PARTICIPATION AGREEMENT BY AND AMONG AIM VARIABLE INSURANCE FUNDS (INVESCO VARIABLE INSURANCE FUNDS), INVESCO DISTRIBUTORS, INC., AND EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY, ON BEHALF OF ITSELF AND ITS SEPARATE ACCOUNTS
Exhibit 14
PARTICIPATION AGREEMENT
BY AND AMONG
AIM VARIABLE INSURANCE FUNDS
(INVESCO VARIABLE INSURANCE FUNDS),
INVESCO DISTRIBUTORS, INC.,
AND
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY,
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of June, 2010 ("Agreement"), by and among
AIM Variable Insurance Funds (Invesco Variable Insurance Funds), a Delaware Trust ("AVIF"), Invesco Distributors, Inc., a Delaware corporation ("INVESCO"), Empire Fidelity Investments Life Insurance Company, a
Utah life insurance company ("LIFE COMPANY"), on behalf of itself and each of its segregated asset accounts listed in Schedule A hereto, as the parties hereto may amend from time to time (each, an "Account," and
collectively, the "Accounts");(collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, AVIF is registered with the Securities and Exchange Commission ("SEC") as an open-end management investment company under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, AVIF currently consists of separate series portfolios ("Series"), offering shares ("Shares") each of
which are registered under the Securities Act of 1933, as amended (the "1933 Act") and are currently sold to
one or more separate accounts of life insurance companies to fund benefits under variable annuity contracts and
variable life insurance contracts; and
WHEREAS, AVIF will make Shares of each Series listed on Schedule A hereto as the Parties hereto may
amend from time to time (each a "Fund"; reference herein to "AVIF" includes reference to each Fund, to the
extent the context requires) available for purchase by the Accounts; and
WHEREAS, LIFE COMPANY will be the issuer of certain variable annuity contracts and variable life insurance contracts ("Contracts") as set forth on Schedule A hereto, as the Parties hereto may amend from time to
time, which Contracts (hereinafter collectively, the "Contracts"), if required by applicable law, will be registered under the 1933 Act; and
WHEREAS, LIFE COMPANY will fund the Contracts through the Accounts, each of which may be divided
into two or more subaccounts ("Subaccounts"; reference herein to an "Account" includes reference to each Subaccount thereof to the extent the context requires); and
WHEREAS, LIFE COMPANY will serve as the depositor of the Accounts, each of which is registered as a
unit investment trust investment company under the 1940 Act (or exempt therefrom), and the security interests
deemed to be issued by the Accounts under the Contracts will be registered as securities under the 1933 Act (or
exempt therefrom); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations, LIFE COMPANY intends to
purchase Shares in one or more of the Funds on behalf of the Accounts to fund the Contracts; and
WHEREAS, INVESCO is a broker-dealer registered with the SEC under the 1934 Act and a member in good
standing of FINRA;
NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein, the Parties hereto agree as follows:
Section 1. Available Funds
1.1 Availability
AVIF will make Shares of each Fund available to LIFE COMPANY for purchase and redemption at net asset
value and with no sales charges, subject to the terms and conditions of this Agreement. The Board of AVIF
(the "Board") may refuse to sell Shares of any Fund to any person, or suspend or terminate the offering of
Shares of any Fund (a) if such action is required by law or by regulatory authorities having jurisdiction, (b) if,
in the sole discretion of the Trustees acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, such action is deemed in the best interests of the shareholders of such Fund, or (c) if
such action is required by any policies that the Board has adopted and that apply to all Participating Insurance
Companies.
1.2 Addition, Deletion or Modification of Funds
The Parties hereto may agree, from time to time, to add other Funds to provide additional funding media for the
Contracts, or to delete, combine, or modify existing Funds, by amending Schedule A hereto. Upon such
amendment to Schedule A, any applicable reference to a Fund, AVIF, or its Shares herein shall include a reference to any such additional Fund. Schedule A, as amended from time to time, is incorporated herein by reference and is a part hereof.
1.3 No Sales to the General Public
AVIF represents and warrants that no Shares of any Fund have been or will be sold to the general public.
Section 2. Processing Transactions
2.1 Timely Pricing and Orders
(a) AVIF or its designated agent will use its best efforts to provide LIFE COMPANY with the net asset value
per Share for each Fund by 5:30 p.m. Central Time on each Business Day. As used herein, "Business Day"
shall mean any day on which (i) the New York Stock Exchange is open for regular trading, (ii) AVIF calculates
the Fund's net asset value, and (iii) LIFE COMPANY is open for business.
(b) LIFE COMPANY will use the data provided by AVIF each Business Day pursuant to paragraph (a) immediately above to calculate Account unit values and to process transactions that receive that same Business Day's
Account unit values. LIFE COMPANY will perform such Account processing the same Business Day, and will
place corresponding orders to purchase or redeem Shares with AVIF by 9:00 a.m. Central Time the following
Business Day; provided, however, that AVIF shall provide additional time to LIFE COMPANY in the event that
AVIF is unable to meet the 5:30 p.m. time stated in paragraph (a) immediately above. Such additional time
shall be equal to the additional time that AVIF takes to make the net asset values available to LIFE COMPANY.
(c) With respect to payment of the purchase price by LIFE COMPANY and of redemption proceeds by AVIF,
LIFE COMPANY and AVIF shall net purchase and redemption orders with respect to each Fund and shall
transmit one net payment per Fund in accordance with Section 2.2, below.
(d) If AVIF provides materially incorrect Share net asset value information (as determined under SEC guidelines), LIFE COMPANY shall be entitled to an adjustment to the number of Shares purchased or redeemed to
reflect the correct net asset value per Share. Any material error in the calculation or reporting of net asset value
per Share, dividend or capital gain information shall be reported promptly upon discovery to LIFE COMPANY.
Materiality and reprocessing cost reimbursement shall be determined in accordance with standards established
by the Parties as provided in Schedule B, attached hereto and incorporated herein (except that for any money
market fund, materiality shall be determined in a manner consistent with Rule 2a-7 under the 1940 Act).
2.2 Timely Payments
LIFE COMPANY will wire payment for net purchases to a custodial account designated by AVIF by 1:00 p.m.
Central Time on the same day as the order for Shares is placed, to the extent practicable. AVIF will wire payment for net redemptions to an account designated by LIFE COMPANY by 1:00 p.m. Central Time on the same
day as the Order is placed, to the extent practicable, but in any event within five (5) calendar days after the date
the order is placed in order to enable LIFE COMPANY to pay redemption proceeds within the time specified in
Section 22(e) of the 1940 Act or such shorter period of time as may be required by law.
2.3 Applicable Price
(a) Share purchase payments and redemption orders that result from purchase payments, premium payments,
surrenders and other transactions under Contracts (collectively, "Contract transactions") and that LIFE COMPANY receives prior to the close of regular trading on the New York Stock Exchange (or such other time set by
the Board for purposes of determining the current net asset value of a Fund in accordance with Rule 22c-1 under the ▇▇▇▇ ▇▇▇) on a Business Day will be executed at the net asset values of the appropriate Funds next computed after receipt by AVIF or its designated agent of the orders. For purposes of this Section 2.3(a), LIFE
COMPANY shall be the designated agent of AVIF for receipt of orders relating to Contract transactions, , in
accordance with Section 22(c) and Rule 22c-1 under the 1940 Act, on each Business Day and receipt by such
designated agent shall constitute receipt by AVIF; provided that AVIF receives notice of such orders by 9:00
a.m. Central Time on the next following Business Day or such later time as computed in accordance with Section 2.1(b) hereof. In connection with this Section 2.3(a), LIFE COMPANY represents and warrants that it will
not submit any order for Shares or engage in any practice, nor will it allow or suffer any person acting on its
behalf to submit any order for Shares or engage in any practice, that would violate or cause a violation of applicable law or regulation including, without limitation Section 22 of the 1940 Act and the rules thereunder.
(b) All other Share purchases and redemptions by LIFE COMPANY will be effected at the net asset values of
the appropriate Funds next computed after receipt by AVIF or its designated agent of the order therefor, and
such orders will be irrevocable.
(c) Without limiting the scope or effect of Section 1.1 hereof, pursuant to which the Board may reject a Share
purchase order by or on behalf of LIFE COMPANY under the circumstances described therein, LIFE COMPANY agrees to cooperate with the Fund and INVESCO to prevent any person exercising, or purporting to exercise, rights or privileges under one or more Contracts (including, but not limited to Contract owners, annuitants,
insureds or participants, as the case may be (collectively, "Participants")) from engaging in any trading practices in any Fund that the Board or INVESCO determines, in good faith and in their sole discretion, to be detrimental or potentially detrimental to the other shareholders of the Fund, or to be in contravention of any applicable law or regulation including, without limitation, Section 22 of the 1940 Act and the rules thereunder. Such
cooperation may include, but shall not be limited to, identifying the person or persons engaging in such trading
practices, facilitating the imposition of any applicable redemption fee on such person or persons, limiting the
telephonic or electronic trading privileges of such person or persons, and taking such other remedial steps, all to
the extent permitted or required by applicable law.
2.4 Dividends and Distributions
AVIF will furnish notice by wire or telephone (followed by written confirmation) on or prior to the payment
date to LIFE COMPANY of any income dividends or capital gain distributions payable on the Shares of any
Fund. LIFE COMPANY hereby elects to reinvest all dividends and capital gains distributions in additional
Shares of the corresponding Fund at the ex-dividend date net asset values until LIFE COMPANY otherwise
notifies AVIF in writing, it being agreed by the Parties that the ex-dividend date and the payment date with respect to any dividend or distribution will be the same Business Day. LIFE COMPANY reserves the right to revoke this election and to receive all such income dividends and capital gain distributions in cash.
2.5 Book Entry
Issuance and transfer of AVIF Shares will be by book entry only. Stock certificates will not be issued to LIFE
COMPANY. Shares ordered from AVIF will be recorded in an appropriate title for LIFE COMPANY, on behalf of its Account.
Section 3. Costs and Expenses
3.1 General
Except as otherwise specifically provided in Schedule C, attached hereto and made a part hereof, each Party
will bear, or arrange for others to bear, all expenses incident to its performance under this Agreement.
