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EXHIBIT 1.A.(8)(b)
PARTICIPATION AGREEMENT
AMONG
RUSSELL INSURANCE FUNDS,
RUSSELL FUND DISTRIBUTORS, INC.
AND
WESTERN RESERVE LIFE ASSURANCE COMPANY OF OHIO
THIS AGREEMENT is made and entered into as of this 9th day of
October, 1998, by and among Western Reserve Life Assurance Company of Ohio an
Ohio life insurance company (hereinafter the "Company"), on its own behalf and
on behalf of each segregated asset account of the Company set forth on Schedule
A hereto as such schedule may be amended from time to time (each such account
hereinafter referred to as the "Account" and collectively as the "Accounts"),
and RUSSELL INSURANCE FUNDS, a Massachusetts Business Trust (hereinafter the
"Investment Company"), and RUSSELL FUND DISTRIBUTORS, INC. a Washington
corporation (hereinafter the "Underwriter").
WHEREAS, Investment Company engages in business as a diversified
open-end management investment company and is available to act as the
investment vehicle for separate accounts established for variable life
insurance policies and variable annuity contracts (collectively, the "Variable
Insurance Products") to be issued by insurance companies that have entered into
participation agreements with the Investment Company ("Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Investment Company is divided
into several series of shares, referred to individually as "Funds" and
representing the interest in a particular managed portfolio of securities and
other assets; and
WHEREAS, Investment Company is registered with the Securities and
Exchange Commission ("SEC") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and its shares
are registered under the Securities Act of 1933, as amended (hereinafter the
"1933 Act"); and
WHEREAS, Frank Russell Investment Management Company (the "Adviser")
is registered as an investment adviser under the Investment Advisers Act of
1940 and any applicable state securities law; and
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WHEREAS, the Company has registered or will register certain variable
life insurance policies or variable annuity contracts or both under the 1933
Act; and
WHEREAS, each Account is a duly organized, validly existing,
segregated asset account, established by resolution of the Board of Directors
of the Company, on the date shown for such Account on Schedule A hereto, to set
aside and invest assets attributable to one or more variable life insurance
policies or variable annuity contracts; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act; and
WHEREAS, Investment Company has received a "mixed and shared funding"
order of exemptive relief from the SEC permitting it to offer its shares to
life insurers in connection with variable annuity contracts and variable life
insurance policies offered by such insurers which may or may not be affiliated
with each other (SEC Release IC-16160, Dec. 7, 1987); and
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 the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds listed on
Schedule B to this Agreement on behalf of each Account to fund certain of the
Variable Insurance Products, and the Underwriter is authorized to sell such
shares to unit investment trusts such as each Account at net asset value.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and other good and valuable consideration the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
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ARTICLE I. SALE OF INVESTMENT COMPANY SHARES
1.1 The Underwriter agrees to sell to the Company those shares of each
Fund of the Investment Company which each Account orders, executing such orders
on a daily basis at the net asset value next computed after receipt by the
Investment Company or its designee of the order for the shares of the
Investment Company. For purposes of this Section 1.1, the Company shall be the
designee of the Investment Company for receipt of such orders from each Account
and receipt by such designee shall constitute receipt by the Investment
Company; provided that the Company receives the orders by 1:00 p.m. Pacific
time, and provided that the Investment Company receives notice of such order by
8:00 a.m. Pacific 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 Investment Company calculated its net asset value pursuant to the
rules of the SEC.
1.2 The Investment Company agrees to make its shares of its Funds
available indefinitely for purchase at the applicable net asset value per share
by the Company and its Accounts on those days on which the Investment Company
calculates its net asset value pursuant to rules of the SEC. The Investment
Company shall calculate such net asset value for each Fund on each day which
the New York Stock Exchange is open for trading and on which each Fund
calculates its net asset value pursuant to the rules of the SEC.
Notwithstanding the foregoing, the Board of Trustees of the Investment Company
(hereinafter the "Board") may refuse to sell shares of any Fund, 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 Board acting in good faith and in light of their fiduciary duties under
federal and any applicable state laws, necessary in the best interests of the
shareholders of such Fund.
1.3 The Investment Company and the Underwriter agree that shares of each
Fund will be sold only to Participating Insurance Companies and their separate
accounts, qualified pension and retirement plans or such other persons as are
permitted under applicable provisions of the Internal Revenue Code of 1986, as
amended, (the "Code"), and regulations promulgated thereunder, the sale to
which does not impair the tax treatment currently afforded the contracts. The
Investment Company and the Underwriter agree that no shares of any Fund will be
sold to the general public.
