Ex. 99.8.49
Form of Fund Participation Agreement dated as of _______________, 2000
between Federated Services Company, Federated Distributors, Wachovia
Bank, NA and Aetna Life Insurance and Annuity Company
FUND PARTICIPATION AGREEMENT
between
FEDERATED SERVICES COMPANY, FEDERATED DISTRIBUTORS, WACHOVIA
BANK, N.A. and ALIAC
Aetna Life Insurance and Annuity Company (the "Company"), Federated
Services Company (the "Transfer Agent"), Wachovia Bank, N.A. ("Wachovia") and
Federated Distributors (the "Distributor") hereby agree to an arrangement
whereby The Wachovia Funds ("Fund") shall be made available to serve as
underlying investment media for Variable Annuity Contracts ("Contracts") to be
issued by the Company.
1. Establishment of Accounts; Availability of Fund.
The Company represents that it has established Variable Annuity Accounts
B, C, D and F and may establish such other accounts as may be set forth
in Schedule A attached hereto and as may be amended from time to time
with the mutual consent of the parties hereto (the "Accounts"), each of
which is a separate account under Connecticut Insurance law, and has
registered or will register each of the Accounts (except for such
Accounts for which no such registration is required) as a unit investment
trust under the Investment Company Act of 1940 (the "1940 Act"), to serve
as an investment vehicle for the Contracts. Each Contract provides for
the allocation of net amounts received by the Company to an Account for
investment in the shares of one of more specified open-end management
investment companies available through that Account as underlying
investment media. Selection of a particular investment company and
changes therein from time to time are made by the participant or Contract
owner, as applicable under a particular Contract.
2. Pricing Information; Orders; Settlement.
(a) Subject to the terms and conditions of the Fund's current
registration statement, the Transfer Agent and the Distributor
will make shares of those series and classes thereof on Schedule B
attached hereto, as it may be amended from time to time, available
to be purchased by the Company, and will accept redemption orders
from the Company, on behalf of each Account at the net asset value
applicable to each order on those days on which the Fund
calculates its net asset value (a "Business Day"). Fund shares
shall be purchased and redeemed in such quantity and at such time
determined by the Company to be necessary to meet the requirements
of those Contracts for which the Fund(s) serve as underlying
investment media, provided, however, that the Board of Trustees of
the Fund (hereinafter the "Trustees") may refuse to sell shares of
any Portfolio to any person, or suspend or terminate the offering
of shares of any Portfolio if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole
discretion of the Trustees, acting in
<PAGE>
good faith and in the best interests of the shareholders of any
Portfolio and is acting in compliance with their fiduciary
obligations under federal and/or any applicable state laws. The
Distributor shall provide prompt notice to the Company of any such
action.
(b) The Transfer Agent will provide to the Company closing net asset
value, dividend and capital gain information after the close of
trading each day that the New York Stock Exchange (the "Exchange")
is open (each such day a "Business Day"), and the Transfer Agent
will use its best efforts to provide such information no later
than 6:30 p.m. Eastern Standard time on such Business Day, and in
no event later than 7:00 Eastern Standard time, except for delays
due to extraordinary circumstances. The Company will send via
facsimile or electronic transmission to the Transfer Agent orders
to purchase and/or redeem Fund shares by 10:00 a.m. Eastern
Standard Time the following business day. Payment for net
purchases will be wired by the Company to an account designated by
the Transfer Agent to coincide with the order for shares of the
Fund.
(c) The Transfer Agent hereby appoints the Company as its agent for
the limited purpose of accepting purchase and redemption orders
for Fund shares relating to the Contracts from Contract owners or
participants. Orders from Contract owners or participants received
from any distributor of the Contracts (including affiliates of the
Company) by the Company, acting as agent for the Transfer Agent,
prior to the close of the Exchange on any given business day will
be executed by the Transfer Agent at the net asset value
determined as of the close of the Exchange on such Business Day,
provided that the Transfer Agent receives written (or facsimile)
notice of such order by 10 a.m. Eastern Standard Time on the next
following Business Day. Any orders received by the Company acting
as agent on such day but after the close of the Exchange will be
executed by the Transfer Agent at the net asset value determined
as of the close of the Exchange on the next business day following
the day of receipt of such order, provided that the Transfer Agent
receives written (or facsimile) notice of such order by 10 a.m.
Eastern Standard Time within two days following the day of receipt
of such order.
