Exhibit (h)(8)(a)
FUND PARTICIPATION AGREEMENT
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This Fund Participation Agreement (the "Agreement"), effective as of the
24/th/ day of April, 2009, is made by and among American General Life Insurance
Company ("Company"), JPMorgan Insurance Trust (the "Trust"), the Trust's
investment advisors, JPMorgan Investment Advisors Inc. and ▇. ▇. ▇▇▇▇▇▇
Investment Management Inc. (the "Advisers"), and the Trust's administrator,
JPMorgan Funds Management, Inc. (the "Administrator").
WHEREAS, the Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established by insurance companies for individual and group life insurance
policies and annuity contracts with variable accumulation and/or pay-out
provisions (hereinafter referred to individually and/or collectively as
"Variable Insurance Products");
WHEREAS, insurance companies desiring to utilize the Trust as an investment
vehicle under their Variable Insurance Products are required to enter into
participation agreements with the Trust and the Administrator (the
"Participating Insurance Companies");
WHEREAS, shares of the Trust are divided into several series of shares, each
representing the interest in a particular managed portfolio of securities and
other assets, any one or more of which may be made available for Variable
Insurance Products of Participating Insurance Companies;
WHEREAS, the Trust intends to offer shares of the series set forth on
Schedule B (each such series hereinafter referred to as a "Portfolio") as may
be amended from time to time by mutual agreement of the parties hereto under
this Agreement to the accounts of the Company specified on Schedule A
(hereinafter referred to individually as an "Account," collectively, the
"Accounts");
WHEREAS, the Trust has obtained an order from the Securities and Exchange
Commission, granting the Trust exemptions from the provisions of Sections 9(a),
13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended
(hereinafter the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Trust to be sold to
and held by Variable Insurance Product separate accounts of both affiliated and
unaffiliated insurance companies (hereinafter the "Shared Funding Exemptive
Order");
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act");
WHEREAS, the Advisers are duly registered as investment advisers under the
Investment Advisers Act of 1940, as amended, and any applicable state
securities laws;
WHEREAS, the Advisers are the investment advisers of the Portfolios of the
Trust;
WHEREAS, the Company has registered certain Variable Insurance Products
under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, each Account intends to purchase shares of the Portfolios to fund
certain of the aforesaid Variable Insurance Products and the Trust is
authorized to sell such shares to each such Account at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, the Advisers, and the Administrator agree as follows:
ARTICLE 1
THE CONTRACTS
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1. The Company represents that it has established each of the Accounts
specified on Schedule A as a separate account under Texas law, and has
registered each such Account as a unit investment trust under the 1940 Act to
serve as an investment vehicle for variable annuity contracts and/ or variable
life
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contracts offered by the Company (the "Contracts"). The Contracts provide for
the allocation of net amounts received by the Company to separate divisions of
the Account for investment in the shares of the Portfolios. Selection of a
particular division is made by the Contract owner who may change such selection
from time to time in accordance with the terms of the applicable Contract. The
Company agrees to make every reasonable effort to market its Contracts. In
marketing its Contracts, the Company will comply with all applicable state or
Federal laws.
ARTICLE 2
TRUST SHARES
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2.1. The Trust agrees to make available for purchase by the Company
shares of the Portfolios and shall execute orders placed for each Account on a
daily basis at the net asset value next computed after receipt by the Trust or
its designee of such order. For purposes of this Section 2.1, the Company shall
be the designee of the Trust for receipt of such orders from the Account and
receipt by such designee shall constitute receipt by the Trust; provided that
the Trust's designated transfer agent receives notice of such order by 10:00
a.m. Eastern Time on the next following Business Day ("Trade Date plus 1").
Notwithstanding the foregoing, the Company shall use its best efforts to
provide the Trust's designated transfer agent with notice of such orders by
9:30 a.m. Eastern Time on Trade Date plus 1. "Business Day" shall mean any day
on which the New York Stock Exchange is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the Securities and
Exchange Commission, as set forth in the Trust's prospectus and statement of
additional information. Notwithstanding the foregoing, the Board of Trustees of
the Trust (hereinafter the "Board") may refuse to permit the Trust 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 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 Portfolio.
2.2. The Trust agrees that shares of the Trust will be sold only to
Participating Insurance Companies for their Variable Insurance Products and, in
the Trust's discretion, to qualified pension and retirement plans. No shares of
any Portfolio will be sold to the general public.
2.3. The Trust agrees to redeem for cash, on the Company's request, any
full or fractional shares of the Trust held by an Account, executing such
requests on a daily basis at the net asset value next computed after receipt by
the Trust or its designee of the request for redemption. For purposes of this
Section 2.3, the Company shall be the designee of the Trust for receipt of
requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Trust; provided that the Trust's designated transfer
agent receives notice of such request for redemption on Trade Date plus 1 in
accordance with the timing rules described in Section 2.1.