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1.4 The Investment Company and the Underwriter will not sell Fund shares
to any insurance company or separate account unless an agreement containing
provisions substantially the same as Articles I, III, V, and VI of this
Agreement are in effect to govern such sales. The Investment Company shall
make available upon written request from the Company (i) a list of all other
Participating Insurance Companies and (ii) a copy of the participation
agreement executed by any other Participating Insurance Company provided that
Company agrees to keep confidential any information provided pursuant to this
Section and not to disclose such information to any third party.
1.5 The Investment Company agrees to redeem for cash, on the Company's
request, any full or fractional shares of the Investment Company held by the
Company, executing such requests on a daily basis at the net asset value next
computed after receipt by the Investment Company or its designee of the request
for redemption. For purposes of this Section 1.5, the Company shall be the
designee of the Investment Company for receipt of requests for redemption from
each Account, and receipt by such designee shall constitute receipt by the
Investment Company; provided that the Investment Company receives notice of
such request for redemption by 8:00 a.m. Pacific time on the next following
Business Day.
1.6 The Company agrees to purchase and redeem the shares of selected Funds
offered by the then-current prospectus of the Investment Company and in
accordance with the provisions of such prospectus. The Company agrees that all
net amounts available under the variable life insurance policies and variable
annuity contracts with the form number(s) which are listed on Schedule B
attached hereto and incorporated herein by this reference, as such Schedule B
may be amended from time to time hereafter by mutual written agreement of all
the parties hereto (the "Contracts"), may be invested in the Investment
Company, in such other investment companies advised by the Adviser as may be
mutually agreed to in writing by the parties hereto, in the Company's general
account or in other separate accounts of the Company managed by the Company or
an affiliate, provided that such amounts may also be invested in an investment
company other than the Investment Company if the Company gives the Investment
Company and the Underwriter 45 days written notice of its intention to make
such other investment company available as a funding vehicle for the Contracts.
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1.7 The Company shall pay for Investment Company shares on the next
Business Day after an order to purchase Investment Company shares is made in
accordance with the provisions of Section 1.1 hereof. The Investment Company
will use its best efforts to pay redemption proceeds on the next Business Day
after an order to redeem Investment Company shares is made in accordance with
the provisions of Section 1.5 hereof. Payment shall be in federal funds
transmitted by wire.
1.8 Issuance and transfer of the Investment Company's shares will be by
book entry only. Stock certificates will not be issued to the Company or any
Account. Shares ordered from the Investment Company will be recorded in an
appropriate title for each Account.
1.9 The Investment Company shall furnish same day notice (by wire or
telephone, followed by written confirmation) to the Company of any income
dividends or capital gain distributions payable on the Investment Company's
shares. The Company hereby elects to receive all such income dividends and
capital gain distributions as are payable on the Fund shares in additional
shares of that Fund. The Company reserves the right to revoke this election
and to receive all such income dividends and capital gain distributions in
cash. Investment Company shall notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.10 The Investment Company 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 3:00 p.m.
pacific time, each business day. If the Investment Company provides the
Company with materially incorrect share net asset value information through no
fault of the Company, the Company on behalf of the Accounts, shall be entitled
to an adjustment in the number of shares purchased or redeemed to reflect the
correct share net asset value. Any material error in the calculation of net
asset value per share, dividend or capital gain information shall be reported
promptly upon discovery to the Company.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that the Contracts are registered
under the 1933 Act and that the Contracts will be issued and sold in compliance
in all material
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respects with all applicable Federal and State laws and that the sale of the
Contracts shall comply in all material respects with state insurance
suitability requirements. The Company further represents and warrants that it
is an insurance company duly organized and in good standing under applicable
law and that it has legally and validly established each Account prior to any
issuance or sale thereof as a segregated asset account under applicable state
insurance law and that each Account is or will be registered as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as
a segregated investment account for the Contracts.
2.2 The Investment Company represents and warrants that Investment Company
shares sold pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for issuance and sold in compliance with the laws of the State
of Washington and all applicable federal and state securities laws and that the
Investment Company is and shall remain registered under the 1940 Act. The
Investment Company shall amend the Registration Statement for its shares under
the 1933 and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Investment Company 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 Investment Company or the
Underwriter.
2.3 The Investment Company represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Code and that it shall
maintain such qualification (under Subchapter M or any successor or similar
provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it
might not so qualify in the future.
