5TH AMENDMENT TO PARTICIPATION AGREEMENT
The Union Central Life Insurance Company, Variable Insurance Products
Fund, Variable Insurance Products Fund II, Variable Insurance Products Fund III,
Variable Insurance Products Fund IV and Variable Insurance Products Fund V and
Fidelity Distributors Corporation hereby amend the Participation Agreement
("Agreement") dated March 15, 2006, is amended, as follows:
Schedule A of the Agreement is hereby deleted in its entirety and replaced with
the amended Schedule A attached hereto.
IN WITNESS WHEREOF, the parties have hereto affixed their respective authorized
signatures, intending that this Amendment be effective as of the 3rd day of
November, ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ de ▇▇▇▇▇
Name: ▇▇▇▇▇▇ de ▇▇▇▇▇
Title: Second Vice President
VARIABLE INSURANCE PRODUCTS FUND
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
VARIABLE INSURANCE PRODUCTS FUND V
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, Treasurer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President
Schedule A
Separate Accounts and Associated Contracts
Effective November 3, 2008
Name of Separate Account and Policy Form Numbers of Contracts
Date Established by Board of Directors Funded by Separate Account
Union Central Mutual Fund Separate Contract Number 64347
Account LXXV, est. 6/22/98
Carillon Account, est. 2/6/84 Advantage VA III
(Contract No. 8138)
VA H SA
(Contract No. 8137)
VA II
(Contract No. 8137)
VAI
(Contract No. 8134)
(formerly No. 2617)
Carillon Life Account, est. 7/10/95 Excel Performance VUL
(Contract No. 8713)
Excel Accumulator
(Contract No. 8707)
Excel Choice (VUL)
(Contract No. 8703)
Executive Edge (VUL)
(Contract No. 8703)
2
4TH AMENDMENT TO PARTICIPATION AGREEMENT
The Union Central Life Insurance Company, Variable Insurance Products
Fund, Variable Insurance Products Fund II, Variable Insurance Products Fund III,
Variable Insurance Products Fund IV and Variable Insurance Products Fund V and
Fidelity Distributors Corporation hereby amend the Participation Agreement
("Agreement") dated March 15, 2006, as amended, by doing the following:
Schedule A of the Agreement is hereby deleted in its entirety and replaced with
the Amended Schedule A attached hereto.
IN WITNESS WHEREOF, the parties have hereto affixed their respective authorized
signatures, intending that this Amendment be effective as of the 5th day of
November, ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
VARIABLE INSURANCE PRODUCTS FUND
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
VARIABLE INSURANCE PRODUCTS FUND V
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Treasurer, SVP
FIDELITY DISTRIBUTORS CORPORATION
By:f /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President
Schedule A
Separate Accounts and Associated Contracts
Name of Separate Account and Policy Form Numbers of Contracts
Date Established by Board of Directors Funded by Separate Account
-------------------------------------- --------------------------
Union Central Mutual Fund Separate Contract Number 64347
Account LXXV, est. 6/22/98
Carillon Account, est. 2/6/84 Advantage VA III
(Contract No. 8138)
VA II SA
(Contract No. 8137)
VA II
(Contract No. 8137)
VAI
(Contract No. 8134)
(formerly No. 2617)
Carillon Life Account, est. 7/10/95 Excel Accumulator
(Contract No 8707)
Excel Choice (VUL)
(Contract No.8703)
Executive Edge (VUL)
(Contract No. 8703)
[Fidelity Investments Logo]
May 16, 2007
The Union Central Life Insurance Company
▇▇. ▇▇▇ ▇▇▇▇▇
5900 "0" Street,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Participation Agreement among Variable Insurance Products Fund,
Variable Insurance Products Fund II, Variable Insurance Products Fund
III, Variable Insurance Products Fund IV, Fidelity Distributors
Corporation (the "Underwriter") and Insurance Company (the "Company"),
dated March 15, 2006, as amended (the "Participation Agreement")
Dear ▇▇. ▇▇▇▇▇:
The Company, the Underwriter and the above referenced Variable Insurance
Products Funds (the "Current Funds") are parties to the above-referenced
Participation Agreement. As explained in the notice sent to you on May 3, 2007,
Fidelity is in the process of reorganizing some of the portfolios of the Current
Funds (the "Affected Portfolios") for administrative purposes. In connection
with this reorganization, the Affected Portfolios will be moved into
corresponding "shell" portfolios of a new Variable Insurance Products Fund V
("Fund V"). A list of all of the Affected Portfolios covered by the
reorganization and the corresponding Fund V portfolios is set forth on the
attached Exhibit.
In connection with this change, we are asking for your consent to (1) the
amendment of the Participation Agreement to add Fund V as a "Fund" party under
the terms of the Participation Agreement (the "Amendment") and (2) the
assignment of all of the Current Funds' rights, benefits and obligations under
the Participation Agreement with respect to the Affected Portfolios to Fund V,
with respect to the corresponding portfolios of Fund V, and the release of the
Current Funds from the obligations so assigned (the "Assignment"). The
Participation Agreement will remain in full force and effect in accordance with
its terms, as so amended and assigned herein.
Your signature below will indicate the Company's consent to the Amendment and
Assignment of the Participation Agreement as set forth above, to become
effective immediately upon consummation of the reorganization.
Thank you for your prompt attention to this matter. If for some reason we cannot
obtain your signature prior to the reorganization, and the Company submits
orders or instructions under the
Fidelity Investments Institutional ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Services Company, Inc. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Participation Agreement thereafter, we will deem the Company to have consented
to these matters. Please do not hesitate to contact your Fidelity Relationship
Manager or Key Account Manager if you have any questions.
