PARTICIPATION AGREEMENT
AMONG
MFS VARIABLE INSURANCE TRUST
MFS VARIABLE INSURANCE TRUST II
SYMETRA FINANCIAL
AND
MFS FUND DISTRIBUTORS, INC.
THIS AGREEMENT, made and entered into effective as of the ___ day of
____ 2012, by and among MFS VARIABLE INSURANCE TRUST, a Massachusetts business
trust (the "Trust I"), MFS VARIABLE INSURANCE TRUST II, a Massachusetts
business trust (the "Trust II") (Trust I and Trust II each referred to,
individually, as the "Trust" and, collectively, as the "Trusts"), Symetra Life
Insurance Company, a Washington corporation (the "Company") on its own behalf
and on behalf of each of the segregated asset accounts of the Company set
forth in Schedule A hereto, as may be amended from time to time (the
"Accounts"), and MFS Fund Distributors, Inc., a Delaware corporation ("MFD").
WHEREAS, each Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and its shares are registered or will be registered under the Securities Act
of 1933, as amended (the "1933 Act");
WHEREAS, shares of beneficial interest of each Trust are divided into
several series of shares, each representing the interests in a particular
managed pool of securities and other assets;
WHEREAS, certain series of shares of each Trust are divided into two
separate share classes, an Initial Class and a Service Class, and each Trust
on behalf of the Service Class has adopted a Rule 12b-1 plan under the 1940
Act pursuant to which the Service Class pays a distribution fee;
WHEREAS, the series of shares of each Trust (each, a "Portfolio," and,
collectively, the "Portfolios") and the classes of shares of those Portfolios
(the "Shares") offered by each Trust to the Company and the Accounts are set
forth on Schedule A attached hereto;
WHEREAS, MFD is registered as a broker-dealer with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934, as
amended (hereinafter the "1934 Act"), and is a member in good standing of the
Financial Industry Regulatory Authority, Inc. ("FINRA");
WHEREAS, the Company will issue certain variable annuity and/or
variable life insurance contracts (individually, the "Policy" or, collectively,
the "Policies") which, if required by applicable law, will be registered under
the 1933 Act;
WHEREAS, the Accounts are duly organized, validly existing segregated
asset accounts, established by resolution of the Board of Directors of the
Company, to set aside and invest assets attributable to the aforesaid variable
annuity and/or variable life insurance contracts that are allocated to the
Accounts (the Policies and the Accounts covered by this Agreement, and each
corresponding Portfolio covered by this Agreement in which the Accounts invest,
is specified in Schedule A attached hereto as may be modified from time to
time);
WHEREAS, the Company has registered or will register the Accounts as
unit investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, Massachusetts Financial Services Company ("MFS") is duly
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended, and any applicable state securities law, and is the Trusts'
investment adviser;
WHEREAS, Symetra Securities, Inc., the underwriter for the Policies,
is registered as a broker-dealer with the SEC under the 1934 Act and is a
member in good standing of FINRA; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase the Shares of the Portfolios as
specified in Schedule A attached hereto on behalf of the Accounts to fund the
Policies, and the Trusts intend to sell such Shares to the Accounts at net
asset value; and
NOW, THEREFORE, in consideration of their mutual promises, each Trust,
MFD, and the Company agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. Each Trust agrees to sell to the Company those Shares which the
Accounts order (based on orders placed by Policy holders prior to the pricing
time set forth in the applicable Portfolio's prospectus, e.g., the close of
regular trading on the New York Stock Exchange, Inc. (the "NYSE") on that
Business Day, as defined below) and which are available for purchase by such
Accounts, executing such orders on a daily basis at the net asset value next
computed after receipt by such Trust or its designee of the order for the
Shares. For purposes of this Section 1.1, the Company, or its designated
agent(s), shall be the designee of each Trust for receipt of such orders from
Policy owners and receipt by such designee shall constitute receipt by each
Trust; provided that such Trust receives notice of such orders by 9:00 a.m.
New York time on the next following Business Day. "Business Day" shall mean
any day on which the NYSE is open for trading and on which such Trust
calculates its net asset value pursuant to the rules of the SEC. The Company
will ensure that orders for transactions in Shares by Policy owners comply
with each Portfolio's prospectus (including statement of additional
information) restrictions with respect to purchases, redemptions and
exchanges. The Company will not engage in, authorize or facilitate market
timing or late trading in Shares and has implemented controls designed to
identify and prevent market timing and late trading in Shares by Policy
holders.
1.2. Each Trust agrees to make the Shares available indefinitely
for purchase at the applicable net asset value per share by the Company and
the Accounts on those days on which the Trust calculates its net asset value
pursuant to rules of the SEC and each Trust shall calculate such net asset
value on each day which the NYSE is open for trading. Notwithstanding the
foregoing, the Board of Trustees of the relevant Trust (the "Board") may
refuse to sell any Shares to the Company and the Accounts, or suspend or
terminate the offering of the Shares 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 its fiduciary duties under
federal and any applicable state laws, necessary in the best interest of the
Shareholders of such Portfolio.
1.3. Each Trust and MFD agree that the Shares will be sold only to
insurance companies that have entered into participation agreements with the
relevant Trust and its affiliate (the "Participating Insurance Companies") and
their separate accounts, qualified pension and retirement plans, and any other
person or plan permitted to hold shares of such Trust pursuant to Treasury
Regulation 1.817-5 without impairing the ability of the Company, on behalf of
its separate accounts, to consider the Shares as constituting investments of
the separate accounts for the purpose of satisfying the diversification
requirements of Section 817(h). Each Trust and MFD will not sell such Trust
shares to any insurance company or separate account unless an agreement
containing provisions substantially the same as Articles II, III, VI and VII
of this Agreement is in effect to govern such sales. The Company will not
resell the Shares except to such Trust or its agents.