(d) Payments for net redemptions of shares of the Fund will be wired
by the Transfer Agent to an account designated by the Company on
the same Business Day the Company places an order to redeem Fund
Shares. Payments for net purchases of the Fund will be wired by
the Company to an account designated by the Transfer Agent or the
Fund on the same Business Day the Company places an order to
purchase Fund shares. Payments shall be in federal funds
transmitted by wire.
(e) In lieu of applicable provisions set forth in paragraphs 2(a)
through 2(d) above, the parties may agree to provide pricing
information, execute orders and wire payments for purchases and
redemptions through National Securities Clearing Corporation's
Fund/SERV system in which case such activities will be governed by
the provisions set forth in an Exhibit to this Agreement.
<PAGE>
(f) Each party has the right to rely on information or confirmations
provided by the other party (or by any affiliate of the other
party), and shall not be liable in the event that an error is a
result of any misinformation supplied by the other party
(g) The Transfer Agent and Distributor shall indemnify and hold the
Company harmless, from the effective date of this Agreement,
against any amount the Company is required to pay to Contract
owners or participants due to: (i) an incorrect calculation of a
Fund's daily net asset value, dividend rate, or capital gains
distribution rate or (ii) incorrect or late reporting of the daily
net asset value, dividend rate, or capital gain distribution rate
of a Fund, upon written notification by the Company, with
supporting data, to Distributor; provided, however, that no such
amounts shall be returned if they are not deemed material pursuant
to the then prevailing pricing error guidelines as set forth by
the Securities and Exchange Commission and its staff.
In addition, Transfer Agent shall be liable to the Company for any
costs the Company incurs in the preparation, printing and mailing
of communiciations to Contract holders or participants, if such
costs or expenses are a result of the failure to provide timely or
correct net asset values, dividend and capital gains or financial
information and if such information is not corrected by 4:00 p.m.
East Coast time of the next business day after releasing such
incorrect information provided the incorrect NAV as well as the
correct NAV for each date that the error occurred is provided. If
a mistake is caused in supplying such information or
confirmations, which results in a reconciliation with incorrect
information, the amount required to make a Contract owner's or a
participant's account whole shall be borne by the party providing
the incorrect information, regardless of when the error is
corrected.
(h) The Company shall indemnify the Transfer Agent and the Distributor
and hold them harmless, from the effective date of this Agreement,
against any loss or liability resulting from its errors in the
management of the Contracts and the Accounts.
(i) The Company agrees to purchase and redeem the shares of the Funds
named in Schedule B offered by the then current prospectuses and
statements of additional information of the Fund in accordance
with the provisions of such prospectus and statement of additional
information.
3. Fees.
In consideration of services provided by the Company under this
Agreement, Wachovia shall pay fees to the Company as set forth in
Schedule C.
4. Expenses.
(a) Except as otherwise provided in this Agreement, all expenses
incident to the performance by the Transfer Agent or the
Distributor under this Agreement shall be paid by the Transfer
Agent, the Distributor or the Fund, including the cost of
registration of Fund shares with the Securities and Exchange
Commission (the "SEC") and in states where required. The Transfer
Agent and the Distributor shall
<PAGE>
pay no fee or other compensation to the Company under this
Agreement, and the Company shall pay no fee or other compensation
to the Transfer Agent or the Distributor, except as provided
herein as may be amended from time to time with the mutual consent
of the parties hereto. All expenses incident to performance by
each party of its respective duties under this Agreement shall be
paid by that party, unless otherwise specified in this Agreement.
(b) The Distributor shall provide to the Company, at the location
designated by the Company, periodic fund reports to shareholders
and other materials that are required by law to be sent to
Contract owners or participants. In addition, the Distributor
shall provide the Company upon its request with reasonable
quantities of its prospectuses, statements of additional
information and any supplements to any of these materials, to be
used in connection with the offerings and transactions
contemplated by this Agreement.
(c) The Distributor shall provide the company with a sufficient
quantity of its proxy material that is required to be sent to
Contract owners or participants. The cost associated with proxy
preparation, group authorization letters, programming for
tabulation and necessary materials (including postage) will be
paid by the Distributor or the Fund.
5. Representations.
(a) The Company agrees that it and its agents shall not, without the
written consent of the Distributor, make representations
concerning the Fund, or its shares except those contained in the
then current prospectuses and in current printed sales literature
approved by or deemed approved by the Fund or the Distributor.
