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EXHIBIT 8(a)(vii)
PARTICIPATION AGREEMENT
By and Among
SAGE LIFE INVESTMENT TRUST
And
SAGE LIFE ASSURANCE OF AMERICA, INC.
And
SAGE DISTRIBUTORS, INC.
THIS AGREEMENT, made and entered into this __th day of _______, 1998,
by and among Sage Life Assurance of America, Inc., a Delaware corporation (the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Exhibit A to this Agreement, as may be amended from time to
time (each separate account, a "Separate Account"), and Sage Life Investment
Trust, an open-end diversified management investment company organized under
the laws of the State of Delaware (the "Trust"), and Sage Distributors, Inc., a
Delaware Corporation (the "Underwriter").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially
identical to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (the "Fund"); and
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WHEREAS, the Trust has obtained an order from the U.S. Securities and
Exchange Commission (the "SEC" or "Commission"), dated June 2, 1998 (File No.
812-11062), granting Participating Insurance Companies and variable annuity
separate accounts and variable life insurance separate accounts relief from the
provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the Investment Company
Act of 1940, as amended (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Trust to be sold to and held by variable annuity separate accounts and variable
life insurance separate accounts of both affiliated and unaffiliated
Participating Insurance Companies and qualified pension and retirement plans
("Mixed and Shared Funding Order"), and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts under the 1933 Act and named in
Exhibit A to this Agreement, as it may be amended from time to time (the
"Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established by resolution of the Board of Directors
of the Company under the insurance laws of the State of Delaware, to set aside
and invest assets attributable to the Contracts; and
WHEREAS, the Company has registered the Separate Accounts as unit
investment trusts under the 1940 Act; and
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WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate Accounts to fund the Contracts, and the
Underwriter is authorized to sell such shares to unit investment trusts such as
the Separate Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Trust, and the Underwriter agree as follows:
ARTICLE I SALE OF TRUST SHARES
1.1. The Underwriter agrees to sell to the Company those shares of the
Trust which the Company orders on behalf of the Separate Accounts,
executing such orders on a daily basis at the net asset value next
computed after receipt and acceptance by the Trust or its designee of
the order for the shares of the Trust. For purposes of this Section
1.1, the Company shall be the designee of the Trust for receipt of
such orders from each Separate Account and receipt by such designee
shall constitute receipt by the Trust; provided that the Trust
receives notice of such order by 9:30 a.m. Eastern Time on the next
following Business Day. "Business Day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the SEC.
1.2. The Trust agrees to make its shares available indefinitely for
purchase at the applicable net asset value per share by Participating
Insurance Companies and their separate
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accounts on those days on which the Trust calculates its net asset
value pursuant to rules of the SEC; provided, however, that the Board
of Trustees of the Trust (hereinafter the "Trustees") may refuse to
sell shares of any Fund to any person, or suspend or terminate the
offering of shares of any Fund, if such action is required by law or
by regulatory authorities having jurisdiction, or is, in the sole
discretion of the Trustees, acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of any Fund.
1.3. The Trust and the Underwriter agree that shares of the Trust will be
sold only to Participating Insurance Companies and their separate
accounts, and to qualified pension and retirement plans. No shares of
the Trust will be sold to the general public.
1.4. The Trust and the Underwriter will not sell Trust shares to any
insurance company or separate account unless an agreement containing
provisions substantially the same as Article VII and Sections 2.9,
3.5, 3.6 and 5.1 of this Agreement are in effect to govern such sales.
1.5. The Trust will not accept a purchase order from qualified pension or
retirement plan if such purchase would make the plan shareholder an
owner of 10 percent or more of the assets of a Fund unless such plan
executes an agreement with the Trust governing participation in such
Fund that includes the conditions set forth herein to the extent
applicable. A qualified pension or retirement plan will execute an
application containing an acknowledgment of this condition at the time
of its initial purchase of shares of any Fund.
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1.6. The Trust agrees to redeem for cash, upon the Company's request, any
full or fractional shares of the Trust held by the Company, executing
such requests on a daily basis at the net asset value next computed
after receipt and acceptance by the Trust or its designee of the
request for redemption. For purposes of this Section 1.6, the Company
shall be the designee of the Trust for receipt of requests for
redemption from each Separate Account and receipt by such designee
shall constitute receipt by the Trust; provided the Trust receives
notice of request for redemption by 9:30 a.m. Eastern Time on the next
following Business Day. Payment shall be in federal funds transmitted
by wire to the Company's account as designated by the Company in
writing from time to time.
1.7. Each purchase, redemption, and exchange order placed by the Company
shall be placed separately for each Fund and shall not be netted with
respect to any Fund. However, with respect to payment of the purchase
price by the Company and of redemption proceeds by the Trust, the
Company and the Trust shall net purchase and redemption orders with
respect to each Fund and shall transmit one net payment for all Funds
in accordance with Section 1.8.
1.8. In the event of net purchase, the Company shall pay for shares by 2:00
p.m. Eastern Time on the next Business Day after an order to purchase
the Shares is deemed to be received in accordance with the provisions
of Section 1.1 hereof. In the event of net redemptions, the Trust
shall pay the redemption proceeds by 2:00 p.m. Eastern Time on the
next Business Day after an order to redeem the shares is deemed to be
received in accordance with the provision of Section 1.6 hereof. All
such payments shall be in federal funds transmitted by wire.
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1.9. Issuance and transfer of the Trust's shares will be by book entry
only. Stock certificates will not be issued to the Company or any
Separate Account. Purchase and redemption orders for Trust shares
will be recorded in an appropriate title for each Separate Account or
the appropriate subaccount of each Separate Account.