2.4. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Trust shall be made in
accordance with the provisions of such prospectus. The Accounts of the Company,
under which amounts may be invested in the Trust are listed on Schedule A
attached hereto and incorporated herein by reference, as such Schedule A may be
amended from time to time by mutual written agreement of all of the parties
hereto.
2.5. The Company will place separate orders to purchase or redeem shares
of each Portfolio. Each order shall describe the net amount of shares and
dollar amount of each Portfolio to be purchased or redeemed. In the event of
net purchases, the Company shall pay for Portfolio shares on Trade Date plus 1.
Payment shall be in federal funds transmitted by wire. In the event of net
redemptions, the Portfolio shall pay the redemption proceeds in federal funds
transmitted by wire by 2:00 p.m. Eastern Time on Trade Date plus 1.
Notwithstanding the foregoing, if the payment of redemption proceeds on the
next Business Day would require the Portfolio to dispose of Portfolio
securities or otherwise incur substantial additional costs, and if the
Portfolio has determined to settle redemption transactions for all shareholders
on a delayed basis, proceeds shall be wired to the Company within seven
(7) days and the Portfolio shall notify in writing the person designated by the
Company as the recipient for such notice of such delay by 3:00 p.m. Eastern
Time on Trade Date plus 1.
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2.6. Issuance and transfer of the Trust's shares will be by book entry
only. Share certificates will not be issued to the Company or any Account.
Shares ordered from the Trust will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
2.7. On each record date, the Administrator shall use its best efforts
to furnish same day notice by 6:30 p.m. Eastern Time (by wire, telephone,
electronic media or by fax) to the Company of any dividends or capital gain
distributions payable on the Trust's shares. The Company hereby elects to
receive all such dividends and capital gain distributions as are payable on the
Portfolio shares in additional shares of that Portfolio. The Company reserves
the right to revoke this election and to receive all such dividends and capital
gain distributions in cash. The Trust shall notify the Company of the number of
shares so issued as payment of such dividends and distributions.
2.8. The Administrator shall make the net asset value per share of each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 6:30 p.m.
Eastern Time. In the event that the Administrator is unable to meet the 6:30
p.m. time stated immediately above, then the Administrator shall provide the
Company with additional time to notify the Administrator of purchase or
redemption orders pursuant to Sections 2.1 and 2.3, respectively, above. Such
additional time shall be equal to the additional time that the Administrator
takes to make the net asset values available to the Company.
2.9. If the Administrator provides materially incorrect share net asset
value information through no fault of the Company, the Company shall be
entitled to an adjustment with respect to the Trust shares purchased or
redeemed to reflect the correct net asset value per share as subsequently
determined by the Administrator. The determination of the materiality of any
net asset value pricing error shall be based on the Trust's policy for
correction of pricing errors (the "Pricing Policy"). The Company shall correct
such error in its records and in the records prepared by it for Contract owners
in accordance with information provided by the Administrator. Any material
error in the calculation or reporting of net asset value per share, dividend or
capital gain information shall be reported promptly upon discovery to the
Company.
2.10 The Administrator shall provide information to the Company of the
amount of shares traded and the associated cost per share (NAV) total trade
amount and the outstanding share balances held by the Account in each Portfolio
as of the end of each Business Day. Such information will be furnished
(electronically or by fax) by 1:00 p.m. Eastern time on the next Business Day.
ARTICLE 3
PROSPECTUSES, REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS, VOTING
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3.1. The Trust shall provide the Company with as many printed copies of
the Trust's current prospectuses as the Company may reasonably request. The
Administrator will provide the Company with a copy of the statement of
additional information suitable for duplication. If requested by the Company,
in lieu of providing printed copies, the Trust shall provide camera-ready film
or computer diskettes containing the Trust's prospectuses and statement of
additional information in order for the Company once each year (or more
frequently if the prospectuses and/or statement of additional information for
the Trust is amended during the year) to have the prospectuses for the
Contracts and the applicable Trust prospectuses printed together in one
document or separately. The Company may elect to print the Trust's prospectuses
and/or its statement of additional information in combination with other
investment companies' prospectuses and statements of additional information.
3.2(a). The Company will deliver or cause to be delivered to each of its
Contract owners, at or prior to the time of purchase of any Portfolio shares, a
copy of such Portfolio's prospectus and, upon request, a copy of its statement
of additional information. For prospectuses and statements 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 setting in type, printing and distributing shall be borne by the Trust.
