PARTICIPATION AGREEMENT
AMONG
HARTFORD LIFE INSURANCE COMPANY, INC.,
PIMCO VARIABLE INSURANCE TRUST,
AND
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
THIS AGREEMENT, dated as of the 1ST day of May, 2006, by and among Hartford Life
Insurance Company, Inc. (the "Company"), a stock life insurance company
organized under the laws of the state of Connecticut, on its own behalf and on
behalf of each segregated asset account of the Company set forth on Schedule A
hereto as may be amended from time to time (each account hereinafter referred to
as the "Separate Account"), PIMCO Variable Insurance Trust (the "Fund"), a
Delaware statutory trust, and Allianz Global Investors Distributors LLC (the
"Underwriter"), a Delaware limited liability company.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance and variable annuity contracts (the
"Variable Insurance Products") to be offered by insurance companies which have
entered into participation agreements with the Fund and Underwriter
("Participating Insurance Companies");
WHEREAS, the shares of beneficial interest of the Fund are divided into several
series of shares, each designated a "Portfolio" and representing the interest in
a particular managed portfolio of securities and other assets.
WHEREAS, the Fund has obtained an order (PIMCO VARIABLE INSURANCE TRUST, ET AL.,
Investment Company Act Rel. Nos. 22994 (Jan. 7, 1998) (Notice) and 23022 (Feb.
9, 1998)(Order)) from the Securities and Exchange Commission (the "SEC")
granting Participating Insurance Companies and variable annuity and variable
life insurance separate accounts exemptions from the provisions of sections
9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended,
(the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, if and to
the extent necessary to permit shares of the Fund to be sold to and held by
variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated life insurance companies (the "Mixed and Shared
Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and shares of the Portfolios are registered under the
Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, Pacific Investment Management Company LLC (the "Adviser"), which serves
as investment adviser to the Fund, is duly registered as an investment adviser
under the federal Investment Advisers Act of 1940, as amended;
WHEREAS, the Company has issued or will issue certain variable life insurance
and/or variable annuity contracts supported wholly or partially by the Separate
Account (the "Contracts"), and said
Contracts are listed in Schedule A hereto, as it may be amended from time to
time by mutual written agreement;
WHEREAS, the Separate Account is duly established and maintained as a segregated
asset account, duly established by the Company, on the date shown for such
Separate Account on Schedule A hereto, to set aside and invest assets
attributable to the aforesaid Contracts;
WHEREAS, the Underwriter, which serves as distributor to the Fund, is registered
as a broker dealer with the SEC under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase Administrative Class shares in the Portfolios
listed in Schedule A hereto, as it may be amended from time to time by mutual
written agreement (the "Designated Portfolios") on behalf of the Separate
Account to fund the aforesaid Contracts, and the Underwriter is authorized to
sell such shares to the Separate Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Underwriter agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Fund has granted to the Underwriter exclusive authority to distribute
the Fund's shares, and has agreed to instruct, and has so instructed, the
Underwriter to make available to the Company for purchase on behalf of the
Separate Account Fund shares of those Designated Portfolios selected by the
Underwriter. Pursuant to such authority and instructions, and subject to Article
X hereof, the Underwriter agrees to make available to the Company for purchase
on behalf of the Separate Account, shares of those Designated Portfolios listed
on Schedule A to this Agreement, such purchases to be effected at net asset
value in accordance with Section 1.3 of this Agreement. Notwithstanding the
foregoing, (i) Fund series (other than those listed on Schedule A) in existence
now or that may be established in the future will be made available to the
Company only as the Underwriter may so provide, and (ii) the Board of Trustees
of the Fund (the "Board") may suspend or terminate the offering of Fund shares
of any Designated Portfolio or class thereof, or liquidate any Designated
Portfolio or class thereof, if such action is required by 1aw or by regulatory
authorities having jurisdiction or if, in the sole discretion of the Board
acting in good faith, suspension, termination or liquidation is necessary in the
best interest of the shareholders of such Designated Portfolio.
1.2. The Fund shall redeem, at the Company's request, any full or fractional
Designated Portfolio shares held by the Company on behalf of the Separate
Account, such redemptions to be effected at net asset value in accordance with
Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) the Company
shall not redeem Fund shares attributable to Contract owners except in the
circumstances permitted in Section 10.3 of this Agreement, and (ii) the Fund may
delay redemption of Fund shares of any Designated Portfolio to the extent
permitted by the 1940 Act, and any rules, regulations or orders thereunder.
1.3. PURCHASE AND REDEMPTION PROCEDURES
(a) The Fund hereby appoints the Company as an agent of the Fund for the
limited purpose of receiving purchase and redemption requests on
behalf of the Separate Account (but not with respect to any Fund
shares that may be held in the general account of the Company) for
shares
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of those Designated Portfolios made available hereunder, based on
allocations of amounts to the Separate Account or subaccounts
thereof under the Contracts and other transactions relating to
the Contracts or the Separate Account. Receipt and acceptance of
any such request (or relevant transactional information therefor)
on any day the New York Stock Exchange is open for trading and on
which the Fund calculates its net asset value pursuant to the
rules of the SEC (a "Business Day") by the Company as such
limited agent of the Fund prior to the time that the Fund
ordinarily calculates its net asset value as described from time
to time in the Fund Prospectus (which as of the date of execution
of this Agreement is 4:00 p.m. Eastern Time) shall constitute
receipt and acceptance by the Fund on that same Business Day,
provided that the Company uses its best efforts to provide notice
of such requests to the Fund or its designated agent by 9:00 a.m.
Eastern Time, and in any event provide such notice by 9:30 a.m.
Eastern Time, on the next following Business Day. The Company may
submit all orders to purchase shares of Designated Portfolios
using the NSCC's Defined Contribution Clearance & Settlement
("DCC&S") platform.
(b) The Company shall pay for shares of each Designated Portfolio on
the same day that it notifies the Fund of a purchase request for
such shares. Payment for Designated Portfolio shares shall be
made in federal funds transmitted to the Fund by wire to be
received by the Fund by 4:00 p.m. Eastern Time on the Business
Day the Fund is notified of the purchase request for Designated
Portfolio shares (which request may be net of redemptions of
shares). If federal funds are not received on time, such funds
will be invested, and Designated Portfolio shares purchased
thereby will be issued, as soon as practicable and the Company
shall promptly, upon the Fund's request, reimburse the Fund for
any charges, costs, fees, interest or other expenses incurred by
the Fund in connection with any advances to, or borrowing or
overdrafts by, the Fund, or any similar expenses incurred by the
Fund, as a result of portfolio transactions effected by the Fund
based upon such purchase request. Upon receipt of federal funds
so wired, such funds shall ceaseto be the responsibility of the
Company and shall become the responsible of the Fund.
