EXHIBIT (H)(9)(E)
AMENDMENT NO. 6 TO
AMENDED AND RESTATED PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
American General Life Insurance Company
SunAmerica Capital Services, Inc.
(as successor to American General Equity Services Corporation)
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust"),
Franklin/Xxxxxxxxx Distributors, Inc. (the "Underwriter," and together with the
Trust, "we," "our," or "us"), American General Life Insurance Company, and
SunAmerica Capital Services, Inc. (as successor to American General Equity
Services Corporation), your distributor (collectively, the "Company" "you" or
"your"), on your behalf and on behalf of certain Accounts, (individually a
"Party", collectively, the "Parties") have previously entered into an Amended
and Restated Participation Agreement dated October 1, 2002 and subsequently
amended January 1, 2005, February 1, 2006, March 31, 2006, August 30,
2007, September 15, 2008, and by consent dated October 10, 2012 and June 28,
2013, respectively, (the "Agreement"). The Parties now desire to amend the
Agreement by this amendment (the "Amendment"). Unless otherwise indicated, the
terms defined in the Agreement shall have the same meaning in this Amendment.
A M E N D M E N T
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Section 4.4 and Section 6 of the Agreement are amended and restated in their
entirety as set forth in Attachment A to this Amendment.
2. All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
IN WITNESS WHEREOF, each of the Parties has caused its duly authorized
officers to execute this Amendment effective as of September 16, 2013.
The Trust: Franklin Xxxxxxxxx Variable Insurance
Only on behalf of Products Trust
each Portfolio listed
on Schedule C of /s/ Xxxxx X. Xxxxxxxx
the Agreement. By: -----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The Underwriter: Franklin/Xxxxxxxxx Distributors, Inc.
/s/ Xxxxxx X. Xxxxxxx
By: ----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
The Company: American General Life Insurance
Company
By: ----------------------------
Name:
Title:
[Corporate Seal] Attest: ----------------------------
Name:
Title:
The Distributor: SunAmerica Capital Services, Inc.
By: ----------------------------
Name:
Title:
[Corporate Seal] Attest: ----------------------------
Name:
Title:
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ATTACHMENT A TO AMENDMENT TO PARTICIPATION AGREEMENT
4. FEES, EXPENSES, PROSPECTUSES, PROXY MATERIALS AND REPORTS
4.4 "Designated Portfolio Document" means the following documents we create
with respect to each Portfolio and provide to you: (1) a Portfolio's
prospectus, including a summary prospectus (together, "Prospectus") if the
Trust chooses to create one for a Portfolio and we and you have signed the
necessary Participation Agreement Addendum; (2) its annual report to
shareholders; (3) its semi-annual report to shareholders; (4) amendments or
supplements to any of the foregoing if we direct you to deliver them to
Contract owners; and (5) other shareholder communications including, without
limitation, proxy statements, if we direct you to deliver them to Contract
owners.
"Document Event" means (1) with respect to the Prospectus, the effectiveness of
a new annual post-effective amendment to the Prospectus to update financial
statements and make other disclosure changes or other post-effective amendment
to the Prospectus; (2) with respect to the Trust's annual report and
semi-annual reports to shareholders, the Trust's creation of reports intended
to satisfy the requirements of Section 30(a) of the 1940 Act applicable to the
Trust; or (3) with respect to amendments or supplements to any of the foregoing
or other shareholder communications, the Trust's creation of such documents and
provision of them to you.
"Printing Expenses" means expenses of the physical creation of Designated
Portfolio Documents, and not of their distribution to Contract owners
(including, without limitation, mailing and postage expenses) or the provision
of other services.
Each time there is a Document Event with respect to a Designated Portfolio
Document we shall, at your option, provide you with one of the following:
(1)one copy of the applicable Designated Portfolio Document for each
Contract owner with investments allocated to a subaccount corresponding
to the Portfolio before the date of the Designated Portfolio Document
(the "Contract Owner Recipients"); or
(2)a copy suitable for reproduction of such Designated Portfolio Document,
in which case we will reimburse you, as provided below under
"Reimbursement Procedures," for Printing Expenses you incur to create
Designated Portfolio Documents in sufficient quantity so that one such
Designated Portfolio Document is available for you to have delivered to
each Contract Owner Recipient.
Reimbursement Procedures
Routine Reimbursements. Within six months following the delivery date of
the Designated Portfolio Document ("Delivery Date"), we must receive
your request for reimbursement and: (i) a statement of the number of
Contract Owner Recipients; (ii) copies of all printing company invoices
applicable to the Printing Expenses that you request we reimburse;
(iii) a description of the methodology used to determine the amount of
reimbursement requested; and (iv) your
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representation that the reimbursement request covers only Printing
Expenses covered by Section 4.4 of this Agreement; the date we have
received all these items is the "Request Date." If we are able to
validate your request based on the information you provided as well as,
among other things we believe to be appropriate, our analysis of your
previous reimbursement requests, if applicable, and/or third party
industry benchmarking information, then we will reimburse you within
sixty days of the Request Date.
