FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this ___ day of April, 2012
(the "Agreement"), by and among Symetra Life Insurance Company, organized under
the laws of the State of Washington (the "Company"), on behalf of itself and
each separate account of the Company named in Schedule A to this Agreement, as
may be amended from time to time (each such separate account being hereinafter
referred to as a "Separate Account" and, collectively, as the "Separate
Accounts"); Delaware VIP Trust, an open-end management investment company
organized as a statutory trust under the laws of the State of Delaware (the
"Trust"); Delaware Management Company, a series of Delaware Management Business
Trust, a statutory trust organized under the laws of the State of Delaware and
investment adviser to the Trust (the "Adviser"); and Delaware Distributors,
L.P., a limited partnership organized under the laws of the State of Delaware
and principal underwriter/distributor of the Trust (the "Distributor").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts (collectively, the "Variable
Insurance Products") to be offered by insurance companies that have entered
into participation agreements with the Trust substantially similar to this
Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (each, a "Fund" and collectively, the
"Funds"), and each Fund is divided or may be divided into one or more classes
of shares, i.e. currently Standard Class and Service Class, or such other
classes of shares as may be created in the future (each a "Class" and
collectively, the "Classes"); and
WHEREAS, the Trust has obtained an order from the Securities and
Exchange Commission ("SEC"), dated November 2, 1987 (File No. 812-6777),
granting Participating Insurance Companies and variable annuity and variable
life insurance separate accounts exemptions from the provisions of Sections
9(a), 13(a), 15(a) and 15(b) of the Investment Company Act of 1940, as amended
("1940 Act"), and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) hereunder, 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 life
insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans") ("Mixed and Shares
Funding Exemptive Order"); and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and shares of the Fund(s) are registered under the
Securities Act of 1933, as amended ("1933 Act"); and
WHEREAS, the Adviser is a series of a statutory trust which is duly
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended, and any applicable state securities laws; and
WHEREAS, the Distributor is duly registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended ("1934 Act") and is a member
in good standing of the National Association of Securities Dealers, Inc.
("NASD"); and
WHEREAS, the Company, as depositor, has established the Separate
Accounts to serve as investment vehicles for certain variable annuity
contracts and variable life insurance policies and funding agreements offered
by the Company set forth on Schedule A ("Contracts"); and
WHEREAS, the Company has registered interests under the Contracts that
are supported wholly or partially by the Separate Accounts under the 1933 Act
or are exempt from registration under applicable law; and
WHEREAS, each Separate Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors
of the Company under the insurance laws of the State of Washington to set
aside and invest assets attributable to the Contracts; and
WHEREAS, the Company has registered each Separate Account as a unit
investment trust under the 1940 Act and has registered (or will register prior
to sale) the securities deemed to be issued by each Separate Account under the
1933 Act to the extent required under applicable law; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Fund(s) listed in
Schedule B hereto (the "Designated Fund(s)"), on behalf of the Separate
Accounts to fund the Contracts, and the Trust is authorized to sell such
shares to unit investment trusts, such as the Separate Accounts, at net asset
value; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Separate Accounts also intend to purchase shares in other
open-end investment companies or series thereof not affiliated with the Trust
("Unaffiliated Funds") to fund the Contracts.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Trust, the Adviser, and the Distributor agree as follows:
ARTICLE I.-SALE OF FUND SHARES
1.1 The Distributor agrees to sell to the Company those shares of the
Designated Funds and Classes that the Company orders on behalf of each
Separate Account, executing such orders on a daily basis at the net
asset value (and with no sales charges) next computed after receipt
and acceptance by the Trust or its designee of the orders for the
shares of the Classes of the Designated Funds. For purposes of this
Article I, the Company, or its designated agent(s), will be designee
of the Trust solely for the purpose of receiving such orders from each
Separate Account and receipt by such designee will constitute receipt
by the Trust, provided that the Company provides the Trust with a
purchase order in compliance with Article I of this Agreement. The
Trust agrees to redeem, upon the Company's request, any full or
fractional shares of a Class of a Designated Fund held by the Company,
executing such requests on a daily basis at the net asset value next
computed after receipt and acceptance by the Trust or its designee.
For purposes of this Article I, the Company, or its designated agent,
will be the designee of the Trust solely for the purpose of receiving
request for redemption from each Separate Account and receipt by such
designee will constitute receipt by the Trust, provided that the
Company provides the Trust with a redemption request in compliance
with Article I of this Agreement.
1.2 Transactions in Shares of Designated Funds
Purchases and redemptions of shares of Designated Funds processed
through the National Securities Clearing Corporation ("NSCC") shall
comply with paragraph (a) below and purchases and redemptions of
shares of Designated Funds processed manually shall comply will
paragraph (b) below.
Please check the box indicating the method to be used to place orders
of shares of Designated Funds.
(a) Transactions Processed through NSCC
(1) Transmission of Instructions For each Class of each
Designated Fund and for each Separate Account
maintained by the Company with such Designated Fund,
the Company shall transmit to National Securities
Clearing Corporation ("NSCC") (which shall forward the
information to the Trust or its designated affiliate),
no more than two aggregate purchase orders as
follows:
(i) a purchase order for the Separate Accounts
expressed in dollars (sent via NSCC's DCC&S
System); and
(ii) a purchase order for the Separate Accounts
expressed in shares (sent via NSCC's DCC&S
System);
and no more than two aggregate redemption orders as
follows:
(i) a redemption order for the Separate Accounts
expressed in dollars (sent via NSCC's DCC&S
System); and
(ii) a redemption order for the Separate Accounts
expressed in shares (sent via NSCC's DCC&S
System);
each of which reflects the aggregated effect of all
purchase and all redemptions of shares of a Class of a
Designated Fund in such categories, based upon
instructions from each Separate Account (collectively,
"Instructions") received prior to the Close of Trading
on a given Business Day ("Trade Date"). "Close of
Trading" shall mean 4:00 p.m. Eastern Time on a
Business Day or such other time as the net asset value
of a Designated Fund is calculated, as disclosed in
the then current prospectus(es) of the Designated
Funds. "Business Day" shall mean, unless otherwise
noted in this Agreement, any day on which the New York
Stock Exchange (the "NYSE") is open for trading and on
which a Designated Fund calculates its net asset value
pursuant to the rules of the Securities and Exchange
Commission ("SEC").
On any given Business Day, the Company shall accept
Instructions in proper form from a Separate Account up
to the Close of Trading, but in no event shall the
Company accept Instructions that have been received by
the Company after the Close of Trading on such Business
Day. Instructions received in proper form by the
Company after the Close of Trading on any Business Day
shall be treated as if accepted on the next following
Business Day. Each transmission of Instructions by
the Company will constitute a representation that all
purchase and redemption orders from the Separate
Accounts were received by the Company prior to
4:00 p.m. Eastern Time or the close of the NYSE,
whichever is earlier, on the Business Day on which the
purchase or redemption orders are transmitted, in
accordance with Rule 22c 1 under the Investment
Company Act of 1940, as amended (the "1940 Act").
(2) Transmission Deadlines for the Separate Accounts The
transmission of Instructions for the Separate Accounts
will be accepted by the Trust only if provided through
NSCC's DCC&S System in accordance with the DCC&S cycle
file on the next Business Day following the Trade
Date. Any information delivered to the Trust after
the DCC&S cycle file deadline will be rejected by the
Trust or its designated affiliate, subject to the
Trust's sole discretion to accept any trade.
In the event that NSCC systems are not functioning on
a given Business Day, the Company may transmit
Instructions to the Trust, its designated affiliate or
as otherwise directed by the Trust via facsimile by
9:00 a.m. Eastern Time on the next Business Day
following the Trade Date. The Company will also give
the Trust telephone notice that it will be transmitting
Instructions to the Trust via facsimile. The Fund and
its designated affiliate will use commercially
reasonable efforts to process those Instructions in a
mutually satisfactory manner.
(3) Settlement Aggregated purchase and net redemption
transactions shall be settled in accordance with NSCC
rules and procedures.
In the event that NSCC systems are not functioning on
a given Business Day (1) for net purchase Instructions,
the Company shall wire payment, or arrange for payment
to be wired by the Company's designated bank, in
immediately available funds, to the Designated Fund's
custodial account at the Fund's custodian by 3:00 p.m.
Eastern Time on the Business Day that the net purchase
Instruction is received by the Trust; and (2) for net
redemption Instructions, the Trust or its designated
affiliate shall wire payment, or arrange for payment
to be wired, in immediately available funds, to an
account designated by the Company in writing by 3:00
p.m. Eastern Time on the Business Day the Trust
receives notice of the redemption request for such
shares from the Company.
The Trust reserves the right to delay payment of
redemption proceeds, but in no event may such payment
be delayed longer than the period permitted under
Section 22(e) of the ▇▇▇▇ ▇▇▇. The Trust will not
bear any responsibility whatsoever for the proper
disbursement or crediting of redemption proceeds to
individual Contract holders, the Company alone will be
responsible for such action.
(4) Errors The Company shall be solely responsible for
the accuracy of any Instruction transmitted to the
Trust or its designated affiliate via NSCC systems or
otherwise, and the transmission of such Instruction
shall constitute the Company's representation to the
Fund that the Instruction is accurate, complete and
duly authorized by the Separate Accounts that are
purchasing or redeeming shares of the Designated Fund.
The Company shall assume responsibility for any loss
to the Trust, the Designated Funds or their designated
affiliate caused by a cancellation or correction made
subsequent to the date as of which an Instruction has
been placed, and the Company will immediately pay such
loss to the Trust, its designated affiliate or such
Designated Fund(s) upon notification, provided,
however, that the Company will not be liable for the
inaccuracy of any Instruction where such inaccuracy is
the result of information supplied by the Trust,
Adviser, or Distributor.