1.10. The Trust shall furnish notice as soon as reasonably practicable to
the Company of any income, dividends, or capital gain distributions
payable on the Trust's shares. The Company hereby elects to receive
all such dividends and distributions as are payable on the Fund shares
in the form of additional shares of that Fund. The Company reserves
the right to revoke this election and to receive all such dividends
and distributions in cash. The Trust shall notify the Company of the
number of shares so issued as payment of such dividends and
distributions.
1.11. The Trust shall make the net asset value per share for each Fund
available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall
use its best efforts to make such net asset value per share available
by 6:30 p.m. Eastern Time, each business day.
ARTICLE II REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act, unless exempt therefrom, and that the
Contracts will be issued and sold in compliance with all applicable
federal and state laws. The Company further represents and warrants
that: (i) it is an insurance company duly organized and in good
standing under applicable law; (ii) it has legally and validly
established each Separate Account as a segregated asset account under
applicable state law and has registered each Separate
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Account as a unit investment trust in accordance with the provisions
of the 1940 Act, unless exempt therefrom, to serve as segregated
investment accounts for the Contracts; and (iii) it will maintain such
registration, if required, for so long as any Contracts are
outstanding. The Company shall amend any registration statement under
the 1933 Act for the Contracts and any registration statement under
the 1940 Act for the Separate Accounts from time to time as required
in order to effect the continuous offering of the Contracts or as may
otherwise be required by applicable law. The Company shall register
and qualify the Contracts for sale in accordance with the securities
laws of the various states only if, and to the extent, deemed
necessary by the Company.
2.2. Subject to Article VI hereof, the Company represents that it believes
that the Contracts 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 and that it will
make every effort to maintain such treatment and that it will notify
the Trust and the Underwriter immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or
that they might not be so treated in the future.
2.3. The Company represents that any prospectus offering a Contract that is
a life insurance contract where it is reasonably probable that such
Contract would be a "modified endowment contract," as that term is
defined in Section 7702A of the Internal Revenue Code will identify
such Contract as a modified endowment contract (or policy).
2.4. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the
Trust are covered by a blanket fidelity bond or similar coverage in an
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amount not less than $5 million. The aforesaid includes coverage for
larceny and embezzlement and is issued by a reputable bonding company.
The Company agrees that any amounts received under such bond in
connection with claims that derive from arrangements described in this
Agreement will be held by the Company for the benefit of the Trust.
The Company agrees to make all reasonable efforts to see that this
bond or another bond containing these provisions is always in effect,
and agrees to notify the Trust and the Underwriter in the event that
such coverage no longer applies.
2.5. The Company represents and warrants that it has taken all necessary
steps to ensure that it has addressed all Year 2000 transition issues,
and that neither the Trust nor the Underwriter and their affiliates,
nor the owners of the Contracts will experience any material negative
effect as a result of the Company's Year 2000 transition.
2.6. The Trust represents and warrants that Trust shares sold pursuant to
this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law, and that
the Trust is and shall remain registered under the 1940 Act for as
long as the Trust shares are sold. The Trust shall amend the
registration statement for its shares under the 1933 and the 1940 Acts
from time to time as required in order to effect the continuous
offering of its shares. The 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 advisable by the Trust or the
Underwriter.
2.7. The Trust represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code,
and that it will make every effort to maintain such qualification
(under Subchapter M or any successor or similar provision).
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2.8. The Trust makes no representations as to whether any aspect of its
operations, including but not limited to, investment policies, fees
and expenses, complies with the insurance and other applicable laws of
the various states, except that the Trust represents that it is and
shall at all times remain in compliance with the laws of the state of
Delaware to the extent required to perform this Agreement and shall
comply with applicable insurance laws of all states to the extent that
the Company advises the Trust, in writing, of such laws or any changes
in such laws, including the furnishing of information not otherwise
available to the Company which is required by state insurance law to
enable the Company to obtain the authority needed to issue the
Contracts in any applicable state.
2.9. The Trust represents and warrants that to the extent that it decides
to finance distribution expenses pursuant to Rule 12b-1 under the 1940
Act, the Trust undertakes to have its Board of Trustees, a majority of
whom are not interested persons of the Trust, formulate and approve
any plan under Rule 12b-1 ("Rule 12b-1 Plan") to finance distribution
expenses. The Trust shall notify the Company immediately upon
determining to finance distribution expenses pursuant to Rule 12b-1.
2.10. The Trust represents that it is lawfully organized and validly
existing under the laws of Delaware and that it does and will comply
with applicable provisions of the ▇▇▇▇ ▇▇▇.
2.11. The Trust represents and warrants that it and all of its trustees,
officers, employees and other individuals/entities having access to
the funds and/or securities of the Trust are and continue to be at all
times covered by a blanket fidelity bond or similar coverage for the
benefit of the Trust in an amount not less than the minimal coverage
as required currently by Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to
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time. The aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company.
2.12. The Trust represents and warrants that it has taken all necessary
steps to ensure that it has addressed all Year 2000 transition issues,
and that none of the Company, the Underwriter and their affiliates,
nor the owners of the Contracts will experience any material negative
effect as a result of the Trust's Year 2000 transition.
2.13. 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 Trust's shares in accordance with all applicable
federal and state securities laws, including without limitation the
1933 Act, the 1934 Act, and the ▇▇▇▇ ▇▇▇.
2.14. The Underwriter represents and warrants that the Trust's investment
manager, Sage Advisors, Inc., is and shall remain duly registered as
an investment adviser under all applicable federal and state
securities laws and that the investment manager will perform its
obligations to the Trust in accordance with any applicable state and
federal securities laws.
