FUND PARTICIPATION AGREEMENT
This Fund Participation Agreement (the "Agreement"), effective as of
_______, 2007, is made by and among Symetra Life Insurance Company
("Company"), JPMorgan Insurance Trust (the "Trust"), the Trust's investment
advisor, JPMorgan Investment Advisors Inc. (the "Adviser"), and the Trust's
administrator, JPMorgan Funds Management, Inc. (the "Administrator").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established by insurance companies for individual and group
life insurance policies and annuity contracts with variable accumulation and/or
pay-out provisions (hereinafter referred to individually and/or collectively as
"Variable Insurance Products");
WHEREAS, insurance companies desiring to utilize the Trust as an
investment vehicle under their Variable Insurance Products are required to
enter into participation agreements with the Trust and the Administrator (the
"Participating Insurance Companies");
WHEREAS, shares of the Trust are divided into several series of shares,
each representing the interest in a particular managed portfolio of securities
and other assets, any one or more of which may be made available for Variable
Insurance Products of Participating Insurance Companies;
WHEREAS, the Trust intends to offer shares of the series set forth on
Schedule B (each such series hereinafter referred to as a "Portfolio") as may be
amended from time to time by mutual agreement of the parties hereto under this
Agreement to the accounts of the Company specified on Schedule A (hereinafter
referred to individually as an "Account," collectively, the "Accounts");
WHEREAS, the Trust has obtained an order from the Securities and Exchange
Commission, granting the Trust exemptions from the provisions of Sections 9(a),
13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended
(hereinafter the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Trust to be sold
to and held by Variable Insurance Product separate accounts of both affiliated
and unaffiliated insurance companies (hereinafter the "Shared Funding Exemptive
Order");
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act");
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended, and any applicable state
securities laws;
WHEREAS, the Adviser is the investment adviser of the Portfolios of
the Trust;
WHEREAS, the Company has registered certain Variable Insurance
Products under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, each Account intends to purchase shares of the Portfolios to fund
certain of the aforesaid Variable Insurance Products and the Trust is
authorized to sell such shares to each such Account at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Trust, the Adviser, and the Administrator agree as follows:
Article 1
The Contracts
1. The Company represents that it has established each of
the Accounts specified on Schedule A as a separate account under _____
law, and has registered each such Account as a unit investment trust
under the 1940 Act to serve as an investment vehicle for variable
annuity contracts and/ or variable life contracts offered by the
Company (the "Contracts"). The Contracts provide for the allocation
of net amounts received by the Company to separate divisions of the
Account for investment in the shares of the Portfolios. Selection of
a particular division is made by the Contract owner who may change such
selection from time to time in accordance with the terms of the
applicable Contract. The Company agrees to make every reasonable
effort to market its Contracts. In marketing its Contracts, the
Company will comply with all applicable state or Federal laws.
Article 2
Trust Shares
2.1. The Trust agrees to make available for purchase by the Company
shares of the Portfolios and shall execute orders placed for each Account on
a daily basis at the net asset value next computed after receipt by the Trust
or its designee of such order. For purposes of this Section 2.1, the Company
shall be the designee of the Trust for receipt of such orders from the Account
and receipt by such designee shall constitute receipt by the Trust; provided
that the Trust's designated transfer agent receives notice of such order by
10:00 a.m. Eastern Time on the next following Business Day ("Trade Date
plus 1"). Notwithstanding the foregoing, the Company shall use its best
efforts to provide the Trust's designated transfer agent with notice of such
orders by 9:30 a.m. Eastern Time on Trade Date plus 1. "Business Day" shall
mean any day on which the New York Stock Exchange is open for trading and on
which the Trust calculates its net asset value pursuant to the rules of the
Securities and Exchange Commission, as set forth in the Trust's prospectus and
statement of additional information. Notwithstanding the foregoing, the Board
of Trustees of the Trust (hereinafter the "Board") may refuse to permit the
Trust to sell shares of any Portfolio to any person, or suspend or terminate
the offering of shares of any Portfolio if such action is required by law or
by regulatory authorities having jurisdiction or is, in the sole discretion of
the Board acting in good faith and in light of their fiduciary duties under
federal and any applicable state laws, necessary in the best interests of the
shareholders of such Portfolio.
2.2. The Trust agrees that shares of the Trust will be sold only to
Participating Insurance Companies for their Variable Insurance Products and,
in the Trust's discretion, to qualified pension and retirement plans. No
shares of any Portfolio will be sold to the general public.
2.3. The Trust agrees to redeem for cash, on the Company's request,
any full or fractional shares of the Trust held by an Account, executing such
requests on a daily basis at the net asset value next computed after receipt
by the Trust or its designee of the request for redemption. For purposes of
this Section 2.3, the Company shall be the designee of the Trust for receipt
of requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Trust; provided that the Trust's designated transfer
agent receives notice of such request for redemption on Trade Date plus 1 in
accordance with the timing rules described in Section 2.1.
2.4. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Trust shall be made in
accordance with the provisions of such prospectus. The Accounts of the
Company, under which amounts may be invested in the Trust are listed on
Schedule A attached hereto and incorporated herein by reference, as such
Schedule A may be amended from time to time by mutual written agreement of
all of the parties hereto.
2.5. The Company will place separate orders to purchase or redeem
shares of each Portfolio. Each order shall describe the net amount of shares
and dollar amount of each Portfolio to be purchased or redeemed. In the event
of net purchases, the Company shall pay for Portfolio shares on Trade Date
plus 1. Payment shall be in federal funds transmitted by wire. In the event
of net redemptions, the Portfolio shall pay the redemption proceeds in federal
funds transmitted by wire by 2:00 p.m. Eastern Time on Trade Date plus 1.