Each Party shall notify the other Parties of any errors
or omissions in any information and interruptions in
or delay or unavailability of, the means of transmittal
of any such information as promptly as possible.
In addition to the Trust's indemnification obligations
under Section 8.3, if the Trust provides the Company
materially incorrect net asset value per share
information (as determined under SEC guidelines), the
Company and the Trust shall be entitled to an
adjustment to the number of shares purchased or
redeemed to reflect the correct net asset value per
share. Any material error in the calculation or
reporting of net asset value per share, dividend, or
capital gain information shall be reported to the
Company upon discovery by the Trust. In no event,
however, will the Trust be liable for material errors
in calculating or reporting net asset values where
such errors are the result of information supplied by
the Company or persons under its control.
(b) Transactions Processed via Automated TIP File
(1) Transmission of Instructions For each Class of each
Designated Fund and for each Separate Account
maintained by the Company with such Designated Fund,
the Company shall transmit any aggregate purchase or
aggregate redemption order to the Trust or its
designated affiliate electronically by an automated
file in the applicable DST layout format. Each
purchase or redemption order shall reflect the
aggregated effect of all purchase and all redemptions
of shares of a Class of a Designated Fund in such
categories, based upon instructions from each Separate
Account (collectively, "Instructions") received prior
to the Close of Trading on a given Business Day
("Trade Date"). "Close of Trading" shall mean 4:00 p.m.
Eastern Time on a Business Day or such other time as
the net asset value of a Designated Fund is calculated,
as disclosed in the then current prospectus(es) of the
Designated Funds. "Business Day" shall mean, unless
otherwise noted in this Agreement, any day on which
the New York Stock Exchange (the "NYSE") is open for
trading and on which a Designated Fund calculates its
net asset value pursuant to the rules of the Securities
and Exchange Commission ("SEC").
On any given Business Day, the Company shall accept
Instructions in proper form from a Separate Account up
to the Close of Trading, but in no event shall the
Company accept Instructions that have been received by
the Company after the Close of Trading on such Business
Day. Instructions received in proper form by the
Company after the Close of Trading on any Business Day
shall be treated as if accepted on the next following
Business Day. Each transmission of Instructions by
the Company will constitute a representation that all
purchase and redemption orders from the Separate
Accounts were received by the Company prior to 4:00 p.m.
Eastern Time or the close of the NYSE, whichever is
earlier, on the Business Day on which the purchase or
redemption orders are transmitted, in accordance with
Rule 22c 1 under the Investment Company Act of 1940,
as amended (the "1940 Act").
(2) Transmission Deadlines for the Separate Accounts The
transmission of Instructions for the Separate Accounts
will be accepted by the Trust for processing at the
net asset value calculated on the Trade Date only if
received by the Trust or its designated affiliate
prior to 7:30 a.m. Eastern Time on the next Business
Day following the Trade Date. Any Instructions
delivered to the Trust after 7:30 a.m. Eastern Time on
the Business Day following the Trade Date will be
considered accepted by the Trust on that Business Day
and such Instructions will be processed at the next
calculated net asset value.
(3) Settlement For net purchase Instructions, the Company
shall wire payment, or arrange for payment to be wired
by the Company's designated bank, in immediately
available funds, to the Designated Fund's custodial
account at the Fund's custodian by 3:00 p.m. Eastern
Time on the Business Day that the net purchase
Instruction is received by the Trust; and (2) for net
redemption Instructions, the Trust or its designated
affiliate shall wire payment, or arrange for payment
to be wired, in immediately available funds, to an
account designated by the Company in writing by 3:00
p.m. Eastern Time on the Business Day the Trust
receives notice of the redemption request for such
shares from the Company.
The Trust reserves the right to delay payment of
redemption proceeds, but in no event may such payment
be delayed longer than the period permitted under
Section 22(e) of the ▇▇▇▇ ▇▇▇. The Trust will not
bear any responsibility whatsoever for the proper
disbursement or crediting of redemption proceeds to
individual Contract holders, the Company alone will be
responsible for such action.
(4) Errors The Company shall be solely responsible for
the accuracy of any Instruction transmitted to the
Trust or its designated affiliate, and the transmission
of such Instruction shall constitute the Company's
representation to the Fund that the Instruction is
accurate, complete and duly authorized by the Separate
Accounts that are purchasing or redeeming shares of
the Designated Fund. The Company shall assume
responsibility for any loss to the Trust, the
Designated Funds or their designated affiliate caused
by a cancellation or correction made subsequent to the
date as of which an Instruction has been placed, and
the Company will immediately pay such loss to the
Trust, its designated affiliate or such Designated
Fund(s) upon notification.
Each Party shall notify the other Parties of any errors
or omissions in any information and interruptions in
or delay or unavailability of, the means of transmittal
of any such information as promptly as possible.
If the Trust provides the Company materially incorrect
net asset value per share information (as determined
under SEC guidelines), the Company and the Trust shall
be entitled to an adjustment to the number of shares
purchased or redeemed to reflect the correct net asset
value per share. Any material error in the calculation
or reporting of net asset value per share, dividend,
or capital gain information shall be reported to the
Company upon discovery by the Trust. In no event,
however, will the Trust be liable for material errors
in calculating or reporting net asset values where
such errors are the result of information supplied by
the Company or persons under its control.
1.3 The Trust agrees to make shares of the Designated Funds available
indefinitely for purchase at the applicable net asset value per share
by the Company on behalf of the Separate Accounts on those days on
which the Trust calculates the net asset value of each Designated Fund
pursuant to rules of the SEC; provided, however, that the Board of
Trustees of the Trust (the "Trustees") may refuse to sell shares of
any Designated Fund to any person, or suspend or terminate the
offering of shares of any Designated Fund if such action is required
by law or by regulatory authorities having jurisdiction or is, 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,
necessary in the best interests of the shareholders of such Designated
Fund, including without limitation, for market timing by Contract
owners.
1.4 The Trust and the Distributor agree that shares of the Designated
Funds on Schedule B will be sold only to Participating Insurance
Companies and their separate accounts, Qualified Plans or such other
persons as are permitted under applicable provisions of the Internal
Revenue Code of 1986, as amended (the "Code), and regulations
promulgated thereunder, the sale of which will not impair the tax
treatment currently afforded the Contracts. No shares of any
Designated Fund on Schedule B will be sold directly to the general
public or to individual retirement accounts or similar accounts.
1.5 The Trust will not sell shares of any Designated Fund to any insurance
company or separate account unless an agreement containing provisions
substantially similar to those in Sections 2.1, 2.2 and 2.4 of Article
II, Section 3.4 of Article III, Sections 4.4 and 4.5 of Article IV,
Section 6.1 of Article VI and Article VII of this Agreement are in
effect to govern such sales.
1.6 The Company agrees to purchase and redeem the shares of the Designated
Funds offered by the then current prospectus of the relevant Designated
Fund in accordance with the provisions of such prospectus including
specifically, and without in any way limiting other provisions of the
prospectus, that the Company will only send to the Trust to receive a
given Business Day's net asset value those orders it received from
Contract holders prior to Close of Trading.
1.7 Issuance and transfer of the shares of the Designated Funds will be by
book entry only. Share certificates will not be issued to the Company
or to any Separate Account. Purchase and redemption orders for shares
of the Designated Funds will be recorded in an appropriate title for
each Separate Account or the appropriate sub-account of each Separate
Account.
1.8 The Trust will furnish notice to the Company as soon as reasonably
practicable of the declaration of any income, dividends or capital
gain distributions payable on each Designated Fund's shares. The
Company, on its behalf and on behalf of each Separate Account, hereby
elects to receive all such income, dividends and distributions as are
payable on a Designated Fund's shares in the form of additional shares
of that Designated Fund at the ex-dividend date net asset values. The
Company reserves the right to revoke this election upon prior
reasonable written notice to the Trust and to receive all such
dividends and distributions in cash. The Trust will notify the
Company promptly of the number of shares so issued as payment of such
dividends and distributions.
1.9 The Trust will make the net asset value per share for each Designated
Fund available to the Company via electronic means on a daily basis as
soon as reasonably practical after the net asset value per share is
calculated and will use its best efforts to make such net asset value
per share available by 7:00 p.m., Eastern Time, each Business Day.
ARTICLE II.-REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that the securities deemed to be
issued by the Separate Accounts under the Contracts are or will be
registered under the Securities Act of 1933 (the "1933 Act"), or are
exempt from registration thereunder, and that the Contracts will be
issued and sold in compliance with all applicable federal and state
laws, rules and regulations (collectively, "laws"). The Company
further represents and warrants that: (i) it is an insurance company
duly organized and in good standing under applicable law; (ii) it has
legally and validly established each Separate Account as a segregated
asset account under RCW Section 48.18A.020 of the State of Washington;
(iii) each Separate Account is or will be registered 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 is
excluded from registration thereunder, and will comply in all material
respects with the provisions of the 1940 Act, to the extent applicable;
and (iv) it will maintain the registration contemplated by the
preceding clause (iii) for so long as any Contracts are outstanding.
The Company will amend each registration statement under the 1933 Act
for the Contracts and the registration statement under the 1940 Act
for the Separate Accounts from time to time as required under
applicable law in order to effect the continuous offering of the
Contracts or as may otherwise be required by applicable law. The
Company will register and qualify the Contracts for sale in accordance
with the securities laws of the various states as applicable.