Very truly yours,
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
VARIABLE INSURANCE PRODUCTS FUND,
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III,
VARIABLE INSURANCE PRODUCTS FUND IV, and
VARIABLE INSURANCE PRODUCTS FUND V
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
The Undersigned Consents to the Amendment and Assignment of the Participation
Agreement as of this 8th day of June, 2007:
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ de ▇▇▇▇▇
Name: ▇▇▇▇▇▇ de ▇▇▇▇▇
Title: Second Vice President
Please keep one copy and return the other to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Director, Contracts Management
Fidelity Investments
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
EXHIBIT A
AFFECTED PORTFOLIOS FUND V PORTFOLIOS
Variable Insurance Products Fund Variable Insurance Products Fund V
Money Market Portfolio Money Market Portfolio
Variable Insurance Products Fund II
Asset Manager Portfolio Asset Manager Portfolio
Asset Manager: Growth Portfolio Asset Manager: Growth Portfolio
Investment Grade Bond Portfolio Investment Grade Bond Portfolio
Variable Insurance Products Fund IV
Freedom Income Portfolio Freedom Income Portfolio
Freedom 2005 Portfolio Freedom 2005 Portfolio
Freedom 2010 Portfolio Freedom 2010 Portfolio
Freedom 2015 Portfolio Freedom 2015 Portfolio
Freedom 2020 Portfolio Freedom 2020 Portfolio
Freedom 2025 Portfolio Freedom 2025 Portfolio
Freedom 2030 Portfolio Freedom 2030 Portfolio
FundsManager 20% Portfolio FundsManager 20% Portfolio
FundsManager 50% Portfolio FundsManager 50% Portfolio
FundsManager 70% Portfolio FundsManager 70% Portfolio
FundsManager 85% Portfolio FundsManager 85% Portfolio
Strategic Income Portfolio Strategic Income Portfolio
2nd Amendment
AMENDMENT TO PARTICIPATION AGREEMENT
Among
VARIABLE INSURANCE PRODUCTS FUNDS,
FIDELITY DISTRIBUTORS CORPORATION
and
THE UNION CENTRAL LIFE INSURANCE COMPANY
THIS AMENDMENT to the Participation Agreement by and among THE UNION CENTRAL
LIFE INSURANCE COMPANY, (hereinafter the "Company"); and FIDELITY DISTRIBUTORS
CORPORATION (hereinafter the "Underwriter"); and each of VARIABLE INSURANCE
PRODUCTS FUND, VARIABLE INSURANCE PRODUCTS FUND II , VARIABLE INSURANCE PRODUCTS
FUND III and VARIABLE INSURANCE PRODUCTS FUND IV (each referred to hereinafter
as the "Fund") (hereinafter the "Agreement") is effective as of the 23rd day of
March, 2007.
RECITALS
WHEREAS, the Company, the Underwriter and the Fund have entered
into the Agreement regarding the purchase and redemption of shares of the Fund
by the Company on behalf of its separate accounts for the benefit of the holders
of interests in variable annuity or variable life insurance contracts issued by
the Company; and
WHERAS, the Company, the Underwriter and each Fund desire to
amend the Agreement to comply with the provisions of SEC Rule 22c-2 under the
Investment Company Act of 1940 and for other purposes;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Underwriter and each Fund agree as follows:
I. Paragraph 1.3 is hereby deleted and replaced with the
following:
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 qualified pension and retirement plans within the meaning
of Treasury Regulation section 1.817-S(fl(3)(iii) ("Qualified Plans"). No shares
of any Portfolio will be sold to the general public.
II. Paragraph 1.4 is hereby deleted and replaced with the
following:
1.4. The Fund and the Underwriter will not sell Fund
shares to any insurance company, separate account or Qualified Plan unless an
agreement containing
provisions substantially the same as Articles I, III, V, VII and Section 2.5 of
Article II of this Agreement is in effect to govern such sales.
III.Paragraph 1.I 1.A.(b) is hereby deleted and replaced with the
following:
(b) it will comply with its policies and procedures designed
to prevent excessive trading as approved by the Fund, or will comply with the
Fund's policies 'and procedures regarding excessive trading as set forth in the
Fund's prospectus.
IV. Paragraphs 1.11.B. and 1.11.C. are hereby deleted and
replaced with the following:
B. The Company agrees to provide the Fund, upon written request, the
taxpayer identification number ("TIN"), if known, of any or all Contact Owner(s)
of the account and the amount, date, name or other identifier of any investment
professional(s) associated with the Contract Owner(s) or account (if ]mown), and
transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an account
maintained by the Company during the period covered by the request.
(a) The Fund will request information pursuant to Section
1.11.B. which sets forth a specific period for which transaction information is
sought.. The Fund may request transaction information it deems necessary,
including transaction information for each trading day, to investigate
compliance with policies established by the Fund for the purpose of eliminating
or reducing any dilution of the value of the outstanding shares issued by the
Fund.
(b) The Company agrees to transmit the requested information
that is on its books and records to the Fund or its designee promptly, but in
any event not later than five business days, after receipt of a request. If the
requested information is not oh the Company's books and records, the Company
agrees to: (i) provide or arrange to provide to the Fund the requested
information from Contract Owners who hold an account with an indirect
intermediary; or (ii) if directed by the Fund, block further purchases of Fund
Shares ▇▇▇▇ such indirect intermediary. In such instance, the Company agrees to
inform the Fund whether it plans to perform (i) or (ii). Responses required by
this paragraph must be communicated in writing and in a format mutually agreed
upon by the parties. To the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the NSCC Standardized
Data Reporting Format. For purposes of this provision, an "indirect
intermediary" has the same meaning as in SEC Rule 22c-2 under the 1940 Act.
(c) The Fund agrees not to use the information received for
marketing or any other similar purpose without the prior written
consent of the Company.
C. The Company agrees to execute written instructions from the Fund to
restrict or prohibit further purchases or exchanges of Shares by a Contract
Owner that has been identified by the Fund as having engaged in transactions of
the Fund's Shares (directly or indirectly through the Company's account) that
violate policies established by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares issued by the Fund.
(a) Instructions from the Fund will include the TIN, if known, and the
specific restriction(s) to be executed. If the TIN is not known, the
instructions will include an equivalent identifying number of the Contract
Owner(s) or account(s) or other agreed upon information to which the
instruction relates.
(b) The Company agrees to execute instructions as soon as reasonably
practicable, but not later than five business days after receipt of the
instructions by the Company.
(c) The Company must provide written confirmation to the Fund that
instructions have been executed. The Company agrees to provide confirmation
as soon as reasonably practicable, but not later than five business days
after the instructions have been executed.
D. For purposes of this paragraph:
(a) The term "Fund" includes the Fund's principal underwriter and
transfer agent. The term not does include any "excepted funds" as
defined in SEC Rule 22c-2(b) under the ▇▇▇▇ ▇▇▇.
(b) The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the
Fund under the 1940 Act that are held by the Company.
(c) The term "Contract Owner" means the holder of interests in a
variable annuity or variable life insurance contract issued by the
Company.
(d) The term "written" includes electronic writings and facsimile
transmissions.
V. Paragraph 1.12 is hereby inserted as follows:
1.12
A. Company agrees to comply with its obligations under applicable antimoney
laundering ("AML") laws, rules and regulations, including but not limited to its
obligations under the United States Bank Secrecy Act of 1970, as amended (by the
USA PATRIOT Act of 2001 and other laws), and the rules, regulations and official
guidance issued thereunder (collectively, the "BSA").