(c) Payment for Designated Portfolio shares redeemed by the Separate
Account or the Company Shall be made in federal funds transmitted
by wire to the Company or any other designated person on the next
Business Day after the Fund is properly notified of the
redemption order of such shares (which order shall be net of any
purchase orders) except that the Fund reserves the right to
redeem Designated Portfolio shares in assets other than cash and
to delay payment of redemption proceeds to the extent permitted
under Section 22(e) of the 1940 Act and any Rules thereunder, and
in accordance with the procedures and policies of the Fund as
described in the then current prospectus and/or statement of
additional information ("SAI"). The Fund shall not bear any
responsibility whatsoever for the proper disbursement or
crediting of redemption proceeds by the Company; the Company
alone shall the responsible for such action.
(d) Any purchase or redemption request for Designated Portfolio
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 Fund's receipt of such request, provided that, in the
case of a purchase request, payment for Fund shares so requested
is received by the Fund in federal funds prior to close of
business for determination of such value, as defined from time to
time in the Fund Prospectus.
(e) The Company shall not redeem Fund shares attributable to the
Contracts (as opposed to Fund shares attributable to the
Company's assets held in the Separate Account) except (i) as
necessary to implement Contract owner initiated or approved
transactions, (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general
application (hereinafter referred to as a "Legally Required
Redemption"), (iii) upon 45 days prior written notice to the Fund
and the Underwriter, as permitted by an order of the SEC pursuant
to Section 26(c) of the 1940 Act, but only
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if a substitution of other securities for the shares of the
Designated Portfolios is consistent with the terms of the Contracts,
or (iv) as permitted under the terms of the Contracts. Upon request,
the Company will promptly furnish to the Fund reasonable assurance
that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted
under the terms of the Contracts, the Company shall not prevent
Contract owners from allocating payments to a Designated Portfolio
that was otherwise available under the Contracts without first giving
the Fund 45 days notice of its intention to do so.
1.4. The Fund shall use its best efforts to make the net asset value per share
for each Designated Portfolio available to the Company by 7:00 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 Designated Portfolio is calculated, and shall
calculate such net asset value in accordance with the Fund's Prospectus. Neither
the Fund, any Designated Portfolio, the Underwriter, 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 Insurance Company to the Fund or the
Underwriter.
1.5. The Fund shall furnish notice (by wire or telephone followed by written
confirmation) to the Company as soon as reasonably practicable of any income
dividends or capital gain distributions payable on any Designated Portfolio
shares. The Company, on its behalf and on behalf of the Separate Account, hereby
elects to receive all such dividends and distributions as are payable on any
Designated Portfolio shares in the form of additional shares of that Designated
Portfolio. The Company reserves the right, on its behalf and on behalf of the
Separate Account, to revoke this election and to receive all such dividends and
capital gain distributions in cash. The Fund shall notify the Company promptly
of the number of Designated Portfolio shares so issued as payment of such
dividends and distributions.
1.6. Issuance and transfer of Fund shares shall be by book entry only. Share
certificates will not be issued to the Company or the Separate Account. Purchase
and redemption orders for Fund shares shall be recorded in an appropriate ledger
for the Separate Account or the appropriate subaccount of the Separate Account.
1.7. (a) The parties hereto acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the Fund's shares may be sold to other
insurance companies (subject to Section 1.8 hereof) and the cash value of the
Contracts may be invested in other investment companies, provided, however, that
until this Agreement is terminated pursuant to Article X, the Company shall
promote the Designated Portfolios on the Same basis as other funding vehicles
available under the Contracts. Funding vehicles other than those listed on
schedule A to this Agreement may be available for the investment of the cash
value of the Contracts, provided, however, (i) any such vehicle or series
thereof, has investment objectives or policies that are substantially different
from the investment objectives and policies of the Designated Portfolios
available hereunder; (ii) the Company gives the Fund and the Underwriter 45 days
written notice of its intention to make such other investment vehicle available
as a Funding vehicle for the Contracts; and (iii) unless such other investment
company was available as a funding vehicle for the Contracts prior to the date
of this Agreement and the Company has so informed the Fund and the Underwriter
prior to their signing this Agreement, the Fund or Underwriter consents in
writing to the use of such other vehicle, such consent not to be unreasonably
withheld.
(b) The Company shall not, without prior notice to the Fund (unless otherwise
required by applicable law), take any action to operate the Separate Account as
a management investment company under the l940 Act.
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(c) The Company shall not, without prior notice to the Fund (unless otherwise
required by applicable law), induce Contract owners to change or modify the Fund
or change the Fund's distributor or investment adviser.
(d) The Company shall not without prior notice to the Fund, induce Contract
owners to vote on any matter submitted for consideration by the shareholders of
the Fund in a manner other than as recommended by the Board of Trustees of the
Fund.
1.8. The Company acknowledges that, pursuant to Form 24F-2, the Fund is not
required to pay fees to the SEC for registration of its shares under the 1933
Act with respect to its shares issued to an Separate Account that is a unit
investment trust that offers interests that are registered under the 1933 Act
and on which a registration fee has been or will be paid to the SEC (a
"Registered Separate Account"). The Company agrees to provide the Fund or its
agent each year within 60 days of the end of the Fund's fiscal year, or when
reasonably requested by the Fund, information as to the number of shares
purchased by a Registered Separate Account and any other Separate Account the
interests of which are not registered under the ▇▇▇▇ ▇▇▇. The Company
acknowledges that the Fund intends to rely on the information so provided.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Fund represents and warrants that (i) the Fund is lawfully organized
and validly existing under the laws of the State of Delaware, (ii) the Fund is
and shall remain registered under the 1940 Act, (iii) the Fund does and will
comply in all material respects with the 1940 Act, (iv) Designated Portfolio
shares sold pursuant to this Agreement are registered under the 1933 Act (to the
extent required by that Act) and are duly authorized for issuance, (v) the Fund
shall amend the registration statement for the shares of the Designated
Portfolios under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of such shares, and (vi) the Board has
elected for each Designated Portfolio to be taxed as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"). The Fund makes no representations or warranties as to whether any
aspect of the Designated Portfolios' operations, including, but not limited to,
investment policies, fees and expenses, complies with the insurance laws and
other applicable laws of the various states.