2.2 Subject to the Trust's representations in Article III, the Company
represents and warrants that the Contracts are currently and at all
times will be treated as annuity contracts and/or life insurance
policies (as applicable) under applicable provisions of the Code, and
that it will maintain such treatment and that it will notify the Trust,
the Adviser and the Distributor 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. In addition, the
Company represents and warrants that each Separate Account is a
"segregated asset account" and that interests in the Separate Account
are offered exclusively through the purchase of or transfer into a
"variable contract" within the meaning of such terms under Section 817
of the Code and regulations thereunder. The Company will cause such
definitional requirements to be met at all times and it will notify
the Trust, the Adviser and the Distributor 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. 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 replacement provision) will identify such
Contract as a modified endowment contract.
2.3 The Company represents and warrants that it will not purchase shares
of the Designated Fund(s) with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in
connection with such plans.
2.4 The Company represents and warrants that it will maintain policies and
procedures reasonably designed to identify and prevent its Contract
holders from engaging in market timing transactions to the detriment
of long-term investors in a Designated Fund. The Company further
represents and warrants that pursuant to Rule 22c-2 under the 1940 Act,
it will provide the information and take the actions described in
Schedule D of this Agreement.
2.5 The Trust represents and warrants that shares for the Designated
Funds(s) sold pursuant to this Agreement will be registered under the
1933 Act and duly authorized for issuance in accordance with applicable
law and that the Trust is and will remain registered as an open-end,
management investment company under the 1940 Act for as long as such
shares of the Designated Fund(s) are sold. The Trust will amend the
registration statement for its shares under the 1933 Act and itself
under the 1940 Act from time to time as required under applicable law
in order to effect the continuous offering of its shares.
2.6 The Trust and the Adviser each represents and warrants that it will
use its best efforts to comply with any applicable state insurance
laws or regulations as they may apply to the investment objectives,
policies and restrictions of the Designated Funds. The Trust and the
Distributor each represents and warrants that it will use its best
efforts to ensure that the Designated Funds' shares will be sold in
compliance with the insurance laws of the State of Washington and all
applicable state insurance and securities laws. The Company and the
Trust will endeavor to mutually cooperate with respect to the
implementation of any modifications necessitated by any change in
state insurance laws, regulations or interpretations of the foregoing
that affect the Designated Funds (a "Law Change") and to keep each
other informed of any Law Change that becomes known to such party.
In the event of a Law Change, the Trust agrees that, except in those
circumstances where the Trust has advised the Company that
implementation of a Law Change is not in the best interests of all
of the Trust's shareholders with an explanation regarding why such
action is lawful, any action required by a Law Change will be taken.
The Company represents that it will use its best efforts to notify the
Trust of any restrictions imposed by state insurance laws that may
become applicable to the Trust as a result of the Separate Accounts'
investments therein. The Trust and the Adviser agree that they will
furnish the information reasonably required by state insurance laws
to assist the Company in obtaining the authority needed to issue the
Contracts in various states.
2.7 The Trust has adopted a plan pursuant to Rule 12b-1 under the 1940 Act
with respect to the Service Class Shares of the Designated Funds for
such Service Class Shares of the Designated Funds to make payments to
finance distribution and services expenses, although it may determine
to discontinue such practice in the future. The Trust reserves the
right to adopt a plan pursuant to Rule 12b-1 under the 1940 Act for
the Standard Class Shares of the Designated Funds and to impose asset-
based or other sales charges to finance distribution expenses for its
Classes as permitted by applicable laws. The Trust represents and
warrants that, to the extent that any Class of a Designated Fund
finances distribution expenses pursuant to Rule 12b-1 under the 1940
Act, the Trust undertakes to have the Trustees, a majority of whom are
not "interested" persons of the Trust, formulate and approve any plan
under Rule 12b-1, and to otherwise comply with any then current SEC
and SEC staff interpretations concerning Rule 12b-1.
2.8 The Trust represents that it is validly existing as a statutory trust
under the laws of the State of Delaware and that it does and will
comply in all material respects with applicable provisions of the 1940
Act and any applicable state and federal securities laws.
2.9 The Trust represents and warrants that all of is trustees, officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Trust are and will
continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Trust in an amount not less
than the minimal coverage as required currently by Rule 17g-1 of the
1940 Act or related provisions as may be promulgated from time to
time. The aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company.
2.10 The Company represents and warrants that all of its directors,
officers, employees, and other individuals/entities employed by the
Company dealing with the money and/or securities of the Separate
Accounts are covered by a blanket fidelity bond or similar coverage 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
Trust and to pay to the Trust any amounts lost from larceny,
embezzlement or other events covered by the aforesaid bond to the
extent such amounts derive from activities described in 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 Trust in the event that such coverage no
longer applies.
2.11 The Adviser represents and warrants that: (i) it is duly registered
as an investment adviser under the Investment Advisers Act of 1940, as
amended, and will remain duly registered under all applicable federal
and state securities laws; and (ii) it will perform its obligations
for the Trust in accordance in all material respects with the laws of
the State of Delaware and any applicable state and federal securities
laws.
2.12 The Distributor represents and warrants that it: (i) is registered as
a broker-dealer under the Securities and Exchange Act of 1934, as
amended (the "1934 Act") and will remain duly registered under all
applicable federal and state securities laws; (ii) is a member in good
standing of the National Association of Securities Dealers, Inc.
("NASD"); (iii) serves as principal underwriter/distributor of the
Trust; and (iv) will perform its obligations for the Trust in
accordance in all material respects with the laws of the State of
Delaware and any applicable state and federal securities laws.
ARTICLE III.-FUND COMPLIANCE
3.1 Subject to the Company's representations and warranties in Sections
2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each
represents and warrants that the Trust will at all times sell its
shares and invest its assets in such a manner as to ensure that the
Contracts will be treated as annuity contracts, endowment, or life
insurance contracts under the Code, and the regulations issued
thereunder. Specifically for further clarification of the foregoing,
the Trust and Adviser each represents and warrants that the Trust and
each Designated Fund thereof will at all times comply with Section
817(h) of the Code and Treasury Regulation [section sign]1.817-5, as
amended from time to time, and any Treasury interpretations thereof,
relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts and with Section 817(d) of the
Code, relating to the definition of a "variable contract" and any
amendments or other modifications or successor provisions to such
Sections or Regulations or any other applicable Code requirements. In
the event of a breach of this Article III by the Trust, the Trust,
Distributor, and Adviser will take all steps necessary to: (a) notify
the Company of such breach, and (b) adequately diversify the Trust or
Designated Fund so as to achieve compliance within the 30-day grace
period afforded by Regulation 1.817-5.
3.2 The Trust and the Distributor each represents and warrants that shares
of the Designated Funds will be sold only to Participating Insurance
Companies, their separate accounts, Qualified Plans, and any other
persons eligible to purchase the Designated Fund; provided, that the
purchase of shares by such persons would not preclude the Company from
"looking through" to the investments of each Designated Fund in which
it invests, pursuant to the "look through" rules set forth in Treasury
Regulation 1.817-5. No shares of any Designated Fund will be sold to
the general public.
3.3 The Trust represents and warrants that each Designated Fund is
currently qualified as a Regulated Investment Company under Subchapter
M of the Code, and that the Trust will maintain such qualification
(under Subchapter M or any successor or similar provision) and that
the Trust will notify the Company immediately upon having a reasonable
basis for believing that any Designated Fund has ceased to so qualify
of that it might not so qualify or that it might not so qualify in the
future.
3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof,
and without in any way limiting or restricting any other remedies
available to the Company, the Distributor and/or Adviser will pay all
costs associated with or arising out of any failure, or any anticipated
or reasonably foreseeable failure, of the Trust or any Designated Fund
to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs
associated with reasonable and appropriate corrections or responses to
any such failure; such costs may include, but are not limited to, the
costs involved in creating, organizing and registering a new investment
company as a funding medium for the Contracts and/or the costs of
obtaining whatever regulatory authorizations are required to substitute
shares or another investment company for those of the failed Designated
Fund (including but not limited to an order pursuant to Section 26(b)
of the 1940 Act); such costs are to include, but are not limited to,
reasonable fees and expenses of legal counsel and other advisers to
the Company and any federal income taxes or tax penalties and interest
thereon (or "toll charges" or exactments or amounts paid in settlement)
incurred by the Company with respect to itself or its Contract owners
in connection with any such failure or anticipated or reasonably
foreseeable failure.
3.5 The Trust agrees to provide the Company with a certificate or
statement indicating compliance by each Fund of the Trust with Section
817(h) of the Code, such certificate or statement to be sent to the
Company no later than thirty (30) days following the end of each
calendar quarter.
ARTICLE IV.-PROSPECTUS AND PROXY STATEMENTS; VOTING
4.1 The Trust or the Distributor will provide the Company with as many
copies of the current Trust prospectus and any supplements thereto for
the Designated Funds as the Company may reasonably request for
distribution to Contract owners at the time of Contract fulfillment
and confirmation. To the extent that the Designated Funds are one or
more of several funds or series of the Trust, the Trust shall be
obligated to provide the Company only with disclosure related to the
Designated Funds. The Trust will provide the copies of said prospectus
to the Company or to its mailing agent. If requested by the Company,
in lieu thereof, the Trust or the Distributor will provide such
documentation, including a final copy of a current prospectus set in
type or camera ready or electronic format and other assistance as is
reasonably necessary in order for the Company at least annually (or
more frequently if the Trust prospectus is amended more frequently) to
have the new prospectus for the Contracts and the Trust's new
prospectus printed together. The Trust or the Distributor will, upon
request, provide the Company with a copy of the Trust's prospectus
through electronic means to facilitate the Company's efforts to
provide Trust prospectuses via electronic delivery. Expenses
associated with providing such documentation shall be allocated in
accordance with Article VI of this Agreement.
4.2 The Trust's prospectus will state that a Statement of Additional
Information ("SAI") for the Trust is available, and will disclose how
investors may obtain the SAI.