3.2 Parties To Cooperate
Each Party agrees to cooperate with the others, as applicable, in arranging to print, mail and/or deliver, in a
timely manner, combined or coordinated prospectuses or other materials of AVIF and the Accounts.
Section 4. Legal Compliance
4.1 Tax Laws
(a) AVIF represents and warrants that each Fund is currently qualified as a regulated investment company
("RIC") under Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"), and represents
that it will use its best efforts to qualify and to maintain qualification of each Fund as a RIC. AVIF will notify
LIFE COMPANY immediately upon having a reasonable basis for believing that a Fund has ceased to so qualify or that it might not so qualify in the future.
(b) AVIF represents that it will use its best efforts to comply and to maintain each Fund's compliance with the
diversification requirements set forth in Section 817(h) of the Code and Section 1.817-5(b) of the regulations
under the Code. AVIF will notify LIFE COMPANY immediately upon having a reasonable basis for believing
that a Fund has ceased to so comply or that a Fund might not so comply in the future. In the event of a breach
of this Section 4.1(b) by AVIF, it will take all reasonable steps to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Section 1.817-5 of the regulations under the Code.
(c) Notwithstanding any other provision of this Agreement, but without limiting the ability of AVIF and/or INVESCO to assume the defense of any action pursuant to Section 12.2(d) hereof, LIFE COMPANY agrees that
if the Internal Revenue Service ("IRS") asserts in writing in connection with any governmental audit or review
of LIFE COMPANY or, to LIFE COMPANY's knowledge, of any Participants, that any Fund has failed to
comply with the diversification requirements of Section 817(h) of the Code or LIFE COMPANY otherwise becomes aware of any facts that could give rise to any claim against AVIF or its affiliates as a result of such a failure or alleged failure:
(i) LIFE COMPANY shall promptly notify AVIF of such assertion or potential claim (subject to the Confidentiality provisions of Section 18 as to any Participant);
(ii) LIFE COMPANY shall consult with AVIF as to how to minimize any liability that may arise as a result of
such failure or alleged failure;
(iii) LIFE COMPANY shall use its best efforts to minimize any liability of AVIF or its affiliates resulting from
such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations Section
1.817-5(a)(2), to the Commissioner of the IRS that such failure was inadvertent;
(iv) LIFE COMPANY shall permit AVIF, its affiliates and their legal and accounting advisors to participate in
any conferences, settlement discussions or other administrative or judicial proceeding or contests (including judicial appeals thereof) with the IRS, any Participant or any other claimant regarding any claims that could give
rise to liability to AVIF or its affiliates as a result of such a failure or alleged failure; provided, however, that
LIFE COMPANY will retain control of the conduct of such conferences discussions, proceedings, contests or
appeals;
(v) any written materials to be submitted by LIFE COMPANY to the IRS, any Participant or any other claimant
in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations Section 1.817-5(a)(2)), (a) shall be provided by
LIFE COMPANY to AVIF (together with any supporting information or analysis); subject to the confidentiality
provisions of Section 18, at least ten (10) business days or such shorter period to which the Parties hereto agree
prior to the day on which such proposed materials are to be submitted, and (b) shall not be submitted by LIFE
COMPANY to any such person without the express written consent of AVIF which shall not be unreasonably
withheld;
(vi) LIFE COMPANY shall provide AVIF or its affiliates and their accounting and legal advisors with such
cooperation as AVIF shall reasonably request (including, without limitation, by permitting AVIF and its accounting and legal advisors to review the relevant books and records of LIFE COMPANY) in order to facilitate
review by AVIF or its advisors of any written submissions provided to it pursuant to the preceding clause or its
assessment of the validity or amount of any claim against its arising from such a failure or alleged failure;
(vii) LIFE COMPANY shall not with respect to any claim of the IRS or any Participant that would give rise to
a claim against AVIF or its affiliates (a) compromise or settle any claim, (b) accept any adjustment on audit, or
(c) forego any allowable administrative or judicial appeals, without the express written consent of AVIF or its
affiliates, which shall not be unreasonably withheld, provided that LIFE COMPANY shall not be required, after
exhausting all administrative remedies, to appeal any adverse judicial decision unless AVIF or its affiliates shall
have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and provided further that the costs of any such appeal shall be borne equally by the Parties hereto; and
(viii) AVIF and its affiliates shall have no liability as a result of such failure or alleged failure if LIFE COMPANY fails to comply with any of the foregoing clauses (i) through (vii), and such failure could be shown to have
materially contributed to the liability.
Should AVIF or any of its affiliates refuse to give its written consent to any compromise or settlement of any
claim or liability hereunder, LIFE COMPANY may, in its discretion, authorize AVIF or its affiliates to act in
the name of LIFE COMPANY in, and to control the conduct of, such conferences, discussions, proceedings,
contests or appeals and all administrative or judicial appeals thereof, and in that event AVIF or its affiliates
shall bear the fees and expenses associated with the conduct of the proceedings that it is so authorized to control; provided, that in no event shall LIFE COMPANY have any liability resulting from AVIF's refusal to accept the proposed settlement or
compromise with respect to any failure caused by AVIF. As used in this Agreement, the term "affiliates" shall
have the same meaning as "affiliated person" as defined in Section 2(a)(3) of the 1940 Act.
(d) LIFE COMPANY represents and warrants that the Contracts currently are and will be treated as annuity
contracts or life insurance contracts under applicable provisions of the Code and that it will use its best efforts
to maintain such treatment; LIFE COMPANY will notify AVIF immediately upon having a reasonable basis for
believing that any of the Contracts have ceased to be so treated or that they might not be so treated in the future.
(e) LIFE COMPANY represents and warrants that each Account is a "segregated asset account" and that interests in each Account are offered exclusively through the purchase of or transfer into a "variable contract," within the meaning of such terms under Section 817 of the Code and the regulations thereunder. LIFE COMPANY
will use its best efforts to continue to meet such definitional requirements, and it will notify AVIF immediately
upon having a reasonable basis for believing that such requirements have ceased to be met or that they might
not be met in the future.
4.2 Insurance and Certain Other Laws
(a) AVIF will use its best efforts to comply with any applicable state insurance laws or regulations, to the extent
specifically requested in writing by LIFE COMPANY, which efforts shall include, without limitation, the furnishing of information that is not otherwise available to LIFE COMPANY and that is required by state insurance law to enable LIFE COMPANY to obtain the authority needed to issue the Contracts in any applicable
state.
(b) LIFE COMPANY represents and warrants that (i) it is an insurance company duly organized, validly existing and in good standing under the laws of the State of Utah and has full corporate power, authority and legal
right to execute, deliver and perform its duties and comply with its obligations under this Agreement, (ii) it has
legally and validly established and maintains each Account as a segregated asset account under Section
31A-5-217.5 of the Utah Insurance Law and the regulations thereunder, and (iii) the Contracts comply in all
material respects with all other applicable federal and state laws and regulations.
(c) AVIF represents and warrants that it is lawfully organized, validly existing, and in good standing under the
laws of the State of Delaware and has full power, authority, and legal right to execute, deliver, and perform its
duties and comply with its obligations under this Agreement.
4.3 Securities Laws
(a) LIFE COMPANY represents and warrants that (i) interests in each Account pursuant to the Contracts will be
registered under the 1933 Act to the extent required by the 1933 Act, (ii) the Contracts will be duly authorized
for issuance and sold in compliance with all applicable federal and state laws, including, without limitation, the
1933 Act, the 1934 Act, the 1940 Act and the law(s) of LIFE COMPANY's state(s) of organization and domicile, (iii) each Account is and will remain registered under the 1940 Act, to the extent required by the 1940 Act,
(iv) each Account does and will comply in all material respects with the requirements of the 1940 Act and the
rules thereunder, to the extent required, (v) each Account's 1933 Act registration statement relating to the Contracts, together with any amendments thereto, will at all times comply in all material respects with the requirements of the 1933 Act and the rules thereunder, (vi) LIFE COMPANY will amend the registration statement for
its Contracts under the 1933 Act and for its Accounts under the 1940 Act from time to time as required in order
to effect the continuous offering of its Contracts or as may otherwise be required by applicable law, and (vii)
each Account Prospectus, Statement of Additional Information, and then-current stickers (collectively referred
to herein as "Account Prospectus"), will at all times comply in all material respects with the requirements of the
1933 Act and the rules thereunder.
(b) AVIF represents and warrants that (i) Shares sold pursuant to this Agreement will be registered under the
1933 Act to the extent required by the 1933 Act and duly authorized for issuance and sold in compliance with
Delaware law, (ii) AVIF is and will remain registered under the 1940 Act to the extent required by the 1940
Act, (iii) AVIF will amend the registration statement for its Shares under the 1933 Act and itself under the 1940
Act from time to time as required in order to effect the continuous offering of its Shares, (iv) AVIF does and
will comply in all material respects with the requirements of the 1940 Act and the rules thereunder, (v) AVIF's
1933 Act registration statement, together with any amendments thereto, will at all times comply in all material
respects with the requirements of the 1933 Act and rules thereunder, and (vi) AVIF's Prospectus, Statement of
Additional Information, and then-current stickers (collectively referred to herein as "AVIF Prospectus"), will at
all times comply in all material respects with the requirements of the 1933 Act and the rules thereunder.
(c) AVIF will at its expense register and qualify its Shares for sale in accordance with the laws of any state or
other jurisdiction if and to the extent reasonably deemed advisable by AVIF.
(d) AVIF represents and warrants that all of its trustees, officers, employees, investment advisers, and other individuals/entities having access to the funds and/or securities of the Fund are and continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act or related provisions as may be promulgated from time to time. The aforesaid bond includes coverage for larceny and embezzlement and is issued
by a reputable bonding company.
4.4 Notice of Certain Proceedings and Other Circumstances
(a) AVIF or INVESCO will immediately notify LIFE COMPANY of (i) the issuance by any court or regulatory
body of any stop order, cease and desist order, or other similar order with respect to AVIF's registration statement under the 1933 Act or AVIF Prospectus, (ii) any request by the SEC for any amendment to such registration statement or AVIF Prospectus that may affect the offering of Shares of AVIF, (iii) the initiation of any proceedings for that purpose or for any other purpose relating to the registration or offering of AVIF's Shares, or
(iv) any other action or circumstances that may prevent the lawful offer or sale of Shares of any Fund in any
state or jurisdiction, including, without limitation, any circumstances in which (a) such Shares are not registered
and, in all material respects, issued and sold in accordance with applicable state and federal law, or (b) such law
precludes the use of such Shares as an underlying investment medium of the Contracts issued or to be issued by
LIFE COMPANY. AVIF and INVESCO will make every reasonable effort to prevent the issuance, with respect
to any Fund, of any such stop order, cease and desist order or similar order and, if any such order is issued, to
obtain the lifting thereof at the earliest possible time.