2.4 Subject to Article VII, The Company represents that the Contracts are
currently treated as endowment, variable annuity contracts or variable life
insurance policies, under applicable provisions of the Code and that it shall
maintain such treatment and that it will notify the Investment Company 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.
2.5 The Investment Company currently does not intend to make any payments
to finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it may make such payments in the future. To the extent
that it decides to
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finance distribution expenses pursuant to Rule 12b-1, the Investment Company
undertakes to have a board of trustees, a majority of whom are not interested
persons of the Investment Company, formulate and approve any plan under Rule
12b-1 to finance distribution expenses.
2.6 The Investment Company represents that each Fund's investment
objectives, policies and restrictions comply with applicable state investment
laws as they may apply to each Fund. To the extent feasible and consistent
with market conditions, each Fund will adjust its investments to comply with
the insurance and other applicable laws of the Company's state of domicile upon
written notice from the Company of such laws and proposed adjustments, it being
agreed and understood that in any such case each Fund shall be allowed a
reasonable period of time under the circumstances after receipt of such notice
to make any adjustment. The Company alone shall be responsible for informing
each Fund of any restrictions imposed by state laws which are applicable to the
Fund. However, the Investment Company otherwise makes no representation as to
whether any aspect of its operations (including, but not limited to, fees and
expenses and investment policies) complies with the insurance laws or
regulations of the various states.
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 Investment
Company shares in accordance with any applicable state laws and federal
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 1940 Act.
2.8 The Investment Company represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts and that
it does and will comply in all material respects with the 1940 Act.
2.9 The Underwriter represents and warrants that the Adviser is and shall
remain duly registered in all material respects under all applicable federal
and state securities laws and that the Adviser shall perform its obligations
for the Investment Company in compliance in all material respects any
applicable state laws and federal securities laws.
2.10 The Investment Company and Underwriter represent and warrant that all
of their directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money or securities of the Investment
Company are and shall continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the
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Investment Company 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 time. The aforesaid Bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS: VOTING
3.1 The Underwriter shall provide the Company with as many printed copies
of the Investment Company's current prospectus and Statement of Additional
Information as the Company may reasonably request. If requested by the
Company in lieu thereof, the Investment Company shall provide camera-ready
film or computer diskettes containing the Investment Company's prospectus and
Statement of Additional Information and such other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus and/or Statement of Additional Information for the Investment
Company is amended during the year) to have the prospectus for the Contracts
and the Investment Company's prospectus printed together in one document, and
to have the Statement of Additional Information for the Investment Company and
the Statement of Additional Information for the Contracts printed together in
one document. Alternatively, the Company may print the Investment Company's
prospectus and/or its Statement of Additional Information in combination with
other fund companies' prospectuses approved pursuant to Section 1.5 and
statements of additional information. Except as provided in the following
three sentences, all expenses of printing and distributing Investment Company
prospectuses and Statements of Additional Information shall be the expense of
the Company. For Prospectuses and Statement of Additional Information
provided by the Company to its existing owners of Contracts in order to update
disclosure as required by the 1933 Act and/or the 1940 Act, the cost of
printing shall be borne by the Investment Company. If the Company chooses to
receive camera-ready film or computer diskettes in lieu of receiving printed
copies of the Investment Company's prospectus, the Investment Company will
reimburse the Company in an amount equal to the product of A and B where A is
the number of such prospectuses distributed to owners of the Contracts, and B
is the Investment Company's per unit cost of typesetting and printing the
Investment Company's prospectus. The same procedures shall be followed with
respect to the Investment Company's Statement of Additional Information.
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The Company agrees to provide the Investment Company or its designee
with such information as may be reasonably requested by the Investment Company
to assure that the Investment Company's expenses do not include the cost of
printing any prospectuses or Statements of Additional Information other than
those actually distributed to existing owners of the Contracts.
3.2 The Investment Company's prospectus shall state that the Statement of
Additional Information for the Investment Company is available from the
Underwriter or the Company (or in the Fund's discretion, the Prospectus shall
state that such Statement is available from the Investment Company). The
Underwriter (or the Investment Company) shall provide such Statements of
Additional Information, at its expense, to the Company.
3.3 The Investment Company, at its expense, shall provide the Company with
copies of its proxy statements, reports to shareholders, and other required
communications (except for prospectuses and Statement of Additional
Information, which are covered in Section 3.1) to shareholders in such quantity
as the Company shall reasonably require for distributing to Contract owners.