2.2. The Underwriter represents and warrants that shares of the Designated
Portfolios (i) shall be offered and sold in compliance with applicable state and
federal securities laws, (ii) are offered and sold only to Participating
Insurance Companies and their separate accounts and to persons or plans that
communicate to the Fund that they qualify to purchase shares of the Designated
Portfolios under Section 817(h) of the Code and the regulations thereunder
without impairing the ability of the Separate Account to consider the portfolio
investments of the Designated Portfolios as constituting investments of the
Separate Account for the purpose of satisfying the diversification requirements
of Section 817(h) ("Qualified Persons"), and (iii) are registered and qualified
for sale in accordance with the laws of the various states to the extent
required by applicable law.
2.3. Subject to Company's representations and warranties in Sections 2.5 and
2.6., the Fund represents and warrants that it will invest the assets of each
Designated Portfolio in such a manner as to ensure that the Contracts will be
treated as annuity or life insurance contracts, whichever is appropriate, under
the Code and the regulations issued thereunder (or any successor provisions).
Without limiting the scope of the foregoing, the Fund represents and warrants
that each Designated Portfolio has complied and will continue to comply with
Section 817(h) of the Code and Treasury Regulation Section 1.817-5, and any
Treasury interpretations thereof, relating to the diversification requirements
for variable
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annuity, endowment, or life insurance contracts, and any amendments or other
modifications or successor provisions to such Section or Regulation. The Fund
will make every reasonable effort (a) to notify the Company immediately upon
having a reasonable basis for believing that a breach of this Section 2.3 has
occurred, and (b) in the event of such breach, to adequately diversify the
Designated Portfolio so as to achieve compliance within the grace period
afforded by Treasury Regulation Section 1.817-5.
2.4. The Fund represents and warrants that each Designated Portfolio is or will
be qualified as a Regulated Investment Company under Subchapter M of the Code,
that the Fund will make every reasonable effort to maintain such qualification
(under Subchapter M or any successor or similar provisions) and that the Fund
will notify the Company immediately upon having a reasonable basis for believing
that a Designated Portfolio has ceased to so qualify or that it might not so
qualify in the future.
2.5. The Company represents and warrants that the Contracts (a) are, or prior
to issuance will be, registered under the 1933 Act, or (b) are not registered
because they are properly exempt from registration under the 1933 Act or will be
offered exclusively in transactions that are properly exempt from registration
under the 1933 Act. The Company also represents and warrants that it is an
insurance company duly organized and in good standing under applicable law, that
it has legally and validly established the Separate Account prior to any
issuance or sale thereof as a segregated asset account under the state of
Connecticut insurance laws, and that it (a) has registered or, prior to any
issuance or sale of the Contracts, will register the Separate Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a
segregated investment account for the Contracts, or alternatively (b) has not
registered the Separate Account in proper reliance upon an exclusion from
registration under the 1940 Act. The Company further represents and warrants
that (i) the Contracts will be issued and sold in compliance in all material
respects with all applicable federal securities and state securities and
insurance laws, (ii) the sale of the Contracts shall comply in all material
respects with state insurance suitability requirements; (iii) the information
provided pursuant to Section 1.8 shall be accurate in all material respects; and
(iv) it and the Separate Account are Qualified Persons. The Company shall
register and qualify the Contracts or interests therein as securities in
accordance with the laws of the various states only if and to the extent
required by applicable law.
2.6. The Company represents and warrants that the Contracts are currently, and
at the time of issuance shall be, treated as life insurance or annuity
contracts, under applicable provisions of the Code, and that it will make every
reasonable effort to maintain such treatment, and that it will notify the Fund
and the Underwriter immediately upon having a reasonable basis for believing the
Contracts have ceased to be so treated or that they might not be so treated in
the future. In addition, the Company represents and warrants that each of its
Separate Accounts is a "segregated asset account" and that interests in the
Separate Accounts are offered exclusively through the purchase of or transfer
into a "variable contract" within the meaning of such terms under Section 817 of
the Code and the regulations thereunder. Company will use every reasonable
effort to continue to meet such definitional requirements, and it will notify
the Fund and the Underwriter immediately upon having a reasonable basis for
believing that such requirements have ceased to be met or that they might not be
met in the future.
2.7. The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in accordance with any applicable state and federal securities laws.
2.8. The Fund and the Underwriter represent and warrant that all of their
trustees/directors, officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket
6
fidelity bond or similar coverage for the benefit of the Fund in an amount not
less than the minimum coverage as required currently by Rule 17g-1 of the 1940
Act or related provisions as may be promulgated from time to time. The aforesaid
bond shall include coverage for larceny and embezzlement and shall be issued by
a reputable bonding company.
2.9. The Company represents and warrants that all of its directors, officers,
employees, and other individuals/entities employed or controlled by the Company
dealing with the money and/or securities of the Separate Account are covered by
a blanket fidelity bond or similar coverage for the benefit of the Separate
Account, in an amount not less than $5 million. The aforesaid bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company. The Company agrees to hold for the benefit of the Fund and to pay to
the Fund any amounts lost from larceny, embezzlement or other events covered by
the aforesaid bond to the extent such amounts properly belong to the Fund
pursuant to the terms of this Agreement. The Company agrees to make all
reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
2.10. The Company represents and warrants that it shall comply with any
applicable privacy and notice provisions of 15 U.S.C. Section Section 6801-6827
and any applicable regulations promulgated thereunder (including but not limited
to 17 C.F.R. Part 248) as they may be amended.
2.11. The Company represents and warrants that it has in place an anti-money
laundering program ("AML program") that does now and will continue to comply
with applicable laws and regulations, including the relevant provisions of the
USA PATRIOT Act (Pub. L., No. 107-56 (2001)) and the regulations issued
thereunder.