B. The Company agrees to undertake inquiry and due diligence regarding the
customers to whom the Company offers and/or sells Portfolio shares or on whose
behalf the Company purchases Portfolio shares and that the inquiry and due
diligence is reasonably designed to determine that the Company is not prohibited
from dealing with any such customer by (i) any sanction administered by the
Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury
(collectively, the "Sanctions"); or (ii) any of the Special Measures.
C. The Company hereby represents, covenants and warrants to the Fund and
the Underwriter that:
(a) None of the Company's employees who are authorized in connection
with their employment to transact business with the Fund or Underwriter in
accounts in the Company's name, in any nominee name maintained for the
Company, or for which the Company serves as financial institution of record
are designated or targeted under any of the Sanctions or Special Measures
and that no transactions placed in any such accounts by any of the
Company's authorized employees will contravene any of the Sanctions or
Special Measures;
(b) As the Sanctions or Special Measures are updated, the Company
shall periodically review them to confirm that none of the Company's
employees that are authorized to transact business with the Fund or
Underwriter are designated or targeted under any of the Sanctions or
Special Measures; and
(c) The Company, including any of the Company's affiliates, does not
maintain offices in any country or territory to which any of the Sanctions
or Special Measures prohibit the export of services or other dealings.
D. The Company agrees to notify the Fund and the Underwriter or the
Portfolios' transfer agent promptly when and if it learns that the establishment
or maintenance of any account holding, or transaction in or relationship with a
holder of, Portfolio shares pursuant to this Agreement violates or appears to
violate any of the Sanctions or Special Measures.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
executed in its name and on its behalf by its duly authorized representative.
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ de ▇▇▇▇▇
Name: ▇▇▇▇▇▇ de ▇▇▇▇▇
Its: Second Vice President
VARIABLE INSURANCE PRODUCTS FUND
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Their: Treasurer
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
AMENDMENT NO. 1
to
PARTICIPATION AGREEMENT
The Participation Agreement effective March 15, 2006, among Variable Insurance
Products Fund, Fidelity Distributors Corporation and The Union Central Life
Insurance Company is amended as follows:
Schedule A of the Agreement is deleted and replaced with Schedule A on
the following page.
The effective date of this Amendment is April 16, 2007. All other provisions of
the Agreement shall remain the same.
Each of the parties has caused this Amendment to the Participation Agreement to
be executed in its name and behalf by its duly authorized representative.
Variable Insurance Products Fund,
Variable Insurance Products Fund II,
Variable Insurance Products Fund III, and
Variable Insurance Products Fund IV
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Their: Treasurer, SVP
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: EVP
Date: 5/31/07
THE UNION CENTRAL Life Insurance Company
By: /s/ ▇▇▇▇▇▇ de ▇▇▇▇▇
Name: ▇▇▇▇▇▇ de ▇▇▇▇▇
Title: Second Vice President
Date: April 18, 2007
Schedule A
Separate Accounts and Associated Contracts
Name of Separate Account and Policy Form Numbers of Contracts
Date Established by Board of Directors Funded By Separate Account
-------------------------------------- --------------------------
Union Central Mutual Fund Separate Contract number 64347
Account LXXV
Carillon Account, est. 2/6/84 Advantage VA III
(Contract No. 8138)
VA II SA
(Contract No. 8137)
VA I
(Contract No. 8134)
(formerly No. 2617)
Carillon Life Account, est. 7/10/95 Excel Accumulator (Contract No.
8707)
PARTICIPATION AGREEMENT
Among
VARIABLE INSURANCE PRODUCTS FUNDS,
FIDELITY DISTRIBUTORS CORPORATION
and
THE UNION CENTRAL LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of the 15;31 day of
et06 by and among THE UNION CENTRAL LIFE INSURANCE COMPANY, (hereinafter the
"Company"), an Ohio corporation, on its own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A hereto as may be
amended from time to time (each such account hereinafter referred to as the
"Account"); and FIDELITY DISTRIBUTORS CORPORATION (hereinafter the
"Underwriter"), a Massachusetts corporation; and each of VARIABLE INSURANCE
PRODUCTS FUND, VARIABLE INSURANCE PRODUCTS FUND II, VARIABLE INSURANCE PRODUCTS
FUND III and VARIABLE INSURANCE PRODUCTS FUND IV, each an unincorporated
business trust organized under the laws of the Commonwealth of Massachusetts
(each referred to hereinafter as the "Fund").
RECITALS
WHEREAS, each Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and variable
annuity contracts (collectively, the "Variable Insurance Products") to be
offered by insurance companies which have entered into participation agreements
with the Fund and the Underwriter (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in each Fund is 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, as may be amended from time to time by mutual
agreement of the parties hereto (each such series hereinafter referred to as a
"Portfolio"); and
WHEREAS, each Fund has obtained an order from the Securities and
Exchange Commission, dated October 15, 1985 (File No. 812-6102) or September 17,
1986 (File No. 812-
1
6422), granting Participating Insurance Companies and variable annuity and
variable life insurance separate accounts exemptions from the provisions of
sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as
amended, (hereinafter the "1940 Act") and Rules 6e-2(b) (15) and 6e-3(T) (b)
(15) thereunder, to the extent necessary to permit shares of the Fund to be sold
to and held by variable annuity and variable life insurance separate accounts of
both affiliated and unaffiliated life insurance companies (hereinafter the
"Shared Funding Exemptive Order"); and
WHEREAS, each Fund is registered as an open-end management
investment company under the 1940 Act and its shares are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, Fidelity Management & Research Company (the "Adviser")
is duly registered as an investment adviser under the federal Investment
Advisers Act of 1940 and any applicable state securities law; and
WHEREAS, the variable life insurance and/or variable annuity
products identified on Schedule A hereto ("Contracts") have been or will be
registered by the Company under the 1933 Act, unless such Contracts are exempt
from registration thereunder; and
WHEREAS, each Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors of
the Company, on the date shown for such Account on Schedule A hereto, to set
aside and invest assets attributable to the aforesaid Contracts; and
WHEREAS, the Company has registered or will register each
Account as a unit investment trust under the 1940 Act, unless such Account is
exempt from registration thereunder; and
WHEREAS, the Underwriter is registered as a broker dealer with
the Securities and Exchange Commission ("SEC") under the Securities Exchange Act
of 1934, as amended, (hereinafter the "1934 Act"), and is a member in good
standing of the National Association of Securities Dealers, Inc. (hereinafter
"NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, the Company intends to purchase shares in the Portfolios on
behalf of each Account to fund certain of the aforesaid Contracts and the
Underwriter is authorized to sell such shares to each Account at net asset
value;
2
AGREEMENT
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Underwriter and each Fund agree as follows:
ARTICLE A. Form of Agreement
Although the parties have executed this Agreement in the form
of a Master Participation Agreement for administrative convenience, this
Agreement shall create a separate participation agreement for each Fund, as
though the Company and the Underwriter had executed a separate, identical form
of participation agreement with each Fund. No rights, responsibilities or
liabilities of any Fund shall be attributed to any other Fund.