Reimbursements requiring additional information. If we cannot validate
your reimbursement request based on the information you have provided to
us and our analysis described in the preceding paragraph, then we will
request additional information from you and work with you to validate
your request.
Expenses not subject to reimbursement. We will not reimburse expenses
related to: (1) creation or provision of any Designated Portfolio
Document for or to a person who is not a Contract Owner Recipient of
such document; (2) creation or provision of any Designated Portfolio
Document to a person accompanying, or at the time of the delivery of, a
confirmation of their purchase of or exchange into subaccount shares
corresponding to a Portfolio; (3) posting any Designated Portfolio
Document on your website; or (4) electronic filing of Designated
Portfolio Documents or other documents with the Securities and Exchange
Commission (using its XXXXX or other system).
Statement of Additional Information. We shall provide you with a copy of the
Trust's current statement of additional information, including any amendments
or supplements to it ("SAI), in a form suitable for reproduction , but we will
not pay Printing Expenses or other expenses with respect to the SAI.
6. SALES MATERIAL, INFORMATION AND TRADEMARKS
6.1 "Sales Literature/ Promotional Material" includes, but is not limited
to, portions of the following that use any logo or other trademark related to
the Trust, or Underwriter or its affiliates, or refer to the Trust:
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, web-sites and other
electronic communications 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 or any other advertisement,
sales literature or published article or electronic communication), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees in any media, and disclosure
documents, shareholder reports and proxy materials. "Disclosure Documents"
shall mean each item of the following if prepared, approved or used by you and
relating to a Contract, an Account, or a Portfolio, and any amendments or
revisions to such document: registration statements, prospectuses, statements
of additional information, private placement memoranda, retirement plan
disclosure information or other disclosure documents or similar information, as
well as any solicitation for voting instructions.
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6.2 You may use the name of the Trust and trademarks and the logo of the
Underwriter in Sales Literature/Promotional Material as reasonably necessary to
carry out your performance and obligations under this Agreement provided that
you comply with the provisions of this Agreement. You agree to abide by any
reasonable use guidelines regarding use of such trademarks and logos that we
may give from time to time. You shall, as we may request from time to time,
promptly furnish, or cause to be furnished to us or our designee, one complete
copy of each item of the following: (i) Sales Literature/Promotional Material
prepared, approved or used by you; and (ii) Disclosure Documents.
6.3 You and your agents shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust,
the Underwriter or an Adviser, other than information or representations
contained in and accurately derived from the registration statement or
prospectus for the Trust shares (as such registration statement and prospectus
may be amended or supplemented from time to time), annual and semi-annual
reports of the Trust, Trust-sponsored proxy statements, or in Sales
Literature/Promotional Material created by us for the Trust and provided by the
Trust or its designee to you, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
6.4 You agree, represent and warrant that you are solely responsible for any
Sales Literature/ Promotional Material prepared by you and that such material
will: (a) conform to all requirements of any applicable laws or regulations of
any government or authorized agency having jurisdiction over the offering or
sale of shares of the Portfolios or Contracts; (b) be solely based upon and not
contrary to or inconsistent with the written information or materials provided
to you by us or a Portfolio, including the Trust's prospectus and statement of
additional information; and (c) be made available promptly to us upon our
request. You agree to file any Sales Literature/Promotional Material prepared
by you with FINRA, or other applicable legal or regulatory authority, within
the timeframes that may be required from time to time by FINRA or such other
legal or regulatory authority. Unless otherwise expressly agreed to in writing,
it is understood that we will neither review nor approve for use any materials
prepared by you and will not be materially involved in the preparation of, or
have any responsibility for, any such materials prepared by you. You are not
authorized to modify or translate any materials we have provided to you.
6.5 You shall promptly notify us of any written customer complaint or notice
of any regulatory investigation or proceeding received by you relating to any
Sales Literature/Promotional Material.
6.6 Other than naming you as a Trust shareholder, we shall not give any
information or make any representations or statements on behalf of you or
concerning you, the Accounts or the Contracts other than information or
representations contained in and accurately derived from Disclosure Documents
(as such Disclosure Documents may be amended or supplemented from time to
time), or in materials approved by you for distribution, including Sales
Literature/ Promotional Material, except as required by legal process or
regulatory authorities or with your written permission.
6.7 Except as provided in Section 6.2, you shall not use any designation
comprised in whole or part of the names or marks "Franklin" or "Xxxxxxxxx" or
any logo or other trademark relating to the Trust or the Underwriter without
prior written consent, and upon termination of this Agreement for any reason,
you shall cease all use of any such name or xxxx as soon as reasonably
practicable.
