all
affected contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e.,
annuity
contract owners, life insurance policy owners, or variable contract owners
of
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected contract owners the option of making
such a change; and (2) establishing a new registered management investment
company or managed separate account. No
charge
or penalty will be imposed as a result of such withdrawal. The Company agrees
that it bears the responsibility to take remedial action in the event of a
Board
determination of an irreconcilable material conflict and the cost of such
remedial action, and that these responsibilities will be carried out with a
view
only to the interests of Contract owners.
7.4.
If
a
material irreconcilable conflict arises because of a decision by the Company
to
disregard contract owner voting instructions and that decision represents a
minority position or would preclude a majority vote, the Company may be
required, at the Fund's election, to withdraw the affected Account's investment
in the Fund and terminate this Agreement with respect to such Account (at the
Company's expense); provided, however that such withdrawal and termination
shall
be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
No
charge
or penalty will be imposed as a result of such withdrawal. The Company agrees
that it bears the responsibility to take remedial action in the event of a
Board
determination of an irreconcilable material conflict and the cost of such
remedial action, and that these responsibilities will be carried out with a
view
only to the interests of Contract owners.
7.5.
For
purposes of Sections 7.3 and 7.4 of this Agreement, a majority of the
disinterested members of the Board shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Fund be required to establish a new funding medium for the Contracts. The
Company shall not be required by Section 7.3 or 7.4 to establish a new funding
medium for the Contracts if an offer to do so has been declined by vote of
a
majority of Contract owners materially adversely affected by the irreconcilable
material conflict.
7.6.
If
and to
the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted,
to provide exemptive relief from any provision of the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as defined
in
the Shared Funding Exemptive Order) on terms and conditions materially different
from those contained in the Shared Funding Exemptive Order, then (a) the Fund
will provide written notice of such differences to the Company, including a
description of all steps necessary to comply with the Shared Funding Exemptive
Order; (b) the Fund and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rules
6e-2
and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules
are
applicable; and (c) Sections 3.4, 3.5, 7.1, 7.2, 7.3 and 7.4 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.
7.7.
Each
of
the Company and the Adviser shall at least annually submit to the Board such
reports, materials or data as the Board may reasonably request so that the
Board
may fully carry out the obligations imposed upon it by the provisions hereof
and
in the Shared Funding Exemptive Order. [QUESTION: Does the Fund have a standard
format for such submissions? Please provide a sample.] Such reports, materials
and data shall be submitted more frequently if deemed appropriate by the
Board.
ARTICLE
VIII. Indemnification
8.1.
Indemnification
by the Company
8.1(a). The
Company agrees to indemnify and hold harmless the Fund, the Underwriter, the
Adviser and each member of the Board and each officer and employee of the Fund,
and each director, officer and employee of the Underwriter and the Adviser,
and
each person, if any, who controls the Fund, the Underwriter or the Adviser
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" and individually, an "Indemnified Party," for purposes of this Section
8.1) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company) or litigation
(including reasonable legal and other expenses), to which the Indemnified
Parties may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses
(or
actions in respect thereof) or settlements are related to the sale or
acquisition of the Fund's shares or the Contracts and:
(i) arise
out
of or are based upon any untrue statements or alleged untrue statements of
any
material fact contained in the registration statement, prospectus, offering
memorandum or other disclosure document for the Contracts or contained in the
Contracts or sales or other promotional 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, offering memorandum or other disclosure
document for the Contracts or in the Contracts or sales or other promotional
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 or sales
[or
other
promotional?] literature
of the Fund not supplied by the Company, or persons under its control and other
than statements or representations authorized by the Fund, the Underwriter
or
the Adviser) or unlawful conduct of the Company or persons under its control,
with respect to the sale or distribution of the Contracts or Fund shares;
or
(iii) arise
out
of or as a result of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, or sales
literature of the Fund or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading if
such a statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Fund by or on behalf of the Company;
or
(iv) arise
as
a result of any failure by the Company to provide the services and furnish
the
materials under the terms of this Agreement; or
(v) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Company in this Agreement or arise out of or result from any other
material breach of this Agreement by the Company.