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If the Company chooses to receive camera-ready film or computer diskettes in
lieu of receiving printed copies of the Trust's prospectus and/or statement of
additional information, the Trust shall bear the cost of typesetting to provide
the Trust's prospectus and/or statement of additional information to the
Company in the format in which the Trust is accustomed to formatting
prospectuses and statements of additional information, respectively, and the
Company shall bear the expense of adjusting or changing the format to conform
with any of its prospectuses and/or statements of additional information. In
such event, the Trust will reimburse the Company in an amount equal to the
product of x and y where x is the number of such prospectuses distributed to
owners of the Contracts, and y is the Trust's per unit cost of printing the
Trust's prospectuses. The same procedures shall be followed with respect to the
Trust's statement of additional information. The Trust shall not pay any costs
of typesetting, printing and distributing the Trust's prospectus and/or
statement of additional information to prospective Contract owners. Except as
otherwise provided in this Section 3.2, all expenses of preparing, setting in
type and printing and distributing Trust prospectuses and statements of
additional information shall be the expense of the Company.
3.2(b). The Trust, at the Company's expense, shall provide the Company
with copies of Annual and Semi-Annual Reports (the "Reports") in such quantity
as the Company shall reasonably require for distributing to Contract owners.
The Trust, at its expense, shall provide the Contract owners designated by the
Company with copies of its proxy statements and other communications to
shareholders (except for prospectuses and statements of additional information,
which are covered in Section 3.2(a) above, and Reports). The Trust shall not
pay any costs of distributing Reports and other communications to prospective
Contract owners.
3.2(c). The Company agrees to provide the Trust or its designee with
such information as may be reasonably requested by the Trust to assure that the
Trust's expenses do not include the cost of typesetting, printing or
distributing any of the foregoing documents other than those actually
distributed to existing Contract owners.
3.2(d). Except as otherwise provided in this Agreement, the Trust shall
pay no fee, other compensation or other expenses under this Agreement. The
Trust may, however, pay the Company servicing fees under a written servicing
agreement for certain Portfolios pursuant to the services plan it has adopted.
In addition, the Trust has adopted a plan pursuant to Rule 12b-1 to finance
distribution expenses for certain Portfolios, and the Trust's distributor may
pay fees under such plan to the Company or to a designated affiliate under a
separate written agreement between such parties.
3.2(e). All expenses, including expenses to be borne by the Trust
pursuant to Section 3.2 hereof, incident to performance by the Trust under this
Agreement shall be paid by the Trust. The Trust shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Trust, in
accordance with applicable state laws prior to their sale. The Trust shall bear
the expenses for the cost of registration and qualification of the Trust's
shares.
3.3. If and to the extent required by law, the Company shall with
respect to proxy material distributed by the Trust to Contract owners
designated by the Company to whom voting privileges are required to be extended:
(i)solicit voting instructions from Contract owners;
(ii)vote the Trust shares in accordance with instructions received from
Contract owners; and
(iii)vote Trust shares for which no instructions have been received in the
same proportion as Trust shares of such Portfolio for which
instructions have been received, so long as and to the extent that
the Securities and Exchange Commission continues to interpret the
1940 Act to require pass-through voting privileges for variable
contract owners.
The Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law.
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ARTICLE 4
SALES MATERIAL AND INFORMATION
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4.1. The Company shall furnish, or shall cause to be furnished, to the
Trust, the Advisers or their designee, drafts of the separate accounts
prospectuses and statements of additional information and each piece of sales
literature or other promotional material prepared by the Company or any person
contracting with the Company to prepare such material in which the Trust, the
Advisers or the Administrator is described, at least ten Business Days prior to
its use. No such material shall be used if the Trust, the Advisers, the
Administrator or their designee reasonably objects to such use within ten
Business Days after receipt of such material.
4.2. Neither the Company nor any person contracting with the Company to
prepare sales literature or other promotional material shall give any
information or make any representations or statements on behalf of the Trust or
concerning the Trust in connection with the sale of the Contracts other than
the information or representations contained in the registration statement or
Trust prospectus, as such registration statement or Trust prospectus may be
amended or supplemented from time to time, or in reports to shareholders or
proxy statements for the Trust, or in sales literature or other promotional
material approved by the Trust or its designee, except with the permission of
the Trust or its designee.
4.3. The Administrator shall furnish, or shall cause to be furnished, to
the Company or its designee, each piece of sales literature or other
promotional material prepared by the Trust in which the Company or its
Accounts, are described at least ten Business Days prior to its use. No such
material shall be used if the Company or its designee reasonably objects to
such use within ten Business Days after receipt of such material.
