PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of January, 1995 by
and between INSURANCE INVESTMENT PRODUCTS TRUST, an unincorporated business
trust formed under the laws of Massachusetts (the "Trust"), SEI FINANCIAL
SERVICES COMPANY, a Pennsylvania corporation (the "Distributor), and NATIONAL
HOME LIFE ASSURANCE COMPANY, a Missouri life insurance company (the "Company"),
on its own behalf and on behalf of each separate account of the Company
identified herein.
WHEREAS, the Trust is a series-type mutual fund offering shares of
beneficial interest (the "Trust shares") consisting of one or more classes of
separate series ("Series") of shares ("Series shares"), each such series
representing an interest in a particular managed portfolio of securities and
other assets; and
WHEREAS, the Trust was established for the purpose of serving as an
investment vehicle for insurance company separate accounts supporting variable
annuity contracts and variable life insurance policies to be offered by
insurance companies; and
WHEREAS, the Distributor has the exclusive right to distribute shares
of the Trust to qualifying investors; and
WHEREAS, the Company desires that the Trust serve as an investment
vehicle for a certain separate account(s) of the Company and the Distributor
desires to sell shares of certain Series to such separate account(s);
NOW, THEREFORE, in consideration of their mutual promises, the Trust
and the Company agree as follows:
ARTICLE I. Additional Definitions
1.1. "Account" -- the separate account of the Company described more
specifically in Schedule 1 to this Agreement. If more than one separate account
is so described, the term shall refer to each separate account.
1.2. "Business Day" -- each day that the Trust is open for business as
provided in the Trust Prospectus.
1.3. "Code" -- the Internal Revenue Code of 1986, as amended.
1.4. "Contracts" -- the class or classes of variable annuity
contracts and variable life insurance policies issued by the Company and
described more specifically on Schedule 2 to this Agreement.
1.5. "Contract Owners" -- the owners of the Contracts, as
distinguished from all Product Owners.
1.6. "Participating Account" -- a separate account investing all or a
portion of its assets in the Trust, including the Account.
1.7. "Participating Insurance Company" -- any insurance company
investing in the Trust on its behalf or on behalf of a Participating Account,
including the Company.
1.8. "Products" -- variable annuity contracts and variable life
insurance policies supported by Participating Accounts investing assets
attributable thereto in the Trust, including the Contracts.
1.9. "Product Owners" -- owners of Products, including Contract
Owners.
1.10. "Prospectus" -- with respect to the Trust shares or a class of
Contracts, each version of the definitive prospectus or supplement thereto filed
with the SEC pursuant to Rule 497 under the 1933 Act. With respect to any
provision of this Agreement requiring a party to take action in accordance with
a Prospectus, such reference thereto shall be deemed to be to the version last
so filed prior to the taking of such action. For purposes of Article VIII, the
term "Prospectus" shall include any statement of additional information
incorporated therein.
1.11. "Registration Statement" -- with respect to the Trust Shares or
a class of Contracts, the registration statement filed with the SEC to register
the securities issued thereby under the 1933 Act, or the most recently filed
amendment thereto, in either case in the form in which it was declared or became
effective. The Contracts Registration Statement is described more specifically
on Schedule 2 to this Agreement. The Trust Registration Statement was filed on
Form N-1A (File No. 33-80158).
1.12. "1940 Act Registration Statement" -- with respect to the Trust
or the Account, the registration statement filed with the SEC to register such
person as an investment company under the 1940 Act, or the most recently filed
amendment thereto. The Account 1940 Act Registration Statement is described
more specifically on Schedule 2 to this Agreement. The Trust 1940 Act
Registration Statement was filed on Form N-1A (File No. 811-8562).
1.13. "Statement of Additional Information" -- with respect to the
Trust or a class of Contracts, each version of the definitive statement of
additional information or supplement thereto filed with the SEC pursuant to Rule
497 under the ▇▇▇▇ ▇▇▇.
1.14. "SEC" -- the Securities and Exchange Commission .
1.15. "1933 Act" -- the Securities Act of 1933, as amended.
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1.16. "1940 Act" -- the Investment Company Act of 1940, as amended.
ARTICLE II. Sale of Trust Shares
2.1. The Trust has granted to the Distributor exclusive authority to
distribute the Trust's shares, and has agreed to instruct, and has so
instructed, the Distributor to make available to the Company for purchase on
behalf of the Account Trust shares of those Series so selected by the
Distributor. Pursuant to such authority and instructions, and subject to
Article X hereof, the Distributor agrees to make available to the Company for
purchase on behalf of the Account, shares of those Series listed on Schedule 3
to this Agreement, such purchases to be effected at net asset value in
accordance with Section 2.3 of this Agreement. Notwithstanding the foregoing,
(i) Trust Series (other than those listed on Schedule 3) in existence now or
that may be established in the future will be made available to the Company only
as the Distributor may so provide, and (ii) the Board of Directors of the Trust
(the "Trust Board") may suspend or terminate the offering of Trust shares of any
Series or class thereof, if such action is required by law or by regulatory
authorities having jurisdiction or if, in the sole discretion of the Trust Board
acting in good faith and in light of its fiduciary duties under Federal and any
applicable state laws, suspension or termination is necessary in the best
interests of the shareholders of any Series (it being understood that
"shareholders" for this purpose shall mean Product Owners).
2.2. The Trust shall redeem, at the Company's request, any full or
fractional Series shares held by the Company on behalf of the Account, such
redemptions to be effected at net asset value in accordance with Section 2.3 of
this Agreement. Notwithstanding the foregoing, the Trust may delay redemption
of Trust shares of any Series to the extent permitted by the 1940 Act, any
rules, regulations or orders thereunder.
2.3. Purchase and Redemption Procedures
(a) The Trust hereby appoints the Company as an agent of the
Trust for the limited purpose of receiving purchase and redemption requests
on behalf of the Account (but not with respect to any Trust shares that may
be held in the general account of the Company) for shares of those Series
made available hereunder, based on allocations of amounts to the Account or
subaccounts thereof under the Contracts and other transactions relating to
the Contracts or the Account. Receipt of any such request (or relevant
transactional information therefor) on any Business Day by the Company as
such limited agent of the Trust prior to the Trust's close of business as
defined from time to time in the Trust Prospectus (which as of the date of
execution of this Agreement is 4 p.m. Eastern Time) shall constitute
receipt by the Trust on that same Business Day, provided that the Trust
receives notice of such request by 10 a.m. Eastern Time on the next
following Business Day.
(b) The Company shall pay for shares of each Series on the same
day that
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it notifies the Trust of a purchase request for such shares. Payment for
Series shares shall be made in Federal funds transmitted to the Trust by
wire to be received by the Trust by 4 p.m. Eastern Time on the day the
Trust is notified of the purchase request for Series shares (unless the
Trust determines and so advises the Company that sufficient proceeds are
available from redemption of shares of other Series effected pursuant to
redemption requests tendered by the Company on behalf of the Account). If
Federal funds are not received on time, such funds will be invested, and
Series shares purchased thereby will be issued, as soon as practicable.
Upon receipt of Federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the
Trust.
(c) Payment for Series shares redeemed by the Account or the
Company shall be made in Federal funds transmitted by wire prior to 3 p.m.
to the Company or any other designated person on the same Business Day that
the Trust is properly notified of the redemption order of Series shares
pursuant to Section 2.3(a) (unless redemption proceeds are to be applied to
the purchase of Trust shares of other Series in accordance with Section
2.3(b) of this Agreement), except that the Trust reserves the right to
redeem Series shares in assets other than cash, to the extent permitted in
the prospectus, and to delay payment of redemption proceeds to the extent
permitted under Section 22(e) of the ▇▇▇▇ ▇▇▇. The Trust shall not bear
any responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds by the Company; the Company alone shall be responsible
for such action.
(d) Any purchase or redemption request for Series shares held or
to be held in the Company's general account shall be effected at the net
asset value per share next determined after the Trust's receipt of such
request, provided that, in the case of a purchase request, payment for
Trust shares so requested is received by the Trust in Federal funds prior
to close of business for determination of such value, as defined from time
to time in the Trust Prospectus.
2.4. The Trust shall use its best efforts to make the net asset value
per share for each Series available to the Company by 6:30 p.m. Eastern Time
each Business Day, and in any event, as soon as reasonably practicable after the
net asset value per share for such Series is calculated, and shall calculate
such net asset value in accordance with the Trust Prospectus. Neither the
Trust, any Series, the Distributor, nor any of their affiliates shall be liable
for any information provided to the Company pursuant to this Agreement which
information is based on incorrect information supplied by the Company or any
other Participating Company to the Trust or the Distributor.
2.5. The Trust shall furnish notice to the Company as soon as
reasonably practicable of any income dividends or capital gain distributions
payable on any Series shares. The Company, on its behalf and on behalf of the
Account, hereby elects to receive all such dividends and distributions as are
payable on any Series shares in the form of additional shares of
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that Series. The Company reserves the right, on its behalf and on behalf of the
Account, to revoke this election and to receive all such dividends and capital
gain distributions in cash. The Trust shall notify the Company promptly of the
number of Series shares so issued as payment of such dividends and
distributions.
2.6. Issuance and transfer of Trust shares shall be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Purchase and redemption orders for Trust shares shall be recorded in an
appropriate ledger for the Account or the appropriate subaccount of the Account.
2.7.(a) The Company may withdraw the Account's investment in the
Trust or a Series of the Trust only: (i) as necessary to facilitate
Contract owner requests; (ii) upon a determination by a majority of the
Trust Board, or a majority of disinterested Trust Board members, that an
irreconcilable material conflict exists among the interests of (x) all
Product Owners or (y) the interests of the Participating Insurance
Companies investing in the Trust; (iii) upon requisite vote of the Contract
Owners having an interest in the affected Series and the written consent of
the Distributor (unless otherwise required by applicable law), to
substitute the shares of another investment company for Series shares of
the Trust in accordance with the terms of the Contracts; (iv) as required
by state and/or federal laws or regulations or judicial or other legal
precedent of general application; or (v) as permitted by an order of the
SEC pursuant to Section 26(b) of the 1940 Act.
(b) The parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Trust Shares may be sold to other
insurance companies (subject to Section 2.8 hereof) and the cash value of
the Contracts may be invested in other investment companies, provided,
however, that (i) such other investment company or series thereof has
investment objectives or policies that are substantially different from the
investment objectives and policies of the Trust Series available hereunder;
or (ii) the Company gives the Trust and the Distributor 45 days written
notice of its intention to make such other investment company available as
a funding vehicle for the Contracts; or (iii) such other investment company
was available as a funding vehicle for the Contracts prior to the date of
this Agreement and appears on Schedule 3 to this Agreement; or (iv) the
Trust or Distributor consents in writing to the use of such other
investment company, such consent not to be unreasonably withheld.
(c) The Company shall not, without prior notice to the Distributor
(unless otherwise required by applicable law), take any action to operate
the Account as a management investment company under the 1940 Act.
(d) The Company shall not, without the prior written consent of the
Distributor (unless otherwise required by applicable law), solicit, induce
or encourage Contract owners to change or modify the Trust or change the
Trust's distributor, manager or investment adviser.
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2.8. The Distributor and the Trust shall sell Trust shares only to
Participating Insurance Companies and their separate accounts and to persons or
plans ("Qualified Persons") that qualify to purchase shares of the Trust under
Section 817(h) of the Code. The Distributor and the Trust shall not sell Trust
shares to any insurance company or separate account unless an agreement
containing provisions substantially the same as Articles V and VII of this
Agreement is in effect to govern such sales. The Company hereby represents and
warrants that it and the Account are Qualified Persons.
ARTICLE III. Representations and Warranties
3.1. The Company represents and warrants that: (i) the Company is an
insurance company duly organized and in good standing under Missouri insurance
law; (ii) the Account is a validly existing separate account, duly established
and maintained in accordance with applicable law; (iii) the Account 1940 Act
Registration Statement has been filed with the SEC in accordance with the
provisions of the 1940 Act and the Account is duly registered as a unit
investment trust thereunder; (iv) the Contracts Registration Statement has been
declared effective by the SEC; (v) the Contracts will be issued in compliance in
all material respects with all applicable Federal and state laws; (vi) the
Account will maintain its registration under the 1940 Act and will comply in all
material respects with the 1940 Act; and (vii) the Contracts currently are, and
at the time of issuance will be, treated as annuity contracts or life insurance
policies, whichever is appropriate, under applicable provisions of the Code.
3.2. The Trust represents and warrants that: (i) the Trust is an
unincorporated business trust duly formed and validly existing under the
Massachusetts law; (ii) the Trust 1940 Act Registration Statement has been filed
with the SEC in accordance with the provisions of the 1940 Act and the Trust is
duly registered as an open-end management investment company thereunder; (iii)
the Trust Registration Statement has been declared effective by the SEC; (iv)
the Trust shares will be issued in compliance in all material respects with all
applicable federal laws; (v) the Trust will remain registered under and will
comply in all material respects with the 1940 Act; (vi) the Trust currently
qualifies as a "regulated investment company" under Subchapter M of the Code and
is in compliance with Section 817(h) of the Code; and (vii) the Trust's
investment policies are in material compliance with any investment restrictions
set forth on Schedule 4 to this Agreement, when applicable. Subject to Section
4.4 of this Agreement, the Trust makes no representation as to whether any
aspect of its operations (including, but not limited to, fees and expenses and
investment policies) otherwise complies with the insurance laws or regulations
of any state. Further, the Trust shall register and qualify its shares for sale
in accordance with the securities laws of the various states only if and to the
extent deemed advisable by the Trust.
3.3. The Distributor represents and warrants that: (i) the
Distributor is a corporation duly organized and in good standing under
Pennsylvania law; and (ii) the Distributor is registered as a broker-dealer
under federal and applicable state securities laws and is a member of the
National Association of Securities Dealers, Inc.
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3.4. Each party represents and warrants 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.
3.5. The Distributor represents and warrants that it is and will be a
member in good standing of the NASD and is and will remain duly registered in
all material respects as a broker-dealer with the SEC and under all applicable
state securities laws, and shall perform its obligations hereunder in compliance
in all material respects with any such applicable federal and state securities
laws.
3.6. Each party represents and warrants that all of its directors,
officers and employees dealing with the money and/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 the
amount required by the rules of the NASD and the federal securities laws
applicable to such party. The aforesaid bond shall include coverage for larceny
and embezzlement and shall be issued by a reputable bonding company. All
parties agree to make all reasonable efforts to see that this bond or another
bond containing these provisions is always in effect, and each agrees to notify
the other parties promptly in the event that such coverage no longer applies.
ARTICLE IV. Filings, Information and Expenses
4.1. The Trust shall amend the Trust Registration Statement and the
Trust 1940 Act Registration Statement from time to time as required in order to
effect the continuous offering of Trust shares and to maintain the Trust's
registration under the 1940 Act for so long as Trust shares are sold.
4.2. Unless other arrangements are made, the Trust shall provide the
Company with a copy, in camera-ready form or otherwise suitable for printing or
duplication, as selected by the Company, of (i) each Trust prospectus and any
supplement thereto; (ii) each Statement of Additional Information and any
supplement thereto; (ii) any Trust proxy soliciting material; and (iv) any Trust
periodic shareholder reports.
4.3. The Company shall amend the Contracts Registration Statement and
the Account 1940 Act Registration Statement from time to time as required in
order to effect the continuous offering of the Contracts or as may otherwise be
required by applicable law, but in any event shall maintain a current effective
Contracts Registration Statement and the Account's registration under the 1940
Act for so long as the Contracts are outstanding unless the Company has supplied
the Trust with an SEC no-action letter or opinion of counsel satisfactory to the
Trust's counsel to the effect that maintaining such Registration Statement on a
current basis is no longer required. The Company shall assure that any Contracts
Prospectus for a life insurance
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contract, where it is reasonably probable that such Contract would be a
"modified endowment contract," as that term is defined in Section 7702A of the
Code, will identify such Contract as a modified endowment contract (or policy).
The Company shall file, register, qualify and obtain approval of the Contracts
for sale to the extent required by applicable insurance and securities laws of
the various states.
4.4. The Company shall inform the Trust of any investment
restrictions imposed by Missouri state insurance law that may become applicable
to the Trust from time to time as a result of the Account's investment therein
(including, but not limited to, restrictions with respect to fees and expenses
and investment policies), other than those set forth on Schedule 4 to this
Agreement. Upon receipt of any such information from the Company, the Trust
shall determine whether it is in the best interests of shareholders to comply
with any such restrictions. If the Trust, acting reasonably and in good faith,
determines that it is not in the best interests of shareholders (it being
understood that "shareholders" for this purpose shall mean Product Owners), the
Trust shall so inform the Company, and the Trust and the Company shall discuss
alternative accommodations in the circumstances. If the Trust determines that
it is in the best interests of shareholders to comply with such restrictions,
the Trust and the Company shall amend Schedule 4 to this Agreement to reflect
such restrictions. The Trust shall comply with Schedule 4 as in effect from
time to time.
4.5. Each party shall promptly inform the others when such party
becomes aware of the commencement of any litigation or proceeding against such
party or a person affiliated with such party in connection with the issuance or
sale of Trust shares or the Contracts.
4.6. The Company shall provide Contracts, Contracts and Trust
Prospectuses, Contracts and Trust Statements of Additional Information, reports,
solicitations for voting instructions including any related Trust proxy
solicitation materials, and all amendments or supplements to any of the
foregoing to Contract Owners and prospective Contract Owners, all in accordance
with the federal securities laws.
4.7. All expenses incident to each party's performance under this
Agreement (including expenses expressly assumed by such party pursuant to this
Agreement) shall be paid by such party to the extent permitted by law.
(a) Expenses assumed by the Trust include, but are not limited to,
the costs of: registration and qualification of the Trust shares under the
federal securities laws; preparation and filing with the SEC of the Trust
Prospectus, Trust Registration Statement, Trust proxy materials and
shareholder reports, and preparation of a camera-ready copy thereof;
preparation of all statements and notices required by any Federal or state
securities law; printing and mailing of all materials and reports required
to be provided by the Trust to its shareholders; all taxes on the issuance
or transfer of Trust shares; payment of all applicable fees, including,
without limitation, all fees due under Rule 24f-2 relating to the Trust;
and any expenses permitted to be paid or assumed by the Trust pursuant to a
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plan, if any, under Rule 12b-1 under the 1940 Act. The Trust otherwise
shall pay no fee or other compensation to the Company under this Agreement,
unless the parties otherwise agree, except that if the Trust or any Series
adopts and implements a plan pursuant to Rule 12b-1 under the 1940 Act to
finance distribution expenses, then payments may be made to the Company in
accordance with such plan. The Trust currently does not intend to make any
payments to finance distribution expenses pursuant to Rule 12b-1 under the
1940 Act or in contravention of such rule, although it may make payments
pursuant to Rule 12b-1 in the future. To the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1, the Trust undertakes
to have a Board of Directors, a majority of whom are not interested persons
of the Trust, formulate and approve any plan under Rule 12b-1 to finance
distribution expenses.
(b) Expenses assumed by the Company include, but are not limited to,
the costs of: registration and qualification of the Contracts under the
federal securities laws; preparation and filing with the SEC of the
Contracts Prospectus, Contracts Registration Statement, solicitation of
voting instructions with respect to Trust proxy materials; payment of all
applicable fees, including, without limitation, all fees due under Rule
24f-2 relating to the Contracts; and preparation and dissemination of all
statements and notices to Contract Owners required by any Federal or state
insurance law other than those paid for by the Trust.
4.8. No piece of advertising or sales literature or other promotional
material in which the Trust is named shall be used, except with the prior
written consent of the Trust. Any such piece shall be furnished to the Trust
for such consent prior to its use. The Trust shall respond to any request for
written consent on a prompt and timely basis, but failure to respond shall not
relieve the Company of the obligation to obtain the prior written consent of the
Trust. The Trust may at any time in its sole discretion revoke such written
consent, and upon notification of such revocation, the Company shall no longer
use the material subject to such revocation. Until further notice to the
Company, the Trust has delegated its rights and responsibilities under this
provision to the Distributor.
4.9. No piece of advertising or sales literature or other promotional
material in which the Company is named shall be used, except with the prior
written consent of the Company. Any such piece shall be furnished to the
Company for such consent prior to its use. The Company shall respond to any
request for written consent on a prompt and timely basis, but failure to respond
shall not relieve the Company of the obligation to obtain the prior written
consent of the Company. The Company may at any time in its sole discretion
revoke such written consent, and upon notification of such revocation, the Trust
and the Distributor shall no longer use the material subject to such revocation.
4.10. The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust
other than the information or representations contained in the Trust
Registration Statement or Trust Prospectus or in reports or
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proxy statements for the Trust, or in sales literature or other promotional
material approved in accordance with Article IV of this Agreement, or in
published reports or statements of the Trust in the public domain, except with
the prior written consent of the Trust.
4.11. The Trust and the Distributor shall not give any information or
make any representations on behalf of the Company or concerning the Company, the
Account or the Contracts other than the information or representations contained
in the Contracts Registration Statement or Contracts Prospectus or in published
reports of the Account which are in the public domain or approved in writing by
the Company for distribution to Contract Owners, or in sales literature or other
promotional material approved in writing by the Company, except with the prior
written consent of the Company.
4.12. The Trust and the Company shall provide to each other upon
request at least one complete copy of all Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statements, solicitations of voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the
above, that relate to the Trust, the Contracts or the Account, as the case may
be, promptly after the filing by or on behalf of such party of such document
with the SEC or other regulatory authorities. Each party shall provide to the
other any complaints from Contract Owners pertaining to the Contracts.
4.13. The Trust and the Company shall provide to each other upon
request copies of draft versions of any Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statements, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the
above, to the extent that the other party reasonably needs such information for
purposes of preparing a report or other filing to be filed with or submitted to
a regulatory agency. If a party requests any such information before it has
been filed, the other party will provide the requested information if then
available and in the version then available at the time of such request.
4.14. Each party hereto shall cooperate with the other parties and
all appropriate governmental authorities (including without limitation the SEC,
the NASD and state insurance regulators) and shall 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. However, such access shall not extend to attorney-client
privileged information.
4.15. For purposes of this Article IV, the phrase "sales literature
or other promotional material" includes, but is not limited to, any material
constituting sales literature or advertising under the NASD rules, the 1940 Act
or the 1933 Act.
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4.16. No party shall use any other party's names, logos, trademarks
or service marks, whether registered or unregistered, without the prior written
consent of such other party.
4.17. To the extent required by applicable law, including the
administrative requirements of regulatory authorities, or as mutually agreed
between the Company and the Distributor, the Company reserves the right to
modify the Contracts in any respect whatsoever. The Company reserves the right
in its sole discretion to suspend the sale of any of the Contracts, in whole or
in part, or to accept or reject any application for the sale of the Contract.
The Company agrees to notify the Trust and the Distributor promptly upon the
occurrence of any event the Company believes might necessitate a material
modification or suspension.
ARTICLE V. Voting of Trust Shares
With respect to any matter put to vote by the holders of Trust shares
or Series shares ("Voting Shares"), the Company shall:
(a) solicit voting instructions from Contract Owners to which Voting
Shares are attributable;
(b) vote Voting Shares of each Series attributable to Contract Owners
in accordance with instructions or proxies timely received from such
Contract Owners;
(c) vote Voting Shares of each Series attributable to Contract Owners
for which no instructions have been received in the same proportion as
Voting Shares of such Series for which instructions have been timely
received; and
(d) vote Voting Shares of each Series held by the Company on its own
behalf or on behalf of the Account that are not attributable to Contract
Owners in the same proportion as Voting Shares of such Series for which
instructions have been timely received.
The Company shall be responsible for assuring that voting privileges for the
Account are calculated in a manner consistent with the provisions set forth
above and with the Exemptive Order.
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ARTICLE VI. Compliance with Code
6.1. The Trust shall comply with Section 817(h) of the Code and the
regulations issued thereunder to the extent applicable to the Trust as a fund
underlying the Account, and shall notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it might
not so qualify in the future.
6.2. The Trust shall maintain its qualification as a registered
investment company (under Subchapter M or any successor or similar provision),
and shall notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify in
the future.
6.3. The Company shall ensure the continued treatment of the
Contracts as annuity contracts or life insurance policies, whichever is
appropriate, under applicable provisions of the Code and shall notify the Trust
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.
ARTICLE VII. Potential Conflicts
7.1. The parties to this Agreement acknowledge that the Trust intends
to file an application with the SEC to request an order (the "Exemptive Order")
granting relief from various provisions of the 1940 Act and the rules thereunder
to the extent necessary to permit Trust shares to be sold to and held by
variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated Participating Insurance Companies and other
Qualified Persons (as defined in Section 2.8). It is anticipated that the
Exemptive Order, when and if issued, shall require the Trust and each
Participating Insurance Company to comply with conditions and undertakings
substantially as provided in this Article VII. If the Exemptive Order imposes
conditions on the Company materially different from those provided for in this
Article VII and the Company elects not to comply with such materially different
conditions, the Trust shall have the right to require the Company to redeem the
Account's investment in the Trust, in accordance with Section 10.4. of this
Agreement. The Trust will not enter into a participation agreement with any
other Participating Insurance Company unless it imposes the same conditions and
undertakings as are imposed on the Company hereby.
7.2. The Trust Board will monitor the Trust for the existence of any
material irreconcilable conflict between the interests of the Product Owners.
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
interpretive 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 Series are
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being managed; (e) a difference in voting instructions given by variable annuity
contract and variable life insurance contract owners; or (f) a decision by a
Participating Insurance Company to disregard the voting instructions of Product
Owners.
7.3. The Company will report any potential or existing conflicts
promptly to the Trust Board, and in particular whenever Contract Owner voting
instructions are disregarded, and shall be responsible for assisting the Trust
Board in carrying out its responsibilities in connection with the Exemptive
Order. The Company agrees to carry out such responsibilities with a view to the
interests of Contract Owners.
7.4. If a majority of the Trust Board, or a majority of Disinterested
Trustees, determines that a material irreconcilable conflict exists with regard
to Contract Owner investments in the Trust, the Trust Board shall give prompt
notice to all Participating Insurance Companies. If the Trust Board determines
that the Company is responsible for causing or creating said conflict, the
Company shall at no cost and expense to the Trust, and to the extent reasonably
practicable (as determined by a majority of the Disinterested Trustees), take
such action as is necessary to remedy or eliminate the irreconcilable material
conflict. Such necessary action may include, but shall not be limited to:
(a) Withdrawing the assets allocable to the Account from the Trust
and reinvesting such assets in a different investment medium or submitting
the question of whether such segregation should be implemented to a vote of
all affected Contract Owners;
(b) Establishing a new registered management investment company.
7.5. If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard Contract Owner voting instructions and said
decision represents a minority position or would preclude a majority vote by all
Contract Owners having an interest in the Trust, the Company may be required, at
the Trust Board's election, to withdraw the Account's investment in the Trust.
7.6. For purposes of this Article, a majority of the Disinterested
Trustees shall determine whether or not any proposed action adequately remedies
any irreconcilable material conflict, but in no event shall the Trust be
required to bear the expense of establishing a new funding medium for any
Contract. The Company shall not be required by this Article to establish a new
funding medium for any Contract if an offer to do so has been declined by vote
of a majority of the Contract Owners materially adversely affected by the
irreconcilable material conflict.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provisions of the 1940 Act or the rules promulgated thereunder with respect to
mixed and shared funding on terms and conditions
-13-
materially different from those contained in the Exemptive Order, then (a) the
Trust and/or the Company, as appropriate, shall take such steps as may be
necessary to comply with Rules 6e-2 and 6e-3(T), as amended, or Rule 6e-3, as
adopted, as applicable, to the extent such rules are applicable, and (b)
Sections 7.2 through 7.5 of this Agreement shall continue in effect only to the
extent that terms and conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification by the Company. The Company shall indemnify and
hold harmless the Trust, the Distributor and each person who controls the Trust
or the Distributor within the meaning of such term under the 1933 Act or 1940
Act (but not any Participating Insurance Companies or Qualified Plans) and any
officer, trustee, director, employee or agent of the foregoing, against any and
all losses, claims, damages or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amounts paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they or any of them may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Contracts
Registration Statement, Contracts Prospectus, sales literature or other
promotional material for the Contracts or the Contracts themselves (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 in light of the circumstances in which they were
made; provided that this obligation to indemnify shall not apply if such
statement or omission or such alleged statement or alleged omission was
made in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Trust for use in the
Contracts Registration Statement, Contracts Prospectus or in the Contracts
or sales literature or promotional material for the Contracts (or any
amendment or supplement to any of the foregoing) or otherwise for use in
connection with the sale of the Contracts or Trust shares; or
(b) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the Trust Registration Statement, Trust
Prospectus or sales literature or other promotional material of the Trust
(or any amendment or supplement to any of the foregoing), or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading 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 in writing by or on behalf of the Company; or
-14-
(c) arise out of or are based upon any wrongful conduct of the Company
or persons under its control (or subject to its authorization) with respect
to the sale or distribution of the Contracts or Trust shares; or
(d) arise as a result of any failure by the Company or persons under
its control (or subject to its authorization) to provide services, furnish
materials or make payments as required under this Agreement; or
(e) arise out of any material breach by the Company or persons under
its control (or subject to its authorization) of this Agreement, including
but not limited to any failure to transmit a request for redemption or
purchase of Trust shares on a timely basis in accordance with the
procedures set forth in Article II.
This indemnification will be in addition to any liability that the Company may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.2. Indemnification by the Trust. The Trust shall indemnify and
hold harmless the Company and each person who controls the Company within the
meaning of such term under the 1933 Act or 1940 Act and any officer, director,
employee or agent of the foregoing, against any and all losses, claims, damages
or liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they or any of them may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Trust Registration
Statement, Trust Prospectus or sales literature or other promotional
material 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 in light of the
circumstances in which they were made; provided that this obligation to
indemnify shall not apply if such statement or omission or alleged
statement or alleged omission was made in reliance upon and in conformity
with information furnished in writing by or on behalf of the Company to the
Trust for use in the Trust Registration Statement, Trust Prospectus or
sales literature or promotional material for the Trust (or any amendment or
supplement to any of the foregoing) or otherwise for use in connection with
the sale of the Contracts or Trust shares; or
(b) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the Contracts Registration Statement,
Contracts Prospectus or sales literature
-15-
or other promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading 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 in writing by or on
behalf of the Trust to the Company; or
(c) arise out of or are based upon wrongful conduct of the Trust or
persons under its control (or subject to its authorization) with respect to
the sale of Trust shares; or
(d) arise as a result of any failure by the Trust or persons under
its control (or subject to its authorization) to provide services, furnish
materials or make payments as required under the terms of this Agreement;
or
(e) arise out of any material breach by the Trust or persons under
its control (or subject to its authorization) of this Agreement (including
any breach of Section 6.1 of this Agreement).
This indemnification will be in addition to any liability that the Trust may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.3. Indemnification by the Distributor. The Distributor shall
indemnify and hold harmless the Company and each person who controls or is
associated with the Company within the meaning of such term under the 1933 Act
or 1940 Act and any officer, director, employee or agent of the foregoing,
against any and all losses, claims, damages or liabilities, joint or several
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they or any of them may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Trust Registration
Statement, Trust Prospectus or sales literature or other promotional
material 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 in light of the
circumstances in which they were made; provided that this obligation to
indemnify shall not apply if such statement or omission or alleged
statement or alleged omission was made in reliance upon and in conformity
with information furnished in writing by or on behalf of the Company to the
Trust for use in the Trust Registration Statement, Trust Prospectus or
sales literature or promotional material for the Trust (or any amendment or
supplement to
-16-
any of the foregoing) or otherwise for use in connection with the sale of
the Contracts or Trust shares; or
(b) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the Contracts Registration Statement,
Contracts Prospectus or sales literature or other promotional material for
the Contracts (or any amendment or supplement to any of the foregoing), or
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading 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 in writing by or on behalf of the Trust or the
Distributor to the Company; or
(c) arise out of or are based upon wrongful conduct of the Trust or
the Distributor or persons under its respective control (or subject to its
respective authorization) with respect to the sale of Trust shares; or
(d) arise as a result of any failure by the Trust or the Distributor
or persons under its respective control (or subject to its respective
authorization) to provide services, furnish materials or make payments as
required under the terms of this Agreement; or
(e) arise out of any material breach by the Trust or the Distributor
or persons under its respective control (or subject to its respective
authorization) of this Agreement (including any breach of Section 6.1 of
this Agreement).
This indemnification will be in addition to any liability that the Distributor
may otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.4. Indemnification Procedures. After receipt by a party entitled
to indemnification ("indemnified party") under this Article VIII of notice of
the commencement of any action, if a claim in respect thereof is to be made by
the indemnified party against any person obligated to provide indemnification
under this Article VIII ("indemnifying party"), such indemnified party will
notify the indemnifying party in writing of the commencement thereof as soon as
practicable thereafter, provided that the omission to so notify the indemnifying
party will not relieve it from any liability under this Article VIII, except to
the extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
the failure to give such notice. The indemnifying party, upon the request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the
-17-
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) 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 shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be 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 shall be entitled
to the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to the principles of conflicts of laws.
9.2. This Agreement shall be subject to the provisions of the 1933
Act, 1940 Act and Securities Exchange Act of 1934, as amended, and the rules and
regulations and rulings thereunder, including such exemptions from those
statutes, rules and regulations as the SEC may grant, and the terms hereof shall
be limited, interpreted and construed in accordance therewith.
ARTICLE X. Term and Termination
10.1 Term and Termination of Agreement. This Agreement shall not
terminate as to any Series of the Trust until the Account no longer invests in
that Series and the Company has confirmed in writing to the Trust that it no
longer intends to invest in such Series. However, certain obligations of, or
restrictions on, the parties to this Agreement may terminate as provided in
Sections 10.2 and 10.3 and the Company may be required to redeem shares pursuant
to Section 10.4 or in the circumstances contemplated by Article VII.
10.2. Termination of Offering of Trust Shares. The obligation of the
Trust to make Series shares available through the Distributor to the Company for
purchase pursuant to Article II of this Agreement shall terminate at the option
of the Trust upon written notice to the Company as provided below:
(a) at any time more than two years after the date of this Agreement,
upon 60 days prior written notice;
-18-
(b) upon institution of formal proceedings against the Company by the
NASD, 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 operation of the Account, the
administration of the Contracts or the purchase of Trust shares, or an
expected or anticipated ruling, judgment or outcome which would, in the
Trust's reasonable judgment exercised in good faith, materially impair the
Company's ability to meet and perform the Company's obligations and duties
hereunder, such termination effective upon 15 days prior written notice;
(c) in the event any of the Contracts are not registered, issued or
sold in accordance with applicable Federal and/or state law, such
termination effective upon [5] days prior written notice and only as to
such Contracts;
(d) if the Trust or the Distributor shall determine, in their sole
judgment exercised in good faith, that either (1) the Company shall have
suffered a material adverse change in its business or financial condition
or (2) the Company shall have been the subject of material adverse
publicity which is likely to have a material adverse impact upon the
business and operations of either the Trust or the Distributor, such
termination effective upon 30 days prior written notice;
(e) upon the Company's assignment of this Agreement (including,
without limitation, any transfer of the Contracts or the Account to another
insurance company pursuant to an assumption reinsurance agreement) unless
the Trust consents thereto, such termination effective upon 30 days prior
written notice;
(f) if the Company is in material breach of any provision of this
Agreement, which breach has not been cured to the satisfaction of the Trust
within 30 days after written notice of such breach has been delivered to
the Company; or
(g) upon termination pursuant to Section 10.1 or notice from the
Company pursuant to Section 10.3, such termination as to a Series hereunder
effective upon 15 days prior written notice, unless a longer notice period
is provided in which case the longer notice period shall apply.
Notwithstanding an exercise of its option to terminate its obligation to make
Shares available through the Distributor to the Company, the Trust shall
continue to make Trust shares available through the Distributor to the extent
necessary to permit owners of Contracts in effect on the effective date of such
termination (hereinafter referred to as "Existing Contracts") to reallocate
investments in the Trust, redeem investments in the Trust and/or invest in the
Trust upon the making of additional purchase payments under the Existing
Contracts, unless the Trust exercised its option to terminate because of
circumstances involving the Existing Contracts (or a class thereof). In that
case, the Trust shall promptly notify the Company whether the Trust is electing
to make Trust shares available through the Distributor after termination for the
Noncomplying
-19-
Contracts (or a class thereof) responsible for such termination (the
"Noncomplying Contracts"). In determining whether to make Shares available
through the Distributor for the Noncomplying Contracts (or a class thereof), the
Trust shall act in good faith giving due consideration to the interests of
owners of the Noncomplying Contracts (or a class thereof).
10.3. As to the Company. The Company may elect to cease investing in a
Series or the Trust, promoting a Series or the Trust as an investment option
under the Contracts, or withdraw its investment in a Series or the Trust,
subject to compliance with applicable law, upon written notice to the Trust
within 30 days of the occurrence of any of the following events (unless provided
otherwise below):
(a) at any time more than two years after the date of this Agreement,
upon 60 days prior written notice;
(b) as to a Series, if shares of such Series are not reasonably
available to meet the requirements of the Contracts as determined by the
Company, and the Trust, after receiving written notice from the Company of
such non-availability, fails to make available a sufficient number of Trust
shares to meet the requirements of the Contracts within 10 days after
receipt thereof, it being understood that, in such event, the Company's
rights pursuant to this Section 10.3 shall be limited to such Series;
(c) as to the Trust, upon institution of formal proceedings against
the Trust or the Distributor by the NASD, the SEC or any state securities
or insurance commission or any other regulatory body, upon 15 days prior
written notice;
(d) as to a Series or the Trust, as applicable, if such Series or the
Trust ceases to qualify as a Regulated Investment Company under Subchapter
M of the Code, or under any successor or similar provision, or if such
Series or the Trust may fail to so qualify, and the Trust, within 30 days
following receipt of written request, fails to provide reasonable assurance
acceptable to the Company that it will take action to cure or correct such
failure, it being understood that, if the event does not involve all
Series, the Company's rights pursuant to this Section 10.3 shall be limited
to the affected Series;
(e) as to a Series or the Trust, as applicable, if such Series or the
Trust fails to meet the diversification requirements specified in Section
817(h) of the Code and any regulations thereunder and the Trust, within 30
days following receipt of written request, fails to provide reasonable
assurance acceptable to the Company that it will take action to cure or
correct such failure, it being understood that, if the event does not
involve all Series, the Company's rights pursuant to this Section 10.3
shall be limited to the affected Series;
(f) as to a Series or the Trust, as applicable, if such Series or
Trust ceased to qualify as a Regulated Investment Company or failed to meet
the diversification
-20-
requirements specified in Section 817(h) of the Code, the Trust failed to
cure such failure within the time period agreed upon when reasonable
assurances were accepted by the Company, it being understood that, if the
failure does not involve all Series, the Company's rights pursuant to this
Section 10.3 shall be limited to the affected Series;
(g) as to a Series or the Trust, as applicable, if the Trust informs
the Company pursuant to Section 4.4 that such Series or the Trust will not
comply with investment restrictions as requested by the Company and the
Trust and the Company are unable to agree upon any reasonable alternative
accommodations, it being understood that, if the event does not involve
all Series, the Company's rights pursuant to this Section 10.3 shall be
limited to the affected Series;
(h) if the Trust or Distributor is in material breach of a provision
of this Agreement, which breach has not been cured to the satisfaction of
the Company within 30 days after written notice of such breach has been
delivered to the Trust or the Distributor, as the case may be;
(i) with respect to any Series in the event any of the Series 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, it being understood that, if the event does not involve all
Series, the Company's rights pursuant to this Section 10.3 shall be limited
to the affected Series; or
(j) if the Company shall determine, in its sole judgment, exercised
in good faith, that either (1) the Trust or the Distributor shall have
suffered a material adverse change in its business or financial conditions
or (2) the Trust or the Distributor shall have been the subject of material
adverse publicity which is likely to have a material adverse effect on the
Company or the distribution of the Contracts.
10.4. Company Required to Redeem. The parties understand and
acknowledge that it is essential for compliance with Section 817(h) of the Code
that the Contracts qualify as annuity contracts or life insurance policies, as
applicable, under the Code. Accordingly, if any of the Contracts cease to
qualify as annuity contracts or life insurance policies, as applicable, under
the Code, or if any such Contracts may fail to so qualify (in either case, other
than solely as a result of the Trust's failure to comply with this Agreement),
the Trust shall have the right to require the Company to redeem Shares
attributable to such Contracts upon notice to the Company and the Company shall
so redeem such Shares in order to ensure that the Trust complies with the
provisions of Section 817(h) of the Code applicable to ownership of Trust
Shares. Notice to the Company shall specify the period of time the Company has
to redeem the Shares or to make other arrangements satisfactory to the Trust and
its counsel, such period of time to be determined with reference to the
requirements of Section 817(h) of the Code. In addition, the Company may be
required to redeem Shares pursuant to Article VII or the
-21-
Exemptive Order (assuming the Company has not elected not to comply therewith).
Also, if the Exemptive Order when issued imposes conditions and undertakings
materially different from those set forth in Article VII and the Company elects
not to comply with such materially different conditions, the Trust Board may
require the Company to withdraw the Account's investment in the Trust. The
Company agrees to redeem Shares in the circumstances described herein and to
comply with applicable terms and provisions. This Agreement shall remain in
effect as to the availability of Trust Shares for any Contracts other than those
as to which the Company is required to redeem Shares pursuant to this Section.
ARTICLE XI. Applicability to New Accounts and New Contracts
The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect, as appropriate, changes in or relating
to the Contracts, or Series or funding vehicles thereof, additions of new
classes of Contracts to be issued by the Company and separate accounts therefor
investing in the Trust. The provisions of this Agreement shall be equally
applicable to each such class of Contracts, Series and Accounts, effective as of
the date of amendment of such Schedule, unless the context otherwise requires.
ARTICLE XII. Notice, Request or Consent
Any notice, request or consent to be provided pursuant to this
Agreement is to be made in writing and shall be given:
If to the Trust:
▇▇▇▇▇ ▇. ▇▇▇
President
Insurance Investment Products Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Distributor:
General Counsel
SEI Financial Services Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Company:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Providian Corporation
-22-
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
National Home Life Assurance Company
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as such party may from time to time specify in writing
to the other party. Each such notice, request or consent to a party shall be
sent by registered or certified United States mail with return receipt requested
or by overnight delivery with a nationally recognized courier, and shall be
effective upon receipt.
ARTICLE XIII. Miscellaneous
13.1. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
13.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which together shall constitute one and the same
instrument.
13.3. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
13.4. 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.
13.5. Subject to the requirements of legal process and regulatory
authority, the Trust and the Distributor shall treat as confidential the names
and addresses of the Contract Owners and all information reasonably identified
as confidential in writing by the Company and except as permitted by this
Agreement, shall not disclose, disseminate or utilize such names and addresses
and other confidential information without the express written consent of the
Company until such time as it may come into the public domain.
13.6. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party hereto without the prior written consent of all
other parties.
13.7. A copy of the Declaration of Trust of the Trust is on file with
the Secretary
-23-
of State of the Commonwealth of Massachusetts, and notice is hereby given that
this instrument is executed on behalf of the Trustees of the Trust as trustees,
and is not binding upon any of the Trustees, officers or shareholders of the
Trust individually, but binding only upon the assets and property of the Trust.
No Series of the Trust shall be liable for the obligations of any other Series
of the Trust.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized officer
on the date specified below.
INSURANCE INVESTMENT PRODUCTS TRUST
(Trust)
Date: June 19, 1995 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------- --------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SEI FINANCIAL SERVICES COMPANY
(Distributor)
Date: June 19, 1995 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------- --------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
NATIONAL HOME LIFE ASSURANCE COMPANY
(Company)
Date: June 7, 1995 By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------- --------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
-24-
Schedule 1
----------
Accounts of the Company
Investing in the Trust
Effective as of the date of the Agreement, the following separate accounts of
the Company are subject to the Agreement:
===================================================================================================================================
Name of Account and Date Established by Board SEC 1940 Act Type of Product
Subaccounts of Directors of the Registration Number Supported by Account
Company
===================================================================================================================================
National Home Life February 14, 1992 Variable Annuity
Assurance Company
Separate Account V
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Effective as of ____________, the following separate accounts of the Company are
hereby added to this Schedule 1 and made subject to the Agreement:
====================================================================================================================================
Name of Account and Date Established by Board SEC 1940 Act Type of Product
Subaccounts of Directors of the Registration Number Supported by Account
Company
====================================================================================================================================
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 1 in accordance with Article XI of the Agreement.
___________________________________ ____________________________________
Insurance Investment Products Trust National Home Life
Assurance Company
______________________________
SEI Financial Services Company
-25-
Schedule 2
----------
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Effective as of the date of the Agreement, the following classes of Contracts
are subject to the Agreement:
====================================================================================================================================
Policy Marketing Name SEC 1933 Act Name of Supporting Annuity or Life
Registration Number Account
====================================================================================================================================
National Home Life 33-80958 National Home Life Annuity
Advisor's Edge Assurance Company
Separate Account V
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Effective as of ____________, the following classes of Contracts are hereby
added to this Schedule 2 and made subject to the Agreement:
====================================================================================================================================
Policy Marketing Name SEC 1933 Act Name of Supporting Annuity or Life
Registration Number Account
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IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 2 in accordance with Article XI of the Agreement.
___________________________________ __________________________________
Insurance Investment Products Trust National Home Life
Assurance Company
______________________________
SEI Financial Services Company
-26-
Schedule 3
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Trust Series and Other Funding
Vehicles Available Under
Each Class of Contracts
Effective as of the date of the Agreement, the following Trust Series and other
Funding Vehicles are available under the Contracts:
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Contracts Marketing Name Trust Series Other Funding Vehicles
====================================================================================================================================
National Home Life Advisor's Edge . International Growth Portfolio . DFA Investment Dimensions
. Growth Portfolio Group, Inc.
. Aggressive Growth Portfolio . Federated Insurance
. Income Equity Management Series
. Intermediate Fixed Income
Portfolio
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Effective as of _________________, this Schedule 3 is hereby amended to reflect
the following changes in Trust Series and other funding vehicles:
====================================================================================================================================
Contracts Marketing Name Trust Series Other Funding Vehicles
====================================================================================================================================
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IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 3 in accordance with Article XI of the Agreement.
___________________________________ ____________________________________
Insurance Investment Products Trust National Home Life
Assurance Company
______________________________
SEI Financial Services Company
-27-
Schedule 4
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Investment Restrictions
Applicable to the Trust
Effective as of the date of the Agreement, the Trust, at the request of another
Participating Insurance Company, has undertaken to comply with the following
investment restrictions when applicable to the Trust:
. California diversification guidelines for foreign country
investments by a portfolio of a separate account
. California borrowing guideline limits applicable to a
portfolio of a separate account
Effective as of _________________, 19__, this Schedule 4 is hereby amended to
reflect the following changes:
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 4 in accordance with Article XI of the Agreement.
___________________________________ __________________________________
Insurance Investment Products Trust National Home Life
Assurance Company
______________________________
SEI Financial Services Company
-28-