1.4. Each Trust agrees to redeem for cash or, if mutually agreed
upon by the parties and to the extent permitted by applicable law, in-kind,
on the Company's request, any full or fractional Shares held by the Accounts
(based on orders placed by Policy owners prior to the close of regular trading
on the NYSE on that Business Day), executing such requests on a daily basis at
the net asset value next computed after receipt by such Trust or its designee
of the request for redemption. For purposes of this Section 1.4, the Company,
or its designated agent (s), shall be the designee of such Trust for receipt
of requests for redemption from Policy owners and receipt by such designee
shall constitute receipt by such Trust; provided that such Trust receives
notice of such request for redemption by 10:00 a.m. New York time on the next
following Business Day.
1.5. Each purchase, redemption and exchange order placed by the
Company, or its designated agent(s), shall be placed separately for each
Portfolio and shall not be netted with respect to any Portfolio. However,
with respect to payment of the purchase price by the Company and of redemption
proceeds by the Trusts, the Company and the relevant Trust shall net purchase
and redemption orders with respect to each Portfolio and shall transmit one
net payment for all of the Portfolios in accordance with Section 1.6 hereof.
1.6. In the event of net purchases, the Company shall pay for the
Shares by close of business (5:00 p.m.). New York time on the next Business
Day after an order to purchase the Shares is made in accordance with the
provisions of Section 1.1 hereof. In the event of net redemptions, each Trust
shall pay the redemption proceeds by close of business (5:00 p.m.) New York
time on the next Business Day after an order to redeem the shares is made in
accordance with the provisions of Section 1.4. hereof. All such payments
shall be in federal funds transmitted by wire.
1.7. All purchases, redemptions, and exchanges of Shares for the
Accounts shall occur via the NSCC Fund/SERV system and shall be governed by
and subject to the terms of the fund/SERV and Networking Supplement to
Participation Agreement by and among the Company, each Trust, and MFD or its
affiliate, dated [date].
1.7. Issuance and transfer of the Shares will be by book entry
only. Stock certificates will not be issued to the Company or the Accounts.
The Shares ordered from each Trust will be recorded in an appropriate title
for the Accounts or the appropriate subaccounts of the Accounts.
1.8. Each Trust shall furnish same day notice (by wire or telephone
followed by written confirmation) to the Company, or its designated agent (s)
of any dividends or capital gain distributions payable on the Shares. The
Company hereby elects to receive all such dividends and distributions as are
payable on a Portfolio's Shares in additional Shares of that Portfolio. Each
Trust shall notify the Company, or its designated agent(s) of the number of
Shares so issued as payment of such dividends and distributions.
1.9. Each Trust or its custodian shall make the net asset value per
share for each Portfolio available to the Company on each Business Day as soon
as reasonably practicable 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. New York time. In the event that such Trust is unable to meet
the 6:30 p.m. time stated herein, it shall provide additional time for the
Company, or its designated agent(s) to place orders for the purchase and
redemption of Shares. Such additional time shall be equal to the additional
time which such Trust takes to make the net asset value available to the
Company. If such Trust provides materially incorrect share net asset value
information, such Trust shall make an adjustment to the number of shares
purchased or redeemed for the Accounts to reflect the correct net asset value
per share and such Trust shall bear the cost of adjusting the error. Any
material error in the calculation or reporting of net asset value per share,
dividend or capital gains information shall be reported promptly upon discovery
to the Company, or its designated agent(s).
1.10 Each party or its designee shall maintain and preserve all
records as required by law to be maintained and preserved in connection with
providing the services hereunder and in making Shares available to the Policy
holders. Upon the request of MFD or a Trust, the Company shall provide copies
of all the historical records relating to transactions between the relevant
Portfolios and the Policy holders, written communications regarding the
relevant Portfolios to or from such Policy holders' accounts and other
materials, in each case to the extent necessary for such Trust or its designee
to meet its recordkeeping obligations under applicable law or regulation,
including to comply with any request of a governmental body or self-regulatory
organization.
ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. The Company represents and warrants that the Policies are or
will be registered under the 1933 Act or are exempt from or not subject to
registration thereunder, and that the Policies will be issued, sold, and
distributed in compliance in all material respects with all applicable state
and federal laws, including without limitation the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the 1940 Act. 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 the Account as a segregated asset account under
applicable law and has registered or, prior to any issuance or sale of the
Policies, will register the Accounts as unit investment trusts in accordance
with the provisions of the 1940 Act (unless exempt therefrom) to serve as
segregated investment accounts for the Policies, and that it will maintain
such registration for so long as any Policies are outstanding. The Company
shall amend the registration statements under the 1933 Act for the Policies
and the registration statements under the 1940 Act for the Accounts from time
to time as required in order to effect the continuous offering of the Policies
or as may otherwise be required by applicable law. The Company shall register
and qualify the Policies for sales in accordance with the securities laws of
the various states only if and to the extent deemed necessary by the Company.
2.2. The Company represents and warrants that the Policies are
currently and at the time of issuance will be treated as life insurance,
endowment or annuity contracts under applicable provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), that it will maintain such
treatment and that it will notify the Trusts or MFD immediately upon having a
reasonable basis for believing that the Policies have ceased to be so treated
or that they might not be so treated in the future.
2.3. The Company represents and warrants that the underwriter for
the individual variable annuity and the variable life policies is a member in
good standing of FINRA and is a registered broker-dealer with the SEC. The
Company represents and warrants that the Company and its underwriter will sell
and distribute such policies in accordance in all material respects with all
applicable state and federal securities laws, including without limitation the
1933 Act, the 1934 Act, and the ▇▇▇▇ ▇▇▇.
2.4. The Company represents and warrants that all of its
directors/trustees, employees, investment advisers and other individuals/
entities dealing with money and/or securities of the Trusts are and shall
continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Trusts, in an amount not less than $5 million.