2.15. The Underwriter represents and warrants that it has taken all
necessary steps to ensure that it has addressed all Year 2000
transition issues, and that none of the Company and its affiliates,
the Trust, nor the owners of the Contracts will experience any
material negative effect as a result of the Underwriter's Year 2000
transition.
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ARTICLE III PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Underwriter shall provide the Company, at the Company's expense,
with as many copies of the Trust's current prospectus as the Company
may reasonably request for use with prospective contract owners and
applicants. The Underwriter shall print and distribute, at the
Trust's or Underwriter's expense, as many copies of said prospectus as
necessary for distribution to existing Contract owners or
participants. If requested by the Company in lieu thereof, the Trust
shall provide such documentation including a final copy of a current
prospectus set in type at the Trust's expense and other assistance as
is reasonably necessary in order for the Company at least annually (or
more frequently if the Trust's prospectus is amended more frequently)
to have the new prospectus for the Contracts and the Trust's new
prospectus printed together in one document; in such case the Trust
shall bear its share of expenses as described above.
3.2. The Trust's prospectus shall state that the statement of additional
information for the Trust is available from the Underwriter or
alternatively from the Company (or, in the Trust's discretion, the
Prospectus shall state that such statement is available from the
Trust), and the Underwriter (or the Trust) shall provide such
statement, at its expense, to the Company and to any owner of or
participant under a Contract who requests such statement or, at the
Company's expense, to any prospective Contract owner and applicant who
requests such statement.
3.3. The Trust, at its expense, shall provide the Company with copies of
its proxy material, if any, reports to shareholders and other
communications to shareholders in such quantity
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as the Company shall reasonably require and the Company shall bear the
costs of distributing them to existing Contract owners or
participants.
3.4. The Trust hereby notifies the Company that it is appropriate to
include in the prospectuses pursuant to which the Contracts are
offered disclosure regarding the potential risks of mixed and shared
funding.
3.5. To the extent required by law the Company shall:
(i) solicit voting instructions from Contract
owners or participants;
(ii) vote the Trust shares held in each Separate
Account in accordance with instructions
received from Contract owners or
participants; and
(iii) vote Trust shares held in each Separate
Account for which no timely instructions
have been received, in the same proportion
as Trust shares of such Fund for which
instructions have been received from the
Company's Contract owners or participants;
for so long as and to the extent that the 1940 Act requires
pass-through voting privileges for variable contract owners. The
Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law.
Participating Insurance Companies shall be responsible for assuring
that each of their separate accounts participating in the Trust
calculates voting privileges in a manner consistent with other
Participating Insurance Companies and as required by the Mixed and
Shared Funding Order. The Trust will notify the Company of any
changes of interpretation or amendment to the Mixed and Shared Funding
Order.
3.6. The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular, the Trust will either
provide for annual meetings (except to the extent that the Commission
may interpret Section 16 of the 1940 Act not to require
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such meetings) or comply with Section 16(c) of the 1940 Act (although
the Trust is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, 16(b)
of the 1940 Act. Further, the Trust will act in accordance with the
Commission's interpretation of the requirements of Section 16(a) with
respect to periodic elections of Trustees and with whatever rules the
Commission may promulgate with respect thereto.
ARTICLE IV SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Trust or the Underwriter, each piece of sales literature or other
promotional material in which the Trust or the Trust's investment
manager, sub-advisers or Underwriter is named, at least fifteen
business days prior to its use. No such material shall be used if the
Trust or the Underwriter reasonably objects in writing to such use
within fifteen business days after receipt of such material.
4.2. The Company represents and agrees that sales literature for the
Contracts prepared by the Company or its affiliates will be consistent
with every law, rule, and regulation of any regulatory agency or
self-regulatory agency that applies to the Contracts or to the sale of
the Contracts, including, but not limited to, NASD Conduct Rule 2210
and IM-2210-2 thereunder.
4.3. The Company shall not give any information or make any representations
or statements on behalf of the Trust or concerning the Trust in
connection with the sale of the Contracts other than the information
or representations contained in the registration statement or
prospectus for the Trust shares as such registration statement and
prospectus may be
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amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional
material approved by the Trust or by the Underwriter, except with the
permission of the Trust or the Underwriter. The Trust and the
Underwriter agree 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 the Trust,
the Underwriter, or any of their affiliates which is intended for use
by brokers or agents selling the Contracts (i.e., information that is
not intended for distribution to Contract owners or prospective
Contract owners) is so used, and neither the Trust, the Underwriter,
nor any of their affiliates shall be liable for any losses, damages,
or expenses relating to the improper use of such broker only materials
by agents of the Company or its affiliates who are unaffiliated with
the Company or the Underwriter. The parties hereto agree that this
Section 4.3 is not intended to designate nor otherwise imply that the
Company is an underwriter or distributor of the Trust's shares.
4.4. The Trust or the Underwriter 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, its
Separate Account, or the Contracts are named, at least fifteen
business days prior to its use. No such material shall be used if the
Company reasonably objects in writing to such use within fifteen
business days after receipt of such material.
4.5. The Trust represents and agrees that sales literature for the Trust
prepared by the Trust or its affiliates will be consistent with every
law, rule, and Regulation of any regulatory
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agency or self regulatory agency that applies to the Trust or to the
sale of Trust shares, including, but not limited to, NASD Conduct Rule
2210 and IM-2210-2 thereunder.