2.12. The Company represents and warrants that (a) all purchase and redemption
orders with respect to shares of the Designated Portfolios submitted with
respect to a Business Day in accordance with Article I will be received in good
order by the Company prior to the time as of which the net asset value of the
Designated Portfolios' shares is calculated on that Business Day as disclosed in
the Designated Portfolios' prospectuses, as they may be amended from time to
time, and will be processed by the Company in compliance with Rule 22c-1 under
the 1940 Act and regulatory interpretations thereof; (b) the Company has, and
will maintain, policies and procedures reasonably designed to monitor and
prevent market timing or excessive trading activity by its customers; (c) the
Company will provide the Fund or its agent with assurances regarding the
compliance of its handling of orders with respect to shares of the Designated
Portfolios with the requirements of Rule 22c-1 and regulatory interpretations
thereof.; and (d) the Company will use its best efforts to cooperate with the
Fund or its agent to implement policies and procedures to prevent market timing
and/or excessive trading in the Designated Portfolios and enforce the market
timing and excessive policies disclosed in the Fund's prospectuses, as they may
be amended from time to time.
In compliance with Rule 22c-2 under 1940 Act, the Company hereby agrees to (i)
provide, promptly upon request by the Fund, directly or through its agent, the
taxpayer identification number of all Contract owners that purchased, redeemed,
transferred, or exchanged shares held through an Account, and the amount and
dates of such shareholder purchases, redemptions, transfers, and exchanges; (ii)
the Company will furnish other information to the Underwriter or Fund reasonable
requests regarding frequent transfers, purchase, redemptions or exchanges by
Contract Owners; and (iii) execute any instructions from the Fund, directly or
through its agent, to restrict or prohibit further purchases or exchanges of
shares of the Fund by a Contract owner who has been identified by the Fund,
directly or through its agent, as having engaged in transactions in Designated
Portfolio shares (directly or through an Account or an account with another
financial intermediary) that violate the policies adopted by the Fund
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to prevent market timing or excessive trading activities or prevent other
activities that may dilute the value of the outstanding shares of a Designated
Portfolio.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Underwriter shall provide the Company with as many copies of the
Fund's current prospectus as the Company may resonably request. The Company
shall bear the expense of printing copies of the current prospectus for the
Contracts that will be distributed to existing Contract owners, and the Company
shall bear the expense of printing copies of the Fund's prospectus that are used
in connection with offering the Contracts issued by the Company. If requested by
the Company in lieu thereof, the Fund shall provide such documentation
(including a final copy of the new prospectus in electronic format at the Fund's
expense) and other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the prospectus for the Fund is
amended) to have the prospectus for the Contracts and the Fund's prospectus
printed together in one document (such printing to be at the Company's expense).
3.2. The Underwriter (or the Fund), at its expense, shall provide a reasonable
number of copies of the current SAI for the Fund free of charge to the Company
for itself and for any owner of a Contract who requests such SAI.
3.3. The Fund shall provide the Company with information regarding the Fund's
expenses, which information may include a table of fees and related narrative
disclosure for use in any prospectus or other descriptive document relating to a
Contract. The Company agrees that it will use such information in the form
provided. The Company shall provide prior written notice of any proposed
modification of such information, which notice will describe in detail the
manner in which the Company proposes to modify the information, and agrees that
it may not modify such information in any way without the prior consent of the
Fund.
3.4. The Fund, at its expense, or at the expense of its designee, shall provide
the Company with copies of its proxy material, reports to shareholders, and
other communications to shareholders in such quantity as the Company shall
reasonably require for distributing to Contract owners.
3.5. The Company Shall:
(i) solicit voting instructions from Contract owners.
(ii) vote the Fund shares in accordance with instructions received from
Contract owners; and
(iii) vote Fund shares for which no instructions have been received in
the same proportion as Fund shares of such portfolio for which
instructions have been received,
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 or to the
extent otherwise required by law. The Company will vote Fund shares held in any
segregated asset account in the same proportion as Fund shares of such portfolio
for which voting instructions have been received from Contract owners, to the
extent permitted by law.
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3.6. Participating Insurance Companies shall be responsible for assuring that
each of their separate accounts participating in a Designated Portfolio
calculates voting privileges as required by the Shared Funding Exemptive Order
and consistent with any reasonable standards that the Fund may adopt and provide
in writing.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund or
its designee, each piece of sales literature or other promotional material that
the Company develops and in which the Fund (or a Designated Portfolio thereof)
or the Adviser or the Underwriter is named at least 15 days prior to its use. No
such material shall be used until approved by the Fund or its designee, and the
Fund will use its best efforts for it or its designee to review such sales
literature or promotional material within ten Business Days after receipt of
such material. The Fund or its designee reserves the right to reasonably object
to the continued use of any such sales literature or other promotional material
in which the Fund (or a Designated Portfolio thereof) or the Adviser or the
Underwriter is named, and no such material shall be used if the Fund or its
designee so object. However, notwithstanding the foregoing, the failure to
object in writing within 30 days shall be deemed approval.
4.2. The Company shall not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund or the Adviser or the
Underwriter in connection with the sale of the Contracts other than the
information or representations contained in the registration statement or
prospectus or SAI for the Fund shares, as such registration statement and
prospectus or SAI may be amended or supplemented from time to time, or in
reports of proxy statements for the Fund, or in sales literature or other
promotional material approved by the Fund or its designee or by the Underwriter,
except with the permission of the Fund or the Underwriter or the designee of
either.
4.3. The Fund and the Underwriter, or their designee, shall furnish, or cause
to be furnished, to the Company, each piece of sales literature or other
promotional material that it develops and in which the Company, and/or its
Separate Account, is named at least 15 days prior to its use. No such material
shall be used until approved by the Company, and the Company will use its best
efforts to review such sales literature or promotional material within ten
Business Days after receipt of such material. The Company reserves the right to
reasonably object to the continued use of any such sales literature or other
promotional material in which the Company and/or its Separate Account is named,
and no such material shall be used if the Company so objects. However,
notwithstanding the foregoing, the failure to object in writing within 30 days
shall be deemed approval.
4.4. The Fund and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company the Separate
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), or SAI for the Contracts, as
such registration statement, prospectus, or SAI may be amended or supplemented
from time to time, or in published reports for the Separate Account which are in
the public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other promotional material approved by the
Company or designee, except with the permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, SAIs, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to
9
any of the above, that relate to the Fund or its shares, promptly after the
filing of such document(s) with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses (which shall include an offering
memorandum, if any, if the Contracts issued by the Company or interests therein
are not registered under the 1933 Act), SAIs, reports, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to the Contracts or the Separate Account, promptly after the
filing of such document(s) with the SEC or other regulatory authorities. The
Company shall provide to the Fund and the Underwriter any complaints received
from the Contract owners pertaining to the Fund or the Designated Portfolio.