Each
of
paragraphs (i) through (v) above is limited by and in accordance with the
provisions of Sections 8.1(b) and 8.1(c) below.
8.1(b). The
Company shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation incurred or assessed
against an Indemnified Party as such may arise from such Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement.
8.1(c). The
Company shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Indemnified Party shall
have notified the Company in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the claim
shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but failure
to notify the Company of any such claim shall not relieve the Company from
any
liability which it may have to the Indemnified Party against whom such action
is
brought otherwise than on account of this indemnification provision. In case
any
such action is brought against the Indemnified Parties, the Company shall be
entitled to participate, at its own expense, in the defense of such action.
The
Company also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Company
to
such party of the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses 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.
8.1(d). The
Fund,
the Underwriter or the Adviser, as applicable, will promptly notify the Company
of the commencement of any litigation or proceedings against an Indemnified
Party in connection with this Agreement, the issuance or sale of the Fund shares
or the Contracts, or the operation of the Fund.
8.2.
Indemnification
by the Underwriter
8.2(a). The
Underwriter agrees to indemnify and hold harmless the Company and each of its
directors, officers and employees, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually, an "Indemnified Party," for purposes
of
this Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Underwriter) or litigation (including reasonable 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 a Portfolio and:
(i)
|
arise
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the registration statement or prospectus
or sales [or other promotional?] 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 in writing to the Fund, the Underwriter or
the
Adviser by or on behalf of the Company for use in the registration
statement or prospectus for the Fund or in sales [or other promotional?]
literature (or any amendment or supplement) or otherwise for use
in
connection with the sale of the Contracts or Portfolio shares;
or
|
(ii)
|
arise
out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, offering memorandum, other disclosure document or sales
or
other promotional literature for the Contracts not supplied by the
Fund or
the Underwriter or persons under their respective control and other
than
statements or representations authorized by the Company) or unlawful
conduct of the Fund or the Underwriter or persons under their respective
control, with respect to the sale or distribution of the Contracts
or
Portfolio shares; or
|
(iii)
|
arise
out of or as a result of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement, prospectus,
offering memorandum, other disclosure document or sales or other
promotional literature for 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 Underwriter to provide the services
and
furnish the materials under the terms of this Agreement;
or
|
(v)
|
arise
out of or result from any material breach of any representation and/or
warranty made by the Underwriter in this Agreement or arise out of
or
result from any other material breach of this Agreement by the
Underwriter.
|
Each
of
paragraphs (i) through (v) above is limited by and in accordance with the
provisions of Sections 8.2(b) and 8.2(c) below.
8.2(b). The
Underwriter shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation incurred
or
assessed against an Indemnified Party as such may arise from such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement.
8.2(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. In case any such action is brought against the
Indemnified Parties, 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. 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.
8.2(d). The
Company will promptly notify the Underwriter of the commencement of any
litigation or proceedings against an Indemnified Party in connection with this
Agreement, the issuance or sale of the Contracts or the operation of the
Account(s).
8.3.
Indemnification
by the Adviser
8.3(a). The
Adviser agrees to indemnify and hold harmless the Company and each of its
directors, officers and employees, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually, an "Indemnified Party," for purposes
of
this Section 8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Adviser)
or litigation (including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute 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 a Portfolio and:
(i)
|
arise
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the registration statement or prospectus
or sales [or other promotional?] 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 in writing to the Fund, the Underwriter or
the
Adviser by or on behalf of the Company for use in the registration
statement or prospectus for the Fund or in sales [or other promotional?]