(b) The Company represents that its offering and management of the
Contracts and the Accounts is in accordance with all applicable
laws and regulations, including, without limitation, state and
federal insurance laws and tax laws and regulations, and that the
purchase of Fund shares by the Contracts and the Accounts will not
result in any violation of any such law or regulation by the Fund.
6. Termination.
This agreement shall terminate:
(a) as to the sale and issuance of new Contracts, at the option of
either the Company, the Distributor or the Fund, upon sixty days
advance written notice to the other parties;
(b) at the option of the Company, upon one week advance written notice
to the Distributor and the Fund, if Fund shares are not available
for any reason to meet the requirement of Contracts as determined
by the Company. Reasonable advance notice of election to terminate
shall be furnished by Company;
<PAGE>
(c) as to a given Account, upon the determination of the Account to
substitute for the Fund's shares the shares of another investment
company in accordance with the terms of the applicable Contracts.
The Company will give 60 days written notice to the Fund and the
Distributor of any decision to replace the Fund's' shares;
(d) upon assignment of this Agreement, unless made with the written
consent of all other parties hereto;
(e) if Fund shares are not registered, issued or sold in conformance
with Federal law or such law precludes the use of Fund shares as
an underlying investment medium for Contracts issued or to be
issued by the Company. Prompt notice shall be given by the
appropriate party should such situation occur.
7. Continuation of Agreement.
Termination as the result of any cause listed in Section 6, which, by its
terms implies or requires that Contract holders will continue to hold or
purchase shares of the Funds shall not affect the Fund's obligation to
furnish its shares to Contracts then in force for which its shares serve
as the underlying medium unless such further sale of Fund shares is
prohibited by law or the SEC or other regulatory body. In such event, all
provisions of this Agreement shall continue to apply to such sales. In
the event of termination of this Agreement, the parties agree that the
requirements of Section 10 of the Agreement shall survive.
8. Advertising Materials; Filed Documents.
(a) Advertising and sales literature with respect to the Fund prepared
by the Company or its agents for use in marketing its Contracts
will be submitted to the Distributor for review before such
material is submitted to any regulatory body for review. No such
material shall be used if the Distributor reasonably objects to
such use in writing, transmitted by facsimile within three
business days after receipt of such material.
(b) The Distributor will provide copies of the Fund's financials as
soon as available to the Company and at least one complete copy of
all registration statements, prospectuses, statements of
additional information, annual and semi-annual reports, proxy
statements and all amendments or supplements to any of the above
that relate to the Fund promptly after the filing of such document
with the SEC or other regulatory authorities. The Company will
provide to each of the Distributor and the Transfer Agent at least
one complete copy of all registration statements, prospectuses,
statements of additional information, annual and semi-annual
reports, proxy statements, and all amendments or supplements to
any of the above that relate to the Accounts promptly after the
filing of such document with the SEC or other regulatory
authority.
(c) At the request of the Company, the Distributor will provide via
Excel spreadsheet diskette format or in electronic transmission to
the Company quarterly portfolio information necessary to update
Fund profiles with fourteen business days following the end of
each quarter.
<PAGE>
9. Proxy Voting.
(a) The Company shall provide pass-through voting privileges on Fund
shares held by registered separate accounts to all Contract owners
and participants to the extent the SEC continues to interpret the
1940 Act as requiring such privileges. The Company shall provide
pass-through voting privileges on Fund shares held by unregistered
separate accounts to all Contract owners.
(b) The Company will distribute to Contract owners and participants,
as appropriate, all proxy material furnished by the Fund and will
vote Fund shares in accordance with instructions received from
such Contract owners and participants. If and to the extent
required by law, the Company, with respect to each group Contract
and in each Account, shall vote Fund shares for which no
instructions have been received in the same proportion as shares
for which such instructions have been received. The Company and
its agents shall not oppose or interfere with the solicitation of
proxies for Fund shares held for such Contract owners and
participants.
10. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Fund, the
Transfer Agent, Wachovia and the Distributor, and its directors,
officers, employees, agents and each person, if any, who controls
the Fund or its Distributor within the meaning of the Securities
Act of 1933 (the "1933 Act") against any losses, claims, damages
or liabilities to which the Fund or any such director, officer,
employee, agent, or controlling person may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) 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 sales literature of the Company or the
Accounts 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, or arise out of or as a result of conduct, statements
or representations (other than statements or representations
contained in the prospectuses or sales literature of the Fund) of
the Company or its agents, with respect to the sale and
distribution of Contracts for which Fund shares are the underlying
investment. The Company will reimburse any legal or other expenses
reasonably incurred by the Fund, the Transfer Agent or the
Distributor or any of their directors, officers, employees,
agents, or controlling persons in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon (i) an untrue statement or omission
or alleged omission made in such Registration Statement or
prospectus in conformity with written materials furnished to the
Company by the Fund, the Transfer Agent, Wachovia or the
Distributor specifically for use therein or (ii) the willful
misfeasance, bad faith, or gross negligence by the Fund, the
Transfer Agent, Wachovia or the Distributor in the performance of
their duties or the Fund's, Transfer Agent's, Wachovia's or
Distributor's reckless disregard
<PAGE>
of obligations or duties under this Agreement or to the Company,
whichever is applicable. This indemnity agreement will be in
addition to any liability that Company may otherwise have.
(b) The Transfer Agent, Wachovia and the Distributor agree to
indemnify and hold harmless the Company and its directors,
officers, employees, agents and each person, if any, who controls
the Company within the meaning of the 1933 Act against any losses,
claims, damages or liabilities to which the Company or any such
director, officer, employee, agent or controlling person may
become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, prospectuses or sales literature of the
Fund 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 material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Transfer Agent or the Distributor will reimburse any legal or
other expenses reasonably incurred by the Company or any such
director, officer, employee, agent, or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Transfer
Agent or the Distributor will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon (i) an untrue statement or omission or
alleged omission made in such Registration Statement or
prospectuses which are in conformity with written materials
furnished to the Fund, the Transfer Agent, Wachovia or the
Distributor by the Company specifically for use therein or (ii)
the willful misfeasance, bad faith, or gross negligence by the
Company in the performance of its duties or the Company's reckless
disregard of obligations or duties under this Agreement or to the
Transfer Agent, Wachovia, or Distributor, whichever is applicable.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying
party hereunder, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 10. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to
the extent that it may wish to, assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section 10
for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
11. Miscellaneous.
<PAGE>
(a) Amendment and Waiver. Neither this Agreement, nor any provision
hereof, may be amended, waived, discharged or terminated orally,
but only by an instrument in writing signed by all parties hereto.
(b) Notices. All notices and other communications hereunder shall be
given or made in writing and shall be delivered personally, or
sent by telex, telecopier or registered or certified mail, postage
prepaid, return receipt requested, or recognized overnight courier
service to the party or parties to whom they are directed at the
following addresses, or at such other addresses as may be
designated by notice from such party to all other parties.
To the Company:
Aetna Life Insurance and Annuity Company
151 Farmington Avenue
Hartford, Connecticut 06156
Attention: Julie E. Rockmore, Counsel
To the Transfer Agent:
-----------------------
-----------------------
-----------------------
-----------------------
Attn: ________________
To the Distributor:
-----------------------
-----------------------
-----------------------
-----------------------
Attn: ________________
Any notice, demand or other communication given in a manner prescribed in
this subsection (b) shall be deemed to have been delivered on receipt.
(c) Successors and Assigns. This agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any party hereto may execute this Agreement by
signing any such counterpart.
(e) Severability. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in
any respect, the validity, legality and
<PAGE>
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
(f) Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto and supersedes all
prior agreement and understandings relating to the subject matter
hereof.
(g) Governing Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Connecticut.
(h) Non Exclusivity. It is understood by the parties that this
Agreement is not an exclusive arrangement in any respect.
(i) Confidentiality. The terms of this Agreement and the Schedules
thereto will be held confidential by each party except to the
extent that either party or its counsel may deem it necessary to
disclose such terms.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers effective as of the ____ day of _________, _____.
AETNA LIFE INSURANCE AND ANNUITY COMPANY
By: ________________________________
Name:________________________________
Title:_______________________________
TRANSFER AGENT
By: ________________________________
Name:________________________________
Title:_______________________________
DISTRIBUTOR
By: ________________________________
Name:________________________________
Title:_______________________________
WACHOVIA BANK, N.A.
By: ________________________________
Name:________________________________
Title:_______________________________
<PAGE>
Schedule A
(For any future separate accounts - See Section 1(a)
<PAGE>
Schedule B
(List of funds available--See Section 1(b))