3.4 The Company will provide pass-through voting privileges to all
Contract owners as required by the 1940 Act. Accordingly, the Company, where
applicable, will vote shares of the Fund held in its Separate Accounts in a
manner consistent with voting instructions timely received from its Contract
owners. The Company will be responsible for assuring that each of its separate
accounts that participates in the Investment Company calculates voting
privileges in a manner consistent with other Participating Insurance Companies.
The Company will vote shares for which it has not received timely voting
instructions, as well as shares it owns, in the same proportion as it votes
those shares for which it has received voting instructions.
3.5 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended, or if
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules thereunder with respect to mixed and shared funding on
terms and conditions materially different from any exemptions granted in the
Investment Company's mixed and shared funding exemptive order, then the
Investment Company, and/or the Company, as appropriate, shall take such steps
as may be necessary to comply with Rule 6e-2 and Rule 6e-3(T), as amended, and
Rule 6e-3, as adopted, to the extent such Rules are applicable.
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3.6 The Investment Company will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Investment Company
will either provide for annual or special meetings or comply with the
requirements of Section 16(c) of the 1940 Act (although the Investment Company
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). Further, the
Investment Company will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of directors
and with whatever rules the SEC 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
Investment Company or its designee, each piece of sales literature or other
promotional material, or component thereof, in which the Investment Company,
the Adviser, or the Underwriter is named, at least fifteen Business Days prior
to its use. No such material shall be used if the Investment Company or its
designee objects to such use within fifteen Business Days after receipt of such
material.
4.2 The Company shall not give any information or make any representations
or statements on behalf of the Investment Company or concerning the Investment
Company in connection with the sale of the Contracts other than the information
or representations contained in the registration statement or prospectus for
the Investment Company shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports or proxy
statements for the Investment Company, or in sales literature or other
promotional material approved by the Investment Company or its designee or by
the Underwriter, except with the permission of the Investment Company or the
Underwriter or the designee of either. The Investment Company and the
Underwriter agree to respond to any request for approval on a prompt and timely
basis.
4.3 The Investment Company, the Underwriter, or their designees shall
furnish, or shall cause to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material, or component thereof,
in which the Company or its separate Accounts are named at least fifteen
Business Days prior to its use. No such material shall be used if the Company
or its designee objects to such use within fifteen Business Days after receipt
of such material.
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4.4 The Investment Company and the Underwriter shall not give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Contracts other than the information or
representations contained in a registration statement, prospectus for the
Contracts, as such may be amended or supplemented from time to time, or in
published reports for each Account which are in the public domain or approved
by the Company for distribution to Contract owners, or in sales literature or
other promotional material approved by the Company or its designee, except with
the permission of the Company. The Company agrees to respond to any request
for approval on a prompt and timely basis.
4.5 The Investment Company 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 Investment
Company or its shares, contemporaneously with the filing of such document with
the SEC or other regulatory authorities.
4.6 The Company will provide to the Investment Company 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 Account, contemporaneously with the filing of
such document with the SEC or other regulatory authorities.
4.7 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, electronic media, 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, and registration statements,
prospectuses, Statements of Additional
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Information, shareholder reports, and proxy materials and any other material
constituting sales literature or advertising under the NASD rules, the 1933 Act
or the 1940 Act.
4.8 No party shall use any other party's names, logos, trademarks or
service marks, whether registered or unregistered, without the prior written
consent of such other party, or after written consent therefor has been
revoked. No party shall use in advertising, publicity or otherwise the name of
any other party, or any of that party's affiliates nor any trade name,
trademark, trade device, service mark, symbol or any abbreviation, contraction
or simulation thereof of such other party, or its affiliates without the prior
written consent of the other party in each instance.
4.9 The Investment Company agrees to provide to the Company, within ten
Business Days after the end of a calendar month, the following information with
respect to each Fund of the Investment Company set forth on Schedule B, each as
of the last Business Day of such calendar month: the Fund's ten largest
portfolio holdings (based on the percentage of the Fund's net assets); the five
industry sectors in which the Fund's investments are most heavily weighted; the
relative proportion of the Fund's net assets invested in equity, bonds, and
cash instruments, respectively; the geographic regions in which the Portfolio's
investments are most heavily weighted; and the year-to-date SEC standardized
performance data. In addition, the Investment Company agrees to provide to the
Company, within 30 calendar days after the end of the calendar quarter, the
following information with respect to each Fund of the Investment Company set
forth on Schedule B, each as of the last Business day of such quarter: a
market commentary from the portfolio manager or such Fund; and a complete list
of the portfolio holdings (which will not be audited or reconciled against the
Fund's books or records). Also, the Investment Company agrees to provide the
Company, within a reasonable time frame after a request is submitted to the
Investment Company by the Company, the following information with respect to
each Fund set forth on Schedule B, each as of the date or dates specified in
such request; net asset value; net asset value per share, and other share
information may be furnished to the Company's internal or independent auditors
and to the insurance departments of the various jurisdictions in which the
Company does business.
