FUND PARTICIPATION AGREEMENT
AMONG
QUEST FOR VALUE ACCUMULATION TRUST,
QUEST FOR VALUE DISTRIBUTORS, and
CIGNA LIFE INSURANCE COMPANY
THIS AGREEMENT is made this 5th day of September, 1995, by and among Quest
for Value Accumulation Trust (the "Trust"), an open-end management investment
company organized as a Massachusetts business trust, CIGNA Life Insurance
Company, a life insurance company organized as a corporation under the laws of
the State of Connecticut (the "Company"), on its own behalf and on behalf of
each segregated asset account of the Company set forth in Schedule A, as may be
amended from time to time (the "Accounts"), and Quest for Value Distributors, a
Delaware general partnership, the Trust's Underwriter (the "Underwriter").
WHEREAS, the Trust is registered with the Securities and Exchange
Commission (the "Commission") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and has an
effective registration statement relating to the offer and sale of the various
series of its shares under the Securities Act of 1933, as amended (the "1933
Act");
WHEREAS, the Trust was established for the purpose of serving as an
investment vehicle for separate accounts established for variable life insurance
policies and variable annuity contracts to be offered by life insurance
companies which have entered into fund participation agreements with the Trust
substantially identical to this Agreement (the "Participating Insurance
Companies");
WHEREAS, shares of beneficial interest in the Trust are divided into
several series of shares, each series representing an interest in a particular
managed portfolio of securities and other assets, and certain of those series
named in Schedule B (the "Portfolios") are to be made available for purchase by
the Company for the Accounts;
WHEREAS, the Trust has obtained an order from the Commission granting
Participating Insurance Companies and variable annuity 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 6e3-(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Trust to be sold to
and held by variable annuity and variable life insurance separate accounts of
both affiliated and unaffiliated Participating Insurance Companies and qualified
pension and retirement plans (hereinafter the "Mixed and Shared Funding
Exemptive Order").
WHEREAS, the Company has registered or will register under the 1933 Act
certain variable life insurance policies and variable annuity contracts to be
issued by the Company under which the Portfolios are to be made available as
investment vehicles (the "Contracts");
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolution of the Board of Directors of the Company
under the insurance laws of the State of Connecticut, to set aside and invest
assets attributable to the Contracts;
WHEREAS, the Underwriter is registered as a broker dealer with the
Commission under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD");
WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act unless an exemption from registration under
the 1940 Act is available and the Trust has been so advised;
WHEREAS, the Company desires to use shares of the Portfolios named in
Schedule B as investment vehicles for the Accounts and the Underwriter is
authorized to sell such shares to the Accounts at net asset value;
NOW THEREFORE, in consideration of their mutual promises, the parties agree
as follows:
ARTICLE I.
Purchase and Redemption of Trust Portfolio Shares
1.1. For purposes of this Article I, the Company shall be the Trust's agent
for the receipt from each Account of purchase orders and requests for redemption
pursuant to the Contracts relating to each Portfolio, provided that the Company
notifies the Trust of such purchase orders and requests for redemption by 9:30
a.m. Eastern time on the next following Business Day, as defined in Section 1.3.
1.2. The Trust shall make shares of the Portfolios available to the
Accounts at the net asset value next computed after receipt and acceptance of a
purchase order by the Trust (or its agent), as established in accordance with
the provisions of the then current prospectus of the Trust describing Portfolio
purchase procedures. The Company will transmit orders from time to time to the
Trust for the purchase and redemption of shares of the Portfolios. The Trustees
of the Trust (the "Trustees") may refuse to sell shares of any Portfolio to any
person, or suspend or terminate the offering of shares of any Portfolio if such
action is required by law or by regulatory authorities having jurisdiction or
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 Portfolio.
1.3. The Company shall pay for the purchase of shares of a Portfolio on
behalf of an Account with federal funds to be transmitted by wire to the Trust,
with the reasonable expectation of receipt by the Trust by 2:00 p.m. Eastern
time on the next Business Day after the Trust (or its agent) receives the
purchase order. Upon receipt by the Trust of the federal funds so wired, such
funds shall cease to be the responsibility of the Company and shall become the
responsibility of the Trust for this purpose. "Business Day" shall mean any day
on which the New York Stock Exchange is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the Commission.