Notwithstanding the foregoing, if the payment of redemption proceeds on the
next Business Day would require the Portfolio to dispose of Portfolio
securities or otherwise incur substantial additional costs, and if the
Portfolio has determined to settle redemption transactions for all shareholders
on a delayed basis, proceeds shall be wired to the Company within seven (7)
days and the Portfolio shall notify in writing the person designated by the
Company as the recipient for such notice of such delay by 3:00 p.m. Eastern
Time on Trade Date plus 1.
2.6. Issuance and transfer of the Trust's shares will be by book
entry only. Share certificates will not be issued to the Company or any
Account. Shares ordered from the Trust will be recorded in an appropriate
title for each Account or the appropriate subaccount of each Account.
2.7. On each record date, the Administrator shall use its best
efforts to furnish same day notice by 6:30 p.m. Eastern Time (by wire,
telephone, electronic media or by fax) to the Company of any dividends or
capital gain distributions payable on the Trust's shares. The Company hereby
elects to receive all such dividends and capital gain distributions as are
payable on the Portfolio shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
dividends and capital gain distributions in cash. The Trust shall notify the
Company of the number of shares so issued as payment of such dividends and
distributions.
2.8. The Administrator shall make the net asset value per share of
each Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 6:30 p.m.
Eastern Time. In the event that the Administrator is unable to meet the
6:30 p.m. time stated immediately above, then the Administrator shall provide
the Company with additional time to notify the Administrator of purchase or
redemption orders pursuant to Sections 2.1 and 2.3, respectively, above.
Such additional time shall be equal to the additional time that the
Administrator takes to make the net asset values available to the Company.
2.9. If the Administrator provides materially incorrect share net
asset value information through no fault of the Company, the Company shall be
entitled to an adjustment with respect to the Trust shares purchased or
redeemed to reflect the correct net asset value per share as subsequently
determined by the Administrator. The determination of the materiality of any
net asset value pricing error shall be based on the Trust's policy for
correction of pricing errors (the "Pricing Policy"). The Company shall correct
such error in its records and in the records prepared by it for Contract owners
in accordance with information provided by the Administrator. Any material
error in the calculation or reporting of net asset value per share, dividend
or capital gain information shall be reported promptly upon discovery to the
Company.
2.10 The Administrator shall provide information to the Company of
the amount of shares traded and the associated cost per share (NAV) total
trade amount and the outstanding share balances held by the Account in each
Portfolio as of the end of each Business Day. Such information will be
furnished (electronically or by fax) by 1:00 p.m. Eastern time on the next
Business Day.
2.11 Contract Owner Information
2.11(a) Agreement to Provide Information. Effective October 17 2007,Company
agrees to provide the Fund, or its designee, upon written request, the
taxpayer identification number ("TIN"), the Individual/International Taxpayer
Identification Number ("ITIN"), or other government-issued identifier ("GII"),
and the Contract owner number or participant account number associated with
the Shareholder, if known, of any or all Shareholder(s) of the account, and
the amount, date and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of Shares held
through an Insurance Company Fund Account maintained by the Company during the
period covered by the request. Unless otherwise specifically requested by the
Fund, the Intermediary shall only be required to provide information relating
to Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions.
(i) Period Covered by Request. Requests must set forth a specific
period, not to exceed one year from the date of the request, for which
transaction information is sought. A request may be ongoing and
continuous (e.g., for each trading day throughout the year) or for
specified periods of time. A Portfolio may request transaction
information older than one year from the date of the request as it
deems necessary to investigate compliance with policies established by
the Portfolio for the purpose of eliminating or reducing market
timing and abusive trading practices.
(ii) Form and Timing of Response. Company agrees to provide,
promptly upon request of the Fund or its designee, the requested
information specified in 3(a). If requested by the Fund, or its
designee, Company agrees to use best efforts to determine promptly
whether any specific person about whom it has received the
identification and transaction information specified in 3(a) is itself
a financial intermediary ("indirect intermediary") and, upon further
request of the Fund, or its designee, promptly either (i) provide (or
arrange to have provided) the information set forth in 3(a) 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.
Company additionally agrees to inform the Fund whether it plans to
perform (i) or (ii). (b) Responses required by this paragraph must
be communicated in writing and in a format mutually agreed upon by the
Fund or its designee and the Company; and (c) To the extent
practicable, the format for any transaction information provided to
the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
(iii) Limitations on Use of Information. The Fund agrees not to
use the information received pursuant to this Amendment for any purpose
other than as necessary to comply with the provisions of Rule 22c-2
or to fulfill other regulatory or legal requirements subject to
the privacy provisions of Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act
(Public Law 106-102) and comparable state laws.
2.11(b) Agreement to Restrict Trading. Effective October 17, 2007, 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 Insurance Company Fund Account) that
violate policies established by the Fund for the purpose of eliminating or
reducing market timing and abusive trading practices. Unless otherwise
directed by the Fund, any such restrictions or prohibitions shall only apply
to Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions that are effected directly or indirectly through Company.
Instructions must be received by us at the following address, or such other
address that Company may communicate to you in writing from time to time,
including, if applicable, an e-mail and/or facsimile telephone number:
(i) Form of Instructions. Instructions to restrict or prohibit
trading must include the TIN, ITIN, or GII and the specific individual
Contract owner number or participant account number associated with
the Shareholder, if known, and the specific restriction(s) to be
executed, including how long the restriction(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual contract
owner number or participant account number associated with the
Shareholder 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.
(ii) Timing of Response. Company agrees to execute instructions
as soon as reasonably practicable, but not later than five Business
Days after receipt of the instructions by the Company.
(iii) Confirmation by Intermediary. Company must provide written
confirmation to the Fund that instructions have been executed.
Company agrees to provide confirmation as soon as reasonably
practicable, but not later than ten business days after the
instructions have been executed.
2.11 (c) Definitions. For purposes of this Section 2.11:
(i) The term "Insurance Company Fund Account" means an omnibus
account with the Fund maintained by Company.
(ii) The term "Fund" includes JPMorgan Distribution Services, Inc.,
which is the Trust's principal underwriter; the Trust's transfer agent
and the series of the Trust listed in the Agreement.