(b) LIFE COMPANY will immediately notify AVIF of (i) the issuance by any court or regulatory body of any
stop order, cease and desist order, or other similar order with respect to each Account's registration statement
under the 1933 Act relating to the Contracts or each Account Prospectus, (ii) any request by the SEC for any
amendment to such registration statement or Account Prospectus that may affect the offering of Shares of AVIF,
(iii) the initiation of any proceedings for that purpose or for any other purpose relating to the registration or offering of each Account's interests pursuant to the Contracts, or (iv) any other action or circumstances that may
prevent the lawful offer or sale of said interests in any state or jurisdiction, including, without limitation, any
circumstances in which said interests are not registered and, in all material respects, issued and sold in accordance with applicable state and federal law. LIFE COMPANY will make every reasonable effort to prevent the
issuance of any such stop order, cease and desist order or similar order and, if any such order is issued, to obtain
the lifting thereof at the earliest possible time.
4.5 LIFE COMPANY To Provide Documents; Information About AVIF
(a) LIFE COMPANY will provide to AVIF or its designated agent at least one (1) complete copy of all SEC
registration statements, Account Prospectuses, reports, any preliminary and final voting instruction solicitation
material, applications for exemptions, requests for no-action letters, and all amendments to any of the above,
that relate to each Account or the Contracts, contemporaneously with the filing of such document with the SEC
or other regulatory authorities.
(b) LIFE COMPANY will provide to AVIF or its designated agent at least one (1) complete copy of each piece
of sales literature or other promotional material in which AVIF or any of its affiliates is named, at least five (5)
Business Days prior to its use or such shorter period as the Parties hereto may, from time to time, agree upon.
No such material shall be used if AVIF or its designated agent objects to such use within five (5) Business Days
after receipt of such material or such shorter period as the Parties hereto may, from time to time, agree upon.
AVIF hereby designates INVESCO as the entity to receive such sales literature, until such time as AVIF appoints another designated agent by giving notice to LIFE COMPANY in the manner required by Section 9 hereof.
(c) Neither LIFE COMPANY nor any of its affiliates, will give any information or make any representations or
statements on behalf of or concerning AVIF or its affiliates in connection with the sale of the Contracts other
than (i) the information or representations contained in the registration statement, including the AVIF Prospectus contained therein, relating to Shares, as such registration statement and AVIF Prospectus may be amended
from time to time; or (ii) in reports or proxy materials for AVIF; or (iii) in published reports for AVIF that are
in the public domain and approved by AVIF for distribution; or (iv) in sales literature or other promotional material approved by AVIF, except with the express written permission of AVIF.
(d) LIFE COMPANY shall adopt and implement procedures reasonably designed to ensure that information
concerning AVIF and its affiliates that is intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Participants) ("broker only materials") is so used, and neither
AVIF nor any of its affiliates shall be liable for any losses, damages or expenses relating to the improper use of
such broker only materials.
(e) For the purposes of this Section 4.5, the phrase "sales literature or other promotional material" includes, but
is not limited to, advertisements (such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape display, signs or billboards, motion
pictures, or other public media, (e.g., on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally available to customers or the public,
including brochures, circulars, research reports, market letters, form letters, seminar texts, reprints or excerpts
of any other advertisement, sales literature, or published article), educational or training materials or other communications distributed or made generally available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and proxy materials and any other material constituting sales literature or advertising under FINRA rules, the 1933 Act, or the ▇▇▇▇ ▇▇▇.
4.6 AVIF To Provide Documents; Information About LIFE COMPANY
(a) AVIF will provide to LIFE COMPANY at least one (1) complete copy of all SEC registration statements,
AVIF Prospectuses, reports, any preliminary and final proxy material, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to AVIF or the Shares of a Fund, contemporaneously with the filing of such document with the SEC or other regulatory authorities.
(b) AVIF will provide to LIFE COMPANY a camera ready copy of all AVIF prospectuses and printed copies, in
an amount specified by LIFE COMPANY, of AVIF statements of additional information, proxy materials, periodic reports to shareholders and other materials required by law to be sent to Participants who have allocated
any Contract value to a Fund. AVIF will provide such copies to LIFE COMPANY in a timely manner so as to
enable LIFE COMPANY, as the case may be, to print and distribute such materials within the time required by
law to be furnished to Participants.
(c) AVIF will provide to LIFE COMPANY or its designated agent at least one (1) complete copy of each piece
of sales literature or other promotional material in which LIFE COMPANY, or any of its respective affiliates is
named, or that refers to the Contracts, at least five (5) Business Days prior to its use or such shorter period as
the Parties hereto may, from time to time, agree upon. No such material shall be used if LIFE COMPANY or
its designated agent objects to such use within five (5) Business Days after receipt of such material or such
shorter period as the Parties hereto may, from time to time, agree upon. LIFE COMPANY shall receive all
such sales literature until such time as it appoints a designated agent by giving notice to AVIF in the manner
required by Section 9 hereof.
(d) Neither AVIF nor any of its affiliates will give any information or make any representations or statements
on behalf of or concerning LIFE COMPANY, each Account, or the Contracts other than (i) the information or
representations contained in the registration statement, including each Account Prospectus contained therein,
relating to the Contracts, as such registration statement and Account Prospectus may be amended from time to
time; or (ii) in published reports for the Account or the Contracts that are in the public domain and approved by
LIFE COMPANY for distribution; or (iii) in sales literature or other promotional material approved by LIFE
COMPANY or its affiliates, except with the express written permission of LIFE COMPANY.
(e) AVIF shall cause its principal underwriter to adopt and implement procedures reasonably designed to ensure
that information concerning LIFE COMPANY, and its respective affiliates that is intended for use only by brokers or agents selling the Contracts (i.e., information that is not intended for distribution to Participants) ("broker only materials") is so used, and neither LIFE COMPANY, nor any of its respective affiliates shall be liable
for any losses, damages or expenses relating to the improper use of such broker only materials.
(f) For purposes of this Section 4.6, the phrase "sales literature or other promotional material" includes, but is
not limited to, advertisements (such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape display, signs or billboards, motion
pictures, or other public media, (e.g., on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally available to customers or the public,
including brochures, circulars, research reports, market letters, form letters, seminar texts, reprints or excerpts
of any other advertisement, sales literature, or published article), educational or training materials or other communications distributed or made generally available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and proxy materials and any other material constituting sales literature or advertising under FINRA rules, the 1933 Act, or the 1940 Act.
Section 5. Mixed and Shared Funding
5.1 General
The SEC has granted an order to AVIF exempting it from certain provisions of the 1940 Act and rules thereunder so that AVIF may be available for investment by certain other entities, including, without limitation, separate accounts funding variable annuity contracts or variable life insurance contracts, separate accounts of insurance companies unaffiliated with LIFE COMPANY, and trustees of qualified pension and retirement plans
(collectively, "Mixed and Shared Funding"). The Parties recognize that the SEC has imposed terms and conditions for such orders that are substantially identical to many of the provisions of this Section 5. Sections 5.2
through 5.8 below shall apply pursuant to the exemptive order granted to AVIF. AVIF hereby notifies LIFE
COMPANY that, in the event that AVIF implements Mixed and Shared Funding, it may be appropriate to include in the prospectus pursuant to which a Contract is offered disclosure regarding the potential risks of Mixed
and Shared Funding.
5.2 Disinterested Trustees
AVIF agrees that its Board shall at all times consist of trustees a majority of whom (the "Disinterested Trustees") are not interested persons of AVIF within the meaning of Section 2(a)(19) of the 1940 Act and the rules
thereunder and as modified by any applicable orders of the SEC, except that if this condition is not met by reason of the death, disqualification, or bona fide resignation of any director, then the operation of this condition
shall be suspended (a) for a period of forty-five (45) days if the vacancy or vacancies may be filled by the
Board; (b) for a period of sixty (60) days if a vote of shareholders is required to fill the vacancy or vacancies or
(c) for such longer period as the SEC may prescribe by order upon application.
5.3 Monitoring for Material Irreconcilable Conflicts
AVIF agrees that its Board will monitor for the existence of any material irreconcilable conflict between the
interests of the Participants in all separate accounts of life insurance companies utilizing AVIF ("Participating
Insurance Companies"), including each Account, and participants in all qualified retirement and pension plans
investing in AVIF ("Participating Plans"). LIFE COMPANY agrees to inform the Board of AVIF of the existence of or any potential for any such material irreconcilable conflict of which it is aware. The concept of a
"material irreconcilable conflict" is not defined by the 1940 Act or the rules thereunder, but the Parties recognize that such a conflict may arise for a variety of reasons, including, without limitation:
(a) an action by any state insurance or other regulatory authority;
(b) a change in applicable federal or state insurance, tax or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar action by insurance, tax or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant proceeding;
(d) the manner in which the investments of any Fund are being managed;
(e) a difference in voting instructions given by variable annuity contract and variable life insurance contract
Participants or by Participants of different Participating Insurance Companies;
(f) a decision by a Participating Insurance Company to disregard the voting instructions of Participants; or
(g) a decision by a Participating Plan to disregard the voting instructions of Plan participants.
Consistent with the SEC's requirements in connection with exemptive orders of the type referred to in Section
5.1 hereof, LIFE COMPANY will assist the Board in carrying out its responsibilities by providing the Board
with all information reasonably necessary for the Board to consider any issue raised, including information as
to a decision by LIFE COMPANY to disregard voting instructions of Participants. LIFE COMPANY's responsibilities in connection with the foregoing shall be carried out with a view only to the interests of Participants.