1.4.The Trust will redeem for cash any full or fractional shares of any
Portfolio, when requested by the Company on behalf of an Account, at the net
asset value next computed after receipt and acceptance by the Trust (or its
agent) of the request for redemption, as established in accordance with the
provisions of the then current prospectus of the Trust describing Portfolio
redemption procedures. The Trust shall make payment for such shares in the
manner established from time to time by the Trust. Proceeds of redemption with
respect to a Portfolio will normally be paid to the Company for an Account in
federal funds transmitted by wire to the Company by order of the Trust with the
reasonable expectation of receipt by the Company by 2:00 p.m. Eastern time on
the next Business Day after the receipt by the Trust (or its agent) of the
request for redemption. Such payment may be delayed if, for example, the
Portfolio's cash position so requires or if extraordinary market conditions
exist, but in no event shall payment be delayed for a greater period than is
permitted by the 1940 Act. Neither the Trust nor the Underwriter shall bear any
responsibility whatsoever for the proper disbursement or crediting of redemption
proceeds; the Company alone shall be responsible for such action.
l.5. Payments for the purchase of shares of the Trust's Portfolios by the
Company under Section 1.3 and payments for the redemption of shares of the
Trust's Portfolios under Section 1.4 on any Business Day may be netted against
one another for the purpose of determining the amount of any wire transfer.
1.6. Issuance and transfer of the Trust's Portfolio shares will be by book
entry only. Stock certificates will not be issued to the Company or the
Accounts. Portfolio Shares purchased from the Trust will be recorded in the
appropriate title for each Account or the appropriate subaccount of each
Account.
1.7. The Trust shall furnish, as reasonably practicable, on or before the
ex-dividend date, notice to the Company of any income dividends or capital gain
distributions payable on the shares of any Portfolio of the Trust. The Company
hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio's shares in additional shares of
that Portfolio. The Trust shall notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.8. The Trust shall calculate the net asset value of each Portfolio on
each Business Day, as defined in Section 1.3. The Trust shall make the net asset
value per share for each Portfolio available to the Company or its designated
agent on a daily basis as soon as reasonably practical after the net asset value
per share is calculated and shall use its best efforts to make such net asset
value per share available to the Company by 6:30 p.m. Eastern time each Business
Day.
1.9. The Trust agrees that its Portfolio shares will be sold only to
Participating Insurance Companies and their segregated asset accounts and to
certain qualified pension and retirement plans to the extent permitted under
applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Code") and the Mixed and Shared Funding Exemptive Order. No shares of any
Portfolio will be sold directly to the general public. The Company agrees that
it will use Trust
shares only for the purposes of funding the Contracts through the Accounts
listed in Schedule A, as amended from time to time.
1.10. The Trust agrees that all Participating Insurance Companies shall
have the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.9 and
Article IV of this Agreement.
ARTICLE II.
Obligations of the Parties
2.1. The Trust shall prepare and be responsible for filing with the
Commission and any state regulators requiring such filing all shareholder
reports, notices, proxy materials (or similar materials such as voting
instruction solicitation materials), prospectuses and statements of additional
information of the Trust. The Trust shall bear the costs of registration and
qualification of shares of the Portfolios, preparation and filing of the
documents listed in this Section 2.1 and all taxes to which an issuer is subject
on the issuance and transfer of its shares.
2.2. At the option of the Company, the Trust and/or the Underwriter shall
either (a) provide the Company with as many copies of portions of the Trust's
current prospectus, annual report, semi-annual report and other shareholder
communications, including any amendments or supplements to any of the foregoing,
pertaining specifically to the Portfolios as the Company shall reasonably
request; or (b) provide the Company with a camera ready copy of such documents
in a form suitable for printing and from which information relating to each of
the series of the Trust other than the Portfolios has been deleted to the extent
practicable. Should the Company wish to print any such document in a different
format than that provided by the Trust, the Company shall bear the cost of any
format change. The Trust shall provide the Company with a copy of its current
statement of additional information, including any amendments or supplements, in
a form suitable for duplication by the Company. The Trust (at its expense) shall
provide the Company with copies of any Trust-sponsored proxy materials in such
quantity as the Company shall reasonably require for distribution to Contract
owners.