literature (or any amendment or supplement) or otherwise for use
in
connection with the sale of the Contracts or Portfolio shares;
or
|
(ii)
|
arise
out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, offering memorandum, other disclosure document or sales
or
other promotional literature for the Contracts not supplied by the
Fund or
the Adviser or persons under their respective control and other than
statements or representations authorized by the Company) or unlawful
conduct of the Fund or the Adviser or persons under their respective
control, with respect to the sale or distribution of the Contracts
or
Portfolio shares; or
|
(iii)
|
arise
out of or as a result of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement, prospectus,
offering memorandum, other disclosure document or sales or other
promotional literature for the Contracts, or any amendment thereof
or
supplement thereto, or the omission or alleged omission to state
therein a
material fact required to be stated therein or necessary to make
the
statement or statements therein not misleading, if such statement
or
omission was made in reliance upon information furnished in writing
to the
Company by or on behalf of the Fund or the Adviser;
or
|
(iv)
|
arise
as a result of any failure by the Adviser to provide the services
and
furnish the materials under the terms of this Agreement;
or
|
(v)
|
arise
out of or result from any material breach of any representation and/or
warranty made by the Adviser in this Agreement or arise out of or
result
from any other material breach of this Agreement by the Adviser.
|
Each
of
paragraphs (i) through (v) above is limited by and in accordance with the
provisions of Sections 8.3(b) and 8.3(c) below.
8.3(b). The
Adviser shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation incurred or assessed
against an Indemnified Party as such may arise from such Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
8.3(c). The
Adviser 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 Adviser 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 Adviser of any such claim shall not relieve the Adviser from
any
liability which it may have to the Indemnified Party against whom such action
is
brought otherwise than on account of this indemnification provision. In case
any
such action is brought against the Indemnified Parties, the Adviser will be
entitled to participate, at its own expense, in the defense thereof. The Adviser
also shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Adviser to such party
of
the Adviser'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 Adviser will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
8.3(d). The
Company will promptly notify the Adviser of the commencement of any litigation
or proceedings against an Indemnified Party in connection with this Agreement,
the issuance or sale of the Contracts or the operation of the
Account(s).
ARTICLE
IX. Applicable Law
9.1.
This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of the State of New York.
9.2.
This
Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts,
and the rules and regulations and rulings thereunder, including such exemptions
from those statutes, rules and regulations as the SEC may grant (including,
but
not limited to, the Shared Funding Exemptive Order) and the terms hereof shall
be interpreted and construed in accordance therewith.
O:\RPS
LEGAL\2007-SEC-US\variable life\LgCaseCOLI\May07\ExH21.doc -
-
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 by sixty (60) days advance written notice delivered
to the other parties; or
(b) termination
by the Company by written notice to the Fund, the Underwriter and the Adviser
with respect to any Portfolio based upon the Company's determination that shares
of such Portfolio are not reasonably available to meet the requirements of
the
Contracts;
provided, however, that said termination shall become effective ten (10) days
after receipt of notice unless the Fund makes available a sufficient number
of
shares of the Portfolio to reasonably meet the requirements of the Contracts
within said ten (10) day period;
or
(c) termination
by the Company by written notice to the Fund, the Underwriter and the Adviser
with respect to any Portfolio in the event that any of the Portfolio's shares
are not registered, issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by the Company;
or
(d) termination
by the Company by written notice to the Fund, the Underwriter and the Adviser
with respect to any Portfolio in the event that such Portfolio ceases to qualify
as a Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision; or
(e) |
termination
by the Company by written notice to the Fund, the Underwriter and the
Adviser with respect to any Portfolio in the event that such Portfolio
fails to meet the diversification requirements specified in Article
VI
hereof; or
|
(f) termination
by the Fund, the Underwriter or the Adviser by written notice to the Company
if
the Fund, the Underwriter or the Adviser, as applicable, shall determine, in
its
sole judgment exercised in good faith, that the Company and/or its affiliated
companies has suffered a material adverse change in its business, operations,
financial condition or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(g) termination
by the Company by written notice to the Fund, the Underwriter and the Adviser,
if the Company shall determine, in its sole judgment exercised in good faith,
that the Fund, the Underwriter or the Adviser 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;
or
(h) termination
by any party to this Agreement upon another party's material breach of any
provision of this Agreement.
10.2.