4.6. The Trust and the Underwriter shall not give any information or make
any representations on behalf of the Company or concerning the
Company, each Separate Account, or the Contracts other than the
information or representations contained in a registration statement
or prospectus for the Contracts, as such registration statement and
prospectus may be amended or supplemented from time to time, or in
published reports for each Separate Account which are in the public
domain or approved by the Company for distribution to Contract owners
or participants, or in sales literature or other promotional material
approved by the Company, except with the permission of the Company.
The Company agrees to respond to any request for approval on a prompt
and timely basis. The Trust and the Underwriter shall ▇▇▇▇ information
produced by or on behalf of the Trust "FOR BROKER USE ONLY" which is
intended for use by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners
or prospective Contract owners) is so used, and neither the Company
nor any of its affiliates shall be liable for any losses, damages, or
expenses arising on account of the use by brokers of such information
with third parties in the event that is not so marked.
4.7. The Trust will provide to the Company 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 Trust or its
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shares, contemporaneously with the filing of such document with the
SEC or other regulatory authorities.
4.8. The Company will provide to the Trust at least one complete copy of
all registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for
exemptions, requests for no action letters, and all amendments to any
of the above, that relate to the Contracts or each Separate Account,
contemporaneously with the filing of such document with the SEC or
other regulatory authorities. The Company shall promptly inform the
Trust of the results of any examination by the SEC (or other
regulatory authorities) that relates to the Contracts, and the Company
shall provide the Trust with a copy of relevant portions of any
"deficiency letter" or other correspondence or written report
regarding any such examination.
4.9. For purposes of this Article IV, 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), sales literature (i.e., any written communication
distributed or made generally available to customers or the public,
including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made
generally available to some or all agents or employees, registration
statements, prospectuses, statements of additional information,
shareholder reports, and
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proxy materials and any other material constituting sales literature
or advertising under NASD Conduct Rules, the 1940 Act or the 1933 Act.
ARTICLE V FEES AND EXPENSES
5.1. The Trust and Underwriter shall pay no fee or other compensation to
the Company under this Agreement, except subject a Rule 12b-1 Plan to
finance distribution expenses, then, subject to obtaining any required
exemptive orders or other regulatory approvals, the Underwriter may
make payments to the Company or to the underwriter for the Contracts
if and in amounts agreed to by the Underwriter in writing. Each
party, however, shall, in accordance with the allocation of expenses
specified in this Agreement, reimburse other parties for expenses
initially paid by one party but allocated to another party. In
addition, nothing herein shall prevent the parties hereto from
otherwise agreeing to perform, and arranging for appropriate
compensation for, other services relating to the Trust and/or to the
Separate Accounts.
5.2. All expenses incident to performance by the Trust of this Agreement
shall be paid by the Trust to the extent permitted by law. All Trust
shares will be duly authorized for issuance and registered in
accordance with applicable federal law and to the extent deemed
advisable by the Trust, in accordance with applicable state law, prior
to sale. The Trust shall bear the expenses for the cost of
registration and qualification of the Trust's shares, preparation and
filing of the Trust's prospectus and registration statement, Trust
proxy materials and reports, setting in type the Trust's prospectuses,
and printing the Trust prospectuses, proxy materials and reports for
existing shareholders and Contract owners, the preparation of all
statements and notices required by any federal or state law,
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all taxes on the issuance or transfer of the Trust's shares, and any
expenses permitted to be paid or assumed by the Trust pursuant to any
Rule 12b-1 Plan under the 1940 Act duly adopted by the Trust.
5.3. The Company shall bear the expenses of printing and distributing the
Trust prospectuses for prospective shareholders and Contract owners,
and distributing the Trust prospectuses and of distributing the
Trust's proxy statements and shareholder reports to existing Contract
owners. The Company shall bear all expenses associated with the
registration, qualification, and filing of the Contracts under
applicable federal securities and state insurance laws; the cost of
preparing, printing, and distributing the Contracts' prospectuses and
statements of additional information; and the cost of printing and
distributing annual individual account statements for Contract owners
as required by state insurance laws.
ARTICLE VI DIVERSIFICATION
6.1. The Trust will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable
contracts under the Internal Revenue Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Trust
will comply with Section 817(h) of the Internal Revenue Code and
Treasury Regulation 1.817-5, relating to the diversification
requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulations or successors thereto. In the event of a breach of this
Article VI by the Trust, it will take all reasonable steps (a) to
notify the Company of such breach,
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and (b) to adequately diversify the Trust so as to achieve compliance
within the grace period afforded by Treasury Regulation 1.817-5.
ARTICLE VII POTENTIAL CONFLICTS
7.1. The Board of Trustees of the Trust (the "Trust Board") will monitor
the Trust for the existence of any material irreconcilable conflict
among the interests of the Contract owners of all separate accounts
investing in the Trust. A material irreconcilable conflict may arise
for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public
ruling, private letter ruling, no-action or interpretative letter, or
any similar action by insurance, tax, or securities regulatory
authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any
Fund are being managed; (e) a difference in voting instructions given
by variable annuity contract owners, variable life insurance contract
owners, and trustees of qualified pension or retirement plans; (f) a
decision by a Participating Insurance Company to disregard the voting
instructions of Contract owners; or (g) if applicable, a decision by a
qualified pension or retirement plan to disregard the voting
instructions of plan participants. The Trust Board shall promptly
inform the Company if it determines that a material irreconcilable
conflict exists and the implications thereof. A majority of the Trust
Board shall consist of Trustees who are not "interested" persons of
the Trust.