2.3. The Trust and/or the Underwriter shall bear its proportionate share of
the costs of printing and distributing documents including the Trust's
prospectus, shareholder reports and other shareholder communications to owners
of Contracts for which a Portfolio or Portfolios of the Trust is serving or may
serve as an investment vehicle, using the number of pages as a guide. The
Company will use its best efforts to control those costs, will submit bills
therefor to the Trust for reimbursement, and will advise the Trust semi-annually
of how many Contract owners are using the Trust as a funding vehicle. The
Company shall bear the costs of distributing proxy materials (or similar
materials such as voting solicitation instructions) and statements of additional
information to Contract owners, as well as printing and distribution costs
relating to prospective owners of Contracts. The Company assumes sole
responsibility for ensuring that such materials are delivered to Contract owners
in accordance with applicable federal and state securities laws.
2.4. The Company agrees and acknowledges that ▇▇▇▇▇▇▇▇▇▇▇ Capital is the
sole owner of the name and ▇▇▇▇ "Quest for Value" and that all use of any
designation comprised in whole or part of such name or ▇▇▇▇ under this Agreement
shall inure to the benefit of ▇▇▇▇▇▇▇▇▇▇▇ Capital. Except as provided in Section
2.5, the Company shall not use any such name or ▇▇▇▇ on its own behalf or on
behalf of the Accounts or Contracts in any registration statement,
advertisement, sales literature or other materials relating to the Accounts or
Contracts without the prior written consent of ▇▇▇▇▇▇▇▇▇▇▇ Capital. Upon
termination of this Agreement for any reason, the Company shall cease all use of
any such name or ▇▇▇▇ as soon as reasonably practicable.
2.5. The Company shall furnish, or cause to be furnished, to the Trust or
its designee a copy of each Contract prospectus or statement of additional
information describing the Contracts, each report to Contract owners, proxy
statement, application for exemption or request for no-action letter that relate
to the Trust or its shares and/or in which the Trust, Underwriter or the Trust's
Adviser is named contemporaneously with the filing of such document with the
Commission. The Company shall furnish, or shall cause to be furnished, to the
Trust or the Underwriter or their designee each piece of sales literature or
other promotional material in which the Trust, Underwriter or the Trust's
Adviser is named, at least five Business Days prior to its use. No such material
shall be used if the Trust or its designee reasonably objects to such use within
five Business Days after receipt of such material.
2.6. The Company shall not give any information or make any representations
or statements on behalf of the Trust or concerning the Trust, Underwriter or the
Trust's Adviser in connection with the sale of the Contracts other than
information or representations contained in and accurately derived from the
registration statement or prospectus for the Trust shares (as such registration
statement and prospectus may be amended or supplemented from time to time),
annual and semi-annual reports of the Trust, Trust-sponsored proxy statements,
or in sales literature or other promotional material approved by the Trust or by
the Underwriter or their designee, except as required by legal process or
regulatory authorities or with the written permission of the Trust or the
Underwriter or their respective designees. The Trust and the Underwriter agree
to respond to any request for approval on a prompt and timely basis. The Company
shall adopt and implement procedures reasonably designed to ensure that "broker
only" materials including information therein about the Trust, Underwriter or
the Trust's Adviser are not distributed to existing or prospective Contract
owners.
2.7. The Trust shall use its best efforts to provide the Company, on a
timely basis, with such information about the Trust, the Portfolios, the
Underwriter and the Trusts's Adviser, in such form as the Company may reasonably
require, as the Company shall reasonably request in connection with the
preparation of registration statements, prospectuses and annual and semi-annual
reports pertaining to the Contracts.
2.8. The Trust and the Underwriter shall not give, and agree that no
affiliate of either of them shall give, any information or make any
representations or statements on behalf of the Company or concerning the
Company, the Accounts or the Contracts other than information or representations
contained in and accurately derived from the registration statement or
prospectus for
the Contracts (as such registration statement and prospectus may be amended or
supplemented from time to time), or in materials approved by the Company for
distribution including sales literature or other promotional materials, except
as required by legal process or regulatory authorities or with the written
permission of the Company. The Company agrees to respond to any request for
approval on a prompt and timely basis.
2.9. So long as, and to the extent that, the Commission interprets the 1940
Act to require pass-through voting privileges for Contract owners, the Company
will provide pass-through voting privileges to Contract owners whose cash values
are invested, through the registered Accounts, in shares of one or more
Portfolios of the Trust. Participating Insurance Companies shall be responsible
for assuring that each of their segregated accounts calculates voting privileges
in a manner consistent with all other Participating Insurance Companies. With
respect to each registered Account, the Company will (i) solicit voting
instructions from Contract owners; (ii) vote the shares of each Portfolio of the
Trust held by a registered Account in accordance with instructions received from
Contract owners; and (iii) vote shares of each Portfolio of the Trust held by a
registered Account and for which no timely voting instructions from Contract
owners are received in the same proportion as those shares for which voting
instructions are received. The Company and its agents will in no way recommend
or oppose or interfere with the solicitation of proxies for Portfolio shares
held to fund the Contracts without the prior written consent of the Trust, which
consent may be withheld in the Trust's sole discretion. The Company reserves the
right, to the extent permitted by law, to vote shares held in any Account in its
sole discretion.