The aforesaid bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company. The Company shall notify the
Trusts, the Underwriter and MFS in the event that such coverage no longer
applies.
2.5. Each Trust and MFD represent and warrant that the Shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of The
Commonwealth of Massachusetts and all applicable federal and state securities
laws and that such Trust is and shall remain registered under the 1940 Act.
Each Trust shall amend the registration statement for its Shares under the
1933 Act and the 1940 Act from time to time as required in order to effect
the continuous offering of its Shares. Each Trust shall register and qualify
the Shares for sale in accordance with the laws of the various states only if
and to the extent deemed necessary by such Trust.
2.6. MFD represents and warrants that it is a member in good
standing of FINRA and is registered as a broker-dealer with the SEC. Each
Trust and MFD severally represent that such Trust and MFD will sell and
distribute the Shares in accordance in all material respects with all
applicable state and federal securities laws, including without limitation the
1933 Act, the 1934 Act, and the ▇▇▇▇ ▇▇▇.
2.7. Each Trust represents that it is lawfully organized and
validly existing under the laws of The Commonwealth of Massachusetts and that
it does and will comply in all material respects with the 1940 Act and any
applicable regulations thereunder.
2.8. MFD represents and warrants that it is and shall remain duly
registered under all applicable federal securities laws and that it shall
perform its obligations for the Trusts in compliance in all material respects
with any applicable federal securities laws and with the securities laws of
The Commonwealth of Massachusetts. MFD represents and warrants that MFS is
not subject to state securities laws other than the securities laws of The
Commonwealth of Massachusetts and is exempt from registration as an investment
adviser under the securities laws of The Commonwealth of Massachusetts.
2.9 Upon request, the Company shall submit to each Board such
reports, material or data as such Board may reasonably request so that it may
carry out fully the obligations imposed upon it by the conditions contained in
the exemptive application pursuant to which the SEC has granted exemptive
relief to permit mixed and shared funding (the "Mixed and Shared Funding
Exemptive Order").
2.10 The Company acknowledges that, with respect to Service Class
Shares of a Portfolio, it or its affiliate(s) may receive payments under a
Trust's Rule 12b-1 plan. The Company, and not the relevant Trust, MFS or MFD,
is responsible for providing any disclosures relating to this Agreement and/or
payments made to the Company to Policy owners.
2.11 Each Trust and MFD represent and warrant that all of their
directors/trustees, officers, employees, investment advisers and other
individuals/entities dealing with money and/or securities of the Trust and
MDF are and shall continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund, in an amount not less
than the minimum coverage as required by Rule 17g-1 of the 1940 Act or related
provisions as may from time to time be promulgated. The aforesaid bond shall
include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. The Trust and/or MFD shall notify the Company in
the event such coverage no longer applies.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. At least annually, each Trust or its designee shall provide
the Company, free of charge, with as many copies of the current prospectus
(describing only the Portfolios listed in Schedule A hereto) for the Shares
as the Company may reasonably request for distribution to existing Policy
owners whose Policies are funded by such Shares. Each Trust or its designee
shall provide the Company, at the Company's expense, with as many copies of
the current prospectus for the Shares as the Company may reasonably request
for distribution to prospective purchasers of Policies. In the event that the
Company utilizes a summary prospectus for any Trust, the term or "prospectus"
shall mean the summary prospectus for the relevant Trust and the term
"statement of additional information" shall mean the statutory prospectus,
together with corresponding statement of additional information, for the
relevant Trust.
If requested by the Company in lieu thereof, a Trust or its designee
shall provide such documentation (including a "camera ready" copy of the new
prospectus as set in type or, at the request of the Company, as a diskette or
electronic file in the form sent to the financial printer) and other
assistance as is reasonably necessary in order for the parties hereto once
each year (or more frequently if the prospectus for the Shares is supplemented
or amended) to have the prospectus for the Policies and the prospectus for the
Shares printed together in one document; the expenses of such printing to be
apportioned between (a) the Company and (b) the relevant Trust(s) or its
designee in proportion to the number of pages of the Policy and Shares'
prospectuses, taking account of other relevant factors affecting the expense
of printing, such as covers, columns, graphs and charts; such Trust or its
designee to bear the cost of printing the Shares' prospectus portion of such
document for distribution to owners of existing Policies funded by the Shares
and the Company to bear the expenses of printing the portion of such document
relating to the Accounts; provided, however, that the Company shall bear all
printing expenses of such combined documents where used for distribution to
prospective purchasers or to owners of existing Policies not funded by the
Shares. In the event that the Company requests that a Trust or its designee
provides such Trust's prospectus in a "camera ready" or electronic file format,
such Trust shall be responsible for providing the prospectus in the format in
which it or the Underwriter is accustomed to formatting prospectuses and shall
bear the expense of providing the prospectus in such format (e.g., typesetting
expenses), and the Company shall bear the expense of adjusting or changing the
format to conform with any of its prospectuses.
3.2. The prospectus for the Shares shall state that the statement
of additional information for the Shares is available from the relevant Trust
or its designee. Each Trust or its designee, at its expense, shall print and
provide such statement of additional information to the Company (or a master
of such statement suitable for duplication by the Company) for distribution to
any owner of a Policy funded by the Shares. Each Trust or its designee, at
the Company's expense, shall print and provide such statement to the Company
(or a master of such statement suitable for duplication by the Company) for
distribution to a prospective purchaser who requests such statement or to an
owner of a Policy not funded by the Shares.
3.3. Each Trust or its designee shall provide the Company free of
charge copies, if and to the extent applicable to the Shares, of such Trust's
proxy materials, reports to Shareholders and other communications to
Shareholders in such quantity as the Company shall reasonably require for
distribution to Policy owners.
3.4. Notwithstanding the provisions of Sections 3.1, 3.2, and 3.3
above, or of Article V below, the Company shall pay the expense of printing or
providing documents to the extent such cost is considered a distribution
expense. Distribution expenses would include by way of illustration, but are
not limited to, the printing of the Shares' prospectus or prospectuses for
distribution to prospective purchasers or to owners of existing Policies not
funded by such Shares.