4.3 The Trust, the Distributor or the Adviser will provide the Company or
its mailing agent with copies of its proxy material, if any, with
respect to the Designated Funds, reports to shareholders/Contract
owners and other communications to shareholders/Contract owners in
such quantity as the Company will reasonably require with expenses to
be borne in accordance with Article VI of this Agreement. The Company
will distribute this proxy material, reports and other communications
to existing Contract owners. If requested by the Company, the Trust,
the Distributor or the Adviser shall provide an electronic copy of
such documentation in a format suitable to posting on a website
maintained by or on behalf of the Company.
4.4 If and to the extent required by law, the Company will:
(a) solicit voting instructions from Contract owners;
(b) vote the shares of Designated Funds held in the Separate
Accounts in accordance with instructions received from
Contract owners; and
(c) vote shares of Designated Funds held in the Separate Accounts
for which no timely instructions have been received from the
Company's Contract owners in the same proportion as shares of
the Designated Funds for which instructions have been received
from contract owners,
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for Contract owners.
The Company reserves the right to vote shares of the Designated Funds
held in any segregated asset account in its own right, to the extent
permitted by law. The Company will be responsible for assuring that
the Separate Accounts calculate voting privileges in a manner
consistent with all legal requirements, including the Proxy Voting
Procedures set forth in Schedule C and the Mixed and Shared Funding
Order, as described in Section 7.1.
4.5 The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders and, in particular, the Trust will either
provide for annual meetings (except insofar as the SEC may interpret
Section 16 of the 1940 Act not to require such meetings) or, as the
Trust currently intends, comply with Section 16(c) of the 1940 Act
(although the Trust is not one of the Trusts described in Section
16(c) of that Act) as well as with Sections 16(a) and, if an when
applicable, 16(b). Further, the Trust will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect
to periodic elections of directors or trustees and with whatever rules
the SEC may promulgate with respect thereto.
ARTICLE V.-SALES MATERIAL AND INFORMATION
5.1 The Company will furnish, or will cause to be furnished, to the Trust
or its designee, each piece of sales literature or other promotional
material in which the Trust, the Adviser or the Distributor is named.
No such material will be used until approved by the Trust or the
Distributor if the Trust or the Distributor reasonably objects to such
use within five (5) business days after receipt of such material or
to its continued use. If approved, the Company may use the piece of
sales literature or other promotional material in substantially the
same form for a period of one year so long as the sales literature or
other promotional material is not materially changed. The Trust or
its designee reserves the right to object reasonably to the continued
use of any such sales literature or other promotional material in
which the Trust (or any Designated Fund), the Adviser, any sub-adviser
or the Distributor is named and no such material shall be used if the
Trust or its designee so objects.
5.2 The Company will not give any information or make any representations
or statements on behalf of the Trust or concerning the Trust or any
Designated Fund in connection with the sale of the Contracts other
than the information or representations contained in the registration
statement, prospectus or SAI for shares of the Designated Funds, as
such registration statement, prospectus and SAI may be amended or
supplemented from time to time, or in reports or proxy statements for
the Designated Funds, or in sales literature or other material
provided by the Trust, the Adviser or the Distributor, except with
permission of the Trust, the Adviser or the Distributor. The Trust,
the Adviser or the Distributor agree to respond to any request for
approval on a prompt and timely basis.
5.3 The Trust, the Adviser or the Distributor, or a designee, will furnish,
or will cause to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material in which the
Company or any Separate Account is named, prior to its use. No such
material will be used until approved by the Company or its designee,
if the Company reasonably objects to such use within five (5) business
days after receipt of such material or to its continued use. The
Company reserves the right to object reasonably to the continued use
of any such sales literature or other promotional material in which
the Company is named and no such material shall be used if the Company
so objects.
5.4 The Trust, the Adviser or the Distributor will not give any information
or make any representations or statements on behalf of the Company or
concerning the Company, any Separate Account, or the Contracts other
than the information or representations contained in a registration
statement, prospectus or SAI for the Contracts, as such registration
statement, prospectus and SAI may be amended or supplemented from time
to time, or in published reports for each Separate Account or the
Contracts which are in the public domain or approved by the Company
for distribution to Contract owners, or in sales literature or other
material provided by the Company, except with permission of the Company.
The Company agrees to respond to any request for approval on a prompt
and timely basis.
5.5 Upon written request, the Trust 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 Trust or
shares of the Designated Funds, within a reasonable time after filing
of such document with the SEC or the FINRA or contemporaneously with
the first use or public availability of such documents.
5.6 The Company will provide to the Trust at least one complete copy of
all definitive prospectuses, definitive 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 any Contract or
any Separate Account (collectively, "Contract Materials"),
contemporaneously with the filing of each such document with the SEC
or the FINRA (except that with respect to post-effective amendments to
such prospectuses and SAIs and sales literature and promotional
material, only those prospectuses and SAIs and sales literature and
promotional material that relate to or refer to the Trust or any
Designated Fund will be provided). In addition, the Company will
provide to the Trust at least one complete copy of (i) a registration
statement that relates to the Contracts or any Separate Account,
containing representative and relevant disclosure concerning the Trust;
and (ii) any post-effective amendments to any registration statements
relating to the Contracts or such Separate Account that refer to or
relate to the Trust or any Designated Fund. The Company shall provide
to the Trust and the Distributor copies of any complaints received
from Contract owners pertaining to the Trust or any Designated Fund.
5.7 For purposes of this Article V, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper,
magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, or
other public media, (i.e., on-line networks such as the Internet or
other electronic messages)), sales literature (i.e., any written
communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market
letters, form letters, seminar texts, reprints or excerpts of any
other advertisement, sales literature, or published article),
educational or training materials or other communications distributed
or made generally available to some or all agents or employees,
registration statements, prospectuses, SAIs, shareholder reports, and
proxy materials and any other material constituting sales literature
or advertising under the FINRA Conduct Rules, the 1933 Act or the ▇▇▇▇
▇▇▇.
5.8 The Trust, the Adviser and the Distributor hereby consent to the
Company's use of their respective names as well as the names of the
Designated Funds in connection with marketing the Contracts, subject
to the terms of Sections 5.1 or 5.2 of this Agreement. The Trust, the
Adviser and the Distributor hereby consent to the use of any trademark,
trade name, service ▇▇▇▇ or logo used by the Trust, the Adviser and
the Distributor, subject to the Trust's, the Adviser's and/or the
Distributor's approval of such use and in accordance with reasonable
requirements of the Trust, the Adviser or the Distributor. Such
consent will terminate with the termination of this Agreement. The
Company agrees and acknowledges that the Trust, the Adviser or the
Distributor is the owner of the name, trademark, trade name, service
▇▇▇▇ and logo and that all use of any designation comprised in whole
or in part of the name, trademark, trade name, service ▇▇▇▇ and logo
under this Agreement shall inure to the benefit of the Trust, Adviser
and/or Distributor.
5.9 The Company agrees to adopt and implement procedures reasonably
designed to ensure that information concerning the Trust, the Adviser
or the Distributor and their respective affiliated companies, that is
intended for use only by brokers or agents selling the Contracts
(i.e., information that is not intended for distribution to Contract
owners or prospective Contract owners) is properly marked as "Not For
Use With The Public" or "For Broker-Dealer Use Only" and that such
information is only so used.
ARTICLE VI.-FEES, COSTS AND EXPENSES
6.1 The Fund, Distributor and Adviser shall pay no fee or other
compensation to the Company under this Agreement and the Company shall
pay no fee or other compensation to the Fund, Distributor or Adviser
under this Agreement, although the Parties hereto will bear certain
expenses in accordance with this Agreement.
6.2 Each party shall, in accordance with the allocation of expenses
specified in this Agreement, reimburse other parties for expenses
initially paid by one party but allocated to another party. In
addition, nothing herein shall prevent the parties hereto from
otherwise agreeing to perform and arranging for appropriate
compensation for (i) for distribution and shareholder-related services
under a plan adopted in accordance with Rule 12b-1 under the 1940 Act
and (ii) other services that are not primarily intended to result in
the sale of shares of the Designated Funds, which are provided to
Contract owners relating to the Designated Funds.
6.3 All expenses incident to performance by the Trust of this Agreement
will be paid by the Trust or the Distributor to the extent permitted
by law. All shares of the Designated Funds will be duly authorized
for issuance and registered in accordance with applicable federal law
and, to the extent deemed advisable by the Trust, in accordance with
applicable state law, prior to sale. The Trust will bear the expenses
for the cost of registration and qualification of the Trust's shares,
including without limitation, the preparation of and filing with the
SEC of Forms N-1A and Rule 24f-2 Notices on behalf of the Trust and
payment of all applicable registration or filing fees (if applicable)
with respect to shares of the Trust; preparation and filing of the
Trust's prospectus, SAI and registration statement, proxy materials
and reports; typesetting the Trust's prospectus; and reports to
Contract owners; typesetting and printing proxy materials; the
preparation of all statements and notices required by any federal or
state law; all taxes on the issuance or transfer of shares of the
Designated Funds; any expenses permitted to be paid or assumed by the
Trust with respect to the Designated Funds pursuant to a plan, if any,
under Rule 12b-1 under the 1940 Act; and other costs associated with
preparation of prospectuses and SAIs regarding the Designated Funds in
electronic or typeset format for distribution to existing Contract
owners the costs of printing for existing Contract owners the Trust's
prospectus and reports; the costs of distributing the Trust's proxy
materials and reports to Contract owners.
6.4 The Company shall bear all expenses associated with the registration,
qualification, and filing of the Contracts under applicable federal
securities and state insurance laws; the cost of preparing, printing,
and distributing the Contracts' prospectus and SAI; the cost of
printing the Trust's prospectus and reports for use in connection with
offering the Contracts; the costs of distributing to Contract owners
the Trust's prospectus; and the cost of printing and distributing
such annual individual account statements for Contract owners as
are required by state laws.