4.4. Neither the Trust, the Administrator, nor the Advisers shall 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 or
prospectus for the Contracts, as such registration statement or prospectus may
be amended or supplemented from time to time, or in published reports or
solicitations for voting instruction 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.
4.5. The Trust will provide to the Company, upon its request, at least
one complete copy of all registration statements, prospectuses, statements of
additional information, reports, proxy statements, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Trust or its shares, promptly after the filing of such document
with the Securities and Exchange Commission or other regulatory authorities.
4.6. The Company will provide to the Trust, upon the Trust's request, 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 investment in an Account or Contract, prior to
with the filing of such documents with the Securities and Exchange Commission
or other regulatory authorities.
4.7. For purposes of this Article 4, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following: advertisements (such as material published, or designed for use in,
a newspaper, magazine, or other periodical, radio, television, internet,
telephone or tape recording, videotape, display, signs or billboards, motion
pictures, or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), and educational or training materials or
other communications distributed or made generally available to some or all
agents or employees.
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4.8. The Company and its agents shall make no representations concerning
the Trust except those contained in the then-current prospectus and statement
of additional information of the Trust and in current printed sales literature
of the Trust.
ARTICLE 5
ADMINISTRATIVE SERVICES TO CONTRACT OWNERS
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5. Administrative services to Contract owners shall be the
responsibility of the Company and shall not be the responsibility of the Trust,
the Advisers or the Administrator. The Company, the Trust and the Administrator
recognize that the Account(s) will be the sole shareholder(s) of Trust shares
issued pursuant to the Contracts.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
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6.1. The Trust represents that it believes, in good faith, that each
Portfolio is currently qualified as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code") and
that it will make every effort to maintain such qualification of the Trust and
that it will notify the Company immediately upon having a reasonable basis for
believing that a Portfolio has ceased to so qualify or that it might not so
qualify in the future.
6.2. The Company represents that it believes, in good faith, that the
Contracts will at all times be treated as annuity contracts under applicable
provisions of the Code, and that it will make every effort to maintain such
treatment and that it will notify the Trust 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.
6.3. The Trust represents that it believes, in good faith, that the
Portfolios will at all times comply with the diversification requirements set
forth in Section 817(h) of the Code and Section 1.817-5(b) of the regulations
under the Code, and that it will make every effort to maintain the Trust's
compliance with such diversification requirements, and that it will notify the
Company immediately upon having a reasonable basis for believing that a Fund
has ceased to so qualify or that a Portfolio might not so qualify in the future.
6.4. The Company represents and warrants that the interests of the
Contracts are or will be registered unless exempt and that it will maintain
such registration under the 1933 Act and the regulations thereunder to the
extent required by the 1933 Act and that the Contracts will be issued and sold
in compliance with all applicable federal and state laws and regulations. The
Company also represents and warrants that the Portfolios will be sold in
accordance with such Portfolio's current prospectus. 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 the Texas Insurance Code and the regulations thereunder and
has registered or, prior to any issuance or sale of the Contracts, will
maintain the registration of each Account as a unit investment trust in
accordance with and to the extent required by the provisions of the 1940 Act
and the regulations thereunder, unless exempt therefrom, to serve as a
segregated investment account for the Contracts. The Company shall amend its
registration statement for its Contracts under the 1933 Act and the 1940 Act
from time to time as required in order to effect the continuous offering of its
Contracts.
6.5. The Company represents that it believes, in good faith, that the
Account is a "segregated asset account" and that interests in the Account are
offered exclusively through the purchase of a "variable contract," within the
meaning of such terms under Section 1.817-5(f)(2) of the regulations under the
Code, and that it will make every effort to continue to meet such definitional
requirements, and that it will notify the Trust immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
6.6. The Trust represents and warrants that it is and shall continue to
be at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Trust in an amount no less than the minimal
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coverage as required currently by Rule 17g-(1) of the 1940 Act or related
provisions as may be promulgated from time to time. Such bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding company. The Trust will notify the Company immediately upon having a
reasonable basis for believing that the Trust no longer has the coverage
required by this Section 6.6.
6.7. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other entities dealing with the
money or securities of the Trust are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit of the
Trust, in an amount not less than five million dollars ($5,000,000). Such bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. The Company agrees to make all reasonable efforts to
see that this bond or another bond containing these provisions is always in
effect and agrees to notify the Trust immediately upon having a reasonable
basis for believing that the Company no longer has the coverage required by
this Section 6.7.
6.8. The Trust represents that a majority of its disinterest trustees
have approved the Trust's distribution plan adopted pursuant to Rule 12b-1
under the 1940 Act.
6.9. The Advisers and the Administrator each represents and warrants
that it complies with all applicable federal and state laws and regulations and
that it will perform its obligations for the Trust and the Company in
compliance with the laws and regulations of its state of domicile and any
applicable state and federal laws and regulations.