3.5. Each Trust hereby notifies the Company that it may be
appropriate to include in the prospectus pursuant to which a Policy is offered
disclosure regarding the potential risks of mixed and shared funding.
3.6. If and to the extent required by the 1940 Act or other
applicable law, the Company shall:
(a) solicit voting instructions from Policy owners;
(b) vote the Shares in accordance with instructions
received from Policy owners; and
(c) vote the Shares for which no instructions have been
received in the same proportion as the Shares of such Portfolio for which
instructions have been received from Policy owners;
so long as and to the extent that the SEC continues to interpret the 1940 Act
to require pass through voting privileges for variable contract owners. The
Company will in no way recommend action in connection with or oppose or
interfere with the solicitation of proxies for the Shares held for such Policy
owners. The Company reserves the right to vote shares held in any segregated
asset account in its own right, to the extent permitted by law. Participating
Insurance Companies shall be responsible for assuring that each of their
separate accounts holding Shares calculates voting privileges in the manner
required by the Mixed and Shared Funding Exemptive Order. Each Trust and MFD
will notify the Company of any changes of interpretations or amendments to the
Mixed and Shared Funding Exemptive Order.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to
each Trust or its designee, each piece of sales literature or other promotional
material in which such Trust, MFS, any other investment adviser to such Trust,
or any affiliate of MFD is named, at least five (5) Business Days prior to its
use. No such material shall be used if such Trust, MFD, or their respective
designees reasonably objects to such use within five (5) Business Days after
receipt of such material. Any approval of sales literature or other promotional
material that the Company develops or uses shall be in effect for one year so
long as such disclosure regarding the Trusts is the same as used in the
approved piece. The Company shall furnish to the Trusts or their designee
any sales material or other promotional material that has materially changed
for approval.
4.2. The Company shall not give any information or make any
representations or statement on behalf of any Trust, MFS, or other investment
adviser to any Trust, or any affiliate of MFD or concerning such Trust or any
other such entity in connection with the sale of the Policies other than the
information or representations contained in the registration statement,
prospectus or statement of additional information for the Shares, as such
registration statement, prospectus and statement of additional information may
be amended or supplemented from time to time, or in reports or proxy statements
for such Trust, or in sales literature or other promotional material approved
by such Trust, MFD or their respective designees, except with the permission
of such Trust, MFD or their respective designees. Each Trust, MFD or their
respective designees each agrees to respond to any request for approval on a
prompt and timely basis. The Company shall adopt and implement procedures
reasonably designed to ensure that information concerning a Trust, MFD or any
of their affiliates which is intended for use only by brokers or agents
selling the Policies (i.e., information that is not intended for distribution
to Policy owners or prospective Policy owners) is so used, and neither the
Trusts, MFD nor any of their affiliates shall be liable for any losses, damages
or expenses relating to the improper use of such broker only materials.
4.3. Each Trust or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company and/or the Accounts is named,
at least five (5) Business Days prior to its use. No such material shall be
used if the Company or its designee reasonably objects to such use within five
(5) Business Days after receipt of such material.
4.4. The Trusts and MFD shall not give any information or make any
representations on behalf of the Company or concerning the Company, the
Accounts, or the Policies in connection with the sale of the Policies other
than the information or representations contained in a registration statement,
prospectus, or statement of additional information for the Policies, as such
registration statement, prospectus and statement of additional information may
be amended or supplemented from time to time, or in reports for the Accounts,
or in sales literature or other promotional material approved by the Company
or its designee, except with the permission of the Company. The Company or
its designee agrees to respond to any request for approval on a prompt and
timely basis. The Trusts and MFD may not alter any material so provided by
the Company or its designee (including, without limitation, presenting or
delivering such material in a different medium, e.g., electronic or internet)
without the prior written consent of the Company. The parties hereto agree
that this Section 4.4. is neither intended to designate nor otherwise imply
that MFD is an underwriter or distributor of the Policies.
4.5. Upon request of the other party, the Company and each Trust
(or its designee in lieu of the Company or such Trust, as appropriate) will
each provide to the other at least one complete copy of all registration
statements, prospectuses, statements of additional information, reports, proxy
statements, sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to the Policies, or to such Trust or its Shares, prior to
or contemporaneously with the filing of such document with the SEC or other
regulatory authorities. The Company and a Trust shall also each promptly
inform the other of the results of any examination by the SEC (or other
regulatory authorities) that relates to the Policies, such Trust or its Shares,
and the party that was the subject of the examination shall provide the other
party with a copy of relevant portions of any "deficiency letter" or other
correspondence or written report regarding any such examination.
4.6. 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, or after written consent therefor has
been revoked, provided that separate consent is not required under this
Section 4.6 to the extent that consent to use a party's name, logo, trademark
or service ▇▇▇▇ in connection with a particular piece of advertising or sales
literature has previously been given by a party under Sections 4.2 and 4.4 of
this Agreement. The Company shall not use in advertising, publicly or
otherwise the name of the Trusts, MFD or any of their affiliates nor any trade
name, trademark, trade device, servicemark, symbol or any abbreviation,
contraction or simulation thereof of the Trusts, MFD, or their affiliates
without the prior written consent of the relevant Trust or MFD in each
instance. The Trusts and MFD shall not use in advertising, publicly or
otherwise the name of the Company or any of its affiliates nor any trade
name, trademark, trade device, servicemark, symbol or any abbreviation,
contraction or simulation thereof of the Company or its affiliates without
the prior written consent of the Company in each instance.
