EXHIBIT 8 (a)
Form of Participation Agreement - ProFunds
PARTICIPATION AGREEMENT
Among
Ameritas Life Insurance Corp.,
ProFunds,
Access One Trust
and
ProFund Advisors LLC
THIS AGREEMENT, dated as of the 30th day of April, 2005 by and among
Ameritas Life Insurance Corp. (the "Company"), a Nebraska life insurance
company, on its own behalf and on behalf of each segregated asset account of the
Company set forth on Schedule A hereto, as may be amended from time to time
(each account hereinafter referred to as the "Account"), ProFunds, a Delaware
business trust, Access One Trust, a Delaware business trust (each of ProFunds or
the Access One Trust referred to herein as the "Fund"), a Delaware business
trust, and ProFund Advisors LLC (the "Adviser"), a Maryland limited liability
company.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance and variable annuity
contracts to be offered by insurance companies which have entered into
participation agreements with the Fund ("Participating Insurance Companies");
WHEREAS, the shares of beneficial interest of the Fund are divided into
several series of shares, each designated a "Portfolio" and representing the
interest in a particular managed portfolio of securities and other assets;
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and shares of the Portfolios are registered under the Securities Act of 1933, as
amended (the "1933 Act");
WHEREAS, the Adviser, which serves as investment adviser to the Fund,
is duly registered as an investment adviser under the federal Investment
Advisers Act of 1940, as amended;
WHEREAS, the Company has issued or will issue certain variable life
insurance and/or variable annuity contracts supported wholly or partially by the
Account (the "Contracts"), and said Contracts are listed in Schedule A hereto,
as it may be amended from time to time by mutual written agreement;
WHEREAS, the Account is duly established and maintained as a segregated
asset account, duly established by the Company, on the date shown for such
Account on Schedule A hereto, to set aside and invest assets attributable to the
aforesaid Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios listed in
Schedule A hereto, as it may be amended from time to time by mutual written
agreement (the "Designated Portfolios"), on behalf of the Account to fund the
aforesaid Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. Subject to Article X hereof, and the terms set forth in the registration
statement, as amended from time to time, the Fund agrees to make available to
the Company for purchase on behalf of the Account, shares of the Designated
Portfolios, such purchases to be effected at net asset value in accordance with
Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) Portfolios
(other than those listed on Schedule A) in existence now or that may be
established in the future will be made available to the Company only as the Fund
may so provide, and (ii) the Board of Trustees of the Fund (the "Board") may
suspend or terminate the offering of shares of any Designated Portfolio or class
thereof, if such action is required by law or by regulatory authorities having
jurisdiction or if, in the sole discretion of the Board acting in good faith and
in light of its fiduciary duties under federal and any applicable state laws,
suspension or termination is necessary in the best interests of the shareholders
of such Designated Portfolio. The Fund reserves the right, upon prior written
notice to the Company (given at the earliest practicable time), to take all
actions, including but not limited to, the dissolution, reorganization,
liquidation, merger or sale of all assets of the Fund or any Portfolio upon the
sole authorization of the Board of Trustees, acting in good faith.
1.2. The Fund shall redeem, at the Company's request, any full or fractional
Designated Portfolio shares held by the Company on behalf of the Account, such
redemptions to be effected at net asset value in accordance with Section 1.3 of
this Agreement. Notwithstanding the foregoing, (i) the Company shall not redeem
Fund shares attributable to Contract owners except in the circumstances
permitted in Section 10.3 of this Agreement, and (ii) the Fund may delay
redemption of Fund shares of any Designated Portfolio to the extent permitted by
the 1940 Act, and any rules, regulations or orders thereunder.
1.3. Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as an agent of the Fund for
the limited purpose of receiving and accepting purchase and redemption
requests on behalf of the Account (but not with respect to any Fund
shares that may be held in the general account of the Company) for
shares of those Designated Portfolios made available hereunder, based
on allocations of amounts to the Account or subaccounts thereof under
the Contracts and other transactions relating to the Contracts or the
Account. Receipt and acceptance of any such request (or relevant
transactional information therefor) on any day the New York Stock
Exchange is open for trading and on which a Designated Portfolio
calculates its net asset value (a "Business Day") pursuant to the rules
of the Securities and Exchange Commission ("SEC") by the Company as
such limited agent of the Fund prior to the time that the Fund
ordinarily calculates its net asset value as described from time to
time in the Fund's prospectus (which as of the date of execution of
this Agreement is 4:00 p.m. Eastern Time) shall constitute receipt and
acceptance by the Designated Portfolio on that same Business Day. To
facilitate the Designated Portfolios' daily trading practices, the
Company (i) shall provide the Fund with a good faith estimate of the
daily net aggregate trade and other information relating to the
Designated Portfolios at times and in the manner specified
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by the Fund prior to the close of business on each Business Day, and
(ii) shall provide the Fund by 9:00 a.m Eastern time on the following
Business Day with a final report of the previous Business Day's
transaction information related to the Designated Portfolios.