2.10 The Company and the Trust will each provide to the other information
about the results of any regulatory examination relating to the Contracts or the
Trust, including relevant portions of any "deficiency letter" and any response
thereto.
2.11. No compensation shall be paid by the Trust to the Company, or by the
Company to the Trust, under this Agreement (except for specified expense
reimbursements). However, nothing herein shall prevent the parties hereto from
otherwise agreeing to perform, and arranging for appropriate compensation for,
other services relating to the Trust, the Accounts or both.
2.12. At least annually the Trust will provide the Company with a listing
of the investments held in each Portfolio, and with respect to and as of each
other calendar quarter, will provide the Company with copies of the worksheets
by which the Trust determines compliance by each Portfolio with Section 817(h)
of the Code and related rules and regulations.
ARTICLE III.
Representations and Warranties
3.1. The Company represents and warrants that it is an insurance company
duly organized and in good standing under the laws of the State of Connecticut
and that it has legally and validly established each Account as a segregated
asset account under such law as of the date set forth in Schedule A, and that
CIGNA Financial Advisors, Inc., the principal underwriter for the
Contracts, is registered as a broker-dealer under the 1934 Act and is a member
in good standing of the NASD.
3.2. The Company represents and warrants that it has registered or, prior
to any issuance or sale of the Contracts, will register each Account as a unit
investment trust in accordance with the provisions of the 1940 Act and cause
each Account to remain so registered to serve as a segregated asset account for
the Contracts, unless an exemption from registration is available.
3.3. The Company represents and warrants that the Contracts will be
registered under the 1933 Act unless an exemption from registration is available
prior to any issuance or sale of the Contracts; the Contracts will be issued and
sold in compliance in all material respects with all applicable federal and
state laws; and the sale of the Contracts shall comply in all material respects
with state insurance law suitability requirements.
3.4. The Company represents that it believes that the Contracts are
currently and at the time of issuance will be treated as life insurance policies
or annuity contracts respectively, under applicable provisions of the Code and
that it will make every effort to maintain such treatment and that it will
notify the Trust and the Underwriter immediately upon having a reasonable basis
for believing that the Contracts have ceased to be so treated or that they might
not be so treated in the future.
3.5 The Trust represents and warrants that it is duly organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it does
and will comply in all material respects with the 1940 Act and the rules and
regulations thereunder.
3.6. The Trust represents and warrants that the Portfolio shares offered
and sold pursuant to this Agreement will be registered under the 1933 Act and
sold in accordance with all applicable federal and state laws, and that the
Trust shall be registered under the 1940 Act prior to and at the time of any
issuance or sale of such shares. The Trust shall amend its registration
statement 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 Trust shall register
and qualify its shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust.
3.7 The Trust represents that its investment objectives, policies and
restrictions comply with applicable state investment laws as they may apply to
the Trust. The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws and regulations of any state. The
Company alone shall be responsible for informing the Trust of any insurance
restrictions imposed by state insurance laws which are applicable to the Trust.
To the extent feasible and consistent with market conditions, the Trust will
adjust its investments to comply with the aforementioned state insurance laws
upon written notice from the Company of such requirements and proposed
adjustments, it being agreed and understood that in any such case the Trust
shall be allowed a reasonable period of time under the circumstances after
receipt of such notice to make any such adjustment.
3.8. The Trust represents and warrants that the investments of each
Portfolio will comply with the diversification requirements for variable
annuity, endowment or life insurance contracts set forth in Section 817(h) of
the Internal Revenue Code of 1986, as amended ("Code"), and the rules and
regulations thereunder, including without limitation Treasury Regulation
1.817-5, and will notify the Company immediately upon having a reasonable basis
for believing any Portfolio has ceased to comply or might not so comply and will
immediately take all reasonable steps to adequately diversify the Portfolio to
achieve compliance within the grace period afforded by Regulation 1.817-5.