(iii) The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund
under the Investment Company Act that are held by or through an Insurance
Company Fund Account.
(iv) The term "Shareholder" means the holder of interests in a variable
annuity or variable life insurance contract issued by the Company
("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a Contract.
(v) The term "Shareholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Shareholder that results
in a transfer of assets within a Contract to a Fund, but does not
include transactions that are executed: (a) automatically pursuant to a
contractual or systematic program or enrollment such as transfer of
assets within a Contract to a Fund as a result of "dollar cost
averaging" programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (b) pursuant to a
Contract death benefit; (c) one-time step-up in Contract value
pursuant to a Contract death benefit; (d) allocation of assets to a
Fund through a Contract as a result of payments such as loan
repayments, scheduled contributions,retirement plan salary reduction
contributions, or planned premium payments to the Contract; or
(e) pre- arranged transfers at the conclusion of a required free
look period.
(vi) The term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that results
in a transfer of assets within a Contract out of a Fund, but does not
include transactions that are executed: (a) automatically pursuant to
a contractual or systematic program or enrollments such as transfers of
assets within a Contract out of a Fund as a result of annuity payouts,
loans, systematic withdrawal programs, insurance company approved asset
allocation programs and automatic rebalancing programs; (b) as a result
of any deduction of charges or fees under a Contract; (c) within a
Contract out of a Fund as a result of scheduled withdrawals or
surrenders from a Contract; or (d) as a result of payment of a death
benefit from a Contract.
(vii) The term "written" and/or "in writing" within this Section 2.11
or any Section of this Agreement includes electronic writings and
facsimile transmissions.
(viii) The term "Financial Intermediary" shall mean a "financial
intermediary" as defined in 22c-2 of the Investment Company Act.
(ix) The term "purchase" does not include the automatic reinvestment
of dividends.
(x) The term "promptly" as used in 3(a)(ii) shall mean as soon as
practicable but in no event later than 10 business days from the
Company's receipt of the request for information from the Fund or its
designee.
Article 3
Prospectuses, Reports to Shareholders and Proxy Statements, Voting
3.1. The Trust shall provide the Company with as many printed copies
of the Trust's current prospectuses as the Company may reasonably request. The
Administrator will provide the Company with a copy of the statement of
additional information suitable for duplication. If requested by the Company,
in lieu of providing printed copies, the Trust shall provide camera-ready film
or computer diskettes containing the Trust's prospectuses and statement of
additional information in order for the Company once each year (or more
frequently if the prospectuses and/or statement of additional information for
the Trust is amended during the year) to have the prospectuses for the
Contracts and the applicable Trust prospectuses printed together in one
document or separately. The Company may elect to print the Trust's
prospectuses and/or its statement of additional information in combination with
other investment companies' prospectuses and statements of additional
information.
3.2(a). The Company will deliver or cause to be delivered to
each of its Contract owners, at or prior to the time of purchase of any
Portfolio shares, a copy of such Portfolio's prospectus and, upon request, a
copy of its statement of additional information. Except as otherwise provided
in this Section 3.2, all expenses of preparing, setting in type and printing
and distributing Trust prospectuses and statements of additional information
shall be the expense of the Company. For prospectuses and statements of
additional information provided by the Company to its existing owners of
Contracts in order to update disclosure as required by the 1933 Act and/or the
1940 Act, the cost of setting in type, printing and distributing shall be borne
by the Trust. If the Company chooses to receive camera-ready film or computer
diskettes in lieu of receiving printed copies of the Trust's prospectus and/or
statement of additional information, the Trust shall bear the cost of
typesetting to provide the Trust's prospectus and/or statement of additional
information to the Company in the format in which the Trust is accustomed to
formatting prospectuses and statements of additional information, respectively,
and the Company shall bear the expense of adjusting or changing the format to
conform with any of its prospectuses and/or statements of additional
information. In such event, the Trust will reimburse the Company in an
amount equal to the product of x and y where x is the number of such
prospectuses distributed to owners of the Contracts, and y is the Trust's per
unit cost of printing the Trust's prospectuses. The same procedures shall be
followed with respect to the Trust's statement of additional information.
The Trust shall not pay any costs of typesetting, printing and distributing
the Trust's prospectus and/or statement of additional information to
prospective Contract owners.
3.2(b). The Trust, at the Company's expense, shall provide the Company
with copies of Annual and Semi-Annual Reports (the "Reports") in such quantity
as the Company shall reasonably require for distributing to Contract owners.
The Trust, at its expense, shall provide the Contract owners designated by the
Company with copies of its proxy statements and other communications to
shareholders (except for prospectuses and statements of additional information,
which are covered in Section 3.2(a) above, and Reports). The Trust shall not
pay any costs of distributing Reports and other communications to prospective
Contract owners.
3.2(c). The Company agrees to provide the Trust or its designee with
such information as may be reasonably requested by the Trust to assure that
the Trust's expenses do not include the cost of typesetting, printing or
distributing any of the foregoing documents other than those actually
distributed to existing Contract owners.
3.2(d). Except as otherwise provided in this Agreement, the Trust
shall pay no fee, other compensation or other expenses under this Agreement.
The Trust may, however, pay the Company servicing fees under a written
servicing agreement for certain Portfolios pursuant to the services plan it
has adopted. In addition, the Trust has adopted a plan pursuant to
Rule 12b-1 to finance distribution expenses for certain Portfolios, and
the Trust's distributor may pay fees under such plan to the Company or to
a designated affiliate under a separate written agreement between such parties.
3.2(e). All expenses, including expenses to be borne by the Trust
pursuant to Section 3.2 hereof, incident to performance by the Trust under
this Agreement shall be paid by the Trust. The Trust shall see to it that
all its shares are registered and authorized for issuance in accordance with
applicable federal law and, if and to the extent deemed advisable by the Trust,
in accordance with applicable state laws prior to their sale. The Trust shall
bear the expenses for the cost of registration and qualification of the
Trust's shares.