ARTICLE VII.-MIXED AND SHARED FUNDING RELIEF
7.1 The Trust represents and warrants that it has received an order from
the SEC 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 Funds 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 and qualified pension and retirement
plans outside of the separate account context (the "Mixed and Shares
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 Trust and/or the Adviser
by virtue of the receipt of such order by the SEC will: (i) apply
only upon the sale of shares of the Designated Fund to a variable life
insurance separate account (and then only to the extent required under
the 1940 Act); (ii) 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 the agreement to the contrary.
7.2 The Trust represents and warrants that the Trustees will monitor the
Trust for the existence of any material irreconcilable conflict among
the interests of the Contract owners of all Separate Accounts investing
in the Designated Funds. A material irreconcilable conflict may
arise for a variety of reasons, including, but not limited to: (1) 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 Designated Fund are being managed; (e) a difference
in voting instructions given by Participating Insurance Companies or
by variable annuity and variable life insurance Contract owners; or
(f) a decision by an insurer to disregard the voting instructions of
Contract owners. The Trustees will promptly inform the Company if it
determines that a material irreconcilable conflict exists and explain
the implications thereof.
7.3 The Company will promptly report any potential or existing conflicts
of which it is aware to the Trustees. The Company agrees to assist
the Trustees in carrying out their responsibilities under the Mixed
and Shared Funding Order by promptly providing the Trustees with all
information reasonably necessary for the Trustees to consider any
issues raised. This includes, but is not limited to, an obligation by
the Company to promptly inform the Trustees whenever Contract owner
voting instructions are to be disregarded. Such responsibilities will
be carried out by the Company with a view only to the interests of its
Contract owners.
7.4 If it is determined by a majority of the Trustees constituting the
Trust's Board of Trustees, or a majority of the disinterested Trustees
of the Board, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies will, at their
expense and to the extent reasonably practicable (as determined by a
majority of the disinterested trustees), take whatever steps are
necessary to remedy or eliminate the material irreconcilable conflict,
up to and including: (a) withdrawing the assets allocable to some or
all of the Separate Accounts from the Trust or any Designated Fund and
reinvesting such assets in a different investment medium, including
(but not limited to) another Designated Fund, or submitting the
question whether such segregation should be implemented to a vote of
all affected Contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., variable annuity Contract
owners or variable life insurance 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.
7.5 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions, and such
disregard of voting instructions could conflict with the majority of
Contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Trust's election, to withdraw the
investment of the affected sub-account of the Separate Account in the
Designated Fund and terminate this Agreement with respect to such sub-
account; provided, however, that such withdrawal and termination will
be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the
disinterested Trustees of the Trust. No charge or penalty will be
imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the Trust
gives written notice to the Company that this provision is being
implemented. Until the end of such six-month period, the Distributor
and the Adviser will, to the extent permitted by law and the Mixed and
Shared Funding Order, continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Trust.
7.6 If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company
conflicts with the decisions of the majority of other state insurance
regulators, then the Company will withdraw the investment of the
affected sub-account of the Separate Account in the Designated Fund
and terminate this Agreement with respect to such sub-account;
provided, however, that such withdrawal and termination will be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested Trustees.
No charge or penalty will be imposed as a result of such withdrawal.
Any such withdrawal and termination must take place within six (6)
months after the Trust gives written notice to the Company that this
provision is being implemented. Until the end of such six-month
period the Trust will, to the extent permitted by law and the Mixed
and Shared Funding Order, continue to accept and implement orders by
the Company for the purchase (and redemption) of shares of the
Designated Funds.
7.7 For purposes of Section 7.4 through 7.7 of this Agreement, a majority
of the disinterested Trustees of the Trust will determine whether any
proposed action adequately remedies any material irreconcilable
conflict, but in no event will the Trust be required to establish a
new funding medium for the Contracts. The Company will not be
required by Section 7.4 to establish a new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority
of Contract owners affected by the material irreconcilable conflict.
In the event that the Board determines that any proposed action does
not adversely remedy any material irreconcilable conflict, then the
Company will withdraw the investment of the affected sub-account of
the Separate Account in the Designated Fund and terminate this
Agreement within six (6) months after the Board informs the Company in
writing of the foregoing determination; provided, however, that such
withdrawal and termination will be limited to the extent required by
any such material irreconcilable conflict as determined by a majority
of the disinterested Trustees of the Trust.
7.8 The Company will at least annually submit to the Trustees such reports,
materials or data as the Trustees of the Trust may reasonably request
so that the Trustees may fully carry out the duties imposed upon it as
delineated in the Mixed and Shared Funding Order, and said reports,
materials and data will be submitted more frequently if deemed
appropriate by the Trustees.
7.9 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide 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 Order) on
terms and conditions materially different from those contained in the
Mixed and Shared Funding Order, then: (a) the Trust and/or the
Participating Insurance Companies, as appropriate, will 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 4.3, 4.4, 4.5, 7.1, 7.2, 7.3, 7.4, 7.5
and 7.6 of this Agreement will continue in effect only to the extent
that terms and conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted.
ARTICLE VIII.-INDEMNIFICATION
8.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Trust,
the Adviser, the Distributor, and each of the Trust's or the
Adviser's or the Distributor's directors, trustees, officers,
employees or agents and each person, if any , who controls or
is associated with the Trust, the Adviser or the Distributor
within the meaning of such terms under the federal securities
laws (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 actions in respect thereof
(including reasonable legal and other expenses), to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or litigation in
respect thereof) or settlements:
(1) arise out of or are based upon any untrue statements
or alleged untrue statements of any material fact
contained in the registration statement, prospectus or
SAI for the Contracts or contained in the Contracts or
sales literature or other promotional material 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 or necessary to
make such statements not misleading in light of the
circumstances in which they were made; provided, that
this agreement to indemnify will not apply as to any
Indemnified Party if such statement or omission of
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 Trust, the Adviser,
or the Distributor 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 shares of the Designated
Funds; or
(2) arise out of or as a result of statements or
representations by or on behalf of the Company (other
than statements or representations contained in the
Trust registration statement, prospectus, SAI or sales
literature or other promotional material of the Trust,
or any amendment or supplement to the foregoing, not
supplied by the Company or persons under its control)
or wrongful conduct of the Company or persons under
its control, with respect to the sale or distribution
of the Contracts or shares of the Designated Funds;
or
(3) arise as a result of the Company transmitting orders
to the Trust for a given Business Day that were
received by the Company after the time the Designated
Fund calculates its net asset value or as a result of
the Company's failure to maintain, monitor, or enforce
policies and procedures reasonably designed to prevent
market timing or late trading in a series; or
(4) arise out of untrue statement or alleged untrue
statement of a material fact contained in the Trust
registration statement, prospectus, SAI or sales
literature or other promotional material of the Trust
(or any amendment or supplement thereto) or the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make such statements not misleading in
light of the circumstances in which they were made,
if such statement or omission was made in reliance
upon and in conformity with information furnished to
the Trust by or on behalf of the Company or persons
under its control; or
(5) arise as a result of any failure by the Company to
provide the services and furnish the materials under
the terms of this Agreement; or
(6) arise out of 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 by the Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.4
hereof. This indemnification will be in addition to any
liability that the Company otherwise may have.
(b) No party will be entitled to indemnification under Section
8.1(a) if such loss, claim, damage, liability or litigation is
due to the willful misfeasance, bad faith, gross negligence,
or reckless disregard in the performance of such party's
duties and obligations under this Agreement.
(c) The Indemnified Parties promptly will notify in writing the
Company of the commencement of any litigation, proceedings,
complaints or litigation by regulatory authorities against
them in connection with the issuance or sale of the shares of
the Designated Funds or the Contracts or the operation of the
Trust.
8.2 Indemnification by the Adviser and Distributor
(a) The Adviser and Distributor each agrees to indemnify and hold
harmless the Company and each of its directors, officers,
employees or agents and each person, if any, who controls or
is associated with the Company within the meaning of such
terms under the federal securities (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 and Distributor) or litigation in respect thereof
(including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or litigation in
respect thereof) or settlements:
(1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement, prospectus or SAI for
the Trust or sales literature or other promotional
material generated or approved by the Adviser or the
Distributor on behalf of the Trust (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 or necessary to make such statements not
misleading in light of the circumstances in which they
were made; provided that this agreement to indemnify
will not apply as to any Indemnified Party if such
statement or omission of such alleged statement or
omission was made in reliance upon and in conformity
with information furnished to the Adviser, the
Distributor or the Trust by or on behalf of the
Company for use in the registration statement,
prospectus or SAI for the Trust or in sales literature
generated or approved by the Adviser or the Distributor
on behalf of the Trust (or any amendment or supplement
thereto) or otherwise for use in connection with the
sale of the Contracts or shares of the Designated
Funds; or
(2) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts or in the
Contract or Trust registration statements, prospectuses
or statements of additional information or sales
literature or other promotional material for the
Contracts or of the Trust, or any amendment or
supplement to the foregoing, not supplied by the
Adviser or the Distributor or persons under the
control of the Adviser or the Distributor) or wrongful
conduct of the Adviser or the Distributor or persons
under the control of the Adviser or the Distributor,
with respect to the sale or distribution of the
Contracts or shares of the Designated Funds; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus, SAI or sales
literature or other promotional material covering the
Contracts (or any amendment or supplement thereto), or
the omission or alleged omission to state therein a
material fact required to be stated or necessary to
make such statement or statements not misleading in
light of the circumstances in which they were made,
if such statement or omission was made in reliance
upon and in conformity with information furnished to
the Company by or on behalf of the Adviser or the
Distributor or persons under the control of the
Adviser or the Distributor; or
(4) arise as a result of any failure by the Adviser or the
Distributor to provide the services and furnish the
materials under the terms of this Agreement; or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser or
the Distributor in this Agreement, or arise out of or
result from any other material breach of this
Agreement by the Adviser or the Distributor (including
a failure, whether intentional or in good faith or
otherwise, to comply with the requirements of
Subchapter M of the Code specified in Article III,
Section 3.3 of this Agreement, as described more fully
in Section 8.5 below);
except to the extent provided in Sections 8.2(b) and 8.4
hereof. This indemnification will be in addition to any
liability that the Adviser or Distributor otherwise may have.