[LET’S
DISCUSS - We would not consider it a termination of this Agreement if Account
assets remain invested in a Portfolio.] Notwithstanding any termination of
this
Agreement with respect to a Portfolio, the Fund and the Underwriter shall at
the
option of the Company continue to make available additional shares of the
Portfolio, pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(the
"Existing Contracts"), unless such further sale of Portfolio shares is
proscribed by law, regulation or applicable regulatory authority, or unless
the
Board determines that liquidation of the Portfolio following termination of
this
Agreement is in the best interests of the Portfolio. Specifically, subject
to
the foregoing, the owners of the Existing Contracts shall be permitted to direct
reallocation of investments in the Portfolio, redemption of investments in
the
Portfolio and/or investment in the Portfolio upon the making of additional
purchase payments under the Existing Contracts. The parties agree that this
Section 10.2 shall not apply to any terminations under Article VII and the
effect of such Article VII terminations shall be governed by Article VII of
this
Agreement.
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:
The
Universal Institutional Funds, Inc.
c/x
Xxxxxx Xxxxxxx Investment Management Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
President
If
to the
Underwriter:
Xxxxxx
Xxxxxxx & Co. Incorporated
c/x
Xxxxxx Xxxxxxx Investment Management Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel
If
to the
Adviser:
Xxxxxx
Xxxxxxx Investment Management Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel
If
to the
Company:
Sun
Life
Financial
1
Sun
Life Executive Park
Sun
Code
1335
Xxxxxxxxx
Xxxxx, Xxxxxxxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxx, Esq.
ARTICLE
XII. Miscellaneous
12.1.
All
persons dealing with the Fund must look solely to the property of the Fund
for
the enforcement of any claims against the Fund, as neither the Board, officers,
agents or shareholders of the Fund assume any personal liability for obligations
entered into on behalf of the Fund.
12.2.
Subject
to the requirements of legal process and regulatory authority, each party hereto
shall treat as confidential any "non-public personal information" about any
"consumer" of another party (as such terms are defined in SEC Regulation S-P)
and any other information reasonably identified as confidential in writing
by
another party ("Confidential Information"). Each party agrees not to disclose,
disseminate or utilize another party's Confidential Information except: (i)
as
permitted by this Agreement, (ii) upon the written consent of the other party,
(iii) where the Confidential Information comes into the public domain through
no
fault of the party receiving the information, or (iv) as otherwise required
or
permitted under applicable law.
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.
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.
12.6.
Each
party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the National
Association of Securities Dealers 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 state insurance authorities with any
information or reports in connection with services provided under this Agreement
which such authorities may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with
applicable law and regulations.
12.7.
The
rights, remedies and obligations contained in this Agreement are cumulative
and
are in addition to any and all rights, remedies and obligations at law or in
equity, which the parties hereto are entitled to under state and federal
laws.
12.8.
This
Agreement or any of the rights and obligations hereunder may not be assigned
by
any party without the prior written consent of all parties hereto.
12.9. Unless
otherwise specifically provided in this Agreement, no provision of this
Agreement may be amended or modified in any manner except by a written agreement
executed by all parties.
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 specified
above.
SUN
LIFE ASSURANCE COMPANY OF CANADA (U.S.)
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
THE
UNIVERSAL INSTITUTIONAL FUNDS, INC.
By: ______________________________
Name:
Title:
XXXXXX
XXXXXXX & CO. INCORPORATED
By: ______________________________
Name:
Title:
XXXXXX
XXXXXXX INVESTMENT MANAGEMENT INC.