ARTICLE I. Sale of Fund Shares
1.1. The Underwriter agrees to sell to the Company those
shares of the Fund which each Account orders, executing such orders on a daily
basis at the net asset value next computed after receipt by the Fund or its
designee of the order for the shares of the Fund. For purposes of this Section
1.1, the Company shall be the designee of the Fund for receipt of such 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 9:00 a.m. Boston
time on the next following Business Day. Beginning within seven months of the
effective date of this Agreement, the Company agrees that all order for the
purchase and redemption of Fund shares on behalf of the Accounts will be placed
by the Company with the Funds or their transfer agent by electronic
transmission. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its net asset
value pursuant to the rules of the Securities and Exchange Commission.
Nothwithstanding the foregoing, for no more than seven months from the effective
date of the Agreement, Company shall comply with Schedule D of the Agreement.
1.2. The Fund agrees to make its shares available indefinitely
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 rules of the Securities and Exchange Commission and the Fund shall use
reasonable efforts to calculate such net asset value on each day which the New
York Stock Exchange is open for trading. Notwithstanding the foregoing, the
Board of Trustees of the Fund (hereinafter the "Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the
Fund will be sold only to Participating Insurance Companies and their separate
accounts. No shares of any Portfolio will be sold to the general public.
3
1.4. The Fund and the Underwriter will not sell Fund shares to
any insurance company or separate account unless an agreement containing
provisions substantially the same as Articles I, III, V, VII and Section 2.5 of
Article II of this Agreement is in effect to govern such sales.
1.5. The Fund agrees to redeem for cash, on the Company's
request, any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value next computed
after receipt by the Fund or its designee of the request for redemption. For
purposes of this Section 1.5, the Company shall be the designee of the Fund for
receipt of requests for redemption from each Account and receipt by such
designee shall constitute receipt by the Fund; provided that the Fund receives
notice of such request for redemption on the next following Business Day. This
section shall not apply to VIP Fund shares or share classes that are subject to
redemption fees. The Company shall not purchase or redeem VIP Fund shares that
are subject to redemption fees, including shares of Portfolios or share classes
that later become subject to redemption fees, in the absence of an additional
written agreement signed by all parties.
1.6. The Company agrees that purchases and redemptions of
Portfolio shares offered by the then current prospectus of the Fund shall be
made in accordance with the provisions of such prospectus. The Company agrees
that all net amounts available under the Contracts shall be invested in the
Fund, in such other Funds advised by the Adviser as may be mutually agreed to in
writing by the parties hereto, or in the Company's general account, provided
that such amounts may also be invested in an investment company other than the
Fund if (a) such other investment company, or series thereof, has investment
objectives or policies that are substantially different from the investment
objectives and policies of all the Portfolios of the Fund; or (b) the Company
gives the Fund and the Underwriter 45 days written notice of its intention to
make such other investment company available as a funding vehicle for the
Contracts; or (c) such other investment company was available as a funding
vehicle for the Contracts prior to the date of this Agreement and the Company so
informs the Fund and Underwriter prior to their signing this Agreement (a list
of such funds appearing on Schedule C to this Agreement); or (d) the Fund or
Underwriter consents to the use of such other investment company.
1.7. The Company shall pay for Fund shares on the next Business
Day after an order to purchase Fund shares is made in accordance with the
provisions of Section 1.1 hereof. Payment shall be in federal funds transmitted
by wire. For purpose of Section 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.
1.8. Issuance and transfer of the Fund's shares will be by book
entry only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
4
1.9. 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 the Fund's shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such 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.
1.10. The Fund shall make the net asset value per share for
each Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated (normally by 6:30
p.m. Boston time) and shall use its best efforts to make such net asset value
per share available by 7 p.m. Boston time.
1.11. The parties agree that the Contracts are not intended to
serve as vehicles for frequent transfers among the Portfolios in response to
short-term stock market fluctuations.
A. Accordingly, Company represents and warrants that:
(a) all purchase and redemption orders it provides under this Article I shall
result solely from Contract Owner transactions fully received and recorded by
Company before the time as of which each applicable VIP Portfolio net asset
value was calculated (currently 4:00 p.m. e.s.t); (b) it will use its best
efforts to discourage market timing and other excessive or disruptive trading
activity by third parties with power to act on behalf of multiple contract
owners and by individual contract owners; (c) any annuity contract forms or
variable life insurance policy forms not in use at the time of execution of this
Agreement, but added to in the future via amendment of Schedule A hereto, will
contain language reserving to the Company the right to refuse to accept
instructions from persons that engage in market timing or other excessive or
disruptive trading activity.
B. The Fund agrees to notify Company of transfer activity that the
Fund or Underwriter deems to be excessive or disruptive ("Abusive Transfer
Activity"). After receiving such notice from the Fund, Company agrees that it
will cooperate with the Fund and Underwriter to eliminate Abusive Transfers
except that this provision shall not require the Company to breach any terms of
its existing Contracts with Contract Owners.
C. In the event that Abusive Transfer Activity, as determined by the
Fund, recurs after initial notice to Company, the Fund may then terminate the
offering of any affected Portfolio to any affected Account upon sixty (60) days
written notice to Company.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are
or will be registered under the 1933 Act or are exempt from registration
thereunder; that the Contracts will
5
be issued and sold in compliance in all material respects with all applicable
Federal and State laws and that the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements. The Company
further represents and warrants that it is an insurance company duly organized
and in good standing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a segregated
asset account under Section 3907.15 of the Ohio Revised Code and that each
Account is either registered or exempt from registration as a unit investment
trust in accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts.
2.2. The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of the State of
Ohio and all applicable federal and state securities laws and that the Fund is
and shall remain registered under the ▇▇▇▇ ▇▇▇. 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 or the Underwriter.
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 or that it might not so qualify
in the future.
2.4. The Company represents that the Contracts are currently
treated as endowment, life insurance or annuity insurance contracts, under
applicable provisions of the Code and that it will make every effort to maintain
such treatment and that it will notify the Fund and the Underwriter immediately
upon having a reasonable basis for believing that the Contracts have ceased to
be so treated or that they might not be so treated in the future.