3.3. If and to the extent required by law, the Company shall with
respect to proxy material distributed by the Trust to Contract owners
designated by the Company to whom voting privileges are required to be
extended:
(i) solicit voting instructions from Contract owners;
(ii) vote the Trust shares in accordance with instructions
received from Contract owners; and
(iii) vote Trust shares for which no instructions have been
received in the same proportion as Trust shares of
such Portfolio for which instructions have been
received, so long as and to the extent that the
Securities and Exchange Commission continues to
interpret the 1940 Act to require pass-through voting
privileges for variable contract owners.
The Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law.
Article 4
Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to
the Trust, the Adviser or their designee, drafts of the separate accounts
prospectuses and statements of additional information and each piece of sales
literature or other promotional material prepared by the Company or any person
contracting with the Company to prepare such material in which the Trust, the
Adviser or the Administrator is described, at least ten Business Days prior to
its use. No such material shall be used if the Trust, the Adviser, the
Administrator or their designee reasonably objects to such use within ten
Business Days after receipt of such material.
4.2. Neither the Company nor any person contracting with the Company
to prepare sales literature or other promotional material shall give any
information or make any representations or statements on behalf of the Trust or
concerning the Trust in connection with the sale of the Contracts other than
the information or representations contained in the registration statement or
Trust prospectus, as such registration statement or Trust prospectus may be
amended or supplemented from time to time, or in reports to shareholders or
proxy statements for the Trust, or in sales literature or other promotional
material approved by the Trust or its designee, except with the permission of
the Trust or its designee.
4.3. The Administrator shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material prepared by the Trust in which the Company or its
Accounts, are described at least ten Business Days prior to its use. No such
material shall be used if the Company or its designee reasonably objects to
such use within ten Business Days after receipt of such material.
4.4. Neither the Trust, the Administrator, nor the Adviser shall
give any information or make any representations on behalf of the Company
or concerning the Company, each Account, or the Contracts, other than the
information or representations contained in a registration statement or
prospectus for the Contracts, as such registration statement or prospectus
may be amended or supplemented from time to time, or in published reports or
solicitations for voting instruction for each Account which are in the public
domain or approved by the Company for distribution to Contract owners, or in
sales literature or other promotional material approved by the Company or
its designee, except with the permission of the Company.
4.5. The Trust will provide to the Company, upon its request, at
least one complete copy of all registration statements, prospectuses,
statements of additional information, reports, proxy statements, applications
for exemptions, requests for no-action letters, and all amendments to any of
the above, that relate to the Trust or its shares, promptly after the filing
of such document with the Securities and Exchange Commission or other
regulatory authorities.
4.6. The Company will provide to the Trust, upon the Trust's
request, at least one complete copy of all registration statements,
prospectuses, statements of additional information, reports, solicitations for
voting instructions, sales literature and other promotional materials,
applications for exemptions, requests for no action letters, and all amendments
to any of the above, that relate to the investment in an Account or Contract,
prior to with the filing of such documents with the Securities and Exchange
Commission or other regulatory authorities.
4.7. For purposes of this Article 4, the phrase "sales literature
or other promotional material" includes, but is not limited to, any of the
following: advertisements (such as material published, or designed for use in,
a newspaper, magazine, or other periodical, radio, television, internet,
telephone or tape recording, videotape, display, signs or billboards, motion
pictures, or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), and educational or training materials
or other communications distributed or made generally available to some or all
agents or employees.
4.8. The Company and its agents shall make no representations
concerning the Trust except those contained in the then-current prospectus and
statement of additional information of the Trust and in current printed sales
literature of the Trust.
Article 5
Administrative Services to Contract Owners
5. Administrative services to Contract owners shall be the
responsibility of the Company and shall not be the responsibility of the Trust,
the Adviser or the Administrator. The Company, the Trust and the Administrator
recognize that the Account(s) will be the sole shareholder(s) of Trust shares
issued pursuant to the Contracts.
Article 6
Representations and Warranties
6.1. The Trust represents that it believes, in good faith, that each
Portfolio is currently qualified as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code") and
that it will make every effort to maintain such qualification of the Trust and
that it will notify the Company immediately upon having a reasonable basis for
believing that a Portfolio has ceased to so qualify or that it might not so
qualify in the future.
6.2. The Company represents that it believes, in good faith, that
the Contracts will at all times be treated as annuity contracts under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment and that it will notify the Trust 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.
6.3. The Trust represents that it believes, in good faith, that the
Portfolios will at all times comply with the diversification requirements set
forth in Section 817(h) of the Code and Section 1.817-5(b) of the regulations
under the Code, and that it will make every effort to maintain the Trust's
compliance with such diversification requirements, and that it will notify the
Company immediately upon having a reasonable basis for believing that a Fund
has ceased to so qualify or that a Portfolio might not so qualify in the
future.
6.4. The Company represents and warrants that the interests of the
Contracts are or will be registered unless exempt and that it will maintain
such registration under the 1933 Act and the regulations thereunder to the
extent required by the 1933 Act and that the Contracts will be issued and sold
in compliance with all applicable federal and state laws and regulations.
The Company also represents and warrants that the Portfolios will be sold in
accordance with such Portfolio's current prospectus. The Company further
represents and warrants that it is an insurance company duly organized and
in good standing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a segregated
asset account under the _____________ Insurance Code and the regulations
thereunder and has registered or, prior to any issuance or sale of the
Contracts, will maintain the registration of each Account as a unit investment
trust in accordance with and to the extent required by the provisions of the
1940 Act and the regulations thereunder, unless exempt therefrom, to serve as
a segregated investment account for the Contracts. The Company shall amend
its registration statement for its Contracts under the 1933 Act and the 1940
Act from time to time as required in order to effect the continuous offering
of its Contracts.