By: ______________________________
Name:
Title:
L:\COMPL\Xxxxxx\MS
Insurance\SUNLIFE_UIF_class1&2reg_pp.doc
O:\RPS
LEGAL\2007-SEC-US\variable life\LgCaseCOLI\May07\ExH21.doc -
-
SCHEDULE
A
SEPARATE
ACCOUNTS AND ASSOCIATED CONTRACTS
Name
of Separate Account and
Date
Established by Board of Directors
|
Form
Number and Name of
Contract
Funded by Separate Account
|
Registered
Account(s): Registered
Contract(s):
Sun
Life
of Canada (U.S.) Separate Account G Sun
Life
Large Case VUL
Established:
July 25, 1996
Unregistered
Account(s): Unregistered
Contract(s):
Sun
Life
of Canada (U.S.) Separate Account H Sun
Life
Large Case PPVUL
Established:
December 1, 1998
A-1
O:\RPS
LEGAL\2007-SEC-US\variable life\LgCaseCOLI\May07\ExH21.doc -
-
SCHEDULE
B
PORTFOLIOS
OF THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
AVAILABLE
UNDER THIS AGREEMENT
Emerging
Growth Portfolio - Class I Shares
Mid
Cap
Growth Portfolio - Class I Shares
B-1
O:\RPS
LEGAL\2007-SEC-US\variable life\LgCaseCOLI\May07\ExH21.doc -
-
SCHEDULE
C
PROXY
VOTING PROCEDURES
LET’S
DISCUSS. IN OUR EXPERIENCE, THE FUND SELECTS A TABULATION AGENT AT ITS EXPENSE
AND THE COMPANY WORKS WITH THAT AGENT TO EFFECT THE PROXY SOLICITATION. THE
COMPANY DOES NOT ASSUME ANY OUT-OF -POCKET EXPENSES ASSOCIATED WITH THE PROXY
SOLICITATION.
The
following is a list of procedures and corresponding responsibilities for the
handling of proxies and voting instructions relating to the Fund. The defined
terms herein shall have the meanings assigned in the Participation Agreement
except that the term "Company" shall also include the department or third party
assigned by the Company to perform the steps delineated below.
·
|
The
proxy proposals are given to the Company by the Fund as early as
possible
before the date set by the Fund for the shareholder meeting to enable
the
Company to consider and prepare for the solicitation of voting
instructions from Contract owners and to facilitate the establishment
of
tabulation procedures. At this time the Fund will inform the Company
of
the Record, Mailing and Meeting dates. This will be done verbally
approximately two months before the shareholder
meeting.
|
·
|
Promptly
after the Record Date, the Company will perform a "tape run", or
other
activity, which will generate the names, addresses and number of
units
which are attributed to each Contract owner/policyholder (the "Customer")
as of the Record Date. Allowance should be made for account adjustments
made after this date that could affect the status of the Customers'
accounts as of the Record Date.
|
Note:
The
number of proxy statements is determined by the activities described in this
Step #2. The Company will use its best efforts to call in the number of
Customers to the Fund, as soon as possible, but no later than two weeks after
the Record Date.
·
|
The
Fund's Annual Report must be sent to each Customer by the Company
either
before or together with the Customers' receipt of voting instruction
solicitation material. The Fund will provide the last Annual Report
to the
Company pursuant to the terms of Section 3.4 of the Participation
Agreement to which this Schedule
relates.
|
·
|
The
text and format for the Voting Instruction Cards ("Cards" or "Card")
is
provided to the Company by the Fund. The Company shall personalize
the
Voting Instruction Cards. The Fund or its affiliate must approve
the Card
before it is printed. Allow approximately 2-4 Business Days for printing
information on the Cards. Information commonly found on the Cards
includes:
|
- name
(legal name as found on account registration)
- address
- fund
or
account number
- coding
to
state number of units
C-1
-
|
individual
Card number for use in tracking and verification of votes (already
on
Cards as printed by the Fund).
|
(This
and
related steps may occur later in the chronological process due to possible
uncertainties relating to the proposals.)
·
|
During
this time, the Fund will develop, produce and pay for the Notice
of Proxy
and the Proxy Statement (one document). Printed and folded notices
and
statements will be sent to the Fund’s tabluation agent for insertion into
envelopes. Contents of envelope sent to Customers by the Company
will
include:
|
-
|
Voting
Instruction Card(s)
|
-
|
One
proxy notice and statement (one
document)
|
-
|
return
envelope addressed to the Fund’s tabulation
agent
|
-
|
"urge
buckslip" - optional, but recommended (this is a small, single sheet
of
paper that requests Customers to vote as quickly as possible and
that
their vote is important; one copy will be supplied by the
Fund.)
|
-
|
cover
letter - optional; supplied by Company and reviewed and approved
in
advance by the Fund
|
·
|
The
above contents should be received by the Company approximately 3-5
Business Days before mail date. Individual in charge at Company reviews
and approves the contents of the mailing package to ensure correctness
and
completeness. Copy of this approval sent to the
Fund.