4.7. For purpose of this Article IV, the phrase "sales literature and other
promotional materials" includes, but is not limited to, any of the following
that refer to the Fund or any affiliate of the Fund: 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), sales literature
(I.E., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, reports, market
letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communication distributed or made generally available to some
or all agents or employees, and registration statements, prospectuses, SAIs,
shareholder reports, proxy materials, and any other communications distributed
or made generally available with regard to the Fund.
ARTICLE V. FEES AND EXPENSES
5.1. Except as otherwise provided herein, no party to this Agreement shall pay
any fee or other compensation to any other party to this Agreement. Except as
otherwise provided herein, all expenses incident to performance by a party under
this Agreement shall be paid by such party.
5.2. All expenses incident to performance by the Fund under this Agreement
shall be paid by the Fund. The Fund shall see to it that all its shares are
registered and authorized for issuance in accordance with applicable federal law
and, if and to the extent deemed advisable by the Fund, in accordance with
applicable state laws prior to their sale. The Fund shall bear the expenses for
the cost of registration and qualification of the Fund's shares, preparation and
filing of the Fund's prospectus and registration statement, proxy materials and
reports, setting the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders (including the costs of printing a
prospectus that constitutes an annual report), the preparation of all statements
and notices required by any federal or state law, and all taxes on the issuance
or transfer of the Fund's shares.
5.3. The Company shall bear the expenses of distributing the Fund's prospectus
to owners of Contracts issued by the Company and of distributing the Fund's
proxy materials and reports to such Contract owners.
ARTICLE VI. POTENTIAL CONFLICTS
6.1. The parties to this Agreement agree that the conditions or undertakings
required by the Mixed and Shared Funding Exemptive Order that may be imposed on
the Company, the Fund and/or the Underwriter by virtue of such order by the SEC:
(i) shall apply only upon the sale of shares of the Designated Portfolios to
variable life insurance separate accounts (and then only to the extent
10
required under the 1940 Act); (ii) will be incorporated herein by reference; and
(iii) such parties agree to comply with such conditions and undertakings to the
extent applicable to each such party notwithstanding any provision of this
Agreement to the contrary.
6.2. 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 parties to this Agreement shall take such steps as
may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule
6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.5
and 3.6 of this Agreement shall continue in effect only to the extent that terms
and conditions substantially identical to such Sections are contained in such
Rules(s) as so amended or adopted.
ARTICLE VII. Indemnification
7.1. Indemnification By the Company
7.1(a). The Company agrees to indemnify and hold harmless the Fund and the
Underwriter and each of its trustees/directors and officers, and each person, if
any, who controls the Fund or Underwriter within the meaning of Section 15 of
the 1933 Act or who is under common control with the Underwriter (collectively,
the "Indemnified Parties" for purposes of this Section 7.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company) or litigation (including legal and other
expenses), to which the Indeminified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements:
(i) arise out of or are based upon any untrue statement or alleged
untrue statements of any material fact contained in the registration
statement, prospectus (which shall include a written description of
a Contract that is not registered under the 1933 Act), or SAI for
the Contracts or contained in the Contracts or sales literature for
the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon and in
conformity with information furnished to the Company by or on behalf
of the Fund for use in the registration statement, prospectus or SAI
for the Contracts or in the Contracts or sales literature (or any
amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the registration
statement, prospectus, SAI, or sales literature of the Fund not
supplied by the Company or persons under its control) or wrongful
conduct of the Company or its agents or persons under the Company's
authorization or control, with respect to the sale or distribution
of the Contracts or Fund Shares; or
11
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
SAI, or sales literature of the Fund or any amendment thereof or
supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading if such a statement
or omission was made in reliance upon information furnished to the
Fund by or on behalf of the Company; or
(iv) arise as a result of any material failure by the Company to provide
the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the qualification requirements
specified in Section 2.6 of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Company;
as limited by and in accordance with the provisions of Sections 7.1(b) and
7.1(c) hereof.
7.1(b). The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation to which
an Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of its obligations or duties under this Agreement.
7.1(c). The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Company of any such claim shall not
relieve the Company from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against an
Indemnified Party, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Company to such party of the Company's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Company will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
7.1(d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund shares or the Contracts or the operation of the
Fund.
7.2. INDEMNIFICATION BY THE UNDERWRITER
7.2(a). The Underwriter agrees to indemnify and hold harmless the Company and
each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this
12
Section 7.2) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Underwriter) or
litigation (including legal and other expenses) to which the Indemnified Parties
may become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement or prospectus or SAI or sales literature of the Fund (or
any amendment or supplement to any of the foregoing), or arise out
of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party
if such statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished to the Underwriter or Fund by or on behalf of the Company
for use in the registration statement, prospectus or SAI for the
Fund or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the registration
statements, prospects, SAI or sale literature for the Contracts not
supplied by the Underwriter or persons under its control) or
wrongful conduct of the Fund or Underwriter or persons under their
control, with respect to the sale or distribution of the Contracts
or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
SAI or sales literature covering the Contracts, or any amendment
thereof or supplement thereto, or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of the Fund or
the Underwriter; or
(iv) arise as a result of any failure by the Fund or the Underwriter to
provide the services and furnish the materials under the terms of
this Agreement (including a failure of the Fund, whether
unintentional or in good faith or otherwise, to comply with the
diversification and other qualification requirements specified in
Sections 2.3 and 2.4 of this Agreement): or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this
Agreement or arise out of or result from my other material breach of
this Agreement by the Underwriter;
as limited by and in accordance with the provisions of Sections 7.2(b) and
7.2(c) hereof.
7.2(b). The Underwriter shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation to which
an Indemnified Party would
13
otherwise be subject by reason of such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to the Company or the Separate
Account, whichever is applicable.
7.2(c). The Underwriter shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriter of
any such claim shall not relieve the Underwriter from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Party, the Underwriter will be entitled to participate,
at its own expense, in the defense thereof. The Underwriter also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Underwriter to such party of the
Underwriter's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Underwriter will not be liable to such party under this Agreement for any
legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
The Company agrees promptly to notify the Underwriter of the commencement of any
litigation or proceedings against it or any of its officers or directors in
connection with the issuance or sale of the Contracts or the operation of the
Separate Account.