6.5. The Company represents that it believes, in good faith, that
the Account is a "segregated asset account" and that interests in the Account
are offered exclusively through the purchase of a "variable contract," within
the meaning of such terms under Section 1.817-5(f)(2) of the regulations under
the Code, and that it will make every effort to continue to meet such
definitional requirements, and that it will notify the Trust 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.
6.6. The Trust represents and warrants that it is and shall continue
to be at all times covered by a blanket fidelity bond or similar coverage for
the benefit of the Trust in an amount no 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. Such bond shall include coverage for larceny
and embezzlement and shall be issued by a reputable bonding company. The
Trust will notify the Company immediately upon having a reasonable basis for
believing that the Trust no longer has the coverage required by this
Section 6.6.
6.7. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other entities dealing with the
money or securities of the Trust are and shall 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 five million dollars ($5,000,000). Such bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. 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 immediately upon having a reasonable
basis for believing that the Company no longer has the coverage required by
this Section 6.7.
6.8. The Trust represents that a majority of its disinterest
trustees have approved the Trust's distribution plan adopted pursuant to
Rule 12b-1 under the ▇▇▇▇ ▇▇▇.
6.9. The Adviser and the Administrator each represents and warrants
that it complies with all applicable federal and state laws and regulations and
that it will perform its obligations for the Trust and the Company in
compliance with the laws and regulations of its state of domicile and any
applicable state and federal laws and regulations.
Article 7
Statements and Reports
7.1. The Administrator or its designee will make available
electronically to the Company within five (5) Business Days after the end
of each month a monthly statement of account confirming all transactions made
during that month in the Account.
7.2. The Trust and Administrator agree to provide the Company no
later than March 1 of each year with the investment advisory and other
expenses of the Trust incurred during the Trust's most recently completed
fiscal year, to permit the Company to fulfill its prospectus disclosure
obligations under the SEC's variable annuity fee table requirements.
Article 8
Potential Conflicts
8.1. The Board will monitor the Trust for the existence of any
material irreconcilable conflict between the interests of the Contract owners
of all Accounts investing in the Trust. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract owners and variable life
insurance Contract owners; or (f) a decision by a Participating Insurance
Company to disregard the voting instructions of contract owners. The Board
shall promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
8.2. The Company will report in writing any potential or existing
material irreconcilable conflict of which it is aware to the Administrator.
Upon receipt of such report, the Administrator shall report the potential or
existing material irreconcilable conflict to the Board. The Administrator
shall also report to the Board on a quarterly basis whether the Company has
reported any potential or existing material irreconcilable conflicts during
the previous calendar quarter. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order, by providing
the Board with all information reasonably necessary for the Board to consider
any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever Contract owner voting instructions are
disregarded.
8.3. If it is determined by a majority of the Board, or a majority of
its disinterested trustees, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts from
the Trust or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Trust, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance policy owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such
a change; and (2) establishing a new registered management
investment company or managed separate account. No charge or
penalty will be imposed as a result of such withdrawal. The Company agrees
that it bears the responsibility to take remedial action in the event of a
Board determination of an irreconcilable material conflict and the cost of
such remedial action, and these responsibilities will be carried out with a
view only to the interests of Contract owners.
8.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting instructions and
that decision represents a minority position or would preclude a majority
vote, the Company may be required, at the Trust's election, to withdraw the
affected Account's investment in the Trust and terminate this Agreement with
respect to such Account (at the Company's expense); provided, however that
such withdrawal and termination shall be limited to the extent required by
the foregoing material irreconcilable conflict as determined by a majority
of the disinterested members of the Board. No charge or penalty will be
imposed as a result of such withdrawal. The Company agrees that it bears
the responsibility to take remedial action in the event of a Board
determination of an irreconcilable material conflict and the cost of such
remedial action, and these responsibilities will be carried out with a view
only to the interests of Contract owners.
8.5. For purposes of Sections 8.3 through 8.4 of this Agreement,
a majority of the disinterested members of the Board shall determine whether
any proposed action adequately remedies any irreconcilable material conflict,
but in no event will the Trust be required to establish a new funding medium
for the Contracts. The Company shall not be required by Section 8.3 through
8.4 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 materially
adversely affected by the irreconcilable material conflict.
8.6. If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the
1940 Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief
from any provision of the 1940 Act or the rules promulgated thereunder with
respect to mixed or shared funding (as defined in the Shared Funding
Exemptive Order) on terms and conditions materially different from those
contained in the Shared Funding Exemptive Order, then the Trust and/or the
Participating Insurance Companies, as appropriate, shall take such steps as
may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule
6e-3, as adopted, to the extent such rules are applicable.
8.7. Each of the Company and the Adviser shall at least annually
submit to the Board such reports, materials or data as the Board may reasonably
request so that the Board may fully carry out the obligations imposed upon
them by the provisions hereof and in the Shared Funding Exemptive Order, and
said reports, materials and data shall be submitted more frequently if deemed
appropriate by the Board. Without limiting the generality of the foregoing or
the Company's obligations under Section 8.2, the Company shall provide to the
Administrator a written report to the Board no later than January 15th of each
year indicating whether any material irreconcilable conflicts have arisen
during the prior fiscal year of the Trust. All reports received by the Board
of potential or existing conflicts, and all Board action with regard to
determining the existence of a conflict, notifying Participating Insurance
Companies of a conflict, and determining whether any proposed action adequately
remedies a conflict, shall be properly recorded in the minutes of the Board or
other appropriate records, and such minutes or other records shall be made
available to the Securities and Exchange Commission upon request.
Article 9
Indemnification
9.1. Indemnification By The Company
9.1 (a).The Company agrees to indemnify and hold harmless the Trust, the
Administrator, the Adviser, and each member of their respective Boards and
officers and each person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 9.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at
common law orotherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Trust's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statement or prospectus for the Contracts or
contained in the Contracts or sales literature for the Contracts
(or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished to the Company by or on behalf of the
Trust for use in the registration statement or prospectus 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 Trust shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature of the
Trust not supplied by the Company, or persons under its control
and other than statements or representations authorized by the
Trust) or unlawful conduct of the Company or persons under its
control, with respect to the sale or distribution of the
Contracts or Trust shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature of the Trust or any
amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading if such a statement or omission was made in
reliance upon and in conformity with information furnished to
the Trust by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company; as limited by and in
accordance with the provisions of Section 9.1(b) and 9.1(c)
hereof.