5.4 Conflict Remedies
(a) It is agreed that if it is determined by a majority of the members of the Board or a majority of the Disinterested Trustees that a material irreconcilable conflict exists, LIFE COMPANY will, if it is a Participating Insurance Company for which a material irreconcilable conflict is relevant, at its own expense and to the extent reasonably practicable (as determined by a majority of the Disinterested Trustees), take whatever steps are
necessary to remedy or eliminate the material irreconcilable conflict, which steps may include, but are not limited to:
(i) withdrawing the assets allocable to some or all of the Accounts from AVIF or any Fund and reinvesting such
assets in a different investment medium, including another Fund of AVIF, or submitting the question whether
such segregation should be implemented to a vote of all affected Participants and, as appropriate, segregating
the assets of any particular group (e.g., annuity Participants, life insurance Participants or all Participants) that
votes in favor of such segregation, or offering to the affected Participants the option of making such a change;
and
(ii) establishing a new registered investment company of the type defined as a "management company" in Section 4(3) of the 1940 Act or a new separate account that is operated as a management company.
(b) If the material irreconcilable conflict arises because of LIFE COMPANY's decision to disregard Participant
voting instructions and that decision represents a minority position or would preclude a majority vote, LIFE
COMPANY may be required, at AVIF's election, to withdraw each Account's investment in AVIF or any Fund.
No charge or penalty will be imposed as a result of such withdrawal. Any such withdrawal must take place
within six (6) months after AVIF gives notice to LIFE COMPANY that this provision is being implemented,
and until such withdrawal AVIF shall continue to accept and implement orders by LIFE COMPANY for the
purchase and redemption of Shares of AVIF.
(c) If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable
to LIFE COMPANY conflicts with the majority of other state regulators, then LIFE COMPANY will withdraw
each Account's investment in AVIF within six (6) months after AVIF's Board informs LIFE COMPANY that it
has determined that such decision has created a material irreconcilable conflict, and until such withdrawal AVIF
shall continue to accept and implement orders by LIFE COMPANY for the purchase and redemption of Shares
of AVIF. No charge or penalty will be imposed as a result of such withdrawal.
(d) LIFE COMPANY agrees that any remedial action taken by it in resolving any material irreconcilable conflict will be carried out at its expense and with a view only to the interests of Participants.
(e) For purposes hereof, a majority of the Disinterested Trustees will determine whether or not any proposed
action adequately remedies any material irreconcilable conflict. In no event, however, will AVIF or any of its
affiliates be required to establish a new funding medium for any Contracts. LIFE COMPANY will not be required by the terms hereof to establish a new funding medium for any Contracts if an offer to do so has been
declined by vote of a majority of Participants materially adversely affected by the material irreconcilable conflict.
5.5 Notice to LIFE COMPANY
AVIF will promptly make known in writing to LIFE COMPANY the Board's determination of the existence of
a material irreconcilable conflict, a description of the facts that give rise to such conflict and the implications of
such conflict.
5.6 Information Requested by Board
LIFE COMPANY and AVIF (or its investment adviser) will at least annually submit to the Board of AVIF such
reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon it by the provisions hereof or any exemptive order granted by the SEC to permit Mixed and
Shared Funding, and said reports, materials and data will be submitted at any reasonable time deemed appropriate by the Board. All reports received by the Board of potential or existing conflicts, and all Board actions with
regard to determining the existence of a conflict, notifying Participating Insurance Companies and Participating
Plans of a conflict, and determining whether any proposed action adequately remedies a conflict, will be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records will
be made available to the SEC upon request.
5.7 Compliance with SEC Rules
If, at any time during which AVIF is serving as an investment medium for variable life insurance Contracts,
1940 Act Rules 6e-3(T) or, if applicable, 6e-2 are amended or Rule 6e-3 is adopted to provide exemptive relief with respect to Mixed and Shared Funding, AVIF agrees that it will comply with the terms and conditions
thereof and that the terms of this Section 5 shall be deemed modified if and only to the extent required in order
also to comply with the terms and conditions of such exemptive relief that is afforded by any of said rules that
are applicable.
5.8 Other Requirements
AVIF will require that each Participating Insurance Company and Participating Plan enter into an agreement
with AVIF that contains in substance the same provisions as are set forth in Sections 4.1(b), 4.1(d), 4.3(a),
4.4(b), 4.5(a), 5, and 10 of this Agreement.
Section 6. Termination
6.1 Events of Termination
Subject to Section 6.4 below, this Agreement will terminate as to a Fund:
(a) at the option of any party, with or without cause with respect to the Fund, upon six (6) months advance written notice to the other parties, or, if later, upon receipt of any required exemptive relief from the SEC, unless
otherwise agreed to in writing by the parties; or
(b) at the option of AVIF upon institution of formal proceedings against LIFE COMPANY or its affiliates by
FINRA, the SEC, any state insurance regulator or any other regulatory body regarding LIFE COMPANY's obligations under this Agreement or related to the sale of the Contracts, the operation of each Account, or the purchase of Shares, if, in each case, AVIF reasonably determines that such proceedings, or the facts on which such
proceedings would be based, have a material likelihood of imposing material adverse consequences on the Fund
with respect to which the Agreement is to be terminated; or
(c) at the option of LIFE COMPANY upon institution of formal proceedings against AVIF, its principal underwriter, or its investment adviser by FINRA, the SEC, or any state insurance regulator or any other regulatory
body regarding AVIF's obligations under this Agreement or related to the operation or management of AVIF or
the purchase of AVIF Shares, if, in each case, LIFE COMPANY reasonably determines that such proceedings,
or the facts on which such proceedings would be based, have a material likelihood of imposing material adverse
consequences on LIFE COMPANY, or the Subaccount corresponding to the Fund with respect to which the
Agreement is to be terminated; or
(d) at the option of any Party in the event that (i) the Fund's Shares are not registered and, in all material respects, issued and sold in accordance with any applicable federal or state law, or (ii) such law precludes the use
of such Shares as an underlying investment medium of the Contracts issued or to be issued by LIFE COMPANY; or
(e) upon termination of the corresponding Subaccount's investment in the Fund pursuant to Section 5 hereof; or
(f) at the option of LIFE COMPANY if the Fund ceases to qualify as a RIC under Subchapter M of the Code or
under successor or similar provisions, or if LIFE COMPANY reasonably believes that the Fund may fail to so
qualify; or
(g) at the option of LIFE COMPANY if the Fund fails to comply with Section 817(h) of the Code or with successor or similar provisions, or if LIFE COMPANY reasonably believes that the Fund may fail to so comply; or
(h) at the option of AVIF if the Contracts issued by LIFE COMPANY cease to qualify as annuity contracts or
life insurance contracts under the Code (other than by reason of the Fund's noncompliance with Section 817(h)
or Subchapter M of the Code) or if interests in an Account under the Contracts are not registered, where required, and, in all material respects, are not issued or sold in accordance with any applicable federal or state
law; or
(i) upon another Party's material breach of any provision of this Agreement.
6.2 Notice Requirement for Termination
No termination of this Agreement will be effective unless and until the Party terminating this Agreement gives
prior written notice to the other Party to this Agreement of its intent to terminate, and such notice shall set forth
the basis for such termination. Furthermore:
(a) in the event that any termination is based upon the provisions of Sections 6.1(a) or 6.1(e) hereof, such prior
written notice shall be given at least six (6) months in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto;
(b) in the event that any termination is based upon the provisions of Sections 6.1(b) or 6.1(c) hereof, such prior
written notice shall be given at least ninety (90) days in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto; and
(c) in the event that any termination is based upon the provisions of Sections 6.1(d), 6.1(f), 6.1(g), 6.1(h) or
6.1(i) hereof, such prior written notice shall be given as soon as possible within twenty-four (24) hours after
the terminating Party learns of the event causing termination to be required.
6.3 Funds To Remain Available
Notwithstanding any termination of this Agreement by LIFE COMPANY, AVIF will, at the option of LIFE
COMPANY, continue to make available additional shares of the Fund pursuant to the terms and conditions of
this Agreement, for all Contracts in effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"), unless INVESCO or the Board determines that doing so would not serve
the best interests of the shareholders of the affected Funds or would be inconsistent with applicable law or regulation. Specifically, without limitation, the owners of the Existing Contracts will be permitted to reallocate investments in the Fund (as in effect on such date), redeem investments in the Fund and/or invest in the Fund
upon the making of additional purchase payments under the Existing Contracts. The parties agree that this Section 6.3 will not apply to any (i) terminations under Section 5 and the effect of such terminations will be governed by Section 5 of this Agreement or (ii) any rejected purchase and/or redemption order as described in
Section 2.3(c) hereof.
6.4 Survival of Warranties and Indemnifications
All warranties and indemnifications will survive the termination of this Agreement.
6.5 Continuance of Agreement for Certain Purposes
If any Party terminates this Agreement with respect to any Fund pursuant to Sections 6.1(b), 6.1(c), 6.1(d),
6.1(f), 6.1(g), 6.1(h) or 6.1(i) hereof, this Agreement shall nevertheless continue in effect as to any Shares of
that Fund that are outstanding as of the date of such termination (the "Initial Termination Date"). This continuation shall extend to the earlier of the date as of which an Account owns no Shares of the affected Fund or a
date (the "Final Termination Date") six (6) months following the Initial Termination Date, except that LIFE
COMPANY may, by written notice shorten said six (6) month period in the case of a termination pursuant to
Sections 6.1(d), 6.1(f), 6.1(g), 6.1(h) or 6.1(i).
Section 7. Parties To Cooperate Respecting Termination
The Parties hereto agree to cooperate and give reasonable assistance to one another in taking all necessary and
appropriate steps for the purpose of ensuring that an Account owns no Shares of a Fund after the Final Termination Date with respect thereto, or, in the case of a termination pursuant to Section 6.1(a), the termination
date specified in the notice of termination. Such steps may include combining the affected Account with another Account, substituting other mutual fund shares for those of the affected Fund, or otherwise terminating participation by the Contracts in such Fund.
Section 8. Assignment
This Agreement may not be assigned by any Party, except with the written consent of each other Party.