(b) The Company shall pay for shares of each Designated Portfolio on the
Business Day following the Company's receipt and acceptance, in its
capacity as limited agent of the Fund, of a purchase request for such
shares. Payment for Designated Portfolio shares shall be made in federal
funds transmitted to the Fund or other designated person by wire to be
received by 2:00 p.m. Eastern Time on the Business Day following Company's
receipt and acceptance, in its capacity as limited agent of the Fund, of
the purchase request for Designated Portfolio shares (unless the Fund
determines and so advises the Company that sufficient proceeds are
available from redemption of shares of other Designated Portfolios effected
pursuant to redemption requests tendered by the Company on behalf of the
Account). If federal funds are not received on time, such funds will be
invested, and Designated Portfolio shares purchased thereby will be issued,
as soon as practicable and the Company shall promptly, upon the Fund's
request, reimburse the Fund for any charges, costs, fees, interest or other
expenses incurred by the Fund in connection with any advances to, or
borrowing or overdrafts by, the Fund, or any similar expenses incurred by
the Fund, as a result of portfolio transactions effected by the Fund based
upon such purchase request. Upon receipt of federal funds so wired, such
funds shall cease to be the responsibility of the Company and shall become
the responsibility of the Fund.
(c) Payment for Designated Portfolio shares redeemed by the Account or the
Company shall be made in federal funds transmitted by wire to the Company
or any other designated person on the next Business Day after the Fund is
properly notified of the redemption order of such shares (unless redemption
proceeds are to be applied to the purchase of shares of other Designated
Portfolio in accordance with Section 1.3(b) of this Agreement), except that
the Fund reserves the right to redeem Designated Portfolio shares in assets
other than cash and to delay payment of redemption proceeds to the extent
permitted under Section 22(e) of the 1940 Act and any Rules thereunder, and
in accordance with the procedures and policies of the Fund as described in
the then current prospectus. The Fund shall not bear any responsibility
whatsoever for the proper disbursement or crediting of redemption proceeds
by the Company, the Company alone shall be responsible for such action.
(d) Any purchase or redemption request for Designated Portfolio shares held
or to be held in the Company's general account shall be effected at the
net asset value per share next determined after the Fund's receipt and
acceptance of such request, provided that, in the case of a purchase
request, payment for Fund shares so requested is received by the Fund
in federal funds prior to close of business for determination of such
value, as defined from time to time in the Fund's prospectus.
1.4 NSCC If transactions in Fund shares are to be settled through the
National Securities Clearing Corporation's ("NSCC") Mutual Fund
Settlement, Entry and Registration Verification (Fund/SERV) system, the
following provisions shall apply:
(a) Each party to this Agreement represents that it or one of its
affiliates has entered into the Standard Networking Agreement with the
NSCC and it desires to participate in the programs offered by the NSCC
Fund/SERV system which provide (i) an automated process whereby the
shareholder purchases, redemptions, exchanges and transactions of
mutual fund shares are executed through the Fund/SERV system, and (ii)
a centralized and standardized
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communication system for the exchange of customer-level information
and account activity through the Fund/SERV Networking system
("Networking").
(b) For each Fund/SERV transaction, including a transaction establishing
accounts with the Fund or its affiliate, the Company shall provide the
Fund with all information necessary or appropriate to establish and
maintain each Fund/SERV transaction (and any subsequent changes to
such information), which the Company hereby certifies is and shall
remain true and correct. The Company shall maintain documents required
by the Fund to effect Fund/SERV transactions. Each instruction shall
be deemed to be accompanied by a representation by the Company that it
has received proper authorization from each person whose purchase,
redemption, account transfer or exchange transaction is effected as a
result of such instruction.
1.5 The Fund shall use its best efforts to make the net asset value per
share for each Designated Portfolio available to the Company by 6:30 p.m.
Eastern Time each Business Day, and in any event, as soon as reasonably
practicable after the net asset value per share for such Designated Portfolio is
calculated, and shall calculate such net asset value in accordance with the
Fund's prospectus. Neither the Fund, any Designated Portfolio, the Adviser, nor
any of their affiliates shall be liable for any information provided to the
Company pursuant to this Agreement, or any loss resulting from such information,
if such information is based on incorrect information supplied by the Company or
any other Participating Insurance Company to the Fund or the Adviser. If the
Fund provides the Company materially incorrect net asset value per share
information (as determined in the sole discretion of the Fund), or if net asset
values are not available to Company for inclusion in Company's next processing
cycle for the determination of purchase orders/redemptions within the time
frames identified in subsection 1.3(a), the Company shall be entitled to an
adjustment in the number of shares purchased or redeemed to reflect the correct
share net asset value, provided that such adjustment shall be made in accordance
with applicable law and any remedy shall be conducted under the sole discretion
of the Fund with the full cooperation and consent of the Company, such consent
not to be unreasonably conditioned, withheld or delayed. Any material error in
the calculation or reporting of net asset value per share, dividend or capital
gains information shall be reported to the Company immediately upon discovery by
the Fund.
1.6 The Fund shall furnish notice (by wire or telephone followed by
written confirmation) to the Company as soon as reasonably practicable of any
income dividends or capital gain distributions payable on any Designated
Portfolio shares. The Company, on its behalf and on behalf of the Account,
hereby elects to receive all such dividends and distributions as are payable on
any Designated Portfolio shares in the form of additional shares of that
Designated Portfolio. The Company reserves the right, on its behalf and on
behalf of the Account, to revoke this election and to receive all such dividends
and capital gain distributions in cash. The Fund shall notify the Company
promptly of the number of Designated Portfolio shares so issued as payment of
such dividends and distributions.
1.7 Issuance and transfer of Fund shares shall be by book entry only.
Share certificates will not be issued to the Company or the Account. Purchase
and redemption orders for Fund shares shall be recorded in an appropriate ledger
for the Account or the appropriate subaccount of the Account.