4.7. Each Trust and MFD will provide the Company with as much
notice as is reasonably practicable of any proxy solicitation for any
Portfolio, and of any material change in such Trust's registration statement,
particularly any change resulting in change to the registration statement or
summary prospectus, statutory prospectus or statement of additional
information for any Account. Each Trust and MFD will cooperate with the
Company so as to enable the Company to solicit proxies from Policy owners or
to make changes to its summary prospectus, statutory prospectus, statement of
additional information or registration statement, in an orderly manner. Each
Trust and MFD will make reasonable efforts to attempt to have changes affecting
Policy prospectuses become effective simultaneously with the annual updates
for such prospectuses.
4.8. For purpose of this Article IV and Article VIII, the phrase
"sales literature or other promotional material" includes but is not limited
to advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, or other
public media), and sales literature (such as brochures, circulars, reprints or
excerpts or any other advertisement, sales literature, or published articles),
distributed or made generally available to customers or the public, educational
or training materials or communications distributed or made generally available
to some or all agents or employees.
ARTICLE V. FEES AND EXPENSES
5.1. Each Trust shall pay no fee or other compensation to the
Company under this Agreement, and the Company shall pay no fee or other
compensation to either Trust, except that, to the extent a Trust or any
Portfolio has adopted and implemented a plan pursuant to Rule 12b-1 under the
1940 Act to finance distribution and for Shareholder servicing expenses, then
such Trust may make payments to the Company or to the underwriter for the
Policies in accordance with such plan. Each party, however, shall, in
accordance with the allocation of expenses specified in Articles III and V
hereof, reimburse other parties for expenses initially paid by one party but
allocated to another party. In addition, nothing herein shall prevent the
parties hereto from otherwise agreeing to perform, and arranging for
appropriate compensation for, other services relating to such Trust and/or to
the Accounts.
5.2. Each Trust or its designee shall bear the expenses for the
cost of registration and qualification of the Shares under all applicable
federal and state laws, including preparation and filing of such Trust's
registration statement, and payment of filing fees and registration fees;
preparation and filing of such Trust's proxy materials and reports to
Shareholders; setting in type and printing its prospectus and statement of
additional information (to the extent provided by and as determined in
accordance with Article III above); setting in type and printing the proxy
materials and reports to Shareholders (to the extent provided by and as
determined in accordance with Article III above); such preparation of all
statements and notices required of such Trust by any federal or state law with
respect to its Shares; all taxes on the issuance or transfer of the Shares;
and the costs of distributing such Trust's prospectuses and proxy materials
to owners of Policies funded by the Shares and any expenses permitted to be
paid or assumed by such Trust pursuant to a plan, if any, under Rule 12b-1
under the 1940 Act. Such Trust shall not bear any expenses of marketing the
Policies.
5.3. The Company shall bear the expenses of distributing the
Shares' prospectus or prospectuses and a Trust's Shareholder reports in
connection with new sales of the Policies. The Company shall bear all
expenses associated with the registration, qualification, and filing of the
Policies under applicable federal securities and state insurance laws; the
cost of preparing, printing and distributing the Policy prospectus and
statement of additional information; and the cost of preparing, printing and
distributing annual individual account statements for Policy owners as
required by state insurance laws.
5.4. With respect to the Service Class Shares of a Portfolio, the
relevant Trust may make payments quarterly to MFD under a Portfolio's Rule
12b-1 plan, and MFD may in turn use these payments to pay or reimburse the
Company for expenses incurred or paid (as the case may be) by the Company
attributable to Policies offered by the Company, provided that no such payment
shall be made with respect to any quarterly period in excess of an amount
determined from time to time by such Trust's Board and disclosed in such
Trust's prospectus. MFD shall not be required to provide any payment to the
Company with respect to any quarterly period pursuant to a Trust's Rule
12b-1 plan unless and until MFD has received the corresponding payment from
such Trust pursuant to the Trust's Rule 12b-1 plan. MFD shall not be required
to provide any payment to the Company with respect to any quarterly period
pursuant to a Trust's Rule 12b-1 plan if (i) such Trust's Rule 12b-1 plan is
no longer in effect during such quarterly period; or (ii) regulatory changes
result in the rescission of Rule 12b-1 or otherwise prohibit the making of
such payments. Each Trust's prospectus or statement of additional information
may provide further details about such payments and the provisions and terms
of such Trust's Rule 12b-1 plan, and the Company hereby agrees that neither
such Trust, nor MFD has made any representations to the Company with respect
to such Trust's Rule 12b-1 plan in addition to, or conflicting with, the
description set forth in such Trust's prospectus.
5.5. In calculating the payments due under this Agreement, the
Company agrees that, if requested, it will provide a certification (which may
take the form of a control report or set of agreed upon standards) satisfactory
to MFD that certifies the Company's compliance with the terms of this Agreement
and verifies the accuracy of any information provided by the Company that
forms the basis of the fee calculations.
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1. Each Trust and MFD represent and warrant that each Portfolio
of the Trust will meet the diversification requirements of Section 817 (h) (1)
of the Code and Treas. Reg. 1.817-5, relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts, as
they may be amended from time to time (and any revenue rulings, revenue
procedures, notices, and other published announcements of the Internal Revenue
Service interpreting these sections), as if those requirements applied
directly to each such Portfolio. In the event that any Portfolio is not so
diversified at the end of any applicable quarter, such Trust and MFD will make
every effort to: (a) adequately diversify the Portfolio so as to achieve
compliance within the grace period afforded by Treas. Reg. 1.817.5, and (b)
notify the Company.
6.2. Each Trust and MFD represent that each Portfolio will elect to
be qualified as a Regulated Investment Company under Subchapter M of the Code
and that they will maintain such qualification (under Subchapter M or any
successor or similar provision).
ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1. Each Trust agrees that its relevant Board, constituted with a
majority of disinterested trustees, will monitor each Portfolio of such Trust
for the existence of any material irreconcilable conflict between the
interests of the variable annuity contract owners and the variable life
insurance policy owners of the Company and/or affiliated companies ("contract
owners") investing in such Trust. The relevant Board shall have the sole
authority to determine if a material irreconcilable conflict exists, and such
determination shall be binding on the Company only if approved in the form of
a resolution by a majority of the relevant Board, or a majority of the
disinterested trustees of the relevant Board. The relevant Board will give
prompt notice of any such determination to the Company.
7.2. The Company agrees that it will be responsible for assisting
each relevant Trust Board in carrying out its responsibilities under the
conditions set forth in the Trusts' exemptive application pursuant to which
the SEC has granted the Mixed and Shared Funding Exemptive Order by providing
each Board, as it may reasonably request, with all information necessary for
such Board to consider any issues raised and agrees that it will be responsible
for promptly reporting any potential or existing conflicts of which it is
aware to such Board including, but not limited to, an obligation by the
Company to inform such Board whenever contract owner voting instructions are
disregarded. The Company also agrees that, if a material irreconcilable
conflict arises, it will at its own cost remedy such conflict up to and
including (a) withdrawing the assets allocable to some or all of the Accounts
from the relevant Trust(s) or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio
of a Trust, or submitting to a vote of all affected contract owners whether to
withdraw assets from a Trust or any Portfolio and reinvesting such assets in a
different investment medium and, as appropriate, segregating the assets
attributable to any appropriate group of contract owners that votes in favor
of such segregation, or offering to any of the affected contract owners the
option of segregating the assets attributable to their contracts or policies,
and (b) establishing a new registered management investment company and
segregating the assets underlying the Policies, unless a majority of Policy
owners materially adversely affected by the conflict have voted to decline the
offer to establish a new registered management investment company.
7.3. A majority of the disinterested trustees of the relevant Board
shall determine whether any proposed action by the Company adequately remedies
any material irreconcilable conflict. In the event that a Board determines
that any proposed action does not adequately remedy any material irreconcilable
conflict, the Company will withdraw from investment in the relevant Trust each
of the Accounts designated by the disinterested trustees and terminate this
Agreement within six (6) months after the relevant Board informs the Company
in writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required to remedy
any such material irreconcilable conflict as determined by a majority of the
disinterested trustees of the relevant Board.
7.4. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive
Order) on terms and conditions materially different from those contained in
the Mixed and Shared Funding Exemptive Order, then (a) the Trusts and/or the
Participating Insurance Companies, as appropriate, shall take such steps as
may be necessary to comply with Rule 6e-2 and 6e-3(T), as amended, and Rule
6e-3, as adopted, to the extent such rules are applicable; and (b) Sections
3.5, 3.6, 7.1, 7.2, 7.3 and 7.4 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 agrees to indemnify and hold harmless each Trust, MFD, any
affiliates of MFD, and each of their respective directors/trustees, officers
and each person, if any, who controls each Trust or MFD within the meaning of
Section 15 of the 1933 Act, and any agents or employees of the foregoing (each
an "Indemnified Party," or collectively, the "Indemnified Parties" for
purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or expenses (including reasonable counsel fees) to which any
Indemnified Party may become subject under any statute, regulation, at common
law or otherwise, 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 Shares or the Policies and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement, prospectus or statement of additional information for the Policies
or contained in the Policies or sales literature or other promotional material
for the Policies (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 reasonable reliance upon and in
conformity with information furnished to the Company or its designee by or on
behalf of the relevant Trust or MFD for use in the registration statement,
prospectus or statement of additional information for the Policies or in the
Policies or sales literature or other promotional material (or any amendment
or supplement) or otherwise for use in connection with the sale of the
Policies or Shares; or
(b) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus, statement of additional information or
sales literature or other promotional material of relevant Trust not supplied
by the Company or its designee, or persons under its control and on which the
Company has reasonably relied) or wrongful conduct of the Company or persons
under its control, with respect to the sale or distribution of the Policies or
Shares; or
(c) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the registration statement,
prospectus, statement of additional information, or sales literature or other
promotional literature of the relevant 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 statement
or statements therein not misleading, if such statement or omission was made
in reliance upon information furnished to the relevant Trust by or on behalf
of the Company; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company; or
(e) arise as a result of any failure by the Company to
provide the services and furnish the materials under the terms of this
Agreement;
as limited by and in accordance with the provisions of this
Article VIII.
8.2. Indemnification by the Trusts
Each Trust severally 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, and any agents
or employees of the foregoing (each an "Indemnified Party," or collectively,
the "Indemnified Parties" for purposes of this Section 8.2) against any and
all losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of such Trust) or expenses (including reasonable
counsel fees) to which any Indemnified Party 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 are
related to the sale or acquisition of the Shares or the Policies and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement, prospectus, statement of additional information or sales literature
or other promotional material of such 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 statement 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
reasonable reliance upon and in conformity with information furnished to such
Trust, MFS, MFD or their respective designees by or on behalf of the Company
for use in the registration statement, prospectus or statement of additional
information for such Trust or in sales literature or other promotional
material for such Trust (or any amendment or supplement) or otherwise for use
in connection with the sale of the Policies or Shares; or
(b) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus, statement of additional information or
sales literature or other promotional material for the Policies not supplied
by such Trust, MFS, MFD or any of their respective designees or persons under
their respective control and on which any such entity has reasonably relied)
or wrongful conduct of such Trust or persons under its control, with respect
to the sale or distribution of the Policies or Shares; or
(c) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the registration statement,
prospectus, statement of additional information, or sales literature or other
promotional literature of the Accounts or relating to the Policies, 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 such Trust, MFS or MFD; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by such Trust in this Agreement (including
a failure, whether unintentional or in good faith or otherwise, to comply with
the diversification requirements specified in Article VI of this Agreement) or
arise out of or result from any other material breach of this Agreement by
such Trust; or
(e) arise out of or result from the materially incorrect
or untimely calculation or reporting of the daily net asset value per share or
dividend or capital gain distribution rate; or
(f) arise as a result of any failure by such Trust to
provide the services and furnish the materials under the terms of the
Agreement;
as limited by and in accordance with the provisions of this
Article VIII.