ARTICLE 7
STATEMENTS AND REPORTS
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7.1. The Administrator or its designee will make available
electronically to the Company within five (5) Business Days after the end of
each month a monthly statement of account confirming all transactions made
during that month in the Account.
7.2. The Trust and Administrator agree to provide the Company no later
than March 1 of each year with the investment advisory and other expenses of
the Trust incurred during the Trust's most recently completed fiscal year, to
permit the Company to fulfill its prospectus disclosure obligations under the
SEC's variable annuity fee table requirements.
ARTICLE 8
POTENTIAL CONFLICTS
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8.1. If required under the Shared Funding Exemptive Order, the Board
will monitor the Trust for the existence of any material irreconcilable
conflict between the interests of the Contract owners of all Accounts investing
in the Trust. An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or securities laws
or regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Portfolio
are being managed; (e) a difference in voting instructions given by variable
annuity contract owners and variable life insurance Contract owners; or (f) a
decision by a Participating Insurance Company to disregard the voting
instructions of contract owners. The Board shall promptly inform the Company if
it determines that an irreconcilable material conflict exists and the
implications thereof.
8.2. If required under the Shared Funding Exemptive Order, the Company
will report in writing any potential or existing material irreconcilable
conflict of which it is aware to the Administrator. Upon receipt of such
report, the Administrator shall report the potential or existing material
irreconcilable conflict to the Board. The Administrator shall also report to
the Board on a quarterly basis whether the Company has reported any potential
or existing material irreconcilable conflicts during the previous calendar
quarter. The Company will assist the Board in carrying out its responsibilities
under the Shared Funding Exemptive Order,
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by providing the Board with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever Contract owner voting
instructions are disregarded.
8.3. If required under the Shared Funding Exemptive Order, the and it is
determined by a majority of the Board, or a majority of its disinterested
trustees, that a material irreconcilable conflict exists, the Company and other
Participating Insurance Companies shall, at their expense and to the extent
reasonably practicable (as determined by a majority of the disinterested
trustees), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the separate accounts from the Trust or any
Portfolio and reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio of the Trust, or submitting
the question 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., annuity contract owners, life insurance policy owners,
or variable 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 (2) establishing a new
registered management investment company or managed separate account. No charge
or penalty will be imposed as a result of such withdrawal. The Company agrees
that it bears the responsibility to take remedial action in the event of a
Board determination of an irreconcilable material conflict and the cost of such
remedial action, and these responsibilities will be carried out with a view
only to the interests of Contract owners.
8.4. If required under the Shared Funding Exemptive Order, if a material
irreconcilable conflict arises because of a decision by the Company 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 Trust's election, to withdraw the affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account (at the Company's expense); provided, however that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
members of the Board. No charge or penalty will be imposed as a result of such
withdrawal. The Company agrees that it bears the responsibility to take
remedial action in the event of a Board determination of an irreconcilable
material conflict and the cost of such remedial action, and these
responsibilities will be carried out with a view only to the interests of
Contract owners.
8.5. If required under the Shared Funding Exemptive Order, the, for
purposes of Sections 8.3 through 8.4 of this Agreement, a majority of the
disinterested members of the Board shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Trust be required to establish a new funding medium for the Contracts. The
Company shall not be required by Section 8.3 through 8.4 to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict.
8.6. If required under the Shared Funding Exemptive Order, and to the
extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act
or the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive
Order, then the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable.
8.7. If required under the Shared Funding Exemptive Order, each of the
Company and the Advisers shall at least annually submit to the Board such
reports, materials or data as the Board may reasonably request so that the
Board may fully carry out the obligations imposed upon them by the provisions
hereof and in the Shared Funding Exemptive Order, and said reports, materials
and data shall be submitted more frequently if deemed appropriate by the Board.
Without limiting the generality of the foregoing or the Company's obligations
under Section 8.2, the Company shall provide to the Administrator a written
report to the Board no later than January 15/th/ of each year indicating
whether any material irreconcilable conflicts have arisen during the prior
fiscal year of the Trust. All reports received by the Board of potential or
existing conflicts, and all Board action with regard to determining the
existence of a conflict, notifying Participating
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Insurance Companies of a conflict, and determining whether any proposed action
adequately remedies a conflict, shall be properly recorded in the minutes of
the Board or other appropriate records, and such minutes or other records shall
be made available to the Securities and Exchange Commission upon request.