|
·
|
Package
mailed by the Fund’s tabulation
agent.
|
*
|
The
Fund must allow at least a 15-day solicitation time to the Company
as the
shareowner. (A 5-week period is recommended.) Solicitation time is
calculated as calendar days from (but not
including,) the shareholder meeting, counting
backwards.
|
·
|
Collection
and tabulation of Cards begins. Tabulation usually takes place in
another
department or another vendor depending on process used. An often
used
procedure is to sort Cards on arrival by proposal into vote categories
of
all yes, no, or mixed replies, and to begin data
entry.
|
Note:
Postmarks are not generally needed. A need for postmark information would be
due
to an
insurance company's internal procedure and has not been required by the Fund
in
the
past.
C-2
·
|
Signatures
on Card checked against legal name on account registration that was
printed on the Card.
|
Note:
For Example, if the account registration is under "Xxxx X. Xxxxx,
Trustee," then that is the exact legal name to be printed on the
Card and
is the signature needed on the
Card.
|
·
|
If
Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter
and a
new Card and return envelope. The mutilated or illegible Card is
disregarded and considered to be not received
for purposes of vote tabulation. Any Cards that have been "kicked
out"
(e.g. mutilated, illegible) of the procedure are "hand verified,"
i.e.,
examined as to why they did not complete the system. Any questions
on
those Cards are usually remedied
individually.
|
·
|
There
are various control procedures used to ensure proper tabulation of
votes
and accuracy of that tabulation. The most prevalent is to sort the
Cards
as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If
the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a
recount.
|
·
|
The
actual tabulation of votes is done in units which is then converted
to
shares. (It is very important that the Fund receives the tabulations
stated in terms of a percentage and the number of shares.)
The Fund must review and approve tabulation
format.
|
·
|
Final
tabulation in shares is verbally given by the Company to the Fund
on the
morning of the shareholder meeting not later than 10:00 a.m. Eastern
time.
The Fund may request an earlier deadline if reasonable and if required
to
calculate the vote in time for the shareholder
meeting.
|
·
|
A
Certification of Mailing and Authorization to Vote Shares will be
required
from the Company as well as an original copy of the final vote. The
Fund
will provide a standard form for each
Certification.
|
·
|
The
Company will be required to box and archive the Cards received from
the
Customers for a period of [??] years after the shareholder meeting.
In the
event that any vote is challenged or if otherwise necessary for legal,
regulatory, or accounting purposes, the Fund will be permitted reasonable
access to such Cards.
|
· All
approvals and "signing-off" may be done orally, but must always be followed
up
in writing.
C-3
CONFIDENTIAL
DRAFT 01/22/04
PARTICIPATION
AGREEMENT
Among
THE
UNIVERSAL INSTITUTIONAL FUNDS, INC.,
XXXXXX
XXXXXXX & CO. INCORPORATED,
XXXXXX
XXXXXXX INVESTMENT MANAGEMENT INC.
and
SUN
LIFE ASSURANCE COMPANY OF CANADA (U.S.)
Dated
as of
__________
__, 2004
TABLE
OF CONTENTS
Page
ARTICLE
I. Purchase
and Redemption of Fund Shares 2
ARTICLE
II. Representations
and Warranties 4
ARTICLE
III. Prospectuses,
Reports to Shareholders
and
Proxy
Statements; Voting 6
ARTICLE
IV. Sales
Material and Information 8
ARTICLE
V. Fees
and
Expenses 9
ARTICLE
VI. Diversification 9
ARTICLE
VII. Potential
Conflicts 10
ARTICLE
VIII. Indemnification 11
ARTICLE
IX. Applicable
Law 17
ARTICLE
X. Termination 18
ARTICLE
XI. Notices 19
ARTICLE
XII. Miscellaneous 19
SCHEDULE
A Separate
Accounts and Associated Contracts A-1
SCHEDULE
B Portfolios
of The Universal Institutional Funds, Inc.
Available
Under this Agreement B-1
SCHEDULE
C Proxy
Voting Procedures C-1