(b) No party will be entitled to indemnification under Section
8.2(a) if such loss, claim, damage, liability or litigation is
due to the willful misfeasance, bad faith, gross negligence,
or reckless disregard in the performance of such party's
duties and obligations under this Agreement.
(c) In no event shall the Adviser or the Distributor be liable
under the indemnification provisions contained in this
Agreement to any individual or entity, including without
limitation, the Company, or any Contract owner, with respect
to any losses, claims, damages, liabilities or expenses that
arise out of or result from the failure by the Company to
maintain its segregated asset account(s) under applicable
state law and as a duly registered unit investment trust under
the provisions of the 1940 Act (unless exempt therefrom) or,
subject to compliance by the Designated Funds with the
diversification requirements specified in Article III, the
failure by the Company to maintain its Contracts (with respect
to which any Designated Fund serves as an underlying funding
vehicle) as life insurance, endowment or annuity contracts
under applicable provisions of the Code.
(d) The Indemnified Parties promptly will notify in writing the
Adviser and the Distributor of the commencement of any
litigation, proceedings, complaints or litigation by regulatory
authorities against them in connection with the issuance or
sale of the shares of the Designated Funds or the Contracts or
the operation of the Separate Account.
8.3 Indemnification by the Trust
(a) The Trust agrees to indemnify and hold harmless the Company and
each of its directors, officers, employees or agents and each
person, if any, who controls or is associated with the Company
within the meaning of such terms under the federal securities
laws (collectively, the "Indemnified Parties" for purposes of
this Section 8.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Trust) or litigation in respect thereof
(including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or
litigation in respect thereof) or settlements, are related to
the operations of the Trust and:
(1) arise as a result of any failure by the Trust to
provide the services and furnish the materials under
the terms of this Agreement; or
(2) arise out of or result from any material breach of
any representation and/or warranty made by the Trust
in this Agreement or arise out of or result from any
other material breach of this Agreement by the Trust
(including a failure, whether intentional or in good
faith or otherwise, to comply with the requirements of
Subchapter M of the Code specified in Article III,
Section 3.3 of this Agreement as described more fully
in Section 8.5 below); or
(3) arise out of or result from the materially incorrect
calculation of daily net asset value per share of a
Designated Fund or dividend or capital gain
distribution on shares of a Designated Fund;
except to the extent provided in Sections 8.3(b) and 8.4
hereof. This indemnification will be in addition to any
liability that the Trust otherwise may have.
(b) No party will be entitled to indemnification under Section
8.3(a) if such loss, claim, damage, liability or litigation is
due to the willful misfeasance, bad faith, gross negligence,
or reckless disregard in the performance of such party's
duties and obligations under this Agreement.
(c) In no event shall the Trust be liable under the
indemnification provisions contained in this Agreement to any
individual or entity, including without limitation, the
Company, or any Contract owner, with respect to any losses,
claims, damages, liabilities or expenses that arise out of or
result from the failure by the Company to maintain its
segregated asset account(s) under applicable state law and as
duly registered unit investment trust(s) under the provisions
of the 1940 Act (unless exempt therefrom) or, subject to
compliance by the Designated Funds with the diversification
requirements specified in Article III, the failure by the
Company to maintain its Contracts (with respect to which any
Designated Fund serves as an underlying funding vehicle) as
life insurance, endowment or annuity contracts under
applicable provisions of the Code.
(d) The Indemnified Parties each agree to promptly notify in
writing the Trust of the commencement of any litigation,
proceedings, complaints or actions by regulatory authorities
against itself or any of its respective officers or directors
in connection with the Agreement, the issuance or sale of the
Contracts, the operation of the Separate Account(s), or the
sale or acquisition of shares of the Trust.
8.4 Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.4) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.4) if such Indemnified Party has failed to notify in writing
the Indemnifying Party in accordance with its obligations under
Sections 8.1(c), 8.2(c) or 8.3(d), as applicable, but failure to
notify the Indemnifying Party or any such claim will not relieve the
Indemnifying Party from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than
on account of the indemnification provision of this Article VIII,
except to the extent that the failure to notify results in the failure
of actual notice to the Indemnifying Party and such Indemnifying Party
is damaged solely as a result of failure to give such notice. In case
any such action is brought against the Indemnified Party, the
Indemnifying Party will be entitled to participate, at its own expense,
in the defense thereof. The Indemnifying Party also will be entitled
to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Indemnifying Party to the
Indemnified Party of the Indemnifying Party's election to assume the
defense thereof, the Indemnified Party 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, unless: (a) the
Indemnifying Party and the Indemnified Party will have mutually agreed
to the retention of such counsel; or (b) the named parties to any such
proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. The Indemnifying Party
will not be liable for any settlement of any proceeding effected
without its written consent but if settled with such consent or if
there is a final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. A successor by
law of the parties to this Agreement will be entitled to the benefits
of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII will survive
any termination of this Agreement.
8.5 Indemnification for Failure to Comply with Diversification Requirements
The Trust and the Adviser acknowledge that if a Designated Fund fails
(whether intentionally or in good faith or otherwise) to comply with
the diversification requirements specified in Article III, Section 3.1,
3.2 and 3.3 of this Agreement, the Contracts consequently may not be
treated as variable contracts for federal income tax purposes, which
would have adverse tax consequences for Contract owners and could also
adversely affect the Company's corporate tax liability. Accordingly,
without in any way limiting the effects of Sections 8.2(a) and 8.3(a)
hereof and without in any way limiting or restricting any other
remedies available to the Company, the Trust, the Adviser and the
Distributor will pay on a joint and several basis all costs associated
with or arising out of any failure, or any anticipated or reasonably
foreseeable failure, of any Designated Fund to comply with Section
3.1, 3.2, and 3.3 of this Agreement, including all costs associated
with correcting or responding to any such failure; such costs may
include, but are not limited to, the costs involved in creating,
organizing, and registering a new investment company as a funding
medium for the Contracts and/or the costs of obtaining whatever
regulatory authorizations are required to substitute shares of another
investment company for those of the failed Designated Fund (including
but not limited to an order pursuant to Section 26(b) of the 1940 Act);
reasonable fees and expenses of legal counsel and other advisers of
the Company and any federal income taxes or tax penalties (or "toll
charges" or exactments or amounts paid in settlement) reasonably
incurred by the Company in connection with any such failure or
anticipated or reasonably foreseeable failure. Such indemnification
and reimbursement obligation shall be in addition to any other
indemnification and reimbursement obligations of the Trust, the
Adviser, and/or the Distributor under this Agreement.
8.6 Indemnification for Failure to Comply with Code Provisions
The Company acknowledges that if a Separate Account fails (whether
intentionally or in good faith or otherwise) to comply with the Code
provisions specified in Article II, Section 2.2 of this Agreement or
other Code provisions related to the maintenance of the contracts as
variable contracts for federal income tax purposes the failure of the
contracts to be treated as variable contracts for federal income tax
purposes would have adverse consequences for the Designated Funds
serving as funding vehicles for Participating Insurance Companies.
Accordingly, without in any way limiting the effects of Sections
8.1(a) hereof and without in any way limiting or restricting any other
remedies available to the Trust, the Adviser and the Distributor, the
Company will pay all costs associated with or arising out of any
failure, or any anticipated or reasonably foreseeable failure, of any
Separate Account to comply with Section 2.2 of this Agreement or Code
provisions related to the maintenance of the contracts as variable
contracts for federal income tax purposes, including all costs
associated with correcting or responding to any such failure; such
costs may include, but are not limited to, reasonable fees and expenses
of legal counsel and other advisers of the Trust, the Adviser and the
Distributor in connection with any such failure or anticipated or
reasonably foreseeable failure, or damages payable by the Trust to
other Participating Insurance Companies. Such indemnification and
reimbursement obligation shall be in addition to any other
indemnification and reimbursement obligations of the Company under
this Agreement.
ARTICLE IX.-APPLICABLE LAW
9.1 This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware
applicable to contracts entirely entered into and performed in Delaware
by Delaware residents.
9.2 This Agreement will be subject to the provisions of the 1933 Act, the
1934 Act and the 1940 Act, and the rules and regulations and ruling
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 Order) and the terms hereof will be
interpreted and construed in accordance therewith. If in the future,
the Mixed and Shared Funding Order should no longer be necessary under
applicable laws, then Article VII shall no longer apply.