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7.2. The Company has reviewed a copy of the Mixed and Shared Funding Order,
and in particular, has reviewed the conditions to the requested relief
set forth therein. The Company agrees to assist the Trust Board in
carrying out its responsibilities under the Mixed and Shared Funding
Order, by providing the Trust Board with all information reasonably
necessary for the Trust Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to
inform the Trust Board whenever Contract owner voting instructions are
disregarded. The Trust Board shall record in its minutes or other
appropriate records, all reports received by it and all action with
regard to a conflict.
7.3. If it is determined by a majority of the Trust Board, or a majority of
its disinterested Trustees, that a material irreconcilable conflict
exists, the Company shall, at its expense and to the extent reasonably
practicable (as determined by a majority of the disinterested
Trustees), take whatever steps are necessary to remedy or eliminate
the material irreconcilable conflict, up to and including: (a)
withdrawing the assets allocable to some or all of the Separate
Accounts from the relevant Fund and reinvesting such assets in a
different investment medium, including another Fund, or in the case of
insurance company participants submitting the question as to whether
such segregation should be implemented by a vote of all affected
Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity Contract owners or life insurance
Contract owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected
Contract owners the
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option of making such a change; and (b) establishing a new registered
management investment company or managed separate account.
7.4. If the Company's disregard of voting instructions could conflict with
the majority of Contract owner voting instructions, and the Company's
judgment represents a minority position or would preclude a majority
vote, the Company may be required, at the Trust's election, to
withdraw the Separate Account's investment in the Trust and terminate
this Agreement with respect to such Separate Account, and no charge or
penalty will be imposed as a result of such withdrawal. Any such
withdrawal and termination shall take place within 30 days after
written notice is given that this provision is being implemented,
subject to applicable law but in any event consistent with the terms
of the Mixed and Shared Funding Order. Until such withdrawal and
termination is implemented, the Underwriter and the Trust shall
continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of
disinterested Trustees.
7.5. If a particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state insurance
regulators, then the Company will withdraw the Separate Account's
investment in the Trust and terminate this Agreement with respect to
such Separate Account within 30 days after the Trust informs the
Company of a material irreconcilable conflict, subject to applicable
law but in any event consistent with the terms of the Mixed and Shared
Funding Order. Until such withdrawal and termination is implemented,
the Underwriter and the Trust shall continue to accept and implement
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orders by this Company for the purchase and redemption of shares of
the Trust. Such withdrawal and termination shall be limited to the
extent required by the foregoing material irreconcilable conflict as
determined by a majority of disinterested Trustees.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority
of the disinterested members of the Trust Board shall determine
whether any proposed action adequately remedies any material
irreconcilable conflict, but in no event will the Trust or the
Underwriter be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 to
establish a new funding medium for the Contracts if an offer to do so
has been declined by vote of a majority of Contract owners materially
adversely affected by the material irreconcilable conflict.
7.7. The Trust Board's determination of the existence of a material
irreconcilable conflict and its implication will be made known in
writing to the Company.
7.8. The Company shall at least annually submit to the Trust Board such
reports, materials, or data as the Trust Board may reasonably request
so that the Trustees may fully carry out the duties imposed upon the
Trust Board by the Mixed and Shared Funding Order, and said reports,
materials and data shall be submitted more frequently if deemed
appropriate by the Trust Board.
7.9. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3(T) 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 Order) on terms and conditions materially different from those
contained in the Mixed and Shared Funding Order, the Trust and/or the
Company, as
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appropriate, shall take such steps as may be necessary to comply with
Rules 6e-2 and 6e- 3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable.
ARTICLE VIII INDEMNIFICATION
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold
harmless the Trust, the Underwriter, and each of the Trust's or the
Underwriter's directors, officers, employees, or agents and each
person, if any, who controls the Trust or the Underwriter within the
meaning of such terms under the federal securities laws (collectively,
the "indemnified parties" for purposes of this Section 8.1) against
any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company), or
litigation (including reasonable legal and other expenses), to which
the indemnified parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale or acquisition of the
Trust's shares or the Contracts and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of
any material fact contained in the
registration statements, prospectuses or
statements of additional information for
the Contracts or contained in the
Contracts, or sales literature or other
promotional material for the Contracts (or
any amendment or supplement to any of the
foregoing), or arise out of or are based
upon the omission or the alleged omission
to state therein a material fact required
to be stated therein or necessary to make
the statements therein not misleading in
light of the circumstances in which they
were made; provided that this agreement to
indemnify shall not apply as to any
indemnified party if such statement or
omission or such alleged statement or
omission was made in reliance upon and in
conformity with information furnished to
the Company by or on behalf of the Trust
for use in the registration
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statement, prospectus or statement of
information for the Contracts, or in the
Contracts or sales literature (or any
amendment or supplement) or otherwise for
use in connection with the sale of the
Contracts or Trust shares; or
(ii) arise out of or as a result of statements
or representations by or on behalf of the
Company (other than statements or
representations contained in the Trust
registration statement, Trust prospectus or
sales literature or other promotional
material of the Trust not supplied by the
Company or persons under its control) or
wrongful conduct of the Company or persons
under its control, with respect to the sale
or distribution of the Contracts or Trust
shares; or
(iii) arise out of any untrue statement or
alleged untrue statement of a material fact
contained in the Trust's registration
statement, prospectus, statement of
additional information, or sales literature
or other promotional material of the Trust
or any amendment thereof, or supplement
thereto or the omission or alleged omission
to state therein a material fact required
to be stated therein or necessary to make
the statements therein not misleading in
light of the circumstances in which they
were made, if such a statement or omission
was made in reliance upon and in conformity
with information furnished to the Trust by
or on behalf of the Company or persons
under its control; or
(iv) arise as a result of any failure by the
Company to provide the services and furnish
the materials or to make any payments under
the terms of this Agreement; or
(v) arise out of any material breach of any
representation and/or warranty made by the
Company in this Agreement or arise out of
or result from any other material breach by
the Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the
Company may otherwise have.