7.3. INDEMNIFICATION BY THE FUND
7.3(a). The Fund agrees to indemnify and hold harmless the Company and each of
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 7.3) against any and all loses, claims,
expenses, damages, liabilities (including amounts paid in settlement with the
written consent of the Fund) or litigation (including legal and other expenses)
to which the Indemnified Parties may be required to pay or may become subject
under any statute or regulation, at common law or otherwise, insofar as such
losses, claims, expenses, damages, liabilities or expenses (or actions in
respect thereof) or settlements, are related to the operations of the Fund and:
(i) arise as a result of any failure by the Fund to provide the services
and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification and other
qualification requirements specified in Section 2.3 and 2.4 of this
Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement or
arise out of or result from any other material breach of this
Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 7.3(b) and
7.3(c) hereof. The parties acknowledge that the Fund's indemnification
obligations under this Section 7.3 are subject to applicable law.
14
7.3(b). The Fund shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company, the Fund, the Underwriter or the Separate Account, whichever is
applicable.
7.3(c). The Fund shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Fund in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim shall not relieve the
Fund from any liability which it may have to the Indemnified Party against whom
such action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified Parties,
the Fund will be entitled to participate, at its own expense, in the defense
thereof. The Fund also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Fund to such party of the Fund's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Fund will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
7.3(d). The Company and the Underwriter agree promptly to notify the Fund of the
commencement of any litigation or proceeding against it or any of its respective
officers or directors in connection with the Agreement, the issuance or sale of
the Contracts, the operation of the Separate Account, or the sale or acquisition
of shares of the Fund.
ARTICLE IX. APPLICABLE LAW
8.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of California.
8.2. 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
(including, but not limited to, any Mixed and Shared Funding Exemptive Order)
and terms hereof shall be interpreted and construed in accordance therewith. If,
in the future, the Mixed and Shared Funding Exemptive Order should no longer be
necessary under applicable law, then Article VI shall no longer apply.
ARTICLE X. TERMINATION
9.1. This Agreement shall continue in full force and effect until the first to
occur of:
(a) termination by any party, for any reason with respect to some or all
Designated Portfolios, by three (3) months advance written notice
delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Underwriter based upon the Company's determination that shares of the
Fund are no reasonably available to meet the requirements of the
Contracts; or
15
(c) termination by the Company by written notice to the Fund and the
Underwriter in the event any of the Designated Portfolio's shares
are not registered, issued or sold in accordance with applicable
state and/or federal law or such law precludes the use of such
shares as the underlying investment media of the Contracts issued or
to be issued by the Company; or
(d) termination by the Fund or Underwriter in the event that formal
administrative proceedings are instituted against the Company by the
NASD, the SEC, the Insurance Commissioner or like official 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 any Separate Account, or the purchase of the Fund's
shares; provided, however, that the Fund or Underwriter determines in
its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon
the ability of the Company to perform its obligations under this
Agreement; or
(e) termination by the Company in the event that formal administrative
proceedings are instituted against the Fund or Underwriter by the
NASD, the SEC, or any state securities or insurance department or
any other regulatory body; provided, however, that the Company
determines in its sole judgment exercised in good faith, that any
such administrative proceedings will have a material adverse effect
upon the ability of the Fund or Underwriter to perform its
obligations under this Agreement; or
(f) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Designated Portfolio in the event
that such Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M or fails to comply with the Section
817(h) diversification requirements specified in Section 2.4 hereof,
or if the Company reasonably believes that such Portfolio may fail
to so qualify or comply; or
(g) termination by the Fund or Underwriter by written notice to the
Company in the event that the Contracts fail to meet the
qualifications specified in Section 2.6 hereof; or
(h) termination by either the Fund or the Underwriter by written notice
to the Company, if either one or both of the Fund or the Underwriter
respectively, 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
(i) termination by the Company by written notice to the Fund and the
Underwriter, if the Company shall determine, in its sole judgment
exercised in good faith, that the Fund, Adviser, or the Underwriter
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
(j) termination by the Fund or the Underwriter by written notice to the
Company, if the Company gives the Fund and the Underwriter the
written notice specified in
16
Section 1.7(a)(ii) hereof and at the time such notice was given there
was no notice of termination outstanding under any other provision of
this Agreement; provided, however, any termination under this Section
9.1(j) shall be effective forty-five-days after the notice specified
in Section 1.7(a)(ii) was given; or
(k) termination by the Company upon any substitution of the shares of
another investment company or series thereof for shares of a
Designated Portfolio of the Fund in accordance with the terms of the
Contracts, provided that the Company has given at least 45 days prior
written notice to the Fund and Underwriter of the date of
substitution; or
(l) termination by the Fund if the Board has decided to (i) refuse to
sell shares of any Designated Portfolio to the Company and/or any of
its Separate Accounts; (ii) suspend or terminate the offering of
shares of any Designated Portfolio; or (iii) dissolve, reorganize,
liquidate, merge or sell all assets of the Fund or any Designated
Portfolio, subject to the provisions of Section 1.1; or
(m) termination by any party in the event that the Fund's Board of
Trustees determines that a material irreconcilable conflict exists as
provided in Article VI.
9.2. (a) Notwithstanding any termination of this Agreement, and except as
provided in Section 9.2(b), the Fund and the Underwriter shall, at the option of
the Company, continue, until the one year anniversary from the date of
termination, and from year to year thereafter if deemed appropriate by the Fund
and the Underwriter, to make available additional shares of the Designated
Portfolios pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, based on
instructions from the owners of the Existing Contracts, the Separate Accounts
shall be permitted to reallocate investments in the Designated Portfolios of the
Fund and redeem investments in the Designated Portfolios, and shall be permitted
to invest in the Designated Portfolios in the event that owners of the Existing
Contracts make additional contributions under the Existing Contracts.
The Company agrees, promptly after any termination of this Agreement, to take
all steps necessary to redeem the investment of the Separate Accounts in the
Designated Portfolios within one year from the date of termination of the
Agreement as provided in Article IX. Such steps shall include, but not be
limited to, obtaining an order pursuant to Section 26(c) of the 1940 Act to
permit the substitution of other securities for the shares of the Designated
Portfolios. The Fund may, in its discretion, permit the Separate Accounts to
continue to invest in the Designated Portfolios beyond such one year anniversary
for an additional year beginning on the first annual anniversary of the date of
termination, and from year to year thereafter; provided that the Fund agrees in
writing to permit the Separate Accounts to continue to invest in the Designated
Portfolios at the beginning of any such year.