9.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations or duties
under this Agreement.
9.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Company of any such claim shall not relieve the Company from
any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
ndemnified Parties, the Company shall be entitled to participate, at as own
expense, in the defense of such action. The Company also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Company to such Indemnified Party
of the Company's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Company shall not be liable to such Indemnified Party under this Agreement
for any legal or other expenses subsequently incurred by such Indemnified
Party independently in connection with the defense thereof other than
reasonable costs of investigation.
9.1(d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Trust shares or the Contracts or the operation of
the Trust.
9.2. Indemnification by Administrator
9.2(a). The Administrator agrees to indemnify and hold harmless
the Company and each of its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 9.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Administrator) or
litigation (including legal and other expenses) to which the Indemnified
Parties may become subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions
in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of
the 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 therein or necessary to make the statements
therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished to the Trust or the Administrator by or on behalf
of the Company, the Adviser, Counsel for the Trust, the
independent public accountant to the Trust, or any person or
entity that is not acting as agent for or controlled by the
Administrator for use in the registration statement or
prospectus for the Trust or in sales literature (or any
amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Portfolio shares; or
(ii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or
the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statement or statements therein not misleading, if such
statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Administrator;
or
(iii) arise as a result of any failure by the Administrator to
provide the services and furnish the materials under the terms
of this Agreement; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Administrator in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Administrator; as limited by and
in accordance with the provisions of Section 9.2(b) and 9.2(c)
hereof.
9.2(b). The Administrator shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in theperformance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
9.2(c). The Administrator shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Administrator in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim
shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on
any designated agent), but failure to notify the Administrator of any
such claim shall not relieve the Administrator from any liability
which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the
Administrator will be entitled to participate, at its own expense, in the
defense thereof. The Administrator also shall be entitled to assume the
defense thereof, with counsel satisfactory to the Indemnified Party named
in the action. After notice from the Administrator to such Indemnified
Party of the Administrator's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Administrator will not be liable to such Indemnified
Party under this Agreement for any legal or other expenses subsequently
incurred by such Indemnified Party independently in connection with the
defense thereof other than reasonable costs of investigation.
9.2(d). The Company agrees promptly to notify the Administrator
of the commencement of any litigation or proceedings against it or any of its
Indemnified Parties in connection with the issuance or sale of the Contracts
or the operation of each Account in which the Portfolios are made available.
9.3. Indemnification by the Adviser
9.3(a). The Adviser agrees to indemnify and hold harmless the Company
and its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (hereinafter
collectively, the "Indemnified Parties" and individually, "Indemnified Party,"
for purposes of this Section 9.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Adviser) or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement or prospectus or sales literature
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 therein or necessary to
make the statements therein not misleading, provided
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such
alleged statement or omission was made
in reliance upon and in conformity with information furnished
to the Adviser or the Trust by or on behalf of the Company,
the Administrator, Counsel for the Trust, the independent
public accountant to the Trust, or any person or
entity that is not acting as agent for or controlled by the
Adviser for use in the registration statement or prospectus
for the Trust or in sales literature (or any amendment or
supplement) or otherwise for use in connection
with the sale of the Contracts or Portfolio shares; or
(ii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or
the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of the
Adviser; or
(iii) arise as a result of any failure by the Adviser to provide the
services and furnish the materials under the terms of this
Agreement; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Adviser; as limited by and in
accordance with the provisions of Section 9.3(b) and 9.3(c)
hereof.
9.3(b). The Adviser shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified Party
as may arise from such Indemnified Party's willful misfeasance, bad faith,
or gross negligence in the performance of such Indemnified Party's duties or
by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement.
9.3(c). The Adviser shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Adviser in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but failure
to notify the Adviser of any such claim shall not relieve the Adviser from
any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties, the
Adviser will be entitled to participate, at its own expense, in the defense
thereof. The Adviser also shall be entitled to assume the defense thereof,
with counsel satisfactory to the Indemnified Party named in the action.
After notice from the Adviser to such Indemnified Party of the Adviser's
election to assume the defense thereof, the Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and the
Adviser will not be liable to such Indemnified Party under this Agreement
for any legal or other expenses subsequently incurred by such Indemnified
Party independently in connection with the defense thereof other then
reasonable costs of investigation.
9.3(d). The Company agrees to promptly notify the Adviser
of the commencement of any litigation or proceedings against it or any of
Indemnified Parties in connection with this Agreement, the issuance or sale
of the Contracts, with respect to the operation of each Account, or the sale
or acquisition of shares of the Trust.
9.4. Indemnification by the Trust
9.4(a). The Trust agrees to indemnify and hold harmless the
Company and its directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act (hereinafter
collectively, the "Indemnified Parties" and individually, "Indemnified Party,"
for purposes of this Section 9.4) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Trust) or litigation (including legal and other expenses) to which
the Indemnified Parties may become subject under any statute, at common law
or otherwise, insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of
the 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 therein or necessary to make the statements
therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished the Trust by or on behalf of the Adviser, the
Company, or the Administrator for use in the registration
statement or prospectus for the Trust or in sales literature
(or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Portfolio shares;
or
(ii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or
the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statement or statements therein not misleading, if such
statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Trust; or
(iii) 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
(iv) 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; as limited by and in
accordance with the provisions of Section 9.4(b) and 9.4(c)
hereof.
9.4(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement.