(b) No party shall be entitled to
indemnification by the Company if such loss, claim, damage, liability
or litigation is due to the willful misfeasance, bad
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faith, gross negligence, or reckless disregard of duty by the party
seeking indemnification.
(c) The indemnified parties will promptly
notify the Company of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of
the Trust shares or the Contracts or the operation of the Trust.
8.2. Indemnification By the Underwriter
(a) The Underwriter agrees to indemnify and
hold harmless the Company and each of its directors, officers,
employees, or agents and each person, if any, who controls the Company
within the meaning of such terms under the federal securities laws
(collectively, the "indemnified parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Underwriter), or litigation (including reasonable legal and other
expenses) to which the indemnified parties may become subject under
any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or acquisition
of the Trust's shares or the Contracts and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of
any material fact contained in the
registration statement, prospectus, or
statement of additional information for the
Trust, or sales literature or other
promotional material of the Trust (or any
amendment or supplement to any of the
foregoing), or arise out of or are based
upon the omission or the alleged omission
to state therein a material fact required
to be stated therein or necessary to make
the statements therein not misleading in
light of the circumstances in which they
were made; provided that this 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
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conformity with information furnished to
the Underwriter by or on behalf of the
Company for use in the registration
statement, prospectus, or statement of
additional information for the Trust or in
sales literature of the Trust (or any
amendment or supplement thereto) or
otherwise for use in connection with the
sale of the Contracts or Trust shares; or
(ii) arise out of or as a result of statements
or representations (other than statements
or representations contained in the
Contracts or in the Contract or Trust
registration statement, the Contract or
Trust prospectus, statement of additional
information, or sales literature or other
promotional material for the Contracts or
of the Trust not supplied by the
Underwriter or persons under the control of
the Underwriter) or wrongful conduct of the
Underwriter or persons under the control of
the Underwriter, with respect to the sale
or distribution of the Contracts or Trust
shares; or
(iii) arise out of any untrue statement or
alleged untrue statement of a material fact
contained in a registration statement,
prospectus, statement of additional
information, or sales literature or other
promotional material 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 in light of the
circumstances in which they were made, if
such statement or omission was made in
reliance upon and in conformity with
information furnished to the Company by or
on behalf of the Underwriter or persons
under the control of the Underwriter; or
(iv) arise as a result of any failure by the
Underwriter or the Trust 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 requirements and procedures
related thereto specified in Article VI of
this Agreement); or
(v) arise out of or result from any material
breach of any representation and/or
warranty made by the Underwriter or the
Trust in this Agreement or arise out of or
result from any other material breach of
this Agreement by the Underwriter;
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except to the extent provided in Sections 8.2(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the
Underwriter may otherwise have.
(b) No party shall be entitled to
indemnification by the Underwriter if such loss, claim, damage,
liability or litigation is due to the willful misfeasance, bad faith,
gross negligence, or reckless disregard of duty by the party seeking
indemnification.
(c) The indemnified parties will promptly
notify the Underwriter of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of
the Contracts or the operation of each Separate Account.
8.3. Indemnification By the Trust
(a) The Trust agrees to indemnify and hold
harmless the Company and each of its directors, officers, employees,
or agents and each person, if any, who controls the Company within the
meaning of such terms under the federal securities laws (collectively,
the "indemnified parties" for purposes of this Section 8.3) against
any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Trust), or
litigation (including reasonable legal and other expenses) to which
the indemnified parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the operations of the Trust
and:
(i) 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
Trust, or sales literature or other
promotional material of the Trust (or any
amendment or supplement to any of the
foregoing), or arise out of or are based
upon the omission or the alleged
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omission to state therein a material fact
required to be stated therein or necessary
to make the statements therein not
misleading in light of the circumstances in
which they were made; provided that this
agreement to indemnify shall not apply as
to any indemnified party if such statement
or omission or such alleged statement or
omission was made in reliance upon and in
conformity with information furnished to
the Trust by or on behalf of the Company
for use in the registration statement,
prospectus, or statement of additional
information for the Trust or in sales
literature of the Trust (or any amendment
or supplement thereto) or otherwise for use
in connection with the sale of the
Contracts or Trust shares; or
(ii) arise out of or as a result of statements
or representations (other than statements
or representations contained in the
Contracts or in the Contract or Trust
registration statement, the Contract or
Trust prospectus, statement of additional
information, or sales literature or other
promotional material for the Contracts or
of the Trust not supplied by the Trust or
persons under the control of the Trust) or
wrongful conduct of the Trust or persons
under the control of the Trust, with
respect to the sale or distribution of the
Contracts or Trust shares; or
(iii) arise out of any untrue statement or
alleged untrue statement of a material fact
contained in a registration statement,
prospectus, statement of additional
information, or sales literature or other
promotional material 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 in light of the
circumstances in which they were made, if
such statement or omission was made in
reliance upon and in conformity with
information furnished to the Company by or
on behalf of the Trust or persons under the
control of the Trust; or
(iv) arise as a result of any failure by the
Trust 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 requirements and procedures
related thereto specified in Article VI of
this Agreement); or
(v) arise out of or result from any material
breach of any representation and/or
warranty made by the Trust in this
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Agreement or arise out of or result from
any other material breach of this Agreement
by the Trust;
except to the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust
may otherwise have.