2.5. (a) With respect to Initial Class shares, the Fund
currently does not intend to make any payments to finance distribution expenses
pursuant to Rule 12b-1 under the 1940 Act or otherwise, although it may make
such payments in the future. The Fund has adopted a "no fee" or "defensive" Rule
12b-1 Plan under which it makes no payments for distribution expenses. To the
extent that it decides to finance distribution expenses pursuant to Rule 12b-1,
the Fund undertakes to have a board of trustees, a majority of whom are not
interested persons of the Fund, formulate and approve any plan under Rule 12b-1
to finance distribution expenses.
(b) With respect to Service Class shares and Service Class
2 shares, the Fund has adopted Rule 12b-1 Plans under which it makes payments to
finance distribution expenses. The Fund represents and warrants that it has a
board of trustees, a majority of whom are not interested persons of the Fund,
which has formulated and approved each of its Rule 12b-1 Plans to finance
distribution expenses of the Fund and that any changes to the Fund's Rule 12b-1
Plans will be approved by a similarly constituted board of trustees.
6
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 except that the Fund represents that the Fund's investment
policies, fees and expenses are and shall at all times remain in compliance with
the laws of the State of Ohio and the Fund and the Underwriter represent that
their respective operations are and shall at all times remain in material
compliance with the laws of the State of Ohio to the extent required to perform
this Agreement.
2.7. The Underwriter represents and warrants that it is a
member in good standing of the NASD and is registered as a broker-dealer with
the SEC. The Underwriter further represents that it will sell and distribute the
Fund shares in accordance with the laws of the Commonwealth of Massachusetts and
all applicable state and federal securities laws, including without limitation
the 1933 Act, the 1934 Act, and the ▇▇▇▇ ▇▇▇.
2.8. The Fund represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts and that it
does and will comply in all material respects with the 1940 Act.
2.9. The Underwriter represents and warrants that the Adviser
is and shall remain duly registered in all material respects under all
applicable federal and state securities laws and that the Adviser shall perform
its obligations for the Fund in compliance in all material respects with the
laws of the Commonwealth of Massachusetts and any applicable state and federal
securities laws.
2.10. The Fund and Underwriter represent and warrant that all
of their directors, officers, employees, investment advisers, 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
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
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
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 Fund are
covered by a blanket fidelity bond or similar coverage for the benefit of the
Fund, and that said bond is issued by a reputable bonding company, includes
coverage for larceny and embezzlement, and is 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 and the Underwriter in the event that such coverage no longer
applies.
ARTICLE III. Prospectuses and Proxy Statements; Voting 7
-----------------------------------------
3.1. The Underwriter shall provide the Company with as many
printed copies of the Fund's current prospectus and Statement of Additional
Information as the Company may reasonably request. If requested by the Company
in lieu thereof, the Fund shall provide cameraready film 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, private offering
memorandum or other disclosure document ("Disclosure Document") for the
Contracts and the Fund's prospectus printed together in one document, and to
have the Statement of Additional Information for the Fund and the Statement of
Additional Information for the 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. Except as provided in the following
three sentences, 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 provided by the Company to
its existing owners of Contracts in order to update disclosure annually 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 in lieu
of receiving printed copies of the Fund's prospectus, the Fund will reimburse
the Company in an amount equal to the product of A and B where A is the number
of such prospectuses distributed to owners of the Contracts, and B is the Fund's
per unit cost of typesetting and printing the Fund's prospectus. 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 cost of printing any prospectuses or
Statements of Additional Information other than those actually distributed to
existing owners of the Contracts.
3.2. The Fund's prospectus shall state that the Statement of
Additional Information for the Fund is available from the Underwriter or the
Company (or in the Fund's discretion, the Prospectus shall state that such
Statement is available from the Fund).
3.3. 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 Contract owners.
3.4. If and to the extent required by law the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with instructions
received from Contract owners; and
(iii) vote Fund shares for which no instructions have been
received in a particular separate account in the same
proportion as Fund shares of such portfolio for which
instructions have been received in that separate
account,
so long as and to the extent that the Securities and Exchange Commission
continues to interpret the 1940 Act to require pass-through voting privileges
for variable contract owners. The Company reserves the right to vote Fund shares
held in any segregated asset account in its own right, to the extent permitted
by law. Participating Insurance Companies shall be responsible for assuring that
each of their separate accounts participating in the Fund calculates voting
privileges in a manner consistent with the standards set forth on Schedule B
attached hereto and incorporated herein by this reference, which standards will
also be provided to the other Participating Insurance Companies.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either provide
for annual meetings or comply with Section 16(c) of the 1940 Act (although the
Fund is not one of the trusts described in Section 16(c) of that Act) as well as
with Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will
act in accordance with the Securities and Exchange Commission's interpretation
of the requirements of Section 16(a) with respect to periodic elections of
trustees and with whatever rules the Commission may promulgate with respect
thereto.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished,
to the Fund or its designee, each piece of sales literature or other promotional
material in which the Fund or its investment adviser or the Underwriter is
named, at least fifteen Business Days prior to its use. No such material shall
be used if the Fund or its designee reasonably objects to such use within
fifteen 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 and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee or by the Underwriter, except with the permission of the Fund or the
Underwriter or the designee of either.
4.3. The Fund, Underwriter, 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
separate account(s), is named at least fifteen Business Days prior to its use.
No such material shall be used if the Company or its designee reasonably objects
to such use within fifteen Business Days after receipt of such material.
4.4. The Fund and the Underwriter shall not give any information
or make any representations on behalf of the Company or concerning the Company,
each Account, or the Contracts other than the information or representations
contained in a registration statement or
Disclosure Document for the Contracts, as such registration statement or
Disclosure Document may be amended or supplemented from time to time, or in
published reports 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 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,
contemporaneously with the filing of such document with the Securities and
Exchange Commission or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete
copy of all registration statements, Disclosure Documents, Statements of
Additional Information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no action letters, and all amendments to any of the above, that
relate to or affect the Fund, the Contracts or each Account, contemporaneously
with the filing of such document with the SEC or other regulatory authorities
or, if a Contract and its associated Account are exempt from registration, at
the time such documents are first published.
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), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
Disclosure Documents, Statements of Additional Information, shareholder reports,
and proxy materials.