ARTICLE 9
INDEMNIFICATION
---------------
9.1. Indemnification By The Company
------------------------------
9.1 (a). The Company agrees to indemnify and hold harmless the Trust,
the Administrator, the Advisers, and each member of their respective Boards and
officers and each person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 9.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Trust's shares or the Contracts and:
(i)arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration
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 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 Trust for use in the 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 Trust 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 Trust not supplied
by the Company, or persons under its control and other than
statements or representations authorized by the Trust) or unlawful
conduct of the Company or persons under its control, with respect to
the sale or distribution of the Contracts or Trust shares; or
(iii)arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or sales literature of the Trust or any amendment thereof
or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading if such a statement or
omission was made in reliance upon and in conformity with information
furnished to the Trust by or on behalf of the Company; or
(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 or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Company; as limited by and in accordance with the provisions of
Section 9.1(b) and 9.1(c) hereof.
9.1(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 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.
- 9 -
9.1(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 Indemnified Party named in the action. After notice from the Company to
such Indemnified 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 shall not be liable to such Indemnified
Party under this Agreement for any legal or other expenses subsequently
incurred by such Indemnified Party independently in connection with the defense
thereof other than reasonable costs of investigation.
9.1(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 Trust shares or the Contracts or the operation of
the Trust.
9.2. Indemnification by Administrator
--------------------------------
9.2(a). The Administrator 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 9.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Administrator) 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 such
losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements:
(i)arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration
statement or prospectus or sales literature of the Trust (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished to the
Trust or the Administrator by or on behalf of the Company, the
Advisers, Counsel for the Trust, the independent public accountant to
the Trust, or any person or entity that is not acting as agent for or
controlled by the Administrator for use in the registration statement
or prospectus for the Trust or in sales literature (or any amendment
or supplement) or otherwise for use in connection with the sale of
the Contracts or Portfolio shares; or
(ii)arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a 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
Administrator; or
(iii)arise as a result of any failure by the Administrator to provide the
services and furnish the materials under the terms of this Agreement;
or
- 10 -
(iv)arise out of or result from any material breach of any representation
and/or warranty made by the Administrator in this Agreement or arise
out of or result from any other material breach of this Agreement by
the Administrator; as limited by and in accordance with the
provisions of Section 9.2(b) and 9.2(c) hereof.
9.2(b). The Administrator 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 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.
9.2(c). The Administrator 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 Administrator 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
Administrator of any such claim shall not relieve the Administrator 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 Administrator
will be entitled to participate, at its own expense, in the defense thereof.
The Administrator also shall be entitled to assume the defense thereof, with
counsel satisfactory to the Indemnified Party named in the action. After notice
from the Administrator to such Indemnified Party of the Administrator'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
Administrator will not be liable to such Indemnified Party under this Agreement
for any legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other than reasonable
costs of investigation.
9.2(d). The Company agrees promptly to notify the Administrator of the
commencement of any litigation or proceedings against it or any of its
Indemnified Parties in connection with the issuance or sale of the Contracts or
the operation of each Account in which the Portfolios are made available.
9.3. Indemnification by the Advisers
-------------------------------
9.3(a). The Advisers agree to indemnify and hold harmless the Company
and its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (hereinafter
collectively, the "Indemnified Parties" and individually, "Indemnified Party,"
for purposes of this Section 9.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Advisers) 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 such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements:
(i)arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration
statement or prospectus or sales literature of the Trust (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, 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
Advisers or the Trust by or on behalf of the Company, the
Administrator, Counsel for the Trust, the independent public
accountant to the Trust, or any person or entity that is not acting
as agent for or controlled by the Advisers for use in the
registration statement or prospectus for the Trust or in sales
literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Portfolio shares; or
- 11 -
(ii)arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a 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 Advisers;
or
(iii)arise as a result of any failure by the Advisers to provide the
services and furnish the materials under the terms of this Agreement;
or
(iv)arise out of or result from any material breach of any representation
and/or warranty made by the Advisers in this Agreement or arise out
of or result from any other material breach of this Agreement by the
Advisers; as limited by and in accordance with the provisions of
Section 9.3(b) and 9.3(c) hereof.
9.3(b). The Advisers 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 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 and duties under this
Agreement.
9.3(c). The Advisers 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 Advisers 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 Advisers of
any such claim shall not relieve the Advisers 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 Advisers will be entitled to
participate, at its own expense, in the defense thereof. The Advisers also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the Indemnified Party named in the action. After notice from the Advisers to
such Indemnified Party of the Advisers' election to assume the defense thereof,
the Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and the Advisers will not be liable to such Indemnified
Party under this Agreement for any legal or other expenses subsequently
incurred by such Indemnified Party independently in connection with the defense
thereof other then reasonable costs of investigation.