ARTICLE X.-TERMINATION
10.1 This Agreement will terminate automatically in the event of its
assignment, unless made with the prior written consent of each party,
or:
(a) at the option of any party, with or without cause, with
respect to one, some or all of the Designated Funds, upon
six (6) months' advance written notice to the other parties
or, if later, upon receipt of any required exemptive relief or
orders from the SEC, unless otherwise agreed in a separate
written agreement among the parties; or
(b) at the option of the Company, upon written notice to the other
parties, with respect to any Designated Fund if shares of the
Designated Fund are not reasonably available to meet the
requirements of the Contracts as determined in good faith by
the Company; or
(c) at the option of the Company, upon written notice to the other
parties, with respect to any Designated Fund in the event any
of the Designated Fund'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) at the option of the Trust upon institution of formal
proceedings against the Company by FINRA, the SEC, the
insurance commission 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 administration of the
Contracts, the operation of any Separate Account, or the
purchase of the Trust shares, provided that the Trust
determines in its reasonable judgment that any such proceeding
would have a material adverse effect on the Company's ability
to perform its obligations under this Agreement; or
(e) at the option of the Company upon institution of formal
proceedings against the Trust, the Adviser or the Distributor
by the FINRA, the SEC or any state securities or insurance
commission or any other regulatory body, provided that the
Company determines in its reasonable judgment that any such
proceeding would have a material adverse effect on the Trust's,
the Adviser's or the Distributor's ability to perform its
obligations under this Agreement; or
(f) at the option of the Company, if the Trust or any Designated
Fund ceases to qualify as a Regulated Investment Company under
Subchapter M of the Code, or under any successor or similar
provision, or if the Company reasonably believes that any
Designated Fund may fail to so qualify; or
(g) subject to the Company's compliance with Article II, at the
option of the Company, with respect to any Designated Fund,
if any Designated Fund fails to meet the diversification
requirements specified in Article III hereof or if the Company
reasonably believes any Designated Fund may fail to meet such
requirements; or
(h) at the option of any party to this Agreement, upon another
party's material breach of any provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith that either the Trust,
the Adviser or the Distributor has suffered a material adverse
change in its business, operations or financial condition
since the date of this Agreement or is the subject of material
adverse publicity which is likely to have a material adverse
impact upon the business and operations of the Company or the
Contracts (including the sale thereof); or
(j) at the option of the Trust, the Adviser or the Distributor, if
the Trust, the Adviser or the Distributor respectively,
determines in its sole judgment exercised in good faith that
the Company has suffered a material adverse change in its
business, operations or financial condition since the date of
this Agreement or is the subject of material adverse publicity
which is likely to have a material adverse impact upon the
business and operations of the Trust, the Adviser or the
Distributor; or
(k) at the option of the Company or the Trust upon receipt of any
necessary regulatory approvals and/or the vote of the Contract
owners having an interest in a Separate Account (or any sub-
account) to substitute the shares of another investment
company for the corresponding Designated Fund's shares in
accordance with the terms of the Contracts for which those
Designated Fund shares had been selected to serve as the
underlying portfolio. The Company will give sixty (60) days'
prior written notice to the Trust of the date of any proposed
vote or other action taken to replace the shares of a
Designated Fund or of the filing of any required regulatory
approval(s); or
(l) at the option of the Company or the Trust upon a determination
by a majority of the Trust Board, or a majority of the Trust's
disinterested Trustees, that a material irreconcilable
conflict exists among the interests of: (1) all Contract
owners of variable insurance products of all separate accounts;
or (2) the interests of the Participating Insurance Companies
investing in the Trust as set forth in Article VII of this
Agreement; or
(m) subject to the Trust' compliance with Article III, at the
option of the Trust in the event any of the Contracts are not
issued or sold in accordance with applicable federal and/or
state law, or will not be treated as annuity contracts, life
insurance policies and/or variable contracts (as applicable)
under applicable provisions of the Code, or in the event any
representation or warranty of the Company in Section 2.1 is
no longer true. Termination will be effective immediately
upon such occurrence without notice.
10.2 Notice Requirement
(a) In the event that any termination of this Agreement is based
upon the provisions of Article VII, such prior written notice
will be given in advance of the effective date of termination
as required by such provisions.
(b) In the event that a party to this Agreement terminates the
Agreement based upon the provisions of Sections 10.1(b)-(h),
prompt written notice of the election to terminate this
Agreement for cause shall be furnished by the party
terminating the Agreement to the non-terminating party(ies).
The Agreement shall be terminated effective upon receipt of
such notice by the non-terminating party(ies).
(c) In the event that a party to this Agreement terminates the
Agreement based upon the provisions of Sections 10.1(i) or
(j), prior written notice of the election to terminate this
Agreement for cause shall be furnished by the party
terminating the Agreement to the non-terminating party(ies).
Such prior written notice shall be given by the party
terminating this Agreement to the non-terminating party(ies)
at least sixty (60) days before the effective date of
termination.
10.3 Effect of Termination
Notwithstanding any termination of this Agreement, the Trust and the
Distributor will, at the option of the Company, continue to make
available additional shares of the Designated Funds pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on
the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"), unless the Distributor requests
that the Company seek an order pursuant to Section 26(b) of the 1940
Act to permit the substitution of other securities for the shares of
the Designated Funds. The Distributor and the Company each will be
responsible for one-half of the cost of seeking such order and the
Company agrees that it will cooperate with the Distributor and seek
such an order upon request. Specifically, subject to the terms of
this Agreement, the owners of the Existing Contracts will be permitted
to reallocate investments in the Designated Funds (as in effect on
such date), redeem investments in the Designated Funds, and/or invest
in the Designated Funds upon the making of additional purchase
payments under the Existing Contracts. The parties agree that this
Section 10.3 will not apply to any terminations under Article VII and
the effect of such Article VII terminations will be governed by
Article VII of this Agreement. The parties further agree that this
Section 10.3 will not apply to any termination under 10.1(m) of this
Agreement.
10.4 Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive
and not be affected by any termination of this Agreement. In
addition, with respect to Existing Contracts, all provisions of this
Agreement also will survive and not be affected by any termination of
this Agreement.
ARTICLE XI.-NOTICES
Any notice will be deemed duly given when sent by certified mail, return
receipt requested, 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 parties. All notices will be deemed given three (3)
business days after the date received or rejected by the address:
If to the Company:
Symetra Life Insurance Company
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Attn: General Counsel
If to the Trust:
Delaware VIP Trust
One Commerce Square
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Attn: General Counsel
If to the Adviser:
Delaware Management Company
One Commerce Square
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Attn: General Counsel
If to the Distributor:
Delaware Distributors, L.P.
One Commerce Square
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Attn: General Counsel
ARTICLE XII.-MISCELLANEOUS
12.1 All persons dealing with the Trust must look solely to the property of
the Trust or, in the event of a claim relating to a particular
Designated Fund, the relevant Designated Fund for the enforcement of
any claims against the Trust or the Designated Fund, as the case may
be, as neither the trustees, officers, agents or shareholders assume
any personal liability for obligations entered into on behalf of the
Trust or any Designated Funds.
12.2 The Trust, the Adviser and the Distributor each acknowledges that the
identities of the customers of the Company or any of its affiliates
(collectively the "Protected Parties" for purposes of this Section
12.2), information maintained regarding Protected Parties, and all
computer programs and procedures developed by the Protected Parties or
any of their employees or agents in connection with the Company's
performance of its duties under this Agreement are the valuable
property of the Protected Parties. The Trust, the Adviser and the
Distributor agree that if they come into possession of any list or
compilation of the identities of or other information about the
Protected Parties' customers, or any other property of the Protected
Parties, other than such information as may be independently developed
or compiled by the Trust, the Adviser or the Distributor from
information supplied to them by the Protected Parties' customers who
also maintain accounts directly with the Trust, the Adviser and the
Distributor, the Trust, the Adviser and the Distributor will hold such
information or property in confidence and refrain from using,
disclosing or distributing any of such information or other property
except: (a) with the Company's prior written consent; or (b) as
required by law or judicial process. Subject to the requirements of
legal process and regulatory authority, each party hereto in particular
shall treat as confidential any "non-public personal information"
about any "consumer" of any party as such terms are defined in the
SEC's Regulation S-P and shall not disclose or use such information
without the express consent of such party. Such consent shall specify
the purposes for which information may be disclosed or used, which
disclosure or use shall be consistent with Regulation S-P. The Trust
and the Adviser each acknowledges that any breach of the agreements in
this Section 12.2 would result in immediate and irreparable harm to
the Protected Parties for which there would be no adequate remedy at
law and agree that in the event of such a breach, the Protected Parties
will be entitled to equitable relief by way of temporary and permanent
injunctions, as well as such other relief as any court of competent
jurisdiction deems appropriate.
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 will constitute one and the
same instrument.
12.5 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
12.6 This Agreement will not be assigned by any party hereto, without the
prior written consent of all of the parties.
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 law.
12.8 The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
12.9 Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including without limitation
the SEC, FINRA and state insurance regulators) and will permit each
other and such authorities reasonable access to its books and records
in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
12.10 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
12.11 This Agreement may be amended by written instrument signed by all
parties to the Agreement.
12.12 Any portfolio holdings information of the Designated Funds received by
the Company or its affiliates or agents that is not otherwise publicly
available shall be held by the Company, its affiliates and agents in
the strictest confidence. The Company, its affiliates and agents are
prohibited from disclosing or trading on such portfolio holdings
information (either in shares of Designated Funds or in shares of such
Funds' portfolio securities). In addition, the Company, its
affiliates and agents shall provide to the Trust any research or
reports generated using such portfolio holdings information.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
SYMETRA LIFE INSURANCE COMPANY
By:___________________________
Name:
Title:
DELAWARE VIP TRUST
By:___________________________
Name:
Title:
DELAWARE MANAGEMENT COMPANY
By:___________________________
Name:
Title:
DELAWARE DISTRIBUTORS, L.P.
By:___________________________
Name:
Title:
PARTICIPATION AGREEMENT
SCHEDULE A
The following Separate Accounts and Associated Contracts of Symetra Life
Insurance Company are permitted in accordance with the provisions of the
Participation Agreement to invest in the Designated Funds of the Delaware
VIP Trust shown in Schedule B.
NAME OF SEPARATE ACCOUNT: Symetra Resource Variable Account B.
CONTRACT(S): Symetra True Variable Annuity Contract.
NAME OF SEPARATE ACCOUNT: Separate Account VL (unregistered)
CONTRACT(S): Symetra Variable Corporate Owned Life Insurance Contract
(private placement).