1.8(a) The parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Fund's shares may be sold to other
insurance companies (subject to Section 2.2 hereof) and the cash value of the
Contracts may be invested in other investment companies, provided, however, that
until this Agreement is terminated pursuant to Article X, the Company shall
promote the Designated Portfolios on the same basis as other funding vehicles
available under the Contracts. Funding vehicles
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other than those listed on Schedule A to this Agreement may be available for the
investment of the cash value of the Contracts, provided, however, (i) any such
vehicle or series thereof, has investment objectives or policies that are
substantially different from the investment objectives and policies of the
Designated Portfolios available hereunder; (ii) the Company gives the Fund and
the Adviser 45 days written notice of its intention to make such other
investment vehicle available as a funding vehicle for the Contracts; and (iii)
unless such other investment company was available as a funding vehicle for the
Contracts prior to the date of this Agreement and the Company has so informed
the Fund and the Adviser prior to their signing this Agreement, the Fund or
Adviser consents in writing to the use of such other vehicle, such consent not
to be unreasonably withheld.
(d) The Company shall not, without prior notice to
the Adviser (unless otherwise
required by applicable law), take any action to operate the Account as a
management investment company under the 1940 Act.
(e) The Company shall not, without prior notice to the Adviser (unless otherwise
required by applicable law), induce Contract owners to change or modify the Fund
or change the Fund's investment adviser.
(d) The Company shall not, without prior notice to
the Fund, induce Contract
owners to vote on any matter submitted for consideration by the shareholders of
the Fund in a manner other than as recommended by the Board.
1.9 The Company acknowledges that, pursuant to Form 24F-2, the Fund is
not required to pay fees to the SEC for registration of its shares under the
1933 Act with respect to its shares issued to an Account that is a unit
investment trust that offers interests that are registered under the 1933 Act
and on which a registration fee has been or will be paid to the SEC (a
"Registered Account"). The Company agrees to provide the Fund each year within
60 days of the end of the Fund's fiscal year, or when reasonably requested by
the Fund, information as to the number of shares purchased by a Registered
Account and any other Account the interests of which are not registered under
the ▇▇▇▇ ▇▇▇. The Company acknowledges that the Fund intends to rely on the
information so provided and represents and warrants that such information shall
be accurate.
ARTICLE II. Representations and Warranties
2.
2.1. The Company represents and warrants that the Contracts
(a) are, or prior to issuance will be, registered under the 1933 Act, or (b) are
not registered because they are properly exempt from registration under the 1933
Act or will be offered exclusively in transactions that are properly exempt from
registration under the 1933 Act. The Company further represents and warrants
that the Contracts will be issued and sold in compliance in all material
respects with all applicable federal securities and state securities and
insurance laws and that the sale of the Contracts shall comply in all material
respects with state insurance suitability requirements. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law, that it has legally and validly established
the Account prior to any issuance or sale thereof as a segregated asset account
under Nebraska insurance laws, and that it (a) has registered or, prior to any
issuance or sale of the Contracts, will register the Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a
segregated investment account for the Contracts, or alternatively
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(b) has not registered the Account in proper reliance upon an exclusion from
registration under the 1940 Act. The Company shall register and qualify the
Contracts or interests therein as securities in accordance with the laws of the
various states only if and to the extent deemed advisable by the Company.
2.2. The Fund represents and warrants (a) that Designated Portfolios shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with applicable state and federal
securities laws, (b) that the Fund is and shall remain registered under the 1940
Act, (c) that shares of the Designated Portfolios will be sold only to
Participating Insurance Companies and their separate accounts or to persons or
plans that communicate to the Fund that they qualify to purchase shares of the
Designated Portfolios under Section 817(h) of the Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations thereunder without impairing the
ability of the Account to consider the portfolio investments of the Designated
Portfolios as constituting investments of the Account for purposes of Section
817(h) ("Qualified Persons"), and (d) shares of the Designated Portfolios will
not be sold directly to the general public. The Fund shall amend the
registration statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares. The Fund shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Fund.
2.3. The Company represents and warrants that it and each Account are, and will
continue to be, Qualified Persons.
2.4. The Fund makes no representations as to whether any aspect of its
operations, including, but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states.
2.5. The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply in all
material respects with the 1940 Act.
2.6. The Adviser represents and warrants that it is registered as an investment
adviser with the SEC.
2.7. The Fund and the Adviser represent and warrant that all of their
trustees/directors, officers, employees, and other individuals or entities
dealing with the money and/or securities of the Fund are and shall continue to
be at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Fund in an amount not less than the minimum coverage as required
currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company.
2.8. The Company represents and warrants that all of its directors, officers,
employees, and other individuals/entities employed or controlled by the Company
dealing with the money and/or securities of the Account are covered by a blanket
fidelity bond or similar coverage for the benefit of the Account, in an amount
not less than $5 million. The aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company. The Company agrees to
hold for the benefit of the Fund and to pay to the Fund any amounts lost from
larceny, embezzlement or other events covered by the aforesaid bond to the
extent such amounts properly belong to the Fund pursuant to the terms of this
Agreement. The Company agrees to make all reasonable efforts to see that this
bond or another bond containing these provisions is always in effect, and agrees
to notify the Fund and the Adviser in the event that such coverage no longer
applies.
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2.9. The Company represents and warrants that it shall comply with any
applicable privacy and notice provisions of 15 U.S.C. ▇▇.▇▇. 6801-6827 and any
applicable regulations promulgated thereunder (including but not limited to 17
C.F.R. Part 248) as they may be amended.
2.10. The Company represents and warrants that it has in place an anti-money
laundering program ("AML program") that does now and will continue to comply
with applicable laws and regulations, including the relevant provisions of the
USA PATRIOT Act (Pub. L. No. 107-56 (2001)) and the regulations issued
thereunder.