ARTICLE V. Fees and Expenses
5.1. The Fund and Underwriter 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 plan pursuant to Rule 12b-1 to finance
distribution expenses, then the Underwriter may make payments to the Company or
to the underwriter for the Contracts if and in amounts agreed to by the
Underwriter in writing and such payments will be made out of existing fees
otherwise payable to the Underwriter, past profits of the Underwriter or other
resources available to the Underwriter. No such payments shall be made directly
by the Fund.
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. 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 (including
the costs of printing a prospectus that constitutes an annual report), 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. To the extent required by applicable law of the Fund or
the Company, the Company shall bear the expenses of distributing the Fund's
prospectus and reports to owners of Contracts issued by the Company. The Fund
shall bear the costs of soliciting Fund proxies from Contract owners, including
the costs of mailing proxy materials and tabulating proxy voting instructions,
not to exceed the costs charged by any service provider engaged by the Fund for
this purpose. The Fund and the Underwriter shall not be responsible for the
costs of any proxy solicitations other than proxies sponsored by the Fund.
ARTICLE VI. Diversification
6.1. The Fund will at all times invest money from the Contracts
in such a manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without limiting
the scope of the foregoing, 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 variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulations. In the event of a breach of this Article VI by the Fund, it will
take all reasonable steps (a) to notify Company of such breach and (b) 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 variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Board
shall promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing
conflicts of which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the Shared Funding Exemptive Order,
by providing the Board with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever contract owner voting
instructions are disregarded.
7.3. If it is determined by a majority of the Board, or a
majority of its disinterested trustees, that a material irreconcilable conflict
exists, the Company and other Participating Insurance Companies shall, at their
expense and to the extent reasonably practicable (as determined by a majority
of the disinterested trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1),
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Fund, or
submitting the question whether such segregation should be implemented to a
vote of all affected Contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity contract owners, life insurance
contract owners, or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering to
the affected contract owners the option of making such a change; and (2),
establishing a new registered management investment company or managed separate
account.
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and
that decision represents a minority position or would preclude a majority vote,
the Company may be required, at the Fund's election, to withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account; provided, however that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
Any such withdrawal and termination must take place within six (6) months after
the Fund gives written notice that this provision is being implemented, and
until the end of that six month period the Underwriter and Fund shall continue
to accept and implement orders by the Company for the purchase (and redemption)
of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the affected Account's investment in the Fund and terminate this
Agreement with respect to such Account within six months after the Board
informs the Company in writing that it has determined that such decision has
created an irreconcilable material conflict; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six month
period, the
Underwriter and Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this
Agreement, a majority of the disinterested members of the Board shall determine
whether any proposed action adequately remedies any irreconcilable material
conflict, but in no event will the Fund be required to establish a new funding
medium for the Contracts. The Company shall not be required by Section 7.3 to
establish a new funding medium for the 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. In the event that the Board determines
that any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination, provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
7.7. If and to the extent 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 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 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 (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of
this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1 Indemnification By The Company
8.1(a). The Company agrees to indemnify and hold harmless the
Fund and each trustee of the Board and officers and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Company) or litigation (including
legal and other expenses), to which the Indemnified Parties may become subject
under any statute, 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, or investment in, 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 Disclosure Documents for the Contracts or contained in the
Contracts or sales literature for the Contracts (or any
13
amendment or supplement to any of the foregoing), or arise out
of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in
conformity with information furnished to the Company by or on
behalf of the Fund for use in any Disclosure Document relating
to the Contracts or in the Contracts or sales literature (or
any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature of the
Fund not supplied by the Company, or persons under its control)
or wrongful 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 any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement,
prospectus, or sales literature of the Fund or any amendment
thereof or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance
upon and in conformity with information furnished to the Fund
by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company,
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
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 or to the Fund, whichever is applicable.
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 Indemnified Parties will promptly notify the
Company of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Fund Shares or the Contracts or the
operation of the Fund.
8.2. Indemnification by the Underwriter
8.2(a). The Underwriter agrees to indemnify and hold harmless
the Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Underwriter) or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute, 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, or investment in, the
Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement or prospectus
or sales literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon and
in conformity with information furnished to the
Underwriter or Fund by or on behalf of the Company
for use in the registration statement or prospectus
for the Fund or in sales literature (or any amendment
or supplement) or otherwise for use in connection
with the sale of the Contracts or 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 literature for the
Contracts not supplied by the
Underwriter or persons under its control) or
wrongful conduct of the Fund, Adviser or Underwriter
or persons under their control, with respect to the
sale or distribution of the Contracts or Fund
shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
Disclosure Document or sales literature covering the
Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statement or
statements therein not misleading, if such statement
or omission was made in reliance upon and in
conformity with information furnished to the Company
by or on behalf of the Fund; or
(iv) arise as a result of any failure by the Fund to
provide the services and furnish the materials under
the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise,
to comply with the diversification requirements
specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach of
any representation and/or warranty made by the
Underwriter in this Agreement or arise out of or
result from any other material breach of this
Agreement by the Underwriter;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2(b). The Underwriter shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to each Company or the Account, whichever is applicable.
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 agrees promptly to notify the Underwriter
of the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the Contracts
or the operation of each Account.
8.3. Indemnification By the Fund
8.3(a). The Fund agrees to indemnify and hold harmless the
Company, and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.3)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Fund) or litigation (including
legal and other expenses) to which the Indemnified Parties may become subject
under any statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
result from the gross negligence, bad faith or willful misconduct of the Board
or any member thereof, are related to the operations of the Fund and:
(i) arise as a result of any failure by the Fund to
provide the services and furnish the materials under
the terms of this Agreement (including a failure to
comply with the diversification requirements
specified in Article VI of this Agreement);or
(ii) arise out of or result from any material breach of
any representation and/or warranty made by the Fund
in this Agreement or arise out of or result from any
other material breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Fund 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 or to
the Company, the Fund, the Underwriter or each Account, whichever is applicable.