(b) In the event (i) the Agreement is terminated pursuant to Sections 10.1(g)
or 10.1(m), at the option of the Fund or the Underwriter; or (ii) the one year
anniversary of the termination of the Agreement is reached or, after waiver as
provided in Section 9.2(a), such subsequent anniversary is reached (each of (i)
and (ii) referred to as a "triggering event" and the date of termination as
provided in (i) or the date of such anniversary as provided in (ii) referred to
as the "request date"), the parties agree that such triggering event shall be
considered as a request for immediate redemption of shares of the Designated
Portfolios held by the Separate Accounts, received by the Fund and its agents as
17
of the request date, and the Fund agrees to process such redemption request in
accordance with the 1940 Act and the regulations thereunder and the Fund's
registration statement.
(c) The parties agree that this Section 9.2 shall not apply to any terminations
under Article VI and the effect of such Article VI terminations shall be
governed by Article VI of this Agreement. The parties further agree that, to the
extent that all or a portion of the assets of the Separate Accounts continue to
be invested in the Fund or any Designated Portfolio of the Fund, Articles I, II,
VI, VII and VIII will remain in effect after termination.
9.3. Notwithstanding any termination of this Agreement, each party's obligation
under Article VII to indemnify the other parties shall survive.
ARTICLE X. NOTICES
Any notice shall be sufficiently given when sent by registered or certified mail
to the other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the other
party.
If to the Fund: PIMCO Variable Insurance Trust
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: ▇▇▇▇▇ ▇▇▇▇▇▇
Hartford Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Underwriter: Allianz Global Investors Distributors LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ARTICLE XI. MISCELLANEOUS
11.1. All persons dealing with the Fund must look solely to the property of the
Fund, and in the case of a series company, the respective Designated Portfolios
listed on Schedule A hereto as though each such Designated Portfolio had
separately contracted with the Company and the Underwriter for the enforcement
of any claims against the Fund. The parties agree that neither the Board,
officers, agents or shareholders of the Fund assume any personal liability or
responsibility for obligations entered into by or on behalf of the Fund.
11.2. Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, 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 such information has come into the
public domain.
18
11.3. The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
11.4. This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
11.5. 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.
11.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby,
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the state of Connecticut Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the variable
annuity operations of the Company are being conducted in a manner consistent
with the state of Connecticut variable annuity laws and regulations and
regulations and any other applicable law or regulations.
11.7. 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.
11.8. This Agreement or any of the rights and obligations hereunder may not be
assigned by any party without the prior written consent of all parties hereto.
11.9. The Company shall furnish, or shall cause to be furnished, to the Fund or
its designee copies of the following reports:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles) filed with any state or federal regulatory
body or otherwise made available to the public, as soon as
practicable and in any event within 90 days after the end of each
fiscal year; and
(b) any registration statement (without exhibits) and financial reports
of the Company filed with the Securities and Exchange Commission or
any state insurance regulatory, as soon as practicable after the
filing thereof.
19
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 the date specified below.
HARTFORD LIFE INSURANCE COMPANY
By its authorized officer
By: /s/ [ILLEGIBLE]
----------------------------------------
Name: [ILLEGIBLE]
Title: Assistant Vice President
Date: 9/21/06
PIMCO VARIABLE INSURANCE TRUST
By its authorized officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Date: 7/10/06
LEGAL RZ
ALLIANZ GLOBAL INVESTORS
DISTRIBUTORS LLC
By its authorized officer
By: /s/ E. ▇▇▇▇▇ ▇▇▇▇▇, Jr.
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Name: E. ▇▇▇▇▇ ▇▇▇▇▇, Jr.
Title: Managing Director and Chief Executive
Officer
Date:
LEGAL [ILLEGIBLE]
20
SCHEDULE A
PIMCO VARIABLE INSURANCE TRUST PORTFOLIOS:
PIMCO VIT Real Return -- Administrative Class Shares
SEGREGATED ASSET SEPARATE ACCOUNTS:
Hartford Life Insurance Company Separate Account Two
Execution Version
AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT
AMONG
HARTFORD LIFE INSURANCE COMPANY, INC.,
PIMCO VARIABLE INSURANCE TRUST,
AND
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
This Amendment No. 1 to the Participation Agreement dated May 1, 2006 (the
"Agreement") between Hartford Life Insurance Company, Inc. (the "Company"),
PIMCO Variable Insurance Trust (the "Fund"), and Allianz Global Investors
Distributors LLC (the "Underwriter") is effective as of August 17, 2009 and is
hereby amended as follows:
1. Schedule A of the Agreement is hereby deleted in its entirety and
replaced with Schedule A attached hereto.
2. Section 2.5 of the Agreement is hereby renamed as Section 2.5(a) and
Section 2.5(b) of the Agreement is added as follows:
(b) Notwithstanding any other provision to the contrary in this
Agreement, with respect to the Separate Accounts which are
exempt from registration under the 1940 Act in reliance upon
Section 3(c)(1) or Section 3(c)(7) thereof, the Company
represents and warrants that: (1) Hartford Equity Sales
Company ("HESCO") is the principal Distributor for each such
Separate Account and any subaccounts thereof and is a
registered broker-dealer with the SEC under the 1934 Act; (2)
the Shares of the Portfolio of the Fund are and will continue
to be the only investment securities held by the corresponding
subaccounts; and (3) with regard to each Portfolio, the
Company, on behalf of the corresponding subaccount, will:
i) vote such shares held by it in the same proportion as the
vote of all other holders of such shares; and
ii) refrain from substituting shares of another security for
such shares unless the SEC has approved such substitution
in the manner provided in Section 26 of the 1940 Act.
3. Section 3.5 of the Agreement is hereby amended by adding the
following sentence to the end of such section: See the Company's
voting obligations in Section 2.5(b).
4. All other terms of the Agreement shall remain in full force and
effect.