(b) No party shall be entitled to
indemnification by the Trust if such loss, claim, damage, liability or
litigation is due to the willful misfeasance, bad faith, gross
negligence, or reckless disregard of duty by the party seeking
indemnification.
(c) The indemnified parties will promptly
notify the Trust of the commencement of any litigation or proceedings
against it in connection with the issuance or sale of the Contracts or
the operation of each Separate Account.
8.4. Indemnification Procedure
Any person obligated to provide indemnification under this Article
VIII ("indemnifying party" for the purpose of this Section 8.4) shall
not be liable under the indemnification provisions of this Article
VIII with respect to any claim made against a party entitled to
indemnification under this Article VIII ("indemnified party" for the
purpose of this Section 8.4) unless such indemnified party shall have
notified the indemnifying party 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 party shall have received notice of such service
on any designated agent), but failure to notify the indemnifying party
of any such claim shall not relieve the indemnifying party from any
liability which it may have to the indemnified party against whom such
action is brought under the indemnification provision of this Article
VIII, except to the extent that the failure to notify results in the
failure of actual notice to the
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indemnifying party and such indemnifying party is damaged solely as a
result of failure to give such notice. In case any such action is
brought against the indemnified party, the indemnifying party will be
entitled to participate, at its own expense, in the defense thereof.
The indemnifying party also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action.
After notice from the indemnifying party to the indemnified party of
the indemnifying party's election to assume the defense thereof, the
indemnified party shall bear the fees and expenses of any additional
counsel retained by it, and the indemnifying party will not be liable
to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation,
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained in this
Article VIII shall survive any termination of this Agreement.
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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 State of
Delaware without giving effect to conflicts of laws provisions
thereof.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934,
and 1940 Acts, and the rules, regulations, and rulings thereunder,
including such exemptions from those statutes, rules and regulations
as the SEC may grant (including, but not limited to, the Mixed and
Shared Funding Order) and the terms hereof shall be interpreted and
construed in accordance therewith.
ARTICLE X TERMINATION
10.1. This Agreement shall terminate:
(a) at the option of any party upon six months
advance written notice to the other parties; or
(b) at the option of the Company if shares of
the Funds delineated in Exhibit B are not reasonably available to meet
the requirements of the Contracts as determined by the Company; or
(c) at the option of the Trust upon institution
of formal proceedings against the Company by the NASD, the SEC, the
insurance commission of any state or any other regulatory body
regarding the Company's duties under this Agreement or related to the
sale of the Contracts, the administration of the Contracts, the
operation of each Separate Account, or the purchase of the Trust
shares, which would have a material
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adverse effect on the Company's ability to perform its obligations
under this Agreement; or
(d) at the option of the Company upon
institution of formal proceedings against the Trust or the Underwriter
by the NASD, the SEC, or any state securities or insurance department
or any other regulatory body, which would have a material adverse
effect on the Underwriter's or the Trust's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company or the Trust
upon receipt of any necessary regulatory approvals or the vote of the
Contract owners having an interest in each Separate Account (or any
subaccount) to substitute the shares of another investment company for
the corresponding Fund shares of the Trust in accordance with the
terms of the Contracts for which those Fund shares had been selected
to serve as the underlying investment media. The Company will give 30
days prior written notice to the Trust of the date of any proposed
vote or other action taken to replace the Trust's shares; or
(f) at the option of the Company or the Trust
upon a determination by a majority of the Trust Board, or a majority
of the disinterested Trustees, that a material irreconcilable conflict
exists among the interests of (i) all contract owners of variable
insurance products of all separate accounts, or (ii) the interests of
the Participating Insurance Companies investing in the Trust as
delineated in Article VII of this Agreement; or
(g) at the option of the Company if the Trust
ceases to qualify as a Regulated Investment Company under Subchapter M
of the Internal Revenue Code, or
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under any successor or similar provision, or if the Company reasonably
believes that the Trust may fail to so qualify; or
(h) at the option of the Company if the Trust
fails to meet the diversification requirements specified in Article VI
hereof or if the Company reasonably believes that the Trust will fail
to meet such requirements; or
(i) at the option of any party to this
Agreement, upon another party's material breach of any provision of
this Agreement; or
(j) at the option of the Company, if the
Company determines in its sole judgment exercised in good faith, that
either the Trust or the Underwriter has suffered a material adverse
change in its business, operations, or financial condition since the
date of this Agreement or is the subject of material adverse publicity
which is likely to have a material adverse impact upon the business
and operations of the Company or the Contracts (including the sale
thereof); or
(k) at the option of the Trust or Underwriter,
if the Trust or Underwriter respectively, shall determine in its sole
judgment exercised in good faith, that the Company has suffered a
material adverse change in its business, operations, or financial
condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material adverse
impact upon the business and operations of the Trust or Underwriter;
or
(l) subject to the Trust's compliance with
Article VI hereof, at the option of the Trust in the event any of the
Contracts are not issued or sold in accordance
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with applicable requirements of federal and/or state law. Termination
shall be effective immediately upon such occurrence without notice.
10.2. Notice Requirement
(a) In the event that any termination of this
Agreement is based upon the provisions of Article VII, such prior
written notice shall be given in advance of the effective date of
termination as required by such provisions.
(b) In the event that any termination of this
Agreement is based upon the provisions of Sections 10.l(b) - (d) or
10.1(g) - (i), prompt written notice of the election to terminate this
Agreement for cause shall be furnished by the party terminating the
Agreement to the non-terminating parties, with said termination to be
effective upon receipt of such notice by the non-terminating parties.