8.3(c). The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve the Fund
from any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties, the Fund
will be entitled to participate, at its own expense, in the defense thereof. The
Fund also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Fund to
such party of the Fund's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Fund will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
8.3(d). The Company and the Underwriter agree promptly to notify
the Fund of the commencement of any litigation or proceedings against it or any
of its respective officers or directors in connection with this Agreement, the
issuance or sale of the Contracts, with respect to the operation of either
Account, or the sale or acquisition of shares of the Fund.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
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
Securities and Exchange Commission may grant (including, but not limited to, the
Shared Funding Exemptive Order) and the terms hereof shall be interpreted and
construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until
the first to occur
(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 and the Underwriter 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; or
(c) termination by the Company by written notice to the
Fund and the Underwriter with respect to any Portfolio
in the event any of the Portfolio's shares are not
registered, issued or sold in accordance with
applicable state and/or federal law
or such law precludes the use of such shares as the
underlying investment media of the Contracts issued or
to be issued by the Company; or
(d) termination by the Company by written notice to the
Fund and the Underwriter with respect to any Portfolio
in the event that such Portfolio ceases to qualify as a
Regulated Investment Company under Subchapter M of the
Code or under any successor or similar provision, or if
the Company reasonably believes that the Fund may fail
to so qualify; or
(e) termination by the Company by written notice to the
Fund and the Underwriter with respect to any Portfolio
in the event that such Portfolio fails to meet the
diversification requirements specified in Article VI
hereof; or
(f) termination by either the Fund or the Underwriter by
written notice to the Company, if either one or both of
the Fund or the Underwriter respectively, shall
determine, in their 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 and the Underwriter, if the Company shall
determine, in its sole judgment exercised in good
faith, that either the Fund or the Underwriter has
suffered a material adverse change in its business,
operations, financial condition or prospects since the
date of this Agreement or is the subject of material
adverse publicity; or
(h) termination by the Fund or the Underwriter by written
notice to the Company, if the Company gives the Fund
and the Underwriter the written notice specified in
Section 1.6(b) hereof and at the time such notice was
given there was no notice of termination outstanding
under any other provision of this Agreement; provided,
however any termination under this Section 10.1(h)
shall be effective forty five (45) days after the
notice specified in Section 1.6(b) was given.
10.2. Notwithstanding any termination of this Agreement, the
Fund and the Underwriter shall at the option of the Company, continue to make
available additional shares of the Fund pursuant to the terms and conditions of
this Agreement, for all Contracts in effect on the effective date of termination
of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts shall be
permitted to reallocate investments in the Fund, 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 10.2 shall not apply
to any terminations under Article VII and the effect of such Article VII
terminations shall be governed by Article VII of this Agreement.
10.3. The provisions of Articles II (Representations and
Warranties), VIII (Indemnification), IX (Applicable Law) and XII (Miscellaneous)
shall survive termination of this
Agreement. In addition, all other applicable provisions of this Agreement shall
survive termination as long as shares of the Fund are held on behalf of Contract
owners in accordance with section 10.2, except that the Fund and Underwriter
shall have no further obligation to make Fund shares available in Contracts
issued after termination.
10.4. The Company shall not redeem Fund shares attributable to
the Contracts (as opposed to Fund shares attributable to the Company's assets
held in the Account) except (i) as necessary to implement Contract Owner
initiated or approved transactions, or (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption") or (iii) as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act. Upon
request, the Company will promptly furnish to the Fund and the Underwriter the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund and the Underwriter) to the effect that any redemption
pursuant to clause (ii) above is a Legally Required Redemption. Furthermore,
except in cases where permitted under the terms of the Contracts, the Company
shall not prevent Contract Owners from allocating payments to a Portfolio that
was otherwise available under the Contracts without first giving the Fund or the
Underwriter 90 days notice of its intention to do so.
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:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If to the Company:
The Union Central Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
If to the Underwriter:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
ARTICLE XII. Miscellaneous
20
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 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 the names
and addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize such
names and addresses and other confidential information until such time as it
may come into the public domain without the express written consent of the
affected party.
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 NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the California Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the insurance operations
of the Company are being conducted in a manner consistent with the California
Insurance Regulations and any other applicable law or 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; provided, however, that the Underwriter may assign this
Agreement or any rights or obligations hereunder to any affiliate of or company
under common control with the Underwriter, if such assignee is duly licensed
and registered to perform the obligations of the Underwriter under this
Agreement. The Company shall promptly notify the Fund and the Underwriter of
any change in control of the Company.
21
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles ("GAAP"), if any), as soon as practical and in
any event within 90 days after the end of each fiscal year;
(b) the Company's quarterly statements (statutory) (and GAAP, if any), as
soon as practical and in any event within 45 days after the end of
each quarterly period:
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/or policyholders, as soon as
practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial reports of
the Company filed with the Securities and Exchange Commission or any
state insurance regulator, as soon as practical after the filing
thereof;
(e) any other report submitted to the Company by independent accountants
in connection with any annual, interim or special audit made by them
of the books of the Company, as soon as practical after the receipt
thereof.
(a)
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its RAPHIC OMITTED][GRAPHIC OMITTED] behalf by
its duly authorized representative.
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ de ▇▇▇▇▇
Name: ▇▇▇▇▇▇ de ▇▇▇▇▇
Its: 2nd Vice President, Investment Products
VARIABLE INSURANCE PRODUCTS FUND,
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III, and
VARIABLE INSURANCE PRODUCTS FUND IV
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Their: Treasurer and Senior Vice President
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
Date: 3/20/06
Schedule A
Separate Accounts and Associated Contracts
Name of Separate Account and Policy Form Numbers of Contracts
Date Established by Board of Directors Funded By Separate Account
-------------------------------------- --------------------------
Union Central Mutual Fund Separate Contract number 64347
Account LXXV
SCHEDULE B
PROXY VOTING PROCEDURE
The following is a list of procedures and corresponding responsibilities for
the handling of proxies relating to the Fund by the Underwriter, the Fund and
the Company. 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 Insurance Company to perform the
steps delineated below.
1. The number of proxy proposals is given to the Company by the Underwriter
as early as possible before the date set by the Fund for the shareholder
meeting to facilitate the establishment of tabulation procedures. At
this time the Underwriter will inform the Company of the Record, Mailing
and Meeting dates. This will be done verbally approximately two months
before meeting.
2. Promptly after the Record Date, the Company will perform a "tape run",
or other activity, which will generate the names, addresses and number
of units which are attributed to each contractowner/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 Step #2. The Company will use its best efforts to call in
the number of Customers to Fidelity, as soon as possible, but no later
than two weeks after the Record Date.
3. The Fund's Annual Report no longer needs to be sent to each Customer by
the Company either before or together with the Customers' receipt of a
proxy statement. Underwriter will provide the last Annual Report to the
Company pursuant to the terms of Section 3.3 of the Agreement to which
this Schedule relates.
4. The text and format for the Voting Instruction Cards ("Cards" or "Card")
is provided to the Company by the Fund. The Company, at its expense,
shall produce and personalize the Voting Instruction Cards. The Legal
Department of the Underwriter or its affiliate ("Fidelity Legal") must
approve the Card before it is printed. Allow approximately 2-4 business
days for printing information on the Cards. Information commonly found
on the Cards includes:
a. name (legal name as found on account registration)
b. address
c. Fund or account number
d. coding to state number of units
e. individual Card number for use in tracking and verification of
votes (already on Cards as printed by the Fund) (This and related
steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
5. During this time, Fidelity Legal will develop, produce, and the Fund
will pay for the Notice of Proxy and the Proxy Statement (one document).