3.9. The Trust represents and warrants that it is currently qualified as a
"regulated investment company" under Subchapter M of the Code, that it will make
every effort to maintain such qualification and will notify the Company
immediately upon having a reasonable basis for believing it has ceased to so
qualify or might not so qualify in the future.
3.10.The Trust represents and warrants that should it ever desire to make
any payments to finance distribution expenses pursuant to Rule 12b-1 under the
1940 Act, the Trustees, including a majority who are not "interested persons" of
the Trust under the 1940 Act ("disinterested Trustees"), will formulate and
approve any plan under Rule 12b-1 to finance distribution expenses.
3.11. The Trust represents and warrants that it, its directors, officers,
employees and others dealing with the money or securities, or both, of a
Portfolio shall at all times be covered by a blanket fidelity bond or similar
coverage for the benefit of the Trust in an amount not less than the minimum
coverage required by Rule 17g-1 or other regulations under the 1940 Act. Such
bond shall include coverage for larceny and embezzlement and be issued by a
reputable bonding company.
3.12. The Underwriter is registered, and will remain registered, during the
term of this Agreement, as a broker dealer under the 1934 Act and is a member in
good standing of the NASD. Furthermore, the Underwriter represents that the
Trust's Adviser, Quest for Value Advisors, is duly organized and a validly
existing Delaware general partnership and that it is registered and will during
the term of the Agreement remain registered as an investment adviser under the
1940 Act.
ARTICLE IV.
Potential Conflicts
4.1. The parties acknowledge that a Portfolio's shares may be made
available for investment to other Participating Insurance Companies and
qualified pension and retirement plans. In such event, the Trustees will monitor
the Trust for the existence of any material irreconcilable conflict between the
interests of the contract owners of all Participating Insurance Companies. An
irreconcilable material conflict may arise for a variety of reasons, including:
(a) an action by any state insurance regulatory authority; (b) a change in
applicable federal or state insurance, tax, or securities laws or regulations,
or a public ruling, private letter ruling, no-action or interpretative letter,
or any similar action by insurance, tax, or securities regulatory authorities;
(c) an
administrative or judicial decision in any relevant proceeding; (d) the manner
in which the investments of any Portfolio are being managed; (e) a difference in
voting instructions given by variable annuity contract and variable life
insurance contract owners; or (f) a decision by an insurer to disregard the
voting instructions of contract owners. The Trust shall promptly inform the
Company of any determination by the Trustees that an irreconcilable material
conflict exists and of the implications thereof. A majority of the Board of
Trustees of the Trust shall consist of persons who are not "interested" persons
of the Trust.
4.2. The Company has reviewed a copy of the Mixed and Shared Funding
Exemptive Order, and in particular has reviewed and agrees to comply with the
conditions to the requested relief set forth therein. As set forth in the Mixed
and Shared Funding Exemptive Order, the Company agrees to promptly report any
potential or existing conflicts of which it is aware to the Trustees. The
Company will assist the Trustees in carrying out their responsibilities as
delineated in the Mixed and Shared Funding Exemptive Order, by providing the
Trustees with all information reasonably necessary for and requested by the
Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting
instructions. All communications from the Company to the Trustees may be made in
care of the Trust. The Board of Trustees shall record in its minutes or other
appropriate records, all reports received by it and all action with regard to a
conflict.
4.3. If it is determined by a majority of the Trustees, or a majority of
the disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of Contract owners, the Company shall, in cooperation with
other Participating Insurance Companies whose contract owners are also affected,
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 irreconcilable material conflict, which steps could
include: (a) withdrawing the assets allocable to some or all of the Accounts
from the Trust or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Trust, or submitting the question of whether or not such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a change; and
(b) establishing a new registered management investment company or managed
separate account.
4.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited
to the extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested Trustees. Any such withdrawal and
termination must take place within six (6) months after the Trust gives written
notice that this provision is being implemented. Until the end of such
six (6) month period, the Trust shall continue to accept and implement orders by
the Company for the purchase and redemption of shares of the Trust.
4.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the Trust and terminate this Agreement with
respect to such Account within six (6) months after the Trustees inform the
Company in writing that the Trust has determined that such decision has created
an irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. Until the end of such six (6) month period, the Trust shall continue
to accept and implement orders by the Company for the purchase and redemption of
shares of the Trust.