Section 9. Notices
Notices and communications required or permitted will be given by means mutually acceptable to the Parties
concerned. Each other notice or communication required or permitted by this Agreement will be given to the
following persons at the following addresses and facsimile numbers, or such other persons, addresses or facsimile numbers as the Party receiving such notices or communications may subsequently direct in writing:
AIM Variable Insurance Funds (Invesco Variable Insurance Funds
Invesco Distributors, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, EVP
Section 10. Voting Procedures
Subject to the cost allocation procedures set forth in Section 3 hereof, LIFE COMPANY will distribute all
proxy material furnished by AVIF to Participants to whom pass-through voting privileges are required to be
extended and will solicit voting instructions from Participants. LIFE COMPANY will vote Shares in accordance with timely instructions received from Participants. LIFE COMPANY will vote Shares that are (a) not
attributable to Participants to whom pass-through voting privileges are extended, or (b) attributable to Participants, but for which no timely instructions have been received, in the same proportion as Shares for which said
instructions have been received from Participants, so long as and to the extent that the SEC continues to interpret the 1940 Act to require pass through voting privileges for Participants. Neither LIFE COMPANY nor any
of its affiliates will in any way recommend action in connection with or oppose or interfere with the solicitation of proxies for the Shares held for such Participants. LIFE COMPANY reserves the right to vote shares held
in any Account in its own right, to the extent permitted by law. LIFE COMPANY shall be responsible for assuring that each of its Accounts holding Shares calculates voting privileges in a manner consistent with that of
other Participating Insurance Companies or in the manner required by the Mixed and Shared Funding exemptive order obtained by AVIF. AVIF will notify LIFE COMPANY of any changes of interpretations or amendments to Mixed and Shared Funding exemptive order it has obtained. AVIF will comply with all provisions of
the 1940 Act requiring voting by shareholders, and in particular, AVIF either will provide for annual meetings
(except insofar as the SEC may interpret Section 16 of the 1940 Act not to require such meetings) or will comply with Section 16(c) of the 1940 Act (although AVIF 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, AVIF will act in accordance
with the SEC's interpretation of the requirements of Section 16(a) with respect to periodic elections of trustees
and with whatever rules the SEC may promulgate with respect thereto.
Section 11. Foreign Tax Credits
AVIF agrees to consult in advance with LIFE COMPANY concerning any decision to elect or not to elect pursuant to Section 853 of the Code to pass through the benefit of any foreign tax credits to its shareholders.
Section 12. Indemnification
12.1 Of AVIF and INVESCO by LIFE COMPANY
(a) Except to the extent provided in Sections 12.1(b) and 12.1(c), below, LIFE COMPANY agree to indemnify
and hold harmless AVIF, INVESCO, their affiliates, and each person, if any, who controls AVIF, INVESCO, or
their affiliates within the meaning of Section 15 of the 1933 Act and each of their respective trustees and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.1) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the written consent of LIFE COMPANY) or actions in respect thereof (including, to the extent reasonable, legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common law or otherwise; provided,
the Account owns shares of the Fund and insofar as such losses, claims, damages, liabilities or actions:
(i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or sales literature or advertising for the Contracts (or any amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided, that this agreement to indemnify
shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information furnished to LIFE COMPANY by or on behalf
of AVIF or INVESCO for use in any Account's 1933 Act registration statement, any Account Prospectus, the
Contracts, or sales literature or advertising or otherwise for use in connection with the sale of Contracts or
Shares (or any amendment or supplement to any of the foregoing); or
(ii) arise out of or as a result of any other statements or representations (other than statements or representations
contained in AVIF's 1933 Act registration statement, AVIF Prospectus, sales literature or advertising of AVIF,
or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of LIFE
COMPANY or its respective affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of LIFE COMPANY or its respective affiliates or persons under their control (including, without limitation, their employees and "persons associated with a member," as that term is defined in
paragraph (q) of Article I of FINRA's By-Laws), in connection with the sale or distribution of the Contracts or
Shares; or
(iii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in AVIF's 1933 Act registration statement, AVIF Prospectus, sales literature or advertising of AVIF, or
any amendment or supplement to any of the foregoing, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not misleading if such a
statement or omission was made in reliance upon and in conformity with information furnished to AVIF, INVESCO or their affiliates by or on behalf of LIFE COMPANY or its respective affiliates for use in AVIF's
1933 Act registration statement, AVIF Prospectus, sales literature or advertising of AVIF, or any amendment or
supplement to any of the foregoing; or
(iv) arise as a result of any failure by LIFE COMPANY to perform the obligations, provide the services and
furnish the materials required of them under the terms of this Agreement, or any material breach of any representation and/or warranty made by LIFE COMPANY in this Agreement or arise out of or result from any other
material breach of this Agreement by LIFE COMPANY; or
(v) arise as a result of failure by the Contracts issued by LIFE COMPANY to qualify as annuity contracts or life
insurance contracts under the Code, otherwise than by reason of any Fund's failure to comply with Subchapter
M or Section 817(h) of the Code.
(b) LIFE COMPANY shall not be liable under this Section 12.1 with respect to any losses, claims, damages,
liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance by the Indemnified Party of its duties or by reason of
the Indemnified Party's reckless disregard of obligations or duties (i) under this Agreement, or (ii) to AVIF or
INVESCO.
(c) LIFE COMPANY shall not be liable under this Section 12.1 with respect to any action against an Indemnified Party unless AVIF or INVESCO shall have notified LIFE COMPANY in writing within a reasonable time
after the summons or other first legal process giving information of the nature of the action shall have been
served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service
on any designated agent), but failure to notify LIFE COMPANY of any such action shall not relieve LIFE
COMPANY from any liability which they may have to the Indemnified Party against whom such action is
brought otherwise than on account of this Section 12.1. Except as otherwise provided herein, in case any such
action is brought against an Indemnified Party, LIFE COMPANY shall be entitled to participate, at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof, with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from LIFE COMPANY to such Indemnified Party of LIFE COMPANY's election to assume the
defense thereof, the Indemnified Party will cooperate fully with LIFE COMPANY and shall bear the fees
and expenses of any additional counsel retained by it, and LIFE
COMPANY will not be liable to such Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection with the defense thereof, other
than reasonable costs of investigation.
12.2 Of LIFE COMPANY by AVIF and INVESCO
(a) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e), below, AVIF and INVESCO agree to
indemnify and hold harmless LIFE COMPANY, its respective affiliates, and each person, if any, who controls
LIFE COMPANY or its respective affiliates within the meaning of Section 15 of the 1933 Act and each of their
respective trustees and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.2)
against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written
consent of AVIF and/or INVESCO) or actions in respect thereof (including, to the extent reasonable, legal and
other expenses), to which the Indemnified Parties may become subject under any statute, regulation, at common
law, or otherwise; provided, the Account owns shares of the Fund and insofar as such losses, claims, damages,
liabilities or actions:
(i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in AVIF's 1933 Act registration statement, AVIF Prospectus or sales literature or advertising of AVIF (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 AVIF or its affiliates by or on behalf of LIFE COMPANY or its respective
affiliates for use in AVIF's 1933 Act registration statement, AVIF Prospectus, or in sales literature or advertising or otherwise for use in connection with the sale of Contracts or Shares (or any amendment or supplement to
any of the foregoing); or
(ii) arise out of or as a result of any other statements or representations (other than statements or representations
contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising for the Contracts, or any amendment or supplement to any of the foregoing, not supplied for use therein
by or on behalf of AVIF, INVESCO or their affiliates and on which such persons have reasonably relied) or the
negligent, illegal or fraudulent conduct of AVIF, INVESCO or their affiliates or persons under their control (including, without limitation, their employees and "persons associated with a member" as that term is defined in
Section (q) of Article I of FINRA By Laws), in connection with the sale or distribution of AVIF Shares; or
(iii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising
covering the Contracts, or any amendment or supplement to any of the foregoing, or the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, if such statement or omission was made in reliance upon and in conformity with information
furnished to LIFE COMPANY or its respective affiliates by or on behalf of AVIF or INVESCO for use in any
Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the
Contracts, or any amendment or supplement to any of the foregoing; or
(iv) arise as a result of any failure by AVIF to perform the obligations, provide the services and furnish the materials required of it under the terms of this Agreement, or any material breach of any representation and/or
warranty made by AVIF in this Agreement or arise out of or result from any other material breach of this
Agreement by AVIF.
(b) The parties agree that the foregoing indemnification by AVIF shall not apply to any acts or omissions of INVESCO. Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e) hereof, AVIF and INVESCO
agree to indemnify and hold harmless the Indemnified Parties from and against any and all losses, claims, damages, liabilities (including amounts paid in settlement thereof with, the written consent of AVIF and/or INVESCO) or actions in respect thereof (including, to the extent reasonable, legal and other expenses) to which the
Indemnified Parties may become subject directly or indirectly under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or actions directly or indirectly result from or arise out of the
failure of any Fund to operate as a regulated investment company in compliance with (i) Subchapter M of the
Code and regulations thereunder, or (ii) Section 817(h) of the Code and regulations thereunder, including, without limitation, any income taxes and related penalties, rescission charges, liability under state law to Participants asserting liability against LIFE COMPANY pursuant to the Contracts, the costs of any ruling and closing
agreement or other settlement with the IRS, and the cost of any substitution by LIFE COMPANY of Shares of
another investment company or portfolio for those of any adversely affected Fund as a funding medium for
each Account that LIFE COMPANY reasonably deems necessary or appropriate as a result of the noncompliance.
(c) Neither AVIF nor INVESCO shall be liable under this Section 12.2 with respect to any losses, claims, damages, liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance by that Indemnified Party of its duties or by reason
of such Indemnified Party's reckless disregard of its obligations and duties (i) under this Agreement, or (ii) to
LIFE COMPANY, each Account or Participants.
(d) Neither AVIF nor INVESCO shall be liable under this Section 12.2 with respect to any action against an
Indemnified Party unless the Indemnified Party shall have notified AVIF and/or INVESCO in writing within a
reasonable time after the summons or other first legal process giving information of the nature of the action
shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify AVIF or INVESCO of any such action shall not
relieve AVIF or INVESCO from any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this Section 12.2. Except as otherwise provided herein, in case
any such action is brought against an Indemnified Party, AVIF and/or INVESCO will be entitled to participate,
at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof (which
shall include, without limitation, the conduct of any ruling request and closing agreement or other settlement
proceeding with the IRS), with counsel approved by the Indemnified Party named in the action, which approval
shall not be unreasonably withheld. After notice from AVIF and/or INVESCO to such Indemnified Party of
AVIF's or INVESCO's election to assume the defense thereof, the Indemnified Party will cooperate fully with
AVIF and INVESCO and shall bear the fees and expenses of any additional counsel retained by it, and AVIF
and INVESCO will not be liable to such Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party independently in connection with the defense thereof,
other than reasonable costs of investigation.