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6.8 You shall furnish to us ten (10) Business Days prior to its first
submission to the SEC or its staff, any request or filing for no-action
assurance or exemptive relief naming, pertaining to, or affecting, the Trust,
the Underwriter or any of the Portfolios.
6.9 You agree that any posting of Designated Portfolio Documents on your
website or use of Designated Portfolio Documents in any other electronic format
will result in the Designated Portfolio Documents: (i) appearing identical to
the hard copy printed version or .pdf format file provided to you by us (except
that you may reformat .pdf format prospectus files in order to delete blank
pages and to insert .pdf format prospectus supplement files provided by us to
you); (ii) being clearly associated with the particular Contracts in which they
are available and posted in close proximity to the applicable Contract
prospectuses; (iii) having no less prominence than prospectuses of any other
underlying funds available under the Contracts; (iv) in compliance with any
statutory prospectus delivery requirements and (v) being used in an authorized
manner. Notwithstanding the above, you understand and agree that you are
responsible for ensuring that participation in the Portfolios, and any website
posting, or other use, of the Designated Portfolio Documents is in compliance
with this Agreement and applicable state and federal securities and insurance
laws and regulations, including as they relate to paper or electronic delivery
or use of fund prospectuses. We reserve the right to inspect and review your
website if any Designated Portfolio Documents and/or other Trust documents are
posted on your website and you shall, upon our reasonable request, provide us
timely access to your website materials to perform such inspection and review.
In addition, you agree to be solely responsible for maintaining and updating
the Designated Portfolio Documents' .pdf files and removing and/or replacing
promptly any outdated prospectuses and other documents, as necessary, ensuring
that any accompanying instructions by us, for using or stopping use, are
followed. You agree to designate and make available to us a person to act as a
single point of communication contact for these purposes. We are not
responsible for any additional costs or additional liabilities that may be
incurred as a result of your election to place the Designated Portfolio
Documents on your website. We reserve the right to revoke this authorization,
at any time and for any reason, although we may instead make our authorization
subject to new procedures.
6.10 Each of your and your distributor's registered representatives, agents,
independent contractors and employees, as applicable, will have access to our
websites at xxxxxxxxxxxxxxxxx.xxx, and such other URLs through which we may
permit you to conduct business concerning the Portfolios from time to time
(referred to collectively as the "Site") as provided herein: (i) upon
registration by such individual on a Site, (ii) if you cause a Site Access
Request Form (an "Access Form") to be signed by your authorized supervisory
personnel and submitted to us, as a Schedule to, and legally a part of, this
Agreement, or (iii) if you provide such individual with the necessary access
codes or other information necessary to access the Site through any generic or
firm-wide authorization we may grant you from time to time. Upon receipt by us
of a completed registration submitted by an individual through the Site or a
signed Access Form referencing such individual, we shall be entitled to rely
upon the representations contained therein as if you had made them directly
hereunder and we will issue a user identification, express number and/or
password (collectively, "Access Code"). Any person to whom we issue an Access
Code or to whom you provide the necessary Access Codes or other information
necessary to access the Site through any generic or firm-wide authorization we
may grant you from time to time shall be an "Authorized User."
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We shall be entitled to assume that such person validly represents you and
that all instructions received from such person are authorized, in which case
such person will have access to the Site, including all services and
information to which you are authorized to access on the Site. All inquiries
and actions initiated by you (including your Authorized Users) are your
responsibility, are at your risk and are subject to our review and approval
(which could cause a delay in processing). You agree that we do not have a duty
to question information or instructions you (including Authorized Users) give
to us under this Agreement, and that we are entitled to treat as authorized,
and act upon, any such instructions and information you submit to us. You agree
to take all reasonable measures to prevent any individual other than an
Authorized User from obtaining access to the Site. You agree to inform us if
you wish to restrict or revoke the access of any individual Access Code. If you
become aware of any loss or theft or unauthorized use of any Access Code, you
agree to contact us immediately. You also agree to monitor your (including
Authorized Users') use of the Site to ensure the terms of this Agreement are
followed. You also agree that you will comply with all policies and agreements
concerning Site usage, including without limitation the Terms of Use
Agreement(s) posted on the Site ("Site Terms"), as may be revised and reposted
on the Site from time to time, and those Site Terms (as in effect from time to
time) are a part of this Agreement. Your duties under this section are
considered "services" required under the terms of this Agreement. You
acknowledge that the Site is transmitted over the Internet on a reasonable
efforts basis and we do not warrant or guarantee their accuracy, timeliness,
completeness, reliability or non-infringement. Moreover, you acknowledge that
the Site is provided for informational purposes only, and is not intended to
comply with any requirements established by any regulatory or governmental
agency.
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