9.4(c). The Trust shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the Trust
in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure to
notify the Trust of any such claim shall not relieve the Trust from any
liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified
Parties, the Trust will be entitled to participate, at its own expense,
in the defense thereof. The Trust also shall be entitled to assume the
defense thereof, with counsel satisfactory to the Indemnified Party named
in the action. After notice from the Trust to such Indemnified Party of the
Trust's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and
the Trust will not be liable to such Indemnified Party under this Agreement
for any legal or other expenses subsequently incurred by such Indemnified
Party independently in connection with the defense thereof other then
reasonable costs of investigation.
9.4(d). The Company agrees to promptly notify the Trust of the commencement
of any litigation or proceedings against it or any of the Indemnified Parties
in connection with this Agreement, the issuance or sale of the Contracts,
with respect to the operation of each Account, or the sale or acquisition of
shares of the Trust.
Article 10
Applicable Law
10.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
10.2. This Agreement shall be subject to the provisions of the
1933, 1934 and 1940 Acts, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the Securities and Exchange Commission may grant (including,
but not limited to, the Shared Funding Exemptive Order) and the terms hereof
shall be interpreted and construed in accordance therewith.
Article 11
Termination
11.1. This Agreement shall continue in full force and effect until
the first to occur of:
(a) termination by any party for any reason upon ninety days
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Trust, the
Adviser, and the Administrator with respect to any Portfolio
based upon the Company's determination that shares of such
Portfolio are not reasonably available to meet the requirements
of the Contracts. Reasonable advance notice of election to
terminate shall be furnished by the Company, said termination
to be effective ten (10) days after receipt of notice unless
the Trust makes available a sufficient number of shares to
reasonably meet the requirements of the Account within said ten
(10) day period; or
(c) termination by the Company upon written notice to the Trust,
the Adviser, and the Administrator with respect to any Portfolio
in the event any of the Portfolio's shares are not registered,
issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such shares as
the underlying investment medium of the Contracts issued or to
be issued by the Company. The terminating party shall give
prompt notice to the other parties of its decision to terminate;
or
(d) termination by the Company upon written notice to the Trust, the
Adviser and the Administrator with respect to any Portfolio in
the event that such portfolio ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any
successor or similar provision; or
(e) termination by the Company upon written notice to the Trust,
the Adviser, and the Administrator with respect to any
Portfolio in the event that such Portfolio fails to meet
the diversification requirements specified in Section 6.3
hereof; or
(f) termination by either the Trust, the Adviser, or the
Administrator by written notice to the Company, if either
one or more of the Trust, the Adviser, or the Administrator,
shall determine, in its or their sole judgment exercised in
good faith, that the Company and/or their affiliated
companies has suffered a material adverse change in its
business, operations, financial condition or prospects since
the date of this Agreement or is the subject of material
adverse publicity, provided that the Trust, the Adviser, or
the Administrator will give the Company sixty (60) days'
advance written notice of such determination of its intent
to terminate this Agreement, and provided further that after
consideration of the actions taken by the Company and any
other changes in circumstances since the giving of such
notice, the determination of the Trust, the Adviser, or the
Administrator shall continue to apply on the 60th day since
giving of such notice, then such 60th day shall be the
effective date of termination; or
(g) termination by the Company by written notice to the Trust,
the Adviser,Administrator, if the Company shall determine, in
its sole judgment exercised in good faith, that either the
Trust, the Adviser, or the Administrator has suffered a
material adverse change in its business, operations, financial
condition or prospects since the date of this Agreement or is
the subject of material adverse publicity, provided that the
Company will give the Trust, the Adviser, and the Administrator
sixty (60) days' advance written notice of such determination
of its intent to terminate this Agreement, and provided
further that after consideration of the actions taken by the
Trust, the Adviser, or the Administrator and any other changes
in circumstances since the giving of such notice, the
determination of the Company shall continue to apply on the
60th day since giving of such notice, then such 60th day shall
be the effective date of termination; or
(h) termination by any party upon the other party's breach of any
representation or any material breach of any provision of
this Agreement, which breach has not been cured to the
satisfaction of the terminating party within ten (10) days after
written notice of such breach is delivered to the Trust or
the Company, as the case may be; or
(i) termination by the Trust, the Adviser, or Administrator by
written notice to the Company in the event an Account or
Contract is not registered (unless exempt from registration) or
sold in accordance with applicable federal or state law or
regulation, or the Company fails to provide pass-through
voting privileges as specified in Section 3.3.
11.2. Effect of Termination. Notwithstanding any termination of this
Agreement, the Trust may continue to make available additional shares of the
Trust 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 such further sale of
Trust shares is proscribed by law, regulation or applicable regulatory body,
or unless the Trust determines that liquidation of the Trust following
termination of this Agreement is in the best interests of the Trust and its
shareholders. The parties agree that this Section 11.2 shall not apply to
any terminations under Article 8 and the effect of such Article 8 terminations
shall be governed by Article 8 of this Agreement.
11.3. The Company shall not redeem Trust shares attributable to the
Contracts (as distinct from Trust shares attributable to the Company's assets
held in the Account) except (i) as necessary to implement Contract owner
initiated or approved transactions, or (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption") or (iii) as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act.
Upon request, the Company will promptly furnish to the Trust, the Adviser and
the Administrator the opinion of counsel for the Company (which counsel shall
be reasonably satisfactory to the Trust and the Adviser) to the effect that
any redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Contracts,
the Company shall not prevent Contract owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first
giving the Trust or the Adviser 30 days notice of its intention to do so.
Article 12
Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify
in writing to the other party.
If to the Trust:
JPMorgan Insurance Trust
Mail Code OH1-1235
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Attn: Contract Administrator
If to the Administrator:
JPMorgan Funds Management, Inc.
Mail Code OH1-1235
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▇▇▇-▇▇▇▇
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Attention: Contract Administrator
If to the Adviser:
JPMorgan Investment Advisors Inc.