4.6. For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any material funding irreconcilable conflict, but in no
event will the Trust be required to establish new funding medium for the
Contracts. In the event that the Trustees determine that any proposed action
does not adequately remedy any irreconcilable material conflict, then the
Company will withdraw the Account's investment in the Trust and terminate this
Agreement within six (6) months after the Trustees inform the Company in writing
of the foregoing determination; provided, however, that such withdrawal and
termination shall be limited to the extent required by any such material
irreconcilable conflict as determined by a majority of the disinterested
Trustees.
4.7. The Company shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonably request so that the
Trustees may fully carry out the duties imposed upon them as delineated in the
Mixed and Shared Funding Exemptive Order, and said reports, materials and data
shall be submitted more frequently if reasonably deemed appropriate by the
Trustees.
4.8. If and to the extent that Rule 6e-3(T) is 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 the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rule
6e-3(T), as amended, or Rule 6e-3, as adopted, to the extent such rules are
applicable.
ARTICLE V.
Indemnification
5.1. Indemnification By the Company. The Company agrees to indemnify and
hold harmless the Trust, the Underwriter, and each of the Trust's and the
Underwriter's Trustees, officers, employees and agents and each person, if any,
who controls or is associated with the Trust
or the Underwriter within the meaning of such terms under the federal securities
laws (collectively, the "Indemnified Parties" for purposes of this Article V)
against any and all losses, claims, damages, liabilities, joint or several,
(including amounts paid in settlement with the written consent of the Company,
which consent shall not be unreasonably withheld) or expenses (including the
reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection
therewith)(collectively, "Losses"), to which the Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise, insofar
as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration
statement or prospectus for the Contracts or in the Contracts themselves or
in sales literature generated or approved by the Company on behalf of the
Contracts or Accounts (or any amendment or supplement to any of the
foregoing)(collectively, "Company Documents" for the purposes of this
Article V), 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
indemnity 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 was accurately derived from written information furnished to the
Company by or on behalf of the Trust for use in Company Documents or
otherwise for use in connection with the sale of the Contracts or Trust
shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Trust Documents as defined in Section 5.2(a)) or wrongful conduct of the
Company or persons under its control, with respect to the sale or
acquisition of the Contracts or Trust shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Trust Documents as defined in
Section 5.2(a) 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 accurately derived from written information furnished to
the Trust by or on behalf of the Company; or
(d) arise out of or result from any failure by the Company to provide
the services or furnish the materials required under the terms of this
Agreement; or
(e) 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.
5.2.Indemnification By the Underwriter. The Underwriter, on its own behalf
and on behalf of the Trust, agrees to indemnify and hold harmless the Company
and each of its directors, officers, employees, and agents and each person, if
any, who controls or is associated with the
Company within the meaning of the federal securities laws (collectively, the
"Indemnified Parties" for the purposes of this Article V) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter, which consent shall not be unreasonably
withheld) or expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, liability or expense and reasonable
legal counsel fees incurred in connection therewith)(collectively, "Losses"), to
which the Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration
statement or prospectus for the Trust (or any amendment or supplement
thereto), (collectively, "Trust Documents" for the purposes of this Article
V), 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 indemnity
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 was
accurately derived from written information furnished to the Trust or the
Underwriter by or on behalf of the Company for use in Trust Documents or
otherwise for use in connection with the sale of the Contracts or Trust
shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Company Documents) by the Underwriter or the Trust or wrongful conduct of
the Underwriter or persons under its control, with respect to the sale or
acquisition of the Contracts or Trust shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents 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 accurately derived from
written information furnished to the Company by or on behalf of the
Underwriter and the Trust; or
(d) arise out of or result from any failure by the Trust to provide
the services or furnish the materials required under the terms of this
Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter and the Trust in
this Agreement or arise out of or result from any other material breach of
this Agreement by the Underwriter and the Trust; or
(f) arise out of or result from the provision by the Trust to the
Company of no net asset value per share or an erroneous net asset value per
share on a given Business Day for any Portfolio, or from the failure of the
Trust to advise of a dividend or capital gains distribution as provided in
Section 1.7. The Company in such event shall be entitled to an adjustment
to the number of shares of any such Portfolio purchased or redeemed to
reflect the correct net asset value per share. Any error in the calculation
or reporting of net asset
value per share, dividend or capital gains distribution information shall
be reported promptly upon discovery to the Company.