(e) In no event shall AVIF or INVESCO be liable under the indemnification provisions contained in this Agreement to any individual or entity, including, without limitation, LIFE COMPANY or any other Participating Insurance Company or any Participant, with respect to any losses, claims, damages, liabilities or expenses that
arise out of or result from (i) a breach of any representation, warranty, and/or covenant made by LIFE COMPANY hereunder or by any other Participating Insurance Company under an agreement containing substantially
similar representations, warranties and covenants; (ii) the failure by LIFE COMPANY or any other Participating Insurance Company to maintain its segregated asset account (which invests in any Fund) as a legally and
validly established segregated asset account under applicable state law and as a duly registered unit investment
trust under the provisions of the 1940 Act (unless exempt therefrom); or (iii) the failure by LIFE COMPANY
or any other Participating Insurance Company to maintain its variable annuity or life insurance contracts (with
respect to which any Fund serves as an underlying funding vehicle) as annuity contracts or life insurance contracts under applicable provisions of the Code.
12.3 Effect of Notice
Any notice given by the indemnifying Party to an Indemnified Party referred to in Sections 12.1(c) or 12.2(d)
above of participation in or control of any action by the indemnifying Party will in no event be deemed to be an
admission by the indemnifying Party of liability, culpability or responsibility, and the indemnifying Party will
remain free to contest liability with respect to the claim among the Parties or otherwise.
12.4 Successors
A successor by law of any Party shall be entitled to the benefits of the indemnification contained in this Section
12.
Section 13. Applicable Law
This Agreement will be construed and the provisions hereof interpreted under and in accordance with Delaware
law, without regard for that state's principles of conflict of laws.
Section 14. Execution in Counterparts
This Agreement may be executed simultaneously in two or more counterparts, each of which taken together
will constitute one and the same instrument.
Section 15. Severability
If any provision of this Agreement is held or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement will not be affected thereby.
Section 16. Rights Cumulative
The rights, remedies and obligations contained in this Agreement are cumulative and are in addition to any and
all rights, remedies and obligations, at law or in equity, that the Parties are entitled to under federal and state
laws.
Section 17. Headings
The Table of Contents and headings used in this Agreement are for purposes of reference only and shall not
limit or define the meaning of the provisions of this Agreement.
Section 18. Confidentiality
AVIF acknowledges that the identities of the customers of LIFE COMPANY or any of its affiliates (collectively, the "LIFE COMPANY Protected Parties" for purposes of this Section 18), information maintained regarding
those customers, and all computer programs and procedures or other information developed by the LIFE COMPANY Protected Parties or any of their employees or agents in connection with LIFE COMPANY's performance of its duties under this Agreement are the valuable property of the LIFE COMPANY Protected Parties.
AVIF agrees that if it comes into possession of any list or compilation of the identities of or other information
about the LIFE COMPANY Protected Parties' customers, or any other information or property of the LIFE
COMPANY Protected Parties, other than such information as may be independently developed or compiled by
AVIF from information supplied to it by the LIFE COMPANY Protected Parties' customers who also maintain
accounts directly with AVIF, AVIF will hold such information or property in confidence and refrain from using,
disclosing or distributing any of such information or other property except: (a) with LIFE COMPANY's prior
written consent; or (b) as required by law or judicial process. LIFE COMPANY acknowledges that the identities of the customers of AVIF or any of its affiliates (collectively, the "AVIF Protected Parties" for purposes of
this Section 18), information maintained regarding those customers, and all computer programs and procedures
or other information developed by the AVIF Protected Parties or any of their employees or agents in connection
with AVIF's performance of its duties under this Agreement are the valuable property of the AVIF Protected
Parties. LIFE COMPANY agrees that if it comes into possession of any list or compilation of the identities of
or other information about the AVIF Protected Parties' customers or any other information or property of the
AVIF Protected Parties, other than such information as may be independently developed or compiled by LIFE
COMPANY from information supplied to it by the AVIF Protected Parties' customers who also maintain accounts directly with LIFE COMPANY, LIFE COMPANY will hold such information or property in confidence
and refrain from using, disclosing or distributing any of such information or other property except: (a) with
AVIF's prior written consent; or (b) as required by law or judicial process. Each party acknowledges that any
breach of the agreements in this Section 18 would result in immediate and irreparable harm to the other parties
for which there would be no adequate remedy at law and agree that in the event of such a breach, the other parties will be entitled to equitable relief by way of temporary and permanent injunctions, as well as such other
relief as any court of competent jurisdiction deems appropriate.
Section 19. Trademarks and Fund Names
(a) Except as may otherwise be provided in a License Agreement between INVESCO Management Group Inc.
and LIFE COMPANY, LIFE COMPANY nor any of its respective affiliates, shall use any trademark, trade
name, service ▇▇▇▇ or logo of AVIF, INVESCO or any of their respective affiliates, or any variation of any
such trademark, trade name, service ▇▇▇▇ or logo, without AVIF's or INVESCO's prior written consent, the
granting of which shall be at AVIF's or INVESCO's sole option.
(b) Except as otherwise expressly provided in this Agreement, neither AVIF, its investment adviser, its principal
underwriter, or any affiliates thereof shall use any trademark, trade name, service ▇▇▇▇ or logo of LIFE COMPANY or any of its affiliates, or any variation of any such trademark, trade name, service ▇▇▇▇ or logo, without
LIFE COMPANY's prior written consent, the granting of which shall be at LIFE COMPANY's sole option.
Section 20. Parties to Cooperate
Each party to this Agreement will cooperate with each other party and all appropriate governmental authorities
(including, without limitation, the SEC, FINRA and state insurance regulators) and will permit each other and
such authorities reasonable access to its books and records (including copies thereof) in connection with any
investigation or inquiry relating to this Agreement or the transactions contemplated hereby.
Section 21. Amendments; Need For
No provision of this Agreement may be amended or modified in any manner except by mutual written agreement executed by all parties hereto. The Parties shall, from time to time, review this Agreement to determine
the extent to which an amendment thereto may be necessary or appropriate to reflect changes in applicable law
or regulation, and shall cooperate in implementing any such amendment in a timely manner, it being understood
and agreed to that no such amendment shall take effect except upon mutual written agreement of all Parties as
stated above.
Section 22. Force Majeure
Each Party shall be excused from the performance of any of its obligations to the other where such nonperformance is occasioned by any event beyond its control which shall include, without limitation, any applicable order, rule or regulation of any federal, state or local body, agency or instrumentality with jurisdiction, work stoppage, accident, natural disaster, war, acts of terrorism or civil disorder, provided that the Party so excused shall
use all reasonable efforts to minimize its nonperformance and overcome, remedy, cure or remove such event as
soon as is reasonably practicable, and such performance shall be excused only for so long as, in any given case,
the force or circumstances making performance impossible shall exist.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their names and on their
behalf by and through their duly authorized officers signing below.
AIM VARIABLE INSURANCE FUNDS
(INVESCO VARIABLE INSURANCE FUNDS)
Attest: By:
Name: Name:
Title: Title:
INVESCO DISTRIBUTORS, INC.
Attest: By:
Name: Name:
Title: Title:
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY, on behalf of itself and its separate accounts
Attest:________________________By:______________________________________
Name:________________________Name:______________________________________
Title:_______________________Title:______________________________________
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
All series portfolios of the AIM Variable Insurance Funds (Invesco Variable Insurance Funds) are available.
SEPARATE ACCOUNTS UTILIZING THE FUNDS
All separate accounts are available.
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
All contracts are available.
SCHEDULE B
INVESCO's PRICING ERROR POLICIES
Determination of Materiality
In the event that INVESCO discovers an error in the calculation of the Fund's net asset value, the following
policies will apply:
If the amount of the error is less than $.01 per share, it is considered immaterial and no adjustments are made.
If the amount of the error is $.01 per share or more, then the following thresholds are applied:
a. If the amount of the difference in the erroneous net asset value and the correct net asset value is less than
..5% of the correct net asset value, INVESCO will reimburse the affected Fund to the extent of any loss resulting from the error. No other adjustments shall be made.
b. If the amount of the difference in the erroneous net asset value and the correct net asset value is .5% of the
correct net asset value or greater, then INVESCO will determine the impact of the error to the affected Fund
and shall reimburse such Fund (and/or LIFE COMPANY, as appropriate, such as in the event that the error was
not discovered until after LIFE COMPANY processed transactions using the erroneous net asset value) to the
extent of any loss resulting from the error. To the extent that an overstatement of net asset value per share is
detected quickly and LIFE COMPANY has not mailed redemption checks to Participants, LIFE COMPANY
and INVESCO agree to examine the extent of the error to determine the feasibility of reprocessing such redemption transaction (for purposes of reimbursing the Fund to the extent of any such overpayment).
Reprocessing Cost Reimbursement
To the extent a reprocessing of Participant transactions is required pursuant to paragraph (b), above, INVESCO
shall reimburse LIFE COMPANY for LIFE COMPANY's reprocessing costs in an amount not to exceed $1.00
per contract affected by $10 or more.
The Pricing Policies described herein may be modified by AVIF as approved by its Board. INVESCO agrees to
use its best efforts to notify LIFE COMPANY at least five (5) days prior to any such meeting of the Board of
AVIF to consider such proposed changes.