2.11 The Company agrees that it will comply at all times with
the provisions of Rules 22c-1 and 38a-1 under the 1940 Act and, with respect to
Rule 38a-1, shall provide such certifications as may reasonably be requested by
the Fund's Chief Compliance Officer.
2.12 The Company represents and warrants that it will use best
efforts to implement and maintain appropriate systems, procedures and operations
reasonably designed to provide the Fund with daily net aggregate trade and other
information relating to the Designated Portfolios at times and in the manner
specified by the Fund prior to the close of business on each Business Day.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.
3.1. The Fund or its agent shall provide the Company with as
many copies of the Fund's current prospectus as the Company may reasonably
request. The Fund shall bear the expense of printing copies of the current
prospectus and profiles for the Contracts that will be distributed to existing
Contract owners, and the Company shall bear the expense of printing copies of
the Fund's prospectus and profiles that are used in connection with offering the
Contracts issued by the Company. If requested by the Company in lieu thereof,
the Fund shall provide such documentation (including a final copy of the current
prospectus set in type or in camera ready format or in electronic format at the
Fund's expense) and other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the prospectus for the Fund is
amended) to have the prospectus for the Contracts and the Fund's prospectus or
profile printed together in one document (such printing to be at the Company's
and Fund's expense pro-rata, based upon page count of the document).
3.2. The Fund's prospectus shall state that the current Statement of Additional
Information ("SAI") for the Fund is available, and the Fund, at its expense,
shall provide a reasonable number of copies of such SAI free of charge to the
Company for itself and for any owner of a Contract with Contract value allocated
to a Designated Portfolio who requests such SAI.
3.3. The Fund shall provide the Company with information regarding the Fund's
expenses, which information may include a table of fees and related narrative
disclosure for use in any prospectus or other descriptive document relating to a
Contract. The Company agrees that it will use such information in the form
provided. The Company shall provide prior written notice of any proposed
modification of such information, which notice will describe in detail the
manner in which the Company proposes to modify the information, and agrees that
it may not modify such information in any way without the prior consent of the
Fund.
3.4. The Fund, at its expense, shall provide the Company with copies of its
proxy material, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners. If requested by the Company in
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lieu thereof, the Fund shall provide such material, reports or other
communications in "camera ready" format on diskette.
3.5. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with instructions received from Contract
owners in that Account; and
(iii) vote Fund shares for which no instructions have been received in the same
proportion as Fund shares of such Designated Portfolio held by an Account
for which instructions have been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners or to the
extent otherwise required by law. The Company will vote Fund shares held in any
segregated asset account in the same proportion as Fund shares of such
Designated Portfolio for which voting instructions have been received from
Contract owners, to the extent permitted by law.
3.6. Participating Insurance Companies shall be responsible for assuring that
each of their separate accounts participating in a Designated Portfolio
calculates voting privileges as required by the Mixed and Shared Funding
Exemptive Order (See Section 7.1) and consistent with any reasonable standards
that the Fund may adopt and provide in writing.
ARTICLE IV. Sales Material and Information
4.
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund or
its designee, each piece of sales literature or other promotional material that
the Company develops and in which the Fund (or a Designated Portfolio thereof)
or the Adviser is named. No such material shall be used until approved by the
Fund or its designee, and the Fund will use its best efforts for it or its
designee to review such sales literature or promotional material within ten
Business Days after receipt of such material. The Fund or its designee reserves
the right to reasonably object to the continued use of any such sales literature
or other promotional material in which the Fund (or a Designated Portfolio
thereof) or the Adviser is named, and no such material shall be used if the Fund
or its designee so objects.
4.2. The Company shall not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund or the Adviser in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus or SAI for
the Fund shares, as such registration statement and prospectus or SAI may be
amended or supplemented from time to time, or in reports or proxy statements for
the Fund, or in sales literature or other promotional material approved by the
Fund or its designee, except with the permission of the Fund or its designee.
4.3. The Fund and the Adviser, or their designee, shall furnish, or cause to be
furnished, to the Company, each piece of sales literature or other promotional
material that it develops and in which the Company, and/or its Account, is
named. No such material shall be used until approved by the Company, and the
Company will use its best efforts to review such sales literature or promotional
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material within ten Business Days after receipt of such material. The Company
reserves the right to reasonably object to the continued use of any such sales
literature or other promotional material in which the Company and/or its Account
is named, and no such material shall be used if the Company so objects.
4.4. The Fund shall not give any information or make any representations on
behalf of the Company or concerning the Company, the Account, or the Contracts
other than the information or representations contained in a registration
statement, prospectus (which shall include an offering memorandum, if any, if
the Contracts issued by the Company or interests therein are not registered
under the 1933 Act), or SAI for the Contracts, as such registration statement,
prospectus, or SAI may be amended or supplemented from time to time, or in
published reports for the Account which are in the public domain or approved by
the Company for distribution to Contract owners, or in sales literature or other
promotional material approved by the Company or its designee, except with the
permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, SAIs, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Designated Portfolios or their shares, promptly after the filing
of such document(s) with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses (which shall include an offering
memorandum, if any, if the Contracts issued by the Company or interests therein
are not registered under the 1933 Act), SAIs, reports, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to the Contracts or the Account, promptly after the filing of
such document(s) with the SEC or other regulatory authorities. The Company shall
provide to the Fund and the Adviser any complaints received from the Contract
owners pertaining to the Fund or a Designated Portfolio.