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ARTICLE V. POTENTIAL CONFLICTS
5.1 The parties acknowledge that Investment Company has received a "mixed
and shared funding" exemptive order from the SEC granting relief from various
provisions of the 1940 Act and the rules thereunder to the extent necessary to
permit Investment Company shares to be sold to and held by Variable Insurance
Products separate accounts of both affiliated and unaffiliated participating
insurance companies. The exemptive order requires the Investment Company and
each participating insurance company to comply with conditions and undertakings
substantially as provided in this Article V. The Investment Company will not
enter into a participation agreement with any other participating insurance
company unless it imposes the same conditions and undertakings as are imposed
on the Company.
5.2 The Investment Company's Board of Trustees ("Board") will monitor the
Investment Company for the existence of any material irreconcilable conflict
between the interests of Contract owners of all separate accounts investing in
the Investment Company. An irreconcilable material conflict may arise for a
variety of reasons, which may include: (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 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 the Investment Company
are being managed; (e) a difference in voting instructions given by Contract
owners; and (f) a decision by a participating insurance company to disregard
the voting instructions of Contract owners.
5.3 The Company will report any potential or existing conflicts to the
Investment Company's Board. The Company will be responsible for assisting the
Board in carrying out its duties in this regard by providing the Board with all
information reasonably necessary for the Board to consider any issues raised.
The responsibility includes, but is not limited to, an obligation by the
Company to inform the Board whenever it has determined to disregard Contract
owner voting instructions. These responsibilities of the Company will be
carried out with a view only to the interests of the Contract owners.
5.4 If a majority of the Board or majority of its disinterested Trustees,
determines that a material irreconcilable conflict exists affecting the
Company, then the Company, at its expense and to the extent reasonably
practicable (as determined by a majority of the
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Board's disinterested Trustees), will take any steps necessary to remedy or
eliminate the irreconcilable material conflict, including: (a) withdrawing the
assets allocable to some or all of the separate accounts from the Investment
Company or any Fund thereof and reinvesting those assets in a different
investment medium, which may include another Fund of the Investment Company, or
another investment company; (b) submitting the question as to whether such
segregation should be implemented to a vote of all affected Contract owners and
as appropriate, segregating the assets of any appropriate group (i.e., variable
annuity or variable 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 option of making such a change; and (c)
establishing a new registered management investment company (or series thereof)
or managed separate account. If a material irreconcilable conflict arises
because of the Company's decision to disregard Contract owner voting
instructions, and that decision represents a minority position or would
preclude a majority vote, the Company may be required at the election of the
Investment Company, to withdraw its separate accounts' investment in the
Investment Company, and no charge or penalty will be imposed as a result of
such withdrawal. The responsibility to take such remedial action shall be
carried out with a view only to the interests of the Contract owners.
For the purposes of this Section 5.4, a majority of the disinterested
members of the Board shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict but in no event will
the Investment Company or any investment adviser of the Investment Company be
required to establish a new funding medium for any Contract. Further, the
Company shall not be required by this Section 5.4 to establish a new funding
medium for any Contract if any offer to do so has been declined by a vote of a
majority of Contract owners materially and adversely affected by the
irreconcilable material conflict.
5.5 The Board's determination of the existence of an irreconcilable
material conflict and its implications shall be made known promptly and in
writing to the Company.
5.6. No less than annually, the Company shall submit to the Board such
reports, materials or data as the Board may reasonably request so that the
Board may fully carry out its obligations. Such reports, materials, and data
shall be submitted more frequently if deemed appropriate by the Board.
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ARTICLE VI. FEES AND EXPENSES
6.1 The Investment Company and the Underwriter shall pay no fee or other
compensation to the Company under this Agreement, except that if the Investment
Company or any Fund adopts and implements a plan pursuant to Rule 12b-1 to
finance distribution expenses, then 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 and such payments will be made out of existing fees
otherwise payable to the Underwriter, past profits of the Underwriter, or other
resources available to the Underwriter. No such payments shall be made
directly by the Investment Company. Currently, no such payments are
contemplated.