(Signatures located on following page)
Execution Version
HARTFORD LIFE INSURANCE COMPANY
By its authorized officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
Title: Vice President
Date: 10/8/09
PIMCO VARIABLE INSURANCE TRUST
By its authorized officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Date: 9/30/09
LEGAL ALC
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
By its authorized officer
By: /s/ ▇▇▇▇▇▇ ▇. Plump
--------------------------------------------------
▇▇▇▇▇▇ ▇. Plump
LEGAL RHK Title: Executive Vice President
Date:
2
Execution Version
SCHEDULE A
The term "Designated Portfolio" of the Fund will include any currently offered
class of any Portfolio of the Fund (as listed below) as well as any Portfolio of
the Fund or any share class of any Portfolio (now existing or hereafter created)
created subsequent to the date hereof.
PIMCO VARIABLE INSURANCE TRUST PORTFOLIOS
ADMINISTRATIVE CLASS SHARES
All Asset Portfolio
All Asset All Authority*
CommodityRealReturn Strategy Portfolio
Diversified Income Portfolio*
Emerging Markets Bond Portfolio
Foreign Bond Portfolio (Unhedged)
Foreign Bond Portfolio (U.S. Dollar-Hedged)
Global Bond Portfolio (Unhedged)
Global Multi-Asset Portfolio
High Yield Portfolio
Long-Term U.S. Government Portfolio
Low Duration Portfolio
Money Market Portfolio
Real Return Portfolio
Short-Term Portfolio
SmallCap StocksPLUS(R) TR Portfolio
Total Return Portfolio
INSTITUTIONAL CLASS SHARES
All Asset Portfolio
CommodityRealReturn Strategy Portfolio*
Emerging Markets Bond Portfolio*
Foreign Bond Portfolio (U.S. Dollar-Hedged)
Global Bond Portfolio (Unhedged)*
High Yield Portfolio
Long-Term U.S. Government Portfolio
Low Duration Portfolio
Money Market Portfolio
Real Return Portfolio
Short-Term Portfolio
Total Return Portfolio
ADVISOR CLASS SHARES
All Asset Portfolio
All Asset All Authority Portfolio*
3
Execution Version
CommodityRealReturn Strategy Portfolio
Emerging Markets Bond Portfolio
Foreign Bond Portfolio (Unhedged)
Global Bond Portfolio (Unhedged)
Global Multi-Asset Portfolio
High Yield Portfolio
Low Duration Portfolio
Real Return Portfolio
SmallCap StocksPLUS(R) TR Portfolio
Total Return Portfolio
------------
* Not yet available for investment
SEGREGATED ASSET SEPARATE ACCOUNTS:
Hartford Life Insurance Company Separate Account Two
Hartford Life Insurance Company Separate Account ICMG Series III-B
4
EXECUTED VERSION
AMENDMENT NO. 2 TO
PARTICIPATION AGREEMENT
AMONG
HARTFORD LIFE INSURANCE COMPANY, INC.,
PIMCO VARIABLE INSURANCE TRUST,
AND
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
This Amendment No. 2 to the
Participation Agreement dated May 1, 2006 (the
"Agreement") between Hartford Life Insurance Company, Inc. (the "Company"),
PIMCO Variable Insurance Trust (the "Fund"), and Allianz Global Investors
Distributors LLC (the "Underwriter") is effective as of August 2, 2010 and is
hereby amended as follows:
1. Schedule A of the Agreement is hereby deleted in its entirety and replaced
with Schedule A attached hereto.
2. All other terms of the Agreement shall remain in full force and effect.
(Signatures located on following page)
For Execution
HARTFORD LIFE INSURANCE COMPANY
By its authorized officer:
By: [ILLEGIBLE]
-----------------------------------
Title: Vice President
Date: 8/11/10
PIMCO VARIABLE INSURANCE TRUST
By its authorized officer:
BUSINESS [ILLEGIBLE] By: [ILLEGIBLE]
-----------------------------------
LEGAL [ILLEGIBLE] Title: Vice President
Date: August 2, 2010
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
By its authorized officer:
By: /s/ ▇▇▇▇▇▇ ▇. Plump
-----------------------------------
Title: MANAGING DIRECTOR
Date: 8/4/2010
LEGAL RHK
2
For Execution
SCHEDULE A
The term "Designated Portfolio" of the Fund will include any currently offered
class of any Portfolio of the Fund (as listed below) as well as any Portfolio of
the Fund or any share class of any Portfolio (now existing or hereafter created)
created subsequent to the date hereof.
PIMCO VARIABLE INSURANCE TRUST PORTFOLIOS
ADMINISTRATIVE CLASS SHARES
All Asset Portfolio
All Asset All Authority*
CommodityRealReturn Strategy Portfolio
Diversified Income Portfolio*
Emerging Markets Bond Portfolio
Foreign Bond Portfolio (Unhedged)
Foreign Bond Portfolio (U.S. Dollar-Hedged)
Global Bond Portfolio (Unhedged)
Global Multi-Asset Portfolio
High Yield Portfolio
Long-Term U.S. Government Portfolio
Low Duration Portfolio
Money Market Portfolio
Real Return Portfolio
Short-Term Portfolio
SmallCap StocksPLUS(R) TR Portfolio
Total Return Portfolio
INSTITUTIONAL CLASS SHARES
All Asset Portfolio
CommodityRealReturn Strategy Portfolio*
Emerging Markets Bond Portfolio*
Foreign Bond Portfolio (U.S. Dollar-Hedged)
Global Bond Portfolio (Unhedged)
High Yield Portfolio
Long-Term U.S. Government Portfolio
Low Duration Portfolio
Money Market Portfolio
Real Return Portfolio
Short-Term Portfolio
Total Return Portfolio
ADVISOR CLASS SHARES
All Asset Portfolio
All Asset All Authority Portfolio*
3
For Execution
CommodityRealReturn Strategy Portfolio
Emerging Markets Bond Portfolio
Foreign Bond Portfolio (Unhedged)
Global Bond Portfolio (Unhedged)
Global Multi-Asset Portfolio
High Yield Portfolio
Low Duration Portfolio
Real Return Portfolio
SmallCap StocksPLUS(R) TR Portfolio
Total Return Portfolio
------------
* Not yet available for investment
SEGREGATED ASSET SEPARATE ACCOUNTS:
Hartford Life Insurance Company Separate Account Two (registered)
Hartford Life Insurance Company Separate Account ICMG Series III-B (exempt from
registration)
Hartford Life Insurance Company Separate Account ICMG Series II (exempt from
registration)
Hartford Life Insurance Company Separate Account ICMG Series IV (exempt from
registration)
4