4.7. The Fund will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Designated Portfolio, and of any
material change in the Fund's registration statement, particularly any change
resulting in a change to the registration statement or prospectus for any
Account. The Fund will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or
registration statement, in an orderly manner. The Fund will make reasonable
efforts to attempt to have changes affecting Contract prospectuses become
effective simultaneously with the annual updates for such prospectuses.
4.8. For purposes of this Article IV, the phrase "sales literature and other
promotional materials" includes, but is not limited to, any of the following
that refer to the Fund, any Designated Portfolio or any affiliate of the Fund:
advertisements (such as material published, or designed for use in, a newspaper,
magazine, or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures, or other public media),
sales literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Fund.
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ARTICLE V. Fees and Expenses
5.
5.1. The Fund shall pay no fee or other compensation to the
Company under this Agreement. Nothing herein shall prevent the parties hereto
from otherwise agreeing to perform and arranging for compensation for (i)
distribution and shareholder-related services under a plan adopted in accordance
with Rule 12b-1 under the 1940 Act, and (ii) services (including certain
shareholder-related services) that are not primarily intended to result in the
sale of shares of the Designated Portfolios, which are provided to Contract
owners relating to the Designated Portfolios.
5.2. All expenses incident to performance by the Fund under this Agreement shall
be paid by the Fund. The Fund shall see to it that all its shares are registered
and authorized for issuance in accordance with applicable federal law and, if
and to the extent deemed advisable by the Fund, in accordance with applicable
state laws prior to their sale. The Fund shall bear the expenses for the cost of
registration and qualification of the Fund's shares, preparation and filing of
the Fund's prospectus and registration statement, proxy materials and reports,
setting the prospectus in type, setting in type and printing the proxy materials
and reports to shareholders (including the costs of printing a prospectus that
constitutes an annual report), the preparation of all statements and notices
required by any federal or state law, and all taxes on the issuance or transfer
of the Fund's shares.
5.3. The Company shall bear the expenses of distributing the Fund's prospectus
to owners of Contracts issued by the Company. The Fund shall bear the expense of
distributing the Fund's proxy materials and reports to such Contract owners,
unless the proxy materials in question were generated as a result of actions
taken by, related to or concerning the Company.
ARTICLE VI. Diversification and Qualification
6.
6.1. Subject to Company's representations and warranties in
Sections 2.1, 2.3 and 6.3, the Fund represents and warrants that it will invest
its assets in such a manner as to ensure that the Contracts will be treated as
annuity or life insurance contracts, whichever is appropriate, under the Code
and the regulations issued thereunder (or any successor provisions). Without
limiting the scope of the foregoing, each Designated Portfolio has complied and
will make every effort to continue to comply with Section 817(h) of the Code and
Treasury Regulation ss.1.817-5, and any Treasury interpretations thereof,
relating to the diversification requirements for variable annuity, endowment, or
life insurance contracts, and any amendments or other modifications or successor
provisions to such Section or Regulations. In the event of a breach of this
Article VI by the Fund, it will take all reasonable steps (a) to notify the
Company of such breach and (b) to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Treasury Regulation ss.1.817-5.
6.2. The Fund represents and warrants that each Designated Portfolio is or will
be qualified as a Regulated Investment Company under Subchapter M of the Code,
and that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provisions) and that it will notify the
Company immediately upon having a reasonable basis for believing that a
Designated Portfolio has ceased to so qualify or that it might not so qualify in
the future.
6.3. The Company represents and warrants that the Contracts are currently, and
at the time of issuance shall be, treated as life insurance or annuity contracts
under applicable provisions of the
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Code, and that it will make every effort to maintain such treatment, and that it
will notify the Fund and the Adviser immediately upon having a reasonable basis
for believing the Contracts have ceased to be so treated or that they might not
be so treated in the future. The Company agrees that any prospectus offering a
contract that is a "modified endowment contract" as that term is defined in
Section 7702A of the Code (or any successor or similar provision), shall
identify such contract as a modified endowment contract. In addition, the
Company represents and warrants that each of its Accounts is a "segregated asset
account" and that interests in the Accounts 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. The Company
will use every effort to continue to meet such definitional requirements, and it
will notify the Fund and the Adviser 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.
ARTICLE VII. Potential Conflicts
7.
7.1. The Fund represents and warrants that it may rely on an
order that was granted by the SEC in Variable Insurance Funds, et al. (File No.:
812-10694), Investment Company Act Rel. No. 23594 (Dec. 10, 1998) granting
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief from the provisions of Sections
9(a), 13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Designated Portfolios to be sold to and held by variable annuity separate
accounts and variable life insurance separate accounts of both affiliated and
unaffiliated Participating Insurance Companies, qualified pension and retirement
plans outside of the separate account context, and other permitted investors
(the "Mixed and Shared Funding Order"). The parties to this Agreement agree that
the conditions or undertakings required by the Mixed and Shared Funding Order
that may be imposed on the Company, the Fund and/or the Adviser by virtue of
such order by the SEC: (i) shall apply only upon the sale of shares of the
Designated Portfolios to variable life insurance separate accounts (and then
only to the extent required under the 1940 Act); (ii) will be incorporated
herein by reference; and (iii) such parties agree to comply with such conditions
and undertakings to the extent applicable to each such party notwithstanding any
provision of this Agreement to the contrary.
7.2. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act
or the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies,
as appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable; and (b) Sections 3.5 and 3.6 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE VIII. Indemnification
8.