9.3(d). The Company agrees to promptly notify the Advisers of the
commencement of any litigation or proceedings against it or any of Indemnified
Parties in connection with this Agreement, the issuance or sale of the
Contracts, with respect to the operation of each Account, or the sale or
acquisition of shares of the Trust.
9.4. Indemnification by the Trust
----------------------------
9.4(a). The Trust agrees to indemnify and hold harmless the Company and
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (hereinafter collectively, the
"Indemnified Parties" and individually, "Indemnified Party," for purposes of
this Section 9.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Trust) 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 such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements:
(i)arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration
statement or prospectus or sales literature of the Trust (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified Party if such
statement or
- 12 -
omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished the Trust by or on
behalf of the Advisers, the Company, or the Administrator for use in
the registration statement or prospectus for the Trust or in sales
literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Portfolio shares; or
(ii)arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a 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 Trust; or
(iii)arise as a result of any failure by the Trust to provide the services
and furnish the materials under the terms of this Agreement; or
(iv)arise out of or result from any material breach of any representation
and/or warranty made by the Trust in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Trust; as limited by and in accordance with the provisions of
Section 9.4(b) and 9.4(c) hereof.
9.4(b). The Trust 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 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 and duties under this
Agreement.
9.4(c). The Trust 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 Trust 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 Trust of
any such claim shall not relieve the Trust 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 Trust will be entitled to participate, at
its own expense, in the defense thereof. The Trust also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Trust to such Indemnified Party of
the Trust'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
Trust will not be liable to such Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other then reasonable
costs of investigation.
9.4(d). The Company agrees to promptly notify the Trust of the
commencement of any litigation or proceedings against it or any of the
Indemnified Parties in connection with this Agreement, the issuance or sale of
the Contracts, with respect to the operation of each Account, or the sale or
acquisition of shares of the Trust.
ARTICLE 10
APPLICABLE LAW
--------------
10.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the state of New York.
10.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and
- 13 -
regulations as the Securities and Exchange Commission may grant (including, but
not limited to, the Shared Funding Exemptive Order) and the terms hereof shall
be interpreted and construed in accordance therewith.
ARTICLE 11
TERMINATION
-----------
11.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a)termination by any party for any reason upon ninety days advance
written notice delivered to the other parties; or
(b)termination by the Company by written notice to the Trust, the
Advisers, and the Administrator with respect to any Portfolio based
upon the Company's determination that shares of such Portfolio are
not reasonably available to meet the requirements of the Contracts.
Reasonable advance notice of election to terminate shall be furnished
by the Company, said termination to be effective ten (10) days after
receipt of notice unless the Trust makes available a sufficient
number of shares to reasonably meet the requirements of the Account
within said ten (10) day period; or
(c)termination by the Company upon written notice to the Trust, the
Advisers, and the Administrator with respect to any Portfolio in the
event any of the Portfolio's shares are not registered, issued or
sold in accordance with applicable state and/or federal law or such
law precludes the use of such shares as the underlying investment
medium of the Contracts issued or to be issued by the Company. The
terminating party shall give prompt notice to the other parties of
its decision to terminate; or
(d)termination by the Company upon written notice to the Trust, the
Advisers and the Administrator with respect to any Portfolio in the
event that such portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code or under any successor or
similar provision; or
(e)termination by the Company upon written notice to the Trust, the
Advisers, and the Administrator with respect to any Portfolio in the
event that such Portfolio fails to meet the diversification
requirements specified in Section 6.3 hereof; or
(f)termination by either the Trust, the Advisers, or the Administrator
by written notice to the Company, if either one or more of the Trust,
the Advisers, or the Administrator, shall determine, in its or their
sole judgment exercised in good faith, that the Company and/or their
affiliated companies 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,
provided that the Trust, the Advisers, or the Administrator will give
the Company sixty (60) days' advance written notice of such
determination of its intent to terminate this Agreement, and provided
further that after consideration of the actions taken by the Company
and any other changes in circumstances since the giving of such
notice, the determination of the Trust, the Advisers, or the
Administrator shall continue to apply on the 60th day since giving of
such notice, then such 60th day shall be the effective date of
termination; or
(g)termination by the Company by written notice to the Trust, the
Advisers, Administrator, if the Company shall determine, in its sole
judgment exercised in good faith, that either the Trust, the
Advisers, or the Administrator 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, provided that the Company will give the Trust, the
Advisers, and the Administrator sixty (60) days' advance written
notice of such determination of its intent to terminate this
Agreement, and provided further that after
- 14 -
consideration of the actions taken by the Trust, the Advisers, or the
Administrator and any other changes in circumstances since the giving
of such notice, the determination of the Company shall continue to
apply on the 60th day since giving of such notice, then such 60th day
shall be the effective date of termination; or
(h)termination by any party upon the other party's breach of any
representation or any material breach of any provision of this
Agreement, which breach has not been cured to the satisfaction of the
terminating party within ten (10) days after written notice of such
breach is delivered to the Trust or the Company, as the case may be;
or
(i)termination by the Trust, the Advisers, or Administrator by written
notice to the Company in the event an Account or Contract is not
registered (unless exempt from registration) or sold in accordance
with applicable federal or state law or regulation, or the Company
fails to provide pass-through voting privileges as specified in
Section 3.3.