NAME OF SEPARATE ACCOUNT:
CONTRACT(S):
NAME OF SEPARATE ACCOUNT:
CONTRACT(S):
PARTICIPATION AGREEMENT
SCHEDULE B
In accordance with the provisions of the Participation Agreement, the Separate
Account(s) shown on Schedule A may invest in the following Designated Funds
and Classes of the Trust:
Delaware VIP Emerging Markets Standard Class
Delaware VIP Intl Value Equity Series Standard Class
Delaware VIP Small Cap Value Standard Class
Delaware VIP Small/Mid Cap Growth Standard Class
PARTICIPATION AGREEMENT
SCHEDULE C
PROXY VOTING PROCEDURES
The following is a list of procedures and corresponding responsibilities for
the handling of proxies and voting instructions relating to the Delaware VIP
Trust (the "Trust") under the Participation Agreement (the "Agreement"). The
defined terms herein shall have the meanings assigned in the Agreement except
that the term "Company" shall also include the third party assigned by the
Company to perform the steps delineated below.
1. The proxy proposals are given to the Company by the Trust as early as
possible before the date set by the Trust for the shareholder meeting
to enable the Company to consider and prepare for the solicitation of
voting instructions from owners of the Contracts and to facilitate the
establishment of tabulation procedures. At this time the Trust will
inform the Company of the record, mailing, and meeting dates. This
will be done in writing approximately two months before meeting.
2. Promptly after the record date, the Company will perform a "tape run,"
or other activity, which will generate the names, addresses, and
number of units that are attributed to each contract owner/policyholder
(the "Customer") as of the record date. Allowance should be made for
account adjustments made after this date that could affect the status
of the Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to
call in the number of Customers to the Trust, as soon as possible, but
no later than two weeks after the Record Date.
3. The Trust's Annual Report must be sent to each Customer by the Company
either before or together with the Customers' receipt of voting,
instruction solicitation material. The Trust will provide the last
Annual Report to the Company.
4. The text and format for the Voting Instruction Cards ("Cards" or
Card") is provided to the Company by the Trust. The Company, at its
expense, may produce and personalize the Voting Instructions Cards.
The Trust or its affiliate must approve the Card before it is printed.
Allow approximately 2-4 business days for printing information on the
Cards. Information commonly found on the Cards includes:
- name (legal name as found on account registration)
- address
- Trust or account number
- coding to state number of units
- individual Card number for use in tracking and verification of
votes (already on Cards as printed by the Trust).
(This and related steps may occur later in the chronological process
due to possible uncertainties relating to the proposals.)
5. The Trust will prepare and print the Notice of Proxy and the Proxy
Statement (one document). Printed and folded notices and statements
will be sent to Company for insertion into envelopes (envelopes and
return envelopes are provided and paid for by the Company). Contents
of envelope sent to Customers by the Company will include:
- Voting Instruction Card(s)
- one proxy notice and statement (one document)
- return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
- "urge buckslip"-optional, but recommended. (This is a small,
single sheet of paper that requests Customers to vote as
quickly as possible and that their vote is important. One
copy will be supplied by the Trust.)
- cover letter-optional, supplied by Company and reviewed and
approved in advance by the Trust.
6. The above contents should be received by the Company approximately 3-5
business days before mail date. The Company or its designee reviews
and approves the contents of the mailing package to ensure correctness
and completeness. Copy of this approval is sent to the Trust.
7. Package mailed by the Company or its designee.
- The Trust must allow at least a 15-day solicitation time to
the Company as the shareowner. (A 5-week period is
recommended.) Solicitation time is calculated as calendar
days from (but NOT including) the meeting, counting backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes
place in another department or another vendor appointed by the Trust
depending on process used. An often used procedure is to sort Cards
on arrival by proposal into vote categories of all yes, no or mixed
replies, and to begin data entry.
9. Signature on Card checked against legal name on account registration
that was printed on the Card. Note: For Example, if the account
registration is under "▇▇▇▇ ▇. ▇▇▇▇▇, Trustee," then that is the exact
legal name to be printed on the Card and is the signature needed on
the Card.
10. If Cards are mutilated, or for any reason are illegible or are not
signed properly, they are sent back to Customer with an explanatory
letter and a new Card and return envelope. The mutilated or
illegible Card is disregarded and considered to be NOT RECEIVED for
purposes of vote tabulation. Any Cards that have been "kicked out"
(e.g., mutilated, illegible) or the procedure is "hand verified,"
i.e., examined as to whether they did not complete the system.
Any questions on those Cards are usually remedied individually.
11. There are various control procedures used to ensure proper tabulation
of votes and accuracy of that tabulation. The most prevalent is to
sort the Cards as they first arrive into categories depending upon
their vote; an estimate of how the vote is progressing may then be
calculated. If the initial estimates and the actual vote do not
coincide, then an internal audit of that vote should occur. This may
entail a recount.
12. The actual tabulation of votes is done in units, which is then
converted to shares. (It is very important that the Trust receives
the tabulations stated in terms of a percentage and the number of
SHARES.) The Trust must review and approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to the
Trust on the morning of the meeting not later than 10:00 a.m. Eastern
time. The Trust may request an earlier deadline if reasonable and if
required to calculate the vote in time for the meeting.
14. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final
vote. The Trust will provide a standard form for each Certification.
15. The Company will be required to box and archive the Cards received
from the Customers. In the event that any vote is challenged or if
otherwise necessary for legal, regulatory, or accounting purposes, the
Trust will be permitted reasonable access to such Cards.
16. All approvals and "signing-off" may be done orally, but must always be
followed up in writing.
PARTICIPATION AGREEMENT
SCHEDULE D
Shareholder Information
1. Agreement to Provide Information. Company agrees to provide the Fund,
upon written request, the Taxpayer Identification Number ("TIN"), the
Individual Taxpayer Identification Number ("ITIN"), or other
government-issued identifier ("GII"), if known, of any or all
Shareholder(s) of the account and the amount, date, name or other
identifier of any investment professional(s) associated with the
Shareholder(s) or account (if known), and transaction type (purchase,
redemption, transfer or exchange) of every purchase, redemption,
transfer, or exchange of Shares held through an account maintained by
the Company during the period covered by the request.
(a) Information Request. Requests must set forth a specific
period, not to exceed ninety (90) days from the date of the
request, for which transaction information is sought. The
Fund may request transaction information older than ninety
(90) days from the date of the request as it deems necessary
to investigate compliance with policies established by the
Fund for the purpose of eliminating or reducing any dilution
of the value of the outstanding shares issued by the Fund.
(b) Form and Timing of Response. Company agrees to transmit the
requested information that is on its books and records to the
Fund or its designee promptly, but in any event not later than
5 business days, after receipt of a request. If requested by
the Fund or its designee, Company agrees to use best efforts
to determine promptly, but in any event not later than five
(5) business days after receipt of a specific request, whether
any specified person about whom it has received the
identification and transaction information specified in
Paragraph 1 above is itself a financial intermediary
("indirect intermediary") and, upon further request of the
Fund or its designee, promptly, but in any event not later
than five (5) business days after such request, either (i)
obtain and transmit (or arrange to have transmitted) the
requested information specified in Paragraph 1 above for those
shareholders who hold an account with an indirect intermediary
or (ii) restrict or prohibit the indirect intermediary from
purchasing, in nominee name on behalf of other persons,
securities issued by the Fund. In such instance, Company
agrees to inform the Fund whether it plans to perform (i) or
(ii).
Responses required by this paragraph must be communicated in
writing and in a format mutually agreed upon by the parties.
To the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the
NSCC Standardized Data Reporting Format.
(c) Limitations on Use of Information. The Fund agrees not to use
the information received for marketing or any other similar
purpose without the prior written consent of the Intermediary.
The Fund may, however, use the information received to ensure
compliance with the Fund's compliance policies and procedures.
2. Agreement to Restrict Trading. Company agrees to execute written
instructions from the Fund to restrict or prohibit further purchases
or exchanges of Shares by a Shareholder that has been identified by
the Fund as having engaged in transactions of the Fund's Shares
(directly or indirectly through the Intermediary's account) that
violate policies established by the Fund for the purpose of eliminating
or reducing any dilution of the value of the outstanding Shares issued
by the Fund.
(a) Form of Instructions. Instructions must include the TIN,
ITIN, or GII, if known, and the specific restriction(s) to be
executed. If the TIN, ITIN, or GII is not known, the
instructions must include an equivalent identifying number of
the Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates.
(b) Timing of Response. Company agrees to execute instructions to
restrict or prohibit trading as soon as reasonably practicable,
but in any event not later than five (5) business days after
receipt of the instructions by the Intermediary.
(c) Confirmation by Intermediary. Company must provide written
confirmation to the Fund that instructions have been executed.
Intermediary agrees to provide confirmation as soon as
reasonably practicable, but not later than ten (10) business
days after the instructions have been executed.
3. Definitions. For purposes of this Schedule D of the Agreement:
(a) The term "Fund" includes the Fund's principal underwriter and
transfer agent. The term not does include any "excepted funds"
as defined in SEC Rule 22c-2(b) under the 1940 Act. The term
Fund in this Schedule D refers only to a "Designated Fund" as
defined in the Agreement.
(b) The term "Shares" means the interests of Contract owners
corresponding to the redeemable securities of record issued by
the Designated Fund under the 1940 Act that are held by the
Company.
(c) The term "Shareholder" means the Contract holder of interests
in a variable annuity or variable life insurance contract
issued by the Company.
(d) (d) The term "purchase" does not include the automatic
reinvestment of dividends.
(e) The term "written" includes electronic writings and facsimile
transmissions.
(g) Other capitalized terms used in this Schedule D shall have the
same meaning as defined in the Agreement to which this
Schedule D is attached.