8.3. In no event shall any Trust be liable under the
indemnification provisions contained in this Agreement to any individual or
entity, including without limitation, the Company, or any Participating
Insurance Company or any Policy holder, with respect to any losses, claims,
damages, liabilities or expenses that arise out of or result from (i) a breach
of any representation, warranty, and/or covenant made by the Company hereunder
or by any Participating Insurance Company under an agreement containing
substantially similar representations, warranties and covenants; (ii) the
failure by the Company or any Participating Insurance Company to maintain its
segregated asset account (which invests in any Portfolio) as a legally and
validly established segregated asset account under applicable state law and as
a duly registered unit investment trust under the provisions of the 1940 Act
(unless exempt therefrom); or (iii) the failure by the Company or any
Participating Insurance Company to maintain its variable annuity and/or
variable life insurance contracts (with respect to which any Portfolio serves
as an underlying funding vehicle) as life insurance, endowment or annuity
contracts under applicable provisions of the Code.
8.4. Neither the Company nor any Trust shall be liable under the
indemnification provisions contained in this Agreement with respect to any
losses, claims, damages, liabilities or expenses to which an Indemnified Party
would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, willful misconduct, or 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.
8.5. Promptly after receipt by an Indemnified Party under this
Section 8.5 of notice of commencement of any action, such Indemnified Party
will, if a claim in respect thereof is to be made against the indemnifying
party under this section, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any Indemnified Party otherwise
than under this section. In case any such action is brought against any
Indemnified Party, and it notified the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and,
to the extent that it may wish, assume the defense thereof, with counsel
satisfactory to such Indemnified Party. After notice from the indemnifying
party of its intention to assume the defense of an action, the Indemnified
Party shall bear the expenses of any additional counsel obtained by it, and
the indemnifying party shall not be liable to such Indemnified Party under
this section for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation.
8.6. Each of the parties agrees promptly to notify the other
parties of the commencement of any litigation or proceeding against it or any
of its respective officers, directors, trustees, employees or 1933 Act control
persons in connection with the Agreement, the issuance or sale of the
Policies, the operation of the Accounts, or the sale or acquisition of
Shares.
8.7. 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
Massachusetts.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
SEC may grant and the terms hereof shall be interpreted and construed in
accordance therewith.
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS
Each Trust and MFD agree that each such party shall promptly notify
the other parties to this Agreement, in writing, of the institution of any
formal proceedings brought against such party or its designees by FINRA, the
SEC, or any insurance department or any other regulatory body regarding such
party's duties under this Agreement or related to the sale of the Policies,
the operation of the Accounts, or the purchase of the Shares.
ARTICLE XI. CONTROLS AND PROCEDURES
11.1. The Company has implemented controls and procedures that are
reasonably designed to ensure compliance with applicable laws and regulations,
as well as the terms of this Agreement. Without limiting the foregoing, these
controls and procedures are reasonably designed to ensure, and MFD or a Trust
may request certifications on an annual basis with respect to, each of the
following:
(a) Orders for Shares received by the Company, or its
designated agent(s), for each Portfolio comply with the Portfolio's
restrictions with respect to purchases, transfers, redemptions and exchanges
as set forth in each Portfolio's prospectus and statement of additional
information;
(b) Orders for Shares received by the Company, or its
designated agent(s), prior to the Portfolio's pricing time set forth in its
prospectus (e.g., the close of the New York Stock Exchange - normally
4:00 p.m. Eastern time) are segregated from those received by the Company at
or after such time, and are properly transmitted to the Portfolios (or their
agents) for execution at the current day's net asset value ("NAV"); and
orders received by the Company at or after such time are properly transmitted
to the Portfolios (or their agents) for execution at the next day's NAV;
(c) Late trading in Shares by Policy holders is identified
and prevented and market timing is appropriately addressed;
(d) Compliance with applicable state securities laws,
including without limitation "blue sky" laws and related rules and
regulations;
(e) Compliance with all applicable federal, state and
foreign laws, rules and regulations regarding the detection and prevention
of money laundering activity; and
(f) Effective business continuity and disaster recovery
systems with respect to the services contemplated by the Agreement.
11.2 The Company shall ensure that any other party to whom the
Company assigns or delegates any services hereunder is responsible for, and
has controls and procedures that are reasonably designed to ensure, each of
the items set forth in Section 11.1 above.
ARTICLE XII. TERMINATION
12.1. This Agreement shall terminate with respect to the Accounts,
or one, some, or all Portfolios:
(a) at the option of any party upon six (6) months' a
dvance written notice to the other parties; or
(b) at the option of the Company to the extent that the
Shares of Portfolios are not reasonably available to meet the requirements of
the Policies or are not "appropriate funding vehicles" for the Policies, as
reasonably determined by the Company. Without limiting the generality of the
foregoing, the Shares of a Portfolio would not be "appropriate funding
vehicles" if, for example, such Shares did not meet the diversification or
other requirements referred to in Article VI hereof; or if the Company would
be permitted to disregard Policy owner voting instructions pursuant to Rule
6e-2 or Rule 6e-3(T) under the 1940 Act. Prompt notice of the election to
terminate for such cause and an explanation of such cause shall be furnished
to the relevant Trust(s) by the Company; or
(c) at the option of a Trust or MFD upon institution of
formal proceedings against the Company by FINRA, the SEC, or any insurance
department or any other regulatory body that would have a material adverse
impact on the Company's duties under this Agreement or related to the sale of
the Policies, the operation of the Accounts, or the purchase of the Shares; or
(d) at the option of the Company upon institution of
formal proceedings against a Trust by FINRA, the SEC, or any state securities
or insurance department or any other regulatory body that would have a
material adverse impact on such Trust's or MFD's duties under this Agreement
or related to the sale of the Shares; or
(e) at the option of the Company, a Trust or MFD upon
receipt of any necessary regulatory approvals and/or the vote of the Policy
owners having an interest in the Accounts (or any subaccounts) to substitute
the shares of another investment company for the corresponding Portfolio
Shares in accordance with the terms of the Policies for which those Portfolio
Shares had been selected to serve as the underlying investment media. The
Company will give thirty (30) days' prior written notice to the relevant
Trust(s) of the Date of any proposed vote or other action taken to replace the
Shares; or
(f) termination by either a Trust or MFD by written notice
to the Company, if either one or both of such Trust or MFD shall determine, in
their sole judgment exercised in good faith, that the Company has suffered a
material adverse change in its business, operations, financial condition, or
prospects since the date of this Agreement or is the subject of material
adverse publicity; or
(g) termination by the Company by written notice to a
Trust and MFD, if the Company shall determine, in its sole judgment exercised
in good faith, that such Trust or MFD has suffered a material adverse change
in this business, operations, financial condition or prospects since the date
of this Agreement or is the subject of material adverse publicity; or
(h) at the option of any party to this Agreement, upon
another party's material breach of any provision of this Agreement; or
(i) upon assignment of this Agreement, unless made with
the written consent of the parties hereto.