8.1. Indemnification By the Company
8.1(a). The Company agrees to indemnify and hold harmless the Fund (which shall
include the Designated Portfolios) and the Adviser and each of its
trustees/directors and officers,
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and each person, if any, who controls the Fund or Adviser within the meaning of
Section 15 of the 1933 Act or who is under common control with the Adviser
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Company) or litigation (including
legal and other expenses), to which the Indemnified Parties may become subject
under any statute or regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements:
(i) arise out of or are based upon any untrue statement or alleged untrue
statements of any material fact contained in the registration statement,
prospectus (which shall include a written description of a Contract that is
not registered under the 1933 Act), or SAI for the Contracts or contained
in the Contracts or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the Fund for use in
the registration statement, prospectus or SAI for the Contracts or in the
Contracts or sales literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, SAI, or sales literature of the Fund not supplied by the
Company or persons under its control) or wrongful conduct of the Company or
its agents or persons under the Company's authorization or control, with
respect to the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI, or
sales literature of the Fund or any amendment thereof or supplement thereto
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading if such a statement or omission was made in reliance upon
information furnished to the Fund by or on behalf of the Company; or
(iv) arise as a result of any material failure by the Company to provide the
services and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or otherwise,
to comply with the qualification requirements specified in Article VI of
this Agreement); or
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of or
result from any other material breach of this Agreement by the Company; or
(vi) arise as a result of the provision by the Company to the Fund of
insufficient or incorrect information regarding the purchase or redemption
of
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shares, or the failure of the Company to provide such information or
payment for shares in accordance with the deadlines stated in Section 1.3;
or
(vii) arise out of information provided to the Company pursuant to this
Agreement, or to any other Participating Insurance Company pursuant to
another participation agreement, which information is based on incorrect
information supplied by the Company to the Fund or the Adviser.
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). The Company shall not be liable under this
indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of its obligations or duties under this Agreement.
8.1(c). The Company shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against an Indemnified Party, the Company shall be entitled to participate, at
its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
8.1(d). Each of the Fund and the Adviser will promptly notify the Company of the
commencement of any litigation or proceedings of which it has knowledge against
an Indemnified Party in connection with the issuance or sale of the Fund shares
or the Contracts or the operation of the Fund.
8.2. Indemnification by the Adviser
8.2(a). The Adviser agrees to indemnify and hold harmless the Company and each
of its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Adviser) or litigation (including legal and other expenses) to
which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
-13-
prospectus or SAI or sales literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished to the Adviser or Fund by or on behalf of the Company
for use in the registration statement, prospectus or SAI for the Fund or in
sales literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, SAI or sales literature for the Contracts not supplied by the
Fund or the Adviser) or wrongful conduct of the Adviser with respect to the
sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI or
sales literature covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to the Company by
or on behalf of the Adviser; or
(iv) arise as a result of any failure by the Fund to comply with the
diversification and other qualification requirements specified in Article
VI of this Agreement; or
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Adviser in this Agreement or arise out of or
result from any other material breach of this Agreement by the Adviser;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2(b). The Adviser shall not be liable under this
indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
or such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company or the Account, whichever is applicable.
8.2(c). The Adviser shall not be liable under this
indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Adviser in writing within a reasonable time after
the summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Adviser of any such claim shall not relieve
the Adviser from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
-14-
indemnification provision. In case any such action is brought against the
Indemnified Party, the Adviser will be entitled to participate, at its own
expense, in the defense thereof. The Adviser also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Adviser to such party of the Adviser's election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Adviser will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
8.2(d). The Company agrees promptly to notify the
Adviser of the commencement of any
litigation or proceedings of which it has knowledge against an Indemnified Party
in connection with the issuance or sale of the Contracts or the operation of the
Account.
8.3. Indemnification By the Fund
8.3(a). To the extent permitted by applicable law,
the Fund agrees to indemnify and
hold harmless the Company and each of its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
8.3) against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund) or
litigation (including legal and other expenses) to which the Indemnified Parties
may be required to pay or may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, expenses, damages,
liabilities or expenses (or actions in respect thereof) or settlements, are
related to the operations of the Fund and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
prospectus or SAI or sales literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished to the Adviser or Fund by or on behalf of the Company
for use in the registration statement, prospectus or SAI for the Fund or in
sales literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(ii) arise as a result of any failure by the Fund to provide the services and
furnish the materials under the terms of this Agreement (including a
failure, whether unintentional or in good faith or otherwise, to comply
with the diversification and other qualification requirements specified in
Article VI of this Agreement); or
(iii) arise out of or result from any material breach of any representation
and/or warranty made by the Fund in this Agreement or arise out of or
result from any other material breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
-15-
8.3(b). The Fund shall not be liable under this
indemnification provision with respect
to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company, the Fund, the Adviser or the Account, whichever is applicable.
8.3(c). The Fund shall not be liable under this
indemnification provision with respect
to any claim made against an Indemnified Party unless such Indemnified Party
shall have notified the Fund in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim shall not relieve the
Fund from any liability which it may have to the Indemnified Party against whom
such action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified Parties,
the Fund will be entitled to participate, at its own expense, in the defense
thereof. The Fund also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Fund to such party of the Fund's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Fund will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
8.3(d). The Company agrees promptly to notify the
Fund of the commencement of any
litigation or proceeding of which it has knowledge against an Indemnified Party
in connection with the Agreement, the issuance or sale of the Contracts, the
operation of the Account, or the sale or acquisition of shares of the Fund.
8.3(e) The Adviser agrees promptly to notify the Fund
of the commencement of any
litigation or proceeding of which it has knowledge against it or any of its
respective officers or directors in connection with the Agreement, the issuance
or sale of the Contracts, the operation of the Account, or the sale or
acquisition of shares of the Fund.