6.2 All expenses incident to performance by the Investment Company under
this Agreement shall be paid by the Investment Company. The Investment Company
shall ensure 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 Investment Company, in accordance with applicable state laws
prior to their sale. The Investment Company shall bear the expenses for the
cost of registration and qualification of the Investment Company's shares,
preparation and filing of the Investment Company'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, all taxes on the issuance or transfer of the Investment
Company's shares, and any expenses permitted to be paid and assumed by the
Investment Company pursuant to a plan, if any, under Rule 12b-1 of the 1940
Act.
6.3 The Company shall bear the expenses of distributing the Investment
Company's prospectus, proxy materials, and reports to owners of Contracts
issued by the Company.
ARTICLE VII. DIVERSIFICATION
7.1 The Investment Company 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 Code and the regulations issued thereunder.
Without limiting the scope of the foregoing, the Investment Company will at all
times comply with Section 817(h) of the
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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. In the
event of a breach of this Section 7.1 by the Investment Company, the Investment
Company will notify the Company of such breach and it will take all reasonable
steps to adequately diversify the Investment Company so as to achieve
compliance within the grace period afforded by Treasury Regulation 1.817-5;
provided, however, that the Investment Company's failure to give such notice
shall not be deemed to be a breach of this Agreement.
7.2 Each Fund of the Investment Company shall maintain the qualification
of the Fund as a registered investment company (under Subchapter M or any
successor or similar provision), and the Investment Company shall (i) notify
the Company immediately upon having a reasonable basis for believing that a
Fund has ceased to so qualify or that it might not so qualify in the future,
and (ii) take all reasonable steps to maintain qualification and to requalify
the Fund as a registered investment company under Subchapter M.
ARTICLE VIII. INDEMNIFICATION
8.1 INDEMNIFICATION BY THE COMPANY
8.1(a). The Company agrees to indemnify and hold harmless the Investment
Company and each member of the Board and officers and each person, if any, who
controls the Investment Company within the meaning of Section 15 of the 1933
Act (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
action in respect thereof) or settlements are related to the sale or
acquisition of the Investment Company'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 any Registration
Statement, or prospectus for the Contracts or contained in the
Contracts or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise
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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 Investment Company for use in any
Registration Statement or prospectus for the Contracts or in the
Contracts or sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Investment Company's shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Registration Statement, prospectus or sales literature of the
Investment Company 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
Investment Company shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a Registration Statement, prospectus, or
sales literature of the Investment Company 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
Investment Company by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this Agreement;
or
(v) arise out of a result from any material breach of any
representation 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 8.1(b) and 8.1(c) hereof.
8.1(b). The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against an
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Indemnified Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement or to the Investment
Company, whichever is applicable.
8.1(c). The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Company of
any such claim shall not relieve the Company from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, 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, 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.
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8.1(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 Investment Company shares or the Contracts or the
operation of the Investment Company.
8.2 INDEMNIFICATION BY THE UNDERWRITER
8.2(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 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, 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 Investment Company'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 or prospectus or sales literature of the Investment Company
(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 Investment Company by or on behalf of the Company
for use in the Registration Statement or prospectus for the Investment
Company or in the sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Investment Company shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in any
Registration Statement, prospectus, or sales literature for the
Contracts not supplied by the Underwriter or persons
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under its control) or wrongful conduct of the Investment Company,
Adviser, or Underwriter or persons under their control, with respect
to the sale or distribution of the Contracts or Investment Company
shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement, prospectus,
or sales literature covering the Contracts, or any amendment thereof
or supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
to the Company by or on behalf of the Investment Company; or
(iv) arise as a result of any failure by the Investment 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 diversification requirements
specified in Article VII of this Agreement); or
(v) arise out of or result from any material breach of any
representation or warranty made by the Underwriter in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Underwriter; as limited by and in accordance with the
provisions of Sections 8.2(b) and 8.2(c) hereof.
8.2(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 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 each Account, whichever is applicable.
8.2(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
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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 Parties, 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, 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.
8.2(d). 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 any Account.