(c) In the event that any termination of this
Agreement is based upon the provisions of Sections 10.1(j) or 10.
l(k), prior written notice of the election to terminate this Agreement
for cause shall be furnished by the party terminating this Agreement
to the nonterminating parties. Such prior written notice shall be
given by the party terminating this Agreement to the non-terminating
parties at least 30 days before the effective date of termination.
10.3. It is understood and agreed that the right to terminate this Agreement
pursuant to Section 10.1(a) may be exercised for any reason or for no
reason.
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10.4. Effect of Termination
(a) Notwithstanding any termination of this
Agreement pursuant to Section 10.1 of this Agreement and subject to
Section 1.3 of this Agreement, the Company may require the Trust and
the Underwriter to continue to make available additional shares of the
Trust for so long after the termination of this Agreement as the
Company desires pursuant to the terms and conditions of this Agreement
as provided in paragraph (b) below, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred
to as "Existing Contracts"). Specifically, without limitation, the
owners of the Existing Contracts shall be permitted to reallocate
investments in the Trust, redeem investments in the Trust and/or
invest in the Trust upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section
10.4 shall not apply to any terminations under Article VII and the
effect of such Article VII terminations shall be governed by Article
VII of this Agreement.
(b) If shares of the Trust continue to be made
available after termination of this Agreement pursuant to this Section
10.4, the provisions of this Agreement shall remain in effect except
for Section 10.l(a) and thereafter the Trust, the Underwriter, or the
Company may terminate the Agreement, as so continued pursuant to this
Section 10.4, upon written notice to the other party, such notice to
be for a period that is reasonable under the circumstances but need
not be for more than 90 days.
10.5. Except as necessary to implement Contract owner initiated or approved
transactions, or as required by state insurance laws or regulations,
the Company shall not redeem Trust
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shares attributable to the Contracts (as opposed to Trust shares
attributable to the Company's assets held in each Separate Account),
and the Company shall not prevent Contract owners from allocating
payments to a Fund that was otherwise available under the Contracts,
until 30 days after the Company shall have notified the Trust or
Underwriter of its intention to do so.
ARTICLE XI NOTICES
Any notice shall be deemed duly given only if sent by hand, evidenced
by written receipt or by certified mail, return receipt requested, to
the other party at the address of such party set forth below or at
such other address as such party may from time to time specify in
writing to the other party. All notices shall be deemed given three
business days after the date received or rejected by the addressee.
If to the Trust: Sage Life Investment Trust
c/o Sage Advisors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
If to the Company: Sage Life Assurance of America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
If to the Underwriter: Sage Distributors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
ARTICLE XII MISCELLANEOUS
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12.1. All persons dealing with the Trust must look solely to the property of
the Trust for the enforcement of any claims against the Trust as
neither the Trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the
Trust.
12.2. Subject to law and regulatory authority, each party hereto shall treat
as confidential all information reasonably identified as such in
writing by any other party hereto (including without limitation the
names and addresses of the owners of the Contracts) and, except as
contemplated by this Agreement, shall not disclose, disseminate, or
utilize such confidential information until such time as it may come
into the public domain without the express prior written consent of
the affected party.
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and
the same instrument.
12.5. 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.
12.6. This Agreement shall not be assigned by any party hereto without the
prior written consent of all the parties.
12.7. 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 each
other and such authorities reasonable access to its books
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and records in connection with any investigation or inquiry relating
to this Agreement or the transactions contemplated hereby.
12.8. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein
have been duly authorized by all necessary corporate or trust action,
as applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
12.9. The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect changes in or relating to the
Contracts, the Separate Accounts or the Funds of the Trust.
12.10. The Trust has filed a Certificate of Trust with the Secretary of State
of The State of Delaware. The Company acknowledges that the
obligations of or arising out of the Trust's Declaration of Trust are
not binding upon any of the Trust's Trustees, officers, employees,
agents or shareholders individually, but are binding solely upon the
assets and property of the Trust in accordance with its proportionate
interest hereunder. The Company further acknowledges that the assets
and liabilities of each Fund 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 Fund on whose behalf the Trust has
executed this instrument. The Company also agrees that the obligations
of each Fund hereunder shall be several and not joint, in accordance
with its proportionate interest hereunder, and the Company agrees not
to proceed against any Fund for the obligations of another Fund.
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12.11. Except as otherwise expressly provided in this Agreement, neither the
Trust nor the underwriter nor any affiliate thereof shall use any
trademark, trade name, service ▇▇▇▇ or logo of the Company or any of
its affiliates, or any variation of any such trademark, trade name
service ▇▇▇▇ or logo, without the Company's prior consent, the
granting of which shall be at the Company's sole option. Except as
otherwise expressly provided in this Agreement, neither the Company
nor any affiliate thereof shall use any trademark, trade name, service
▇▇▇▇ or logo of the Trust or of the Underwriter , or any variation of
any such trademark, trade name, service ▇▇▇▇ or logo, without the
prior consent of either the Trust or of the Underwriter, as
appropriate, the granting of which shall be at the sole option of the
Trust or of the Underwriter, as applicable.
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40
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Sage Life Assurance of America, Inc.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: President
--------------------------------
Sage Life Investment Trust
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Chairman
--------------------------------
Sage Distributors, Inc.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: President
--------------------------------
41
EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
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42
EXHIBIT B
Funds Subject to the Participation Agreement
EAFE Equity Index Fund
▇▇▇▇▇▇▇ 2000 Equity Index Fund
S&P 500 Equity Index Fund
Money Market Fund