Mail Code OH1-0211
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▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
If to the Company:
_________________
_________________
_________________
Article 13
Miscellaneous
13.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust. Each of the
Company, the Adviser, and the Administrator acknowledges and agrees that, as
provided by the Trust's Amended and Restated Declaration of Trust, the
shareholders, trustees, officers, employees and other agents of the Trust
and the Portfolios shall not personally be bound by or liable for matters
set forth hereunder, nor shall resort be had to their private property for
the satisfaction of any obligation or claim hereunder. The Trust's Amended
and Restated Declaration of Trust is on file with the Secretary of State The
Commonwealth of Massachusetts.
13.2. The Company will comply with all applicable laws and regulations
aimed at preventing, detecting, and reporting money laundering and suspicious
transactions. Without limiting the generality of the foregoing, the Company
shall take all necessary and appropriate steps, consistent with applicable
regulations and generally accepted industry practices, to: (i) obtain, verify,
and retain information with regard to Contract owner identification and source
of Contract owner funds, and (ii) maintain records of all Contract owner
transactions. The Company will (but only to the extent consistent with
applicable law) take all steps necessary and appropriate to provide the Trust
with any requested information about Contract owners and their accounts in
the event that the Trust shall request such information due to an inquiry
or investigation by any law enforcement, regulatory, or administrative
authority. To the extent permitted by applicable law and regulations, the
Company will notify the Trust of any concerns that the Company may have in
connection with any Contract owner in the context of relevant anti-money
laundering laws or regulations.
13.3. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except
as permitted bythis Agreement, shall not disclose, disseminate or utilize
such names and addresses and other confidential information until such time
as it may come into the public domain without the express written consent of
the affected party.
13.4. 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.
13.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the
same instrument.
13.6. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
13.7. Each party hereto shall cooperate with each other party and
all appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the National Association of Securities
Dealers and state insurance regulators) and shall permit such authorities
(and other parties hereto) reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
13.8. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies
and obligations at law or in equity, which the parties hereto are entitled
to under state and federal laws.
13.9. This Agreement or any of the rights and obligations
hereunder may not be assigned by any party without the prior written consent
of all parties hereto; provided, however, that the Adviser may, with
advance written notice to the other parties hereto, assign this Agreement
or any rights or obligations hereunder to any affiliate of or company under
common control with the Adviser if such assignee is duly licensed and
registered to perform the obligations of the Adviser under this Agreement.
13.10. The Company shall furnish, or shall cause to be furnished,
to the Trust or its designee upon request, copies of the following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles ("GAAP"), if any),
as soon as practical and in any event within 90 days after
the end of each fiscal year;
(b) the Company's June 30th quarterly statements (statutory),
as soon as practical and in any event within 45 days
following such period;
(c) any financial statement, proxy statement, notice or report
of the Company sent to stockholders and/or policyholders,
as soon as practical after the delivery thereof to
stockholders;
(d) any registration statement (without exhibits) and financial
reports the Company filed with the Securities and Exchange
Commission or any state insurance regulator, as soon as
practical after the filing thereof; and
(e) any other public report submitted to the Company by
independent accountants in connection with any annual,
interim or special audit made by them of the books of the
Company, as soon as practical after the receipt thereof.
13.11. The names "JPMorgan Insurance Trust" and "Trustees of
JPMorgan Insurance Trust" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from time
to time under a Declaration of Trust dated June 7, 1993 to which reference is
hereby made and a copy of which is on file at the office of the Secretary of
The Commonwealth of Massachusetts and elsewhere as required by law, and to
any and all amendments thereto so filed or hereafter filed. The obligations
of "JPMorgan Insurance Trust" entered into in the name or on behalf thereof
by any of the Trustees, representatives or agents are made not individually,
but in such capacities, and are not binding upon any of the Trustees,
shareholders or representatives of the Trust personally, but bind only the
assets of the Trust, and all persons dealing with any series of shares of
the Trust must look solely to the assets of the Trust belonging to such
series for the enforcement of any claims against the Trust.
13.12. The Trust and the Administrator agree to consult with the
Company concerning whether any Portfolio of the Trust qualifies to provide a
foreign tax credit pursuant to Section 853 of the Code.
[SIGNATURE PAGES FOLLOW]
SYMETRA LIFE INSURANCE COMPANY
Company
By:_________________________________________
Name: ______________________________________
Title: _______________________________________
JPMORGAN INSURANCE TRUST
By:__________________________________________
Name: ______________________________________
Title:________________________________________
JPMORGAN INVESTMENT ADVISORS INC.
By:__________________________________________
Name: ______________________________________
Title: ________________________________________
JPMORGAN FUNDS MANAGEMENT, INC.
By:_________________________________________
Name: ______________________________________
Title: _______________________________________
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
Name of Separate Account and Date Established by Form Number
Board of Directors Funded by Separate Account
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Schedule B
Portfolios of the Trust
JPMorgan Insurance Trust Core Bond Portfolio 1
JPMorgan Insurance Trust Government Bond Portfolio 1
JPMorgan Insurance Trust Balanced Portfolio 1
JPMorgan Insurance Trust Equity Index Portfolio 1
JPMorgan Insurance Trust Diversified Equity Portfolio 1
JPMorgan Insurance Trust Diversified Mid Cap Growth Portfolio 1
JPMorgan Insurance Trust Intrepid Mid Cap Portfolio 1
JPMorgan Insurance Trust Intrepid Growth Portfolio 1
JPMorgan Insurance Trust Core Bond Portfolio 2
JPMorgan Insurance Trust Diversified Equity Portfolio 2
JPMorgan Insurance Trust Diversified Mid Cap Growth Portfolio 2
JPMorgan Insurance Trust Intrepid Mid Cap Portfolio 2
JPMorgan Insurance Trust Intrepid Growth Portfolio 2
JPMorgan Insurance Trust Large Cap Value Portfolio 2
JPMorgan Insurance Trust International Equity Portfolio 2
JPMorgan Insurance Trust Small Cap Equity Portfolio 2