SCHEDULE C
EXPENSE ALLOCATIONS
|
Life Company |
AVIF / INVESCO |
|
preparing and filing the Account's registration statement |
Preparing and filing the Fund's registration statement |
|
text composition for Account prospectuses and supplements |
text composition for Fund prospectuses and supplements |
|
text alterations of prospectuses (Account) and supplements (Account) |
text alterations of prospectuses (Fund) and supplements (Fund) |
|
printing and mailing of Account and Fund prospectuses, supplements and annual and semi-annual reports |
a camera ready Fund prospectus |
|
text composition and printing Account SAIs |
text composition and printing Fund SAIs |
|
mailing and distributing Account SAIs to policy owners upon request by policy owners |
mailing and distributing Fund SAIs to policy owners upon request by policy owners |
|
mailing and distributing prospectuses (Account and Fund) and supplements (Account and Fund) to policy owners of record as required by Federal Securities Laws and to prospective purchasers |
|
|
text composition (Account), printing, mailing, and distributing annual and semi-annual reports for Account (Fund and Account as, applicable) |
text composition of annual and semi-annual reports (Fund) |
|
text composition, printing, mailing, distributing, and tabulation of proxy statements and voting instruction solicitation materials to policy owners with respect to proxies related to the Account |
text composition, printing, mailing, distributing and tabulation of proxy statements and voting instruction solicitation materials to policy owners with respect to proxies related to the Fund |
|
preparation, printing and distributing sales material and advertising relating to the Funds, insofar as such materials relate to the Contracts and filing such materials with and obtaining approval from, the SEC, FINRA, any state insurance regulatory authority, and any other appropriate regulatory authority, to the extent required |
|
ADMINISTRATIVE SERVICES AGREEMENT
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY ("INSURER") and INVESCO ADVISERS, INC. ("INVESCO") (collectively, the "Parties") mutually agree to the arrangements set forth in this Administrative Services Agreement (the "Agreement") dated as of June 1, 2010.
WHEREAS, INVESCO is the investment adviser to AIM Variable Insurance Funds (Invesco Variable Insurance
Funds) (the "Fund"); and
WHEREAS, INVESCO has entered into an amended Master Administrative Services Agreement with the Fund
("Master Agreement") pursuant to which it has agreed to provide, or arrange to provide, certain administrative services, including such services as may be requested by the Fund's Board of Directors from time to time; and
WHEREAS, INSURER issues variable life insurance policies and/or variable annuity contracts (collectively, the
"Contracts"); and
WHEREAS, INSURER has entered into an amended participation agreement, dated June 1, 2010 ("Participation
Agreement") with the Fund, pursuant to which the Fund has agreed to make shares of certain of its portfolios ("Portfolios") available for purchase by one or more of INSURER's separate accounts or divisions thereof (each, a "Separate Account"), in connection with the allocation by Contract owners of purchase payments to corresponding investment options offered under the Contracts; and
WHEREAS, INSURER and INVESCO expect that the Fund, and its Portfolios, can derive substantial savings in
administrative expenses by virtue of having one or more Separate Accounts of INSURER each as a single shareholder of record of Portfolio shares, rather than having numerous public shareholders of such shares; and
WHEREAS, INSURER and INVESCO expect that the Fund, and its Portfolios, can derive such substantial savings
because INSURER performs the administrative services listed on Schedule A hereto for the Fund in connection with
the Contracts issued by INSURER; and
WHEREAS, INSURER has no contractual or other legal obligation to perform such administrative services, other
than pursuant to this Agreement and the Participation Agreement; and
WHEREAS, INSURER desires to be compensated for providing such administrative services; and
WHEREAS, INVESCO desires that the Fund benefit from the lower administrative expenses resulting from the
administrative services performed by INSURER; and
WHEREAS, INVESCO desires to retain the administrative services of INSURER and to compensate INSURER
for providing such administrative services;
NOW, THEREFORE, the Parties agree as follows:
Section 1. Administrative Services; Payments Therefor.
(a) INSURER shall provide the administrative services set out in Schedule A hereto and made a part hereof, as the
same may be amended from time to time. For such services, INVESCO agrees to pay to INSURER a quarterly fee
("Quarterly Fee") equal to a percentage of the average daily net assets of the Fund attributable to the Contracts issued
by INSURER ("INSURER Fund Assets") at the following annual rate:
(b) INVESCO shall calculate the Quarterly Fee at the end of each calendar quarter and will make such payment
to INSURER, without demand or notice by INSURER, within 30 days thereafter, in a manner mutually agreed upon
by the Parties from time to time.
(c) From time to time, the Parties shall review the Quarterly Fee to determine whether it exceeds or is reasonably
expected to exceed the incurred and anticipated costs, over time, of INSURER. The Parties agree to negotiate in
good faith a reduction to the Quarterly Fee as necessary to eliminate any such excess or as necessary to reflect a
reduction in the fee paid by the Fund to INVESCO pursuant to the Master Agreement.
Section 2. Nature of Payments.
The Parties to this Agreement recognize and agree that INVESCO's payments hereunder are for administrative services only and do not constitute payment in any manner for investment advisory services or for costs of distribution
of Contracts or of Portfolio shares, and are not otherwise related to investment advisory or distribution services or
expenses. INSURER represents and warrants that the fees to be paid by INVESCO for services to be rendered by
INSURER pursuant to the terms of this Agreement are to compensate the INSURER for providing administrative
services to the Fund, and are not designed to reimburse or compensate INSURER for providing administrative services with respect to the Contracts or any Separate Account.
Section 3. Term and Termination.
Any Party may terminate this Agreement, without penalty, on 60 days written notice to the other Party. Unless so
terminated, this Agreement shall continue in effect for so long as INVESCO or its successor(s) in interest, or any
affiliate thereof, continues to perform in a similar capacity for the Fund, and for so long as INSURER provides the
services contemplated hereunder with respect to Contracts under which values or monies are allocated to a Portfolio.
Section 4. Amendment.
This Agreement may be amended upon mutual agreement of the Parties in writing.
Section 5. Notices.
All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered
Empire Fidelity Investments Life Insurance Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, EVP
Invesco Advisers, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Section 6. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be binding upon the Parties and their transferees, successors
and assigns. The benefits of and the right to enforce this Agreement shall accrue to the Parties and their transferees,
successors and assigns.
(b) Assignment. Neither this Agreement nor any of the rights, obligations or liabilities of any Party hereto shall
be assigned without the written consent of the other Party.
(c) Intended Beneficiaries. Nothing in this Agreement shall be construed to give any person or entity other than
the Parties, as well as the Fund, any legal or equitable claim, right or remedy. Rather, this Agreement is intended
to be for the sole and exclusive benefit of the Parties, as well as the Fund.
(d) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original
but all of which shall together constitute one and the same instrument.
(e) Applicable Law. This Agreement shall be interpreted, construed, and enforced in accordance with the laws of
the State of Delaware without reference to the conflict of law principles thereof.
(f) Severability. If any portion of this Agreement shall be found to be invalid or unenforceable by a court or tribunal
or regulatory agency of competent jurisdiction, the remainder shall not be affected thereby, but shall have the same
force and effect as if the invalid or unenforceable portion had not been inserted.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date of first above written.
EMPIRE FIDELITY INVESTMENTS LIFE
INSURANCE COMPANY
By:______________________________________
Title:______________________________________
INVESCO ADVISERS, INC.
By:______________________________________
Title:______________________________________
SCHEDULE A
ADMINISTRATIVE SERVICES FOR
AIM VARIABLE INSURANCE FUNDS
(INVESCO VARIABLE INSURANCE FUNDS)
INSURER shall provide certain administrative services respecting the operations of the Fund, as set forth below.
This Schedule, which may be amended from time to time as mutually agreed upon by INSURER and INVESCO,
constitutes an integral part of the Agreement to which it is attached. Capitalized terms used herein shall, unless
otherwise noted, have the same meaning as the defined terms in the Agreement to which this Schedule relates.
A. Records of Portfolio Share Transactions; Miscellaneous Records
1. INSURER shall maintain master accounts with the Fund, on behalf of each Portfolio, which accounts shall bear
the name of INSURER as the record owner of Portfolio shares on behalf of each Separate Account investing in the
Portfolio.
2. INSURER shall maintain a daily journal setting out the number of shares of each Portfolio purchased, redeemed
or exchanged by Contract owners each day, as well as the net purchase or redemption orders for Portfolio shares
submitted each day, to assist INVESCO, the Fund and/or the Fund's transfer agent in tracking and recording Portfolio share transactions, and to facilitate the computation of each Portfolio's net asset value per share. INSURER shall
promptly provide INVESCO, the Fund, and the Fund's transfer agent with a copy of such journal entries or information appearing thereon in such format as may be reasonably requested from time to time. INSURER shall provide
such other assistance to INVESCO, the Fund, and the Fund's transfer agent as may be necessary to cause various
Portfolio share transactions effected by Contract owners to be properly reflected on the books and records of the
Fund.
3. In addition to the foregoing records, and without limitation, INSURER shall maintain and preserve all records
as required by law to be maintained and preserved in connection with providing administrative services hereunder.
B. Order Placement and Payment
1. INSURER shall determine the net amount to be transmitted to the Separate Accounts as a result of redemptions
of each Portfolio's shares based on Contract owner redemption requests and shall disburse or credit to the Separate
Accounts all proceeds of redemptions of Portfolio shares. INSURER shall notify the Fund of the cash required to
meet redemption payments.
2. INSURER shall determine the net amount to be transmitted to the Fund as a result of purchases of Portfolio shares
based on Contract owner purchase payments and transfers allocated to the Separate Accounts investing in each Portfolio. INSURER shall transmit net purchase payments to the Fund's custodian.
C. Accounting Services
INSURER shall perform miscellaneous accounting services as may be reasonably requested from time to time by
INVESCO, which services shall relate to the business contemplated by the Participation Agreement between INSURER and the Fund, as amended from time to time. Such services shall include, without limitation, periodic reconciliation and balancing of INSURER's books and records with those of the Fund with respect to such matters as
cash accounts, Portfolio share purchase and redemption orders placed with the Fund, dividend and distribution payments by the Fund, and such other accounting matters that may arise from time to time in connection with the operations of the Fund as related to the business contemplated by the Participation Agreement.
D. Reports
INSURER acknowledges that INVESCO may, from time to time, be called upon by the Fund's Board of Trustees
("Board"), to provide various types of information pertaining to the operations of the Fund and related matters, and
that INVESCO also may, from time to time, decide to provide such information to the Board in its own discretion.
Accordingly, INSURER agrees to provide INVESCO with such assistance as INVESCO may reasonably request
so that INVESCO can report such information to the Fund's Board in a timely manner. INSURER acknowledges
that such information and assistance shall be in addition to the information and assistance required of INSURER
pursuant to the Fund's mixed and shared funding SEC exemptive order, described in the Participation Agreement.
INSURER further agrees to provide INVESCO with such assistance as INVESCO may reasonably request with
respect to the preparation and submission of reports and other documents pertaining to the Fund to appropriate regulatory bodies and third party reporting services.