11.2. Effect of Termination. Notwithstanding any termination of this
---------------------
Agreement, the Trust may continue to make available additional shares of the
Trust 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") unless such further sale of Trust shares
is proscribed by law, regulation or applicable regulatory body, or unless the
Trust determines that liquidation of the Trust following termination of this
Agreement is in the best interests of the Trust and its shareholders. The
parties agree that this Section 11.2 shall not apply to any terminations under
Article 8 and the effect of such Article 8 terminations shall be governed by
Article 8 of this Agreement.
11.3. The Company shall not redeem Trust shares attributable to the
Contracts (as distinct from Trust shares attributable to the Company's assets
held in the Account) except (i) as necessary to implement Contract owner
initiated or approved transactions, or (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption") or (iii) as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act.
Upon request, the Company will promptly furnish to the Trust, the Advisers and
the Administrator the opinion of counsel for the Company (which counsel shall
be reasonably satisfactory to the Trust and the Advisers) to the effect that
any redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Contracts,
the Company shall not prevent Contract owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first giving
the Trust or the Advisers 30 days notice of its intention to do so.
ARTICLE 12
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 Trust:
JPMorgan Insurance Trust
Mail Code OH1-1235
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
- 15 -
If to the Administrator:
JPMorgan Funds Management, Inc.
Mail Code OH1-1235
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Contract Administrator
If to the Advisers:
JPMorgan Investment Advisors Inc.
Mail Code OH1-0211
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
▇.▇. ▇▇▇▇▇▇ Investment Management Inc.
Mail Code OH1-0211
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
If to the Company:
American General Life Insurance Company
c/o American General Life Companies
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
ARTICLE 13
MISCELLANEOUS
-------------
13.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust. Each of the
Company, the Advisers, and the Administrator acknowledges and agrees that, as
provided by the Trust's Amended and Restated Declaration of Trust, the
shareholders, trustees, officers, employees and other agents of the Trust and
the Portfolios shall not personally be bound by or liable for matters set forth
hereunder, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder. The Trust's Amended and
Restated Declaration of Trust is on file with the Secretary of State The
Commonwealth of Massachusetts.
13.2. The Company will comply with all applicable laws and regulations
aimed at preventing, detecting, and reporting money laundering and suspicious
transactions. Without limiting the generality of the foregoing, the Company
shall take all necessary and appropriate steps, consistent with applicable
regulations and generally accepted industry practices, to: (i) obtain, verify,
and retain information with regard to Contract owner identification and source
of Contract owner funds, and (ii) maintain records of all Contract owner
transactions. The Company will (but only to the extent consistent with
applicable law) take all steps necessary and appropriate to provide the Trust
with any requested information about Contract owners and their accounts in the
event that the Trust shall request such information due to an inquiry or
investigation by any law
- 16 -
enforcement, regulatory, or administrative authority. To the extent permitted
by applicable law and regulations, the Company will notify the Trust of any
concerns that the Company may have in connection with any Contract owner in the
context of relevant anti-money laundering laws or regulations.
13.3. 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.
13.4. 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.
13.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.6. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
13.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the National Association of Securities
Dealers and state insurance regulators) and shall permit such authorities (and
other parties hereto) reasonable access to its books and records in connection
with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
13.8. 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.
13.9. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Advisers may, with advance written notice
to the other parties hereto, assign this Agreement or any rights or obligations
hereunder to any affiliate of or company under common control with the Advisers
if such assignee is duly licensed and registered to perform the obligations of
the Advisers under this Agreement.
13.10. The Company shall furnish, or shall cause to be furnished, to the
Trust or its designee upon request, copies of the following reports:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted accounting
principles ("GAAP"), if any), as soon as practical and in any event within 90
days after the end of each fiscal year;
(b) the Company's June 30th quarterly statements (statutory), as soon as
practical and in any event within 45 days following such period;
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/or policyholders, as soon as practical after
the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial reports
the Company filed with the Securities and Exchange Commission or any state
insurance regulator, as soon as practical after the filing thereof; and
(e) any other public report submitted to the Company by independent
accountants in connection with any annual, interim or special audit made