8.3 INDEMNIFICATION BY THE INVESTMENT COMPANY
8.3(a). The Investment Company 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 8.3)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Investment Company) or
litigation (including legal and other expenses) to which the Indemnified
Parties may become subject under any statute, at common law or otherwise,
insofar as
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such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements, are related to the sale or acquisition of the of the
Investment Company'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 or prospectus or sales literature of the Investment Company
(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 Investment Company by or on behalf of the Company
for use in the Registration Statement or prospectus for the Investment
Company or in the sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Investment Company shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in any
Registration Statement, prospectus, or sales literature for the
Contracts not supplied by the Underwriter or persons under its
control) or wrongful conduct of the Investment Company, Adviser, or
Underwriter or persons under their control, with respect to the sale
or distribution of the Contracts or Investment Company shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement, prospectus,
or sales literature covering the Contracts, or any amendment thereof
or supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
to the Company by or on behalf of the Investment Company; or
(iv) arise as a result of any failure by the Investment Company to
provide the services and furnish the materials under the terms of this
Agreement (including a
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failure by the Investment Company to comply with the diversification
requirements specified in Article VII of this Agreement); or
(v) arise out of or result from any material breach of any
representation or warranty made by the Investment Company in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Investment Company, as limited by and in
accordance with the provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(b). The Investment Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's will 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 Investment Company, the Underwriter or any
Account, which ever is applicable.
8.3(c). The Investment 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 Investment 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 Investment
Company of any such claim shall not relieve the Investment Company from any
liability which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the Investment
Company will be entitled to participate, at its own expense, in the defense
thereof. The Investment Company also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action. After
notice from the Investment Company to such party of the Investment 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 Investment
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
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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 name of 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 appropriate 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 of if there by 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.
8.3(d). The Company and the Underwriter agree promptly to notify the
Investment Company of the commencement of any litigation or proceeding against
it or any of its respective officers or directors in connection with this
Agreement, the issuance or sale of the Contracts, with respect to the operation
of any Account, or the sale or acquisition of shares of the Investment Company.
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 Washington.
9.2 To the extent they are applicable, this Agreement shall be subject to
the provisions of the 1933, 1934 and 1940 Acts, and the rules and regulations
and rulings thereunder, including such exemptions from those statutes, rules
and regulations as the SEC may grant and the terms hereof shall be interpreted
and construed in accordance therewith.
ARTICLE X. TERMINATION OF AGREEMENT
10.1 This Agreement shall continue in full force and effect until the first
to occur of:
(a) termination by any party for any reason by ninety (90) days
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Investment
Company and the Underwriter with respect to any Fund based upon the Company's
determination
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that shares of such Fund are not reasonable available to meet the requirements
of the Contracts; or
(c) termination by the Company by written notice to the Investment
Company and the Underwriter with respect to any Fund in the event any of the
Fund's shares are not registered, issued, or sold materially in accordance with
applicable state 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 Company upon institution of formal
proceedings against the Investment Company 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 Investment Company's or
the Underwriter's ability to perform its obligations under this Agreement; or
(e) termination by the Investment Company or the Underwriter upon
institution of formal proceedings against the Company 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 Company's ability to perform
its obligations under this Agreement; or
(f) termination by the Company by written notice to the Investment
Company and the Underwriter with respect to any Fund in the event that such
Fund ceases to qualify as a Regulated Investment Company under Subchapter M of
the Code or under any successor or similar provision, or if the Company
reasonably believes that the Investment Company may fail to so qualify; or
(g) termination by the Company by written notice to the Investment
Company and the Underwriter with respect to any Fund in the event that such
Fund fails to meet the diversification requirements specified in Article VII
hereof or if the Company reasonably believes that the Investment Company may
fail to meet such requirements; or
(h) termination by the Investment Company upon a determination of
the Investment Company's Board, or a majority of the disinterested Board
members, that an irreconcilable material conflict exists; or
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(i) termination by either the Investment Company or the
Underwriter by written notice to the Company, if either one or both of the
Investment Company 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 which is likely to have a material adverse impact upon the business
and operations of the Company; or
(j) termination by the Company by written notice to the Investment
Company and the Underwriter, if the Company shall determine, in its sole
judgment exercised in good faith, that either the Investment Company 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
(k) termination by the Investment Company or the Underwriter by
written notice to the Company if the Company gives the Investment Company and
the Underwriter the written notice specified in Section 1.6 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 10.1(h) shall be effective forty-five (45) days after the notice
specified in Section 1.6 was given.
(l) termination by any party to this Agreement, upon the other
party's material breach of any provision of this Agreement; or
(m) termination by any party upon the assignment of this
Agreement, except under the condition specified in Section 12.8 of this
Agreement; or
10.2 Notwithstanding any termination of this Agreement, the Investment
Company and the Underwriter shall at the option of the Company, continue to
make available additional shares of the Investment Company 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, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate investment in the
Investment Company, redeem investments in the Investment Company, or invest in
the Investment Company upon the making of additional purchase payments
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under the Existing Contracts, except as otherwise provided in Article V of this
Agreement.