E. Fund-related Contract Owner Services
INSURER agrees to print and distribute, in a timely manner, prospectuses, statements of additional information,
supplements thereto, periodic reports and any other materials of the Fund required by law or otherwise to be given
to its shareholders, including, without limitation, Contract owners investing in Portfolio shares, provided, that with
respect to proxy materials, INSURER shall bear the expenses associated with (i) text composition, printing, mailing, distributing, and tabulating proxy materials, including voting instruction solicitation materials, sent to policy
owners with respect to proxy solicitations related to the Account or related to matters requested by INSURER and
agreed to by the Fund, (ii) making typesetting and other customization changes to Fund proxy materials, which
changes are requested by INSURER and agreed to by the Fund, and (iii) mailing and distributing Fund proxy materials. INSURER further agrees to provide telephonic support for Contract owners, including, without limitation, advice with respect to inquiries about the Fund and each Portfolio thereof (not including information about performance or related to sales), communicating with Contract owners about Fund (and Separate Account) performance,
and assisting with proxy solicitations, specifically with respect to soliciting voting instructions from Contract owners.
F. Miscellaneous Services
INSURER shall provide such other administrative support to the Fund as mutually agreed between INSURER and
INVESCO or the Fund from time to time. INSURER shall, from time to time, relieve the Fund of other usual or
incidental administration services of the type ordinarily borne by mutual funds that offer shares to individual members of the general public.
FINANCIAL SUPPORT AGREEMENT
AIM Variable Insurance Funds (Invesco Variable Insurance Funds)
This Agreement is made as of the 1st day of June, 2010 by and among Empire Fidelity Investments Life Insurance
Company, a Utah corporation ("Financial Intermediary" or "Insurer"), and Invesco Distributors, Inc., a Delaware
corporation ("Invesco") (collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, Invesco serves as the principal underwriter, of the AIM Variable Insurance Funds (Invesco Variable
Insurance Funds), a Delaware trust ("Fund"), which consists of separate series portfolios (each, a "Portfolio"); and
WHEREAS, Financial Intermediary entered into an agreement, dated June 1, 2010, with the Fund and Invesco
("Participation Agreement") pursuant to which the Fund will make shares of the Portfolios listed from time to time
on Schedule A of the Participation Agreement available to Insurer at net asset value and with no sales charges, subject to the terms of the Participation Agreement, to fund benefits under variable annuity contracts and/or variable
life insurance contracts (collectively, "Contracts") to be issued by Insurer; and
WHEREAS, the Participation Agreement provides that the Fund will bear the costs of preparing, filing with the
Securities and Exchange Commission and setting for printing the Fund's prospectus, statement of additional information, including any amendments or supplements thereto, periodic reports to shareholders, Fund proxy material
and other shareholder communications (collectively, the "Fund Materials"), and that the Fund will provide Insurer
with a camera ready or other formatted copy of all Fund Materials; and
WHEREAS, the Participation Agreement provides that Insurer shall print in quantity and deliver to existing owners
of Contracts ("Contract owners") the Fund Materials, and that the costs of printing in quantity and delivering to
existing Contract owners such Fund Materials will be borne by Insurer; and
WHEREAS, Insurer and Financial Intermediary will incur various expenses in connection with the marketing,
sales and promotion of the Portfolios within the Contracts; and
WHEREAS, the Parties wish to allocate certain expenses in a manner that is fair and equitable, and consistent with
the best interests of Contract owners; and
WHEREAS, the Parties hereto wish to establish a means for allocating the expenses that does not entail the expense
and inconvenience of separately identifying and accounting for each item of expense, unless otherwise noted;
NOW THEREFORE in consideration of the mutual benefits and promises contained herein, the Parties hereto
agree as follows:
1. Expense Allocations.
1.1. Fund Materials.
(a) Subject to Section 2 hereof, Insurer, Financial Intermediary or their affiliates shall initially bear the costs of printing in quantity and distributing all Fund Materials required by law to be distributed to existing Contract owners who
have allocated Contract value to a sub-account that invests in a Portfolio.
(b) Subject to Section 2 hereof, Insurer, Financial Intermediary or their affiliates shall initially bear the costs of
printing in quantity and mailing all Fund Materials to prospective Contract owners.
1.2. Sales and Marketing Materials.
(a) Invesco shall bear the costs of preparing all sales literature or other promotional marketing material relating to
each Portfolio (collectively, "Fund Sales Materials").
(b) Subject to Section 2 hereof, Insurer, Financial Intermediary or their affiliates shall initially bear the costs of
printing in quantity all Fund Sales Materials, and preparing and printing in quantity all sales literature or other promotional marketing material relating to the Contracts (collectively, "Insurance Sales Materials").
(c) Subject to Section 2 hereof, Insurer, Financial Intermediary or their affiliates shall initially bear the costs of mailing all Fund Sales Materials and Insurance Sales Materials to prospective Contract owners.
2. Reimbursement of Expenses.
(a) Invesco will pay a financial support fee to Financial Intermediary in the amount described in Schedule A hereto
(the "Fee"). The Fee will be paid from Invesco' or its affiliate's revenues, profits or retained earnings and will be
payable to Financial Intermediary within 60 days following calendar quarter end or as otherwise provided in Schedule A. Payment amounts less than $500.00 are considered nominal, and Invesco is not obligated to make an individual payment for any amount thereunder.
(b) The form of payment made by Invesco pursuant to this Section 2 will be cash.
(c) From time to time, the Parties hereto shall review the Fee to determine whether it exceeds or is reasonably expected to exceed the incurred and anticipated costs, over time, of Financial Intermediary specified in Section 1 hereof. The Parties agree to negotiate in good faith a reduction to the Fee as necessary to eliminate any such excess.
(d) Financial Intermediary agrees that Insurer will appropriately disclose, to existing or prospective Contract owners who may invest in Portfolio shares, the foregoing reimbursement arrangement to the extent applicable law requires such disclosure by Insurer, Financial Intermediary, or any person that offers or sells Contracts and, as a result,
Portfolio shares.
3. Representations, Warranties and Covenants of the Financial Intermediary.
The Financial Intermediary hereby represents, warrants and agrees as to the following:
(a) Financial Intermediary will comply with all applicable laws, rules and regulations of any governmental or regulatory body (as may be amended from time to time) as well as the terms of the applicable Fund prospectus and statement of additional information (collectively "Prospectus").
(b) Financial Intermediary will facilitate any audit or review of its files and records undertaken by Distributor.
(c) In the event Financial Intermediary delegates its obligation to provide any services hereunder, it will ensure that
such designee is aware of and complies with all representations, warranties and covenants hereunder.
(d) Financial Intermediary will provide point of sale disclosure regarding all appropriate facts relating to this Agreement to all Contract owners in compliance with all applicable laws, rules and regulations, if any.
(e) Financial Intermediary has obtained and shall maintain, in good standing, its membership with FINRA, and shall
be at all times under the term of this Agreement, registered as a broker-dealer under the Securities Exchange Act
of 1934, as amended.
4. Term of Agreement.
This Agreement shall continue in effect for so long as Invesco or its successor(s) in interest, or any affiliate thereof,
continues to perform in a similar capacity for the Fund, and for so long as any Contract value or any monies attributable to Insurer is allocated to a Portfolio.
5. Termination.
This Agreement may be terminated, without cause, by any of the Parties hereto in writing.
6. Amendment.
This Agreement may be amended only upon mutual agreement of the Parties hereto in writing.
7. Notices.
Notices and communications required or permitted hereby will be given to the following persons at the following
addresses and facsimile numbers, or such other persons, addresses or facsimile numbers as the Party receiving such
notices or communications may subsequently direct in writing:
Empire Fidelity Investments Life Insurance Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, EVP
Invesco Distributors, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
cc: General Counsel
8. Applicable Law.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas applicable to agreements fully executed and to be performed therein.
9. Execution in Counterparts.
This Agreement may be executed simultaneously in two or more counterparts, each of which taken together will
constitute one and the same instrument.
10. Severability.
If any provision of this Agreement is held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement will not be affected thereby.
11. Rights Cumulative.
The rights, remedies and obligations contained in this Agreement are cumulative and are in addition to any and all
rights, remedies and obligations, at law or in equity, that the Parties are entitled to under federal and state laws.
12. Headings.
The headings used in this Agreement are for purposes of reference only and shall not limit or define the meaning
of the provisions of this Agreement.
13. Directed Brokerage
The parties hereto understand and agree that neither Invesco nor its affiliates will provide, and Financial Intermediary will not accept, any brokerage commissions for transactions in Portfolio securities of the Fund or affiliates of
the Fund ("Directed Brokerage") that would in any way pay for, mitigate or offset any financial obligation that Invesco has under this Agreement. Directed Brokerage would include any agreement or arrangement, whether explicit or implicit, and whether written or oral, in which Financial Intermediary, Insurer or their affiliates receive, in
consideration for, or recognition of, the sale of Fund shares, support payments in the form of brokerage commissions, brokerage transactions (orders for the purchase or sale of Fund portfolio securities), ▇▇▇▇-ups, ▇▇▇▇-▇▇▇▇▇,
other fees (or any portion thereof) payable or to be payable from portfolio transactions for the account of a Fund
(whether executed by Financial Intermediary, Insurer or their affiliates or any other broker or dealer) or other quid
pro quo-type arrangement, such as the purchase or sale of a security issued by Insurer or its affiliates in recognition
of Financial Intermediary's, Insurer's or their affiliates' sale or promotion of Fund shares or client referrals.
14. Confidentiality
Except in accordance with applicable laws, rules and regulations, the terms of this Agreement, including specifically the fee arrangements, shall remain confidential as between the parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their names and on their behalf by and through their duly authorized officers signing below.
EMPIRE FIDELITY INVESTMENTS
LIFE INSURANCE COMPANY
By: Name: Title:
INVESCO DISTRIBUTORS, INC.
By: Name:
Title:
SCHEDULE A
FINANCIAL SUPPORT FEE
Invesco agrees to pay to INSURER a quarterly fee ("Quarterly Fee") equal to a percentage of the average daily net
assets of the Fund attributable to the Contracts issued by INSURER at the following annual rate:
Annual Rate