Printed and folded notices and statements will be sent to Company for
insertion into envelopes (envelopes and return envelopes are provided
and paid for by the Insurance Company). Contents of envelope sent to
Customers by Company will include:
a. Voting Instruction Card(s)
b. One proxy notice and statement (one document)
c. return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
d. "urge buckslip" - optional, but recommended. (This is a small,
single sheet of paper that requests Customers to vote as quickly
as possible and that their vote is important. One copy will be
supplied by the Fund.)
e. cover letter - optional, supplied by Company and reviewed and
approved in advance by Fidelity Legal.
6. 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 Fidelity Legal.
7. Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the
Company as the shareowner. (A 5-week period is recommended.)
Solicitation time is calculated as calendar days from (but not
including) the meeting, counting backwards.
8. 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 Fidelity in the past.
9. Signatures on Card checked against legal name on account registration which
was printed on the Card.
Note: For Example, If the account registration is under "▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Trustee," then that is the exact legal name to be printed on the
Card and is the signature needed on the Card.
10. 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, 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 "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.
11. 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.
12. 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.) Fidelity
Legal must review and approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to Fidelity
Legal on the morning of the meeting not later than 10:00 a.m. Boston
time. Fidelity Legal may request an earlier deadline if required to
calculate the vote in time for the meeting.
14. 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.
Fidelity Legal will provide a standard form for each Certification.
15. The Company will be required to box and archive the Cards received from
the Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, Fidelity Legal
will be permitted reasonable access to such Cards.
16. All approvals and "signing-off' may be done orally, but must always be
followed up in writing.
SCHEDULE C
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
Other Portfolios Available under the Contracts
A I M Advisors, Inc.
Dynamics Fund
Multi-Sector Fund
V.I. Basic Balanced Fund
V.I. Capital Appreciation Fund
American Century Investment Management, Inc.
International Growth Fund
Mid Cap Value Fund
Select Fund
Ultra(R) Fund
Value Fund
Deutsche Investment Management Americas, Inc.
DWS International VIP Portfolio
▇▇▇▇ ▇▇▇▇▇ Management, Inc.
American MidCap Growth
J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Inc.
Smaller-Cap Value Portfolio
▇▇▇▇▇▇▇ Capital Management, LLC
Focus Fund
Massachusetts Financial Services Company
VIT Emerging Growth Series
VIT High Income Series
VIT Investors Trust Series
VIT Research International Series
VIT Total Return Series
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management, Inc.
Core Plus Fixed Income Portfolio
U.S. Real Estate Portfolio
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management, Inc.
▇▇▇▇▇▇▇▇ Fund
Focus Fund
Genesis Fund
Guardian Fund
Regency Fund
Socially Responsive Fund
OppenheimerFunds, Inc.
Global Securities Fund
Main Street Fund
Royce & Associates, LLC
Total Return Fund
RS Investment Management, L.P.
Emerging Growth Fund
Smaller Company Growth Fund
Summit Investment Partners, Inc.
Bond Fund
EAFE International Index Portfolio
Everest Fund
High Yield Fund
▇▇▇▇▇▇ Aggregate Bond Index Portfolio
Money Market Fund
Nasdaq-100 Index Fund
▇▇▇▇▇▇▇ 2000 Small Cap Index Portfolio
S&P MidCap 400 Index Portfolio
S&P 500 Index Portfolio
Short-term Government Fund
Horizon I
Horizon II
Horizon III
▇. ▇▇▇▇ Price Associates, Inc.
Blue Chip Growth Fund
Equity Income Fund
Mid Cap Growth Fund
Mid Cap Value Fund
Retirement 2010 Fund
Retirement 2020 Fund
Retirement 2030 Fund
Retirement 2040 Fund
▇▇▇▇▇▇▇▇▇ Investment Counsel, LLC
VIP Templeton Foreign Securities Fund
▇▇▇▇▇▇▇▇▇ Global Advisors, Limited
VIP Templeton Growth Securities Fund
Wasatch Advisors, Inc.
Heritage Growth Fund
Small Cap Growth Fund
Small Cap Value Fund
SCHEDULE D
Fidelity /Union Central
Proocessing Transaction
(a) The Account Servicer agrees that: (i) the orders received by the Account
Servicer before the close of the New York Stock Exchange (generally, 4:00 p.m.
Eastern Time) ("Market Close") on any Fund business day ("Business Day") will be
transmitted by the Account Servicer to the Funds' designated transfer agent
("Order Accepter") by 9:00 a.m. Eastern Time on the next Business Day ("Day 1
Trades"); and (ii) Order received by the Account Servicer after Market Close on
any Business Day will be transmitted by the Account Servicer to the Order
Accepter by 9:00 a.m. Eastern Time on the second Business Day ("Day 2 Trades").
(b) The Account Servicer further agrees that payment for net purchases of fund
shares attributable to all orders executed for the Accounts on a given Business
Day will be wired to Order Accepter by Account Servicer or its designee on the
same Business Day such purchase orders are transmitted to Order Accepter no
later than 2:00 p.m. Eastern Time. Order Accepter agrees that payment for net
redemptions of Shares attributable to all orders executed for the Accounts on a
given Business Day will be wired by Order Accepter on the same Business Day such
redemption orders are transmitted to Order Accepter no later than 1:00 p.m.
Eastern Time to a custodial account designated by Account Servicer.
(c) Day 1 Trades will be effected on the basis of the net asset value of each
Fund's shares ("Net Asset Value") calculated as of Market Close on Day 1,
provided those trades are received by the Order Accepter by 9:00 a.m. Eastern
Time on Day 2; and Day 2 Trades will be effected at the Net Asset Value
calculated as of Market Close on Day 2, provided those trades are received by
the Order Accepter by 9:00 a.m. Eastern Time on Day 3. The parties understand
that, consistent with the foregoing, Day 1 Trades will have been received by the
Fund prior to Market Close on Day 1, and Day 2 Trades will have been deemed to
have been received by the Fund prior to Market Close on Day 2, for all purposes,
including, without limitation, effecting distributions.
(d) Subject to the provisions in the Funds' prospectuses, the Account Servicer
and Fidelity will settle Day 1 Trades on Day 2 and will settle Day 2 Trades on
Day 3.