10.3 The Company shall not redeem Investment Company shares attributable to
the Contracts except (i) as necessary to implement Contract Owner initiated
transactions, or (ii) as required by state or federal laws or regulations or
judicial or other legal precedent of general application. Furthermore, except
in cases where permitted under the terms of the Contracts, the Company shall
not prevent Contract Owners from allocating payments to a Fund that was
otherwise available under the Contracts without first giving the Investment
Company or the Underwriter ninety (90) days notice of its intention to do so.
ARTICLE XI. 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 Investment Company:
909 A Street
Tacoma, Washington 98402
Attention: Karl J. Ege, Esq.
If to the Company:
4333 Edgewood Road N.E.
Cedar Rapids, Iowa 52499
Attention: Extraordinary Markets, Individual Division
If to the Underwriter:
909 A. Street
Tacoma, Washington 98402
Attention: Karl J. Ege, Esq.
ARTICLE XII. MISCELLANEOUS
12.1 All persons dealing with the Investment Company must look solely to
the property of the Investment Company for the enforcement of any claims
against the Investment Company as neither the Board, officers, agents or
shareholders assume any personal liability for obligations entered into on
behalf of the Investment Company.
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12.2 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 until such time as it may come
into the public domain without the express 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 provisions 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 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 California 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 life
insurance operations of the Company are being conducted in a manner consistent
with the California Variable Life Insurance Regulations and any other
applicable law or regulations.
12.7 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.
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12.8 This Agreements or any of the rights and obligations hereunder may not
be assigned by any party without the prior written consent of all parties
hereto.
12.9 The Company shall furnish, or shall cause to be furnished, to the
Investment Company or its designee upon request copies of the following
reports:
(a) the Company's annual statement prepared under statutory
accounting principles;
(b) the Company's quarterly statement (statutory); and
(c) any financial statement, proxy statement, notice or report of
the Company sent to stockholders or policyholders;
provided, however, that the Company's failure to furnish, or cause to be
furnished, such materials shall not be deemed to be a breach of this Agreement.
12.10 The Master Trust Agreement dated 11 July 1996, as amended from time
to time, establishing the Investment Company, which is hereby referred to and
a copy of which is on file with the Secretary of The Commonwealth of
Massachusetts, provides that the name Russell Insurance Funds means the
Trustees from time to time serving (as Trustees but not personally) under said
Master Trust Agreement. It is expressly acknowledged and agreed that the
obligations of the Investment Company hereunder shall not be binding upon any
of the shareholders, Trustees, officers, employees or agents of the Investment
Company, personally, but shall bind only the trust property of the Investment
Company as provided in its Master Trust Agreement. The execution and delivery
of this Agreement have been authorized by the Trustees of the Investment
Company and signed by the President of the Investment Company, acting as such,
and neither such authorization by such Trustees nor such execution and
delivery by such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the trust property of the Investment Company as provided in its
Master Trust Agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be executed in its name and on behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date first
written above.
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WESTERN RESERVE LIFE ASSURANCE
COMPANY OF OHIO
ATTEST: BY:
/s/ JOHN R. KENNEY
- ---------------------------------- -----------------------------------
Secretary President
RUSSELL INSURANCE FUNDS
ATTEST: BY:
/s/ GREGORY J. LYONS /s/ RANDALL P. LERT
- ---------------------------------- -----------------------------------
Assistant Secretary Director of Investments - Randall P. Lert
Gregory J. Lyons
RUSSELL FUND DISTRIBUTORS, INC.
ATTEST: BY:
/s/ GREGORY J. LYONS /s/ GREGORY DENK
- ---------------------------------- -----------------------------------
Assistant Secretary National Director - Sales
Gregory J. Lyons Gregory Denk
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SCHEDULE A
ACCOUNTS
Name of Account Date of Resolution of Company's
Board which Established the Account
WRL Series Life Corporate Account 12-08-1997
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SCHEDULE B
CONTRACTS
1. Contract Form Numbers:
WL694 136 82 698
2. Funds currently available to act as investment vehicles for certain of
the above-listed contracts:
Russell Insurance Funds: Multi-Style Equity Fund
Aggressive Equity Fund
Non-U.S. Fund
Core Bond Fund
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