5.3. Neither the Company nor the Underwriter on its behalf and on behalf of
the Trust shall be liable under the indemnification provisions of Sections 5.1
or 5.2, as applicable, with respect to any Losses incurred or assessed against
an Indemnified Party that arise from such Indemnified Party's willful
misfeasance, bad faith or negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless disregard of
obligations or duties under this Agreement.
5.4. Neither the Company nor the Underwriter on its behalf and on behalf of
the Trust shall be liable under the indemnification provisions of Sections 5.1
or 5.2, as applicable, with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the other party in
writing within a reasonable time after the summons, or other first written
notification, giving information of the nature of the claim shall have been
served upon or otherwise received by such Indemnified Party (or after such
Indemnified Party shall have received notice of service upon or other
notification to any designated agent), but failure to notify the party against
whom indemnification is sought of any such claim or shall not relieve that party
from any liability which it may have to the Indemnified Party in the absence of
Sections 5.1 and 5.2.
5.5. In case any such action is brought against the Indemnified Parties,
the indemnifying party shall be entitled to participate, at its own expense, in
the defense of such action. The indemnifying party also shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from the indemnifying party to the Indemnified
Party of an election to assume such defense, the Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and the
indemnifying party will not be liable to the Indemnified 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.
ARTICLE VI.
Termination
6.1. This Agreement may be terminated by any party in its entirety or with
respect to one, some or all Portfolios for any reason by sixty (60) days advance
written notice delivered to the other parties, and shall terminate immediately
in the event of its assignment.
6.2. Notwithstanding any termination of this Agreement, the Trust shall, at
the option of the Company, continue to make available additional shares of any
Portfolio and redeem shares of any Portfolio pursuant to the terms and
conditions of this Agreement for all Contracts in effect on the effective date
of termination of this Agreement for a period that is reasonable under the
circumstances but need not be for more than 90 days.
6.3. The provisions of Article V shall survive the termination of
this Agreement, and the provisions of Article IV and Section 2.9 shall survive
the termination of this Agreement as long as shares of the Trust are held on
behalf of Contract owners in accordance with Section 6.2.
ARTICLE VII.
Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Trust or the Underwriter:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
Quest for Value Advisors
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company:
CIGNA Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Counsel,
Individual Insurance Operations
ARTICLE VIII.
Miscellaneous
8.1. 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.
8.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.3. 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.
8.4. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York. It
shall also be subject to the provisions of the federal securities laws and the
rules and regulations thereunder and to any orders of the Commission granting
exemptive relief therefrom and the conditions of such orders. Copies of any such
orders shall be promptly forwarded by the parties to each other.
8.5. All liabilities of the Trust arising, directly or indirectly, under
this Agreement, of any and every nature whatsoever, shall be satisfied solely
out of the assets of the Trust and that no Trustee, officer, agent or holder of
shares of beneficial interest of the Trust shall be personally liable for any
such liabilities.
8.6. Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the Commission, 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.
8.7. 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.
8.8. This Agreement shall not be exclusive in any respect.
8.9. Neither this Agreement nor any rights or obligations hereunder may be
assigned by any party hereto without the prior written approval of all the
parties.
8.10. No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all the
parties.
8.11. Each party hereto shall, except as required by law or otherwise
permitted by this Agreement, 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 shall not disclose such
confidential information without the written consent of the affected party
unless such information has become publicly available.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Fund Participation Agreement as of the date and year first above
written.
Quest for Value Distributors
By: s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name:
Title: Secretary
Quest for Value Accumulation Trust
By: s\ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name:
Title: Assistant Secretary
CIGNA Life Insurance Company
By: s\ ▇▇▇▇▇▇▇▇ ▇. Kaazman
-----------------------------------
Name:
Title: Vice President
Schedule A
to
FUND PARTICPATION AGREEMENT
AMONG
QUEST FOR VALUE ACCUMULATION TRUST,
QUEST FOR VALUE DISTRIBUTORS, and
CIGNA LIFE INSURANCE COMPANY
dated September 5, 1995
o CIGNA Variable Annuity Separate Account I
Schedule B
to
FUND PARTICPATION AGREEMENT
AMONG
QUEST FOR VALUE ACCUMULATION TRUST,
QUEST FOR VALUE DISTRIBUTORS, and
CIGNA LIFE INSURANCE COMPANY
dated September 5, 1995
o Quest for Value Accumulation Trust Global Equity Portfolio
o Quest for Value Accumulation Trust Managed Portfolio
o Quest for Value Accumulation Trust Small Cap Portfolio