ARTICLE IX. Applicable Law
9.
9.1. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of
Maryland.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
If, in the future, the Mixed and Shared Funding Exemptive Order should no longer
be necessary under applicable law, then Article VII shall no longer apply.
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ARTICLE X. Termination
10.
10.1. This Agreement shall continue in full force and effect
until the first to occur of:
(a) termination by any party, for any reason with respect to some or all
Designated Portfolios, by three (3) months advance written notice delivered
to the other parties; or
(b) termination by the Company by written notice to the Fund and the Adviser
based upon the Company's determination that shares of the Fund are not
reasonably available to meet the requirements of the Contracts; or
(c) termination by the Company by written notice to the Fund and the Adviser in
the event any of the Designated Portfolio's shares are not registered,
issued or sold in accordance with applicable state and/or federal law or
such law precludes the use of such shares as the underlying investment
media of the Contracts issued or to be issued by the Company; or
(d) termination by the Fund or Adviser in the event that formal administrative
proceedings are instituted against the Company by the NASD, the SEC, the
Insurance Commissioner or like official of any state or any other
regulatory body regarding the Company's duties under this Agreement or
related to the sale of the Contracts, the operation of any Account, or the
purchase of the Designated Portfolios' shares; provided, however, that the
Fund or Adviser determines in its sole judgment exercised in good faith,
that any such administrative proceedings will have a material adverse
effect upon the ability of the Company to perform its obligations under
this Agreement; or
(e) termination by the Company in the event that formal administrative
proceedings are instituted against the Fund or Adviser by the SEC or any
state securities or insurance department or any other regulatory body;
provided, however, that the Company determines in its sole judgment
exercised in good faith, that any such administrative proceedings will have
a material adverse effect upon the ability of the Fund or Adviser to
perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the Fund and the Adviser
with respect to any Designated Portfolio in the event that such Portfolio
ceases to qualify as a Regulated Investment Company under Subchapter M or
fails to comply with the Section 817(h) diversification requirements
specified in Article VI hereof, or if the Company reasonably believes that
such Portfolio may fail to so qualify or comply; or
(g) termination by the Fund or Adviser by written notice to the Company in the
event that the Contracts fail to meet the qualifications specified in
Section 6.3 hereof; or
(h) termination by either the Fund or the Adviser by written notice to the
Company, if either one or both of the Fund or the Adviser respectively,
shall determine, in
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their sole judgment exercised in good faith, that the
Company has suffered a material adverse change in its business, operations,
financial condition, or prospects since the date of this Agreement or is
the subject of material adverse publicity; or
(i) termination by the Company by written notice to the Fund and the Adviser,
if the Company shall determine, in its sole judgment exercised in good
faith, that the Fund or the Adviser has suffered a material adverse change
in its business, operations, financial condition or prospects since the
date of this Agreement or is the subject of material adverse publicity; or
(j) termination by the Fund or the Adviser by written notice to the Company, if
the Company gives the Fund and the Adviser the written notice specified in
Section 1.8(a)(ii) hereof and at the time such notice was given there was
no notice of termination outstanding under any other provision of this
Agreement; provided, however, any termination under this Section 10.1(j)
shall be effective forty-five days after the notice specified in Section
1.8(a)(ii) was given; or
(k) termination by the Adviser or Fund if the Board has decided to (i) refuse
to sell shares of any Designated Portfolio to the Company and/or any of its
Accounts; (ii) suspend or terminate the offering of shares of any
Designated Portfolio; or (iii) dissolve, reorganize, liquidate, merge or
sell all assets of the Trust or any Designated Portfolio, subject to the
provisions of Section 1.1; or
(l) termination by the Company upon any substitution of the shares of another
investment company or series thereof for shares of a Designated Portfolio
of the Fund in accordance with the terms of the Contracts, provided that
the Company has given at least 45 days prior written notice to the Fund and
Adviser of the date of substitution; or
(m) termination by any party in the event that the Board determines that a
material irreconcilable conflict exists as provided in Article VII.
10.2. (a) Notwithstanding any termination of this Agreement, and except as
provided in Section 10.2(b), the Fund and the Adviser shall, at the option of
the Company, continue, until the one year anniversary from the date of
termination, and from year to year thereafter if deemed appropriate by the Fund
and the Adviser, to make available additional shares of the Fund pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts").
Specifically, based on instructions from the owners of the Existing Contracts,
the Accounts shall be permitted to reallocate investments in the Designated
Portfolios of the Fund and redeem investments in the Designated Portfolios, and
shall be permitted to invest in the Designated Portfolios in the event that
owners of the Existing Contracts make additional premium payments under the
Existing Contracts.
Company agrees, promptly after any termination of this Agreement, to take all
steps necessary to redeem the investment of the Accounts in the Designated
Portfolios within one year from the date of termination of the Agreement as
provided in Article X. Such steps shall include, but not be limited to,
obtaining an order pursuant to Section 26(c) of the
-18-
1940 Act to permit the substitution of other securities for the shares of the
Designated Portfolios. The Fund or the Adviser may, in their discretion, permit
the Accounts to continue to invest in the Designated Portfolios beyond such one
year anniversary for an additional year beginning on the first annual
anniversary of the date of termination, and from year to year thereafter;
provided that the Fund or the Adviser agrees in writing to permit the Accounts
to continue to invest in the Designated Portfolios at the beginning of any such
year.
(b) In the event (i) the Agreement is terminated
pursuant to Sections
10.1(g) or 10.1(m), at the option of the Fund or the Adviser; or (ii) the one
year anniversary of the termination of the Agreement is reached or, after waiver
as provided in Section 10.2(a), such subsequent anniversary is reached (each of
(i) and (ii) referred to as a "triggering event" and the date of termination as
provided in (i) or the date of such anniversary as provided in (ii) referred to
as the "request date"), the parties agree that such triggering event shall be
considered as a request for immediate redemption of shares of the Designated
Portfolios held by the Accounts, received by the Fund as of the request date,
and the Fund agrees to process such redemption request in accordance with the
1940 Act and the regulations thereunder and the Fund's registration statement.
(c) The parties agree that this Section 10.2 shall
not apply to any
terminations under Article VII and the effect of such Article VII terminations
shall be governed by Article VII of this Agreement. The parties further agree
that, to the extent that all or a portion of the assets of the Accounts continue
to be invested in the Fund or any Designated Portfolio of the Fund, Articles I,
II, VI, VII, VIII and IX will remain in effect after termination.
10.3. The Company shall not redeem Fund shares attributable to the Contracts (as
opposed to Fund shares attributable to the Company's assets held in the Account)
except (i) as necessary to implement Contract owner initiated or approved
transactions, (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally Required Redemption"), (iii) upon 45 days prior written notice
to the Fund and Adviser, as permitted by an order of the SEC pursuant to Section
26(c) of the 1940 Act, but only if a substitution of other securities for the
shares of the Designated Portfolios is consistent with the terms of the
Contracts, or (iv) as permitted under the terms of the Contract. Upon request,
the Company will promptly furnish to the Fund and the Adviser reasonable
assurance that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contacts, the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund or the Adviser 45 days notice of its
intention to do so.
10.4. Notwithstanding any termination of this Agreement, each party's obligation
under Article VIII to indemnify the other parties shall survive.
ARTICLE XI. Notices
11.
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Fund: ProFunds
c/o ProFund Advisors LLC
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Adviser: ProFund Advisors LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: Ameritas Life Insurance Corp.
Attn: General Counsel
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ARTICLE XII. Miscellaneous
12.
12.1. All persons dealing with the Fund must look solely to
the property of the respective Designated Portfolios listed on Schedule A hereto
as though each such Designated Portfolio had separately contracted with the
Company and the Adviser for the enforcement of any claims against the Fund. The
parties agree that neither the Board, officers, agents or shareholders of the
Fund assume any personal liability or responsibility for obligations entered
into by or on behalf of the Fund.
12.2. Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until such time as such information has come into the
public domain.
12.3. The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
12.5. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the Nebraska Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable insurance
-20-
operations of the Company are being conducted in a manner consistent with the
Nebraska insurance laws and regulations and any other applicable law or
regulations.
12.7. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies, and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
12.8. This Agreement or any of the rights and obligations hereunder may not be
assigned by any party without the prior written consent of all parties hereto;
provided, however, that the Adviser may assign this Agreement or any rights or
obligations hereunder to any affiliate or company under common control with the
Adviser, if such assignee is duly licensed and registered to perform services
under this Agreement. The Company shall promptly notify the Fund and the Adviser
of any change in control of the Company.
12.9. The Company shall furnish, or shall cause to be furnished, to the Fund or
its designee copies of the following reports:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted accounting
principles) filed with any state or federal regulatory body or otherwise made
available to the public, as soon as practicable and in any event within 90 days
after the end of each fiscal year; and
(b) any registration statement (without exhibits) and financial reports of the
Company filed with the Securities and Exchange Commission or any state insurance
regulatory, as soon as practicable after the filing thereof.
12.10 For purposes of this paragraph, each of ProFunds and the
Access One Trust are referred to as a "Trust." This Agreement constitutes a
separate and distinguishable agreement as between Company and each Trust. The
Agreement has been structured as a single document for convenience only. The
representations, warranties, duties and obligations of each Trust hereunder are
several, not joint. The representations, warranties, duties and obligations of
Company to each Trust are separate and do not inure to another Trust. For
purposes of this Agreement, references to Fund shall mean to each Fund on an
individual basis. No Trust shall be responsible for the actions (or inactions)
of another Trust.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Ameritas Life Insurance Corp.:
By its authorized officer
By:
------------------------------------------------
Title:
---------------------------------------------
Date:
----------------------------------------------
ProFunds
By its authorized officer
By:
-------------------------------------------------
Title:
----------------------------------------------
Date:
-----------------------------------------------
ProFund Advisors LLC
By its authorized officer
By:
-------------------------------------------------
Title:
----------------------------------------------
Date:
-----------------------------------------------
Access One Trust
By its authorized officer
By:
-------------------------------------------------
Title:
----------------------------------------------
Date:
----------------------------------------------
-22-
4/30/2005
Schedule A
Account(s) Contract(s) Designated Portfolio(s)
Separate Account LLVA Policy #6151 ProFund VP Bull
ProFund VP Small-Cap
ProFund VP OTC
ProFund VP Mid-Cap Value
ProFund VP Small-Cap Value
ProFund VP Europe 30
ProFund VP UltraBull
ProFund VP UltraMid-Cap
ProFund VP UltraSmall-Cap
ProFund VP UltraOTC
ProFund VP Bear
ProFund VP Short Small-Cap
ProFund VP Short OTC
ProFund VP U.S. Government Plus
ProFund VP Rising Rates Opportunity
Access VP High Yield Fund
ProFund VP Money Market
ProFund VP Real Estate
ProFund VP Oil & Gas
ProFund VP Precious Metals