(j) at the option of the Company if a Trust fails to meet
the diversification requirements specified in Article VI (other than any
failure caused by the Company's actions or omissions) or the Company has a
reasonable expectation that such Trust will fail to meet these diversification
requirements in the future.
12.2. The notice shall specify the Portfolio or Portfolios, Policies
and, if applicable, the Accounts as to which the Agreement is to be terminated.
12.3. It is understood and agreed that the right of any party hereto
to terminate this Agreement pursuant to Section 12.1(a) may be exercised for
cause or for no cause.
12.4. Except as necessary to implement Policy owner initiated
transactions, or as required by state insurance laws or regulations, the
Company shall not redeem the Shares attributable to the Policies (as opposed
to the Shares attributable to the Company's assets held in the Accounts),
until ten (10) days after the Company shall have notified the relevant Trust
of its intention to do so.
12.5. Notwithstanding any termination of this Agreement, each Trust
and MFD shall, at the option of the Company, continue to make available
additional shares of the Portfolios pursuant to the terms and conditions of
this Agreement, for all Policies in effect on the effective date of termination
of this Agreement (the "Existing Policies"), except as otherwise provided
under Article VII of this Agreement. Specifically, without limitation, the
owners of the Existing Policies shall be permitted to transfer or reallocate
investment under the Policies, redeem investments in any Portfolio and/or
invest in each Trust upon the making of additional purchase payments under the
Existing Policies.
ARTICLE XIII. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail, overnight courier or facsimile 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 Trust I:
MFS Variable Insurance Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant Secretary
If to Trust II:
MFS Variable Insurance Trust II
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant Secretary
If to the Company:
Symetra Life Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ #▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Legal Counsel
If to MFD:
MFS Fund Distributors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
ARTICLE XIV. MISCELLANEOUS
14.1. Subject to the requirement of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Policies and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement or as otherwise required by applicable law or
regulation, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written
consent of the affected party until such time as it may come into the public
domain.
14.2. 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.
14.3. This Agreement may be executed simultaneously in one or more
counterparts, each of which taken together shall constitute one and the same
instrument.
14.4. 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.
14.5. The Schedule attached hereto, as modified from time to time,
is incorporated herein by reference and is part of this Agreement.
14.6. Each party hereto shall cooperate with each other party in
connection with inquiries by appropriate governmental authorities (including
without limitation the SEC, FINRA, and state insurance regulators) relating to
this Agreement or the transactions contemplated hereby.
14.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies
and obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
14.8. A copy of each Trust's Declaration of Trust is on file with
the Secretary of State of The Commonwealth of Massachusetts. The Company
acknowledges that the obligations of or arising out of this instrument are
not binding upon any of each Trust's trustees, officers, employees, agents
or shareholders individually, but are binding solely upon the assets and
property of the relevant Trust in accordance with its proportionate interest
hereunder. The Company further acknowledges that the assets and liabilities
of each Portfolio are separate and distinct and that the obligations of or
arising out of this instrument are binding solely upon the assets or property
of the Portfolio on whose behalf the relevant Trust has executed this
instrument. The Company also agrees that the obligations of each Portfolio
hereunder shall be several and not joint, in accordance with its proportionate
interest hereunder, and the Company agrees not to proceed against any
Portfolio for the obligations of another Portfolio.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified above.
SYMETRA LIFE INSURANCE COMPANY
By its authorized officer
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
MFS VARIABLE INSURANCE TRUST,
on behalf of the Portfolios
By its authorized officer and not
individually,
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
MFS VARIABLE INSURANCE TRUST II,
on behalf of the Portfolios
By its authorized officer and not
individually,
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
MFS FUND DISTRIBUTORS, INC.
By its authorized officer,
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇
President
As of _______,2012
SCHEDULE A
ACCOUNTS, POLICIES, AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
And any other Portfolios or series of shares of the Trusts that are
available and open to new investors on or after the effective date of
this Agreement.
Name of Separate Account
and Date Established Policies Funded Portfolios Applicable
by Board of Directors by Separate Account Share Class Trust to Policies
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Symetra Resource Variable All Contracts Initial Class VIT I (1)
Account B &
Established February 6, 1986 VIT II
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Symetra Separate Account VL All Contracts Initial Class VIT I (1)
(unregistered) &
Established July 28, 2009 VIT II
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(1) Portfolios Applicable to Policies:
VIT I VIT II
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MFS Growth Series MFS Global Governments Portfolio
MFS New Discovery Series MFS International Growth Portfolio
MFS Utilities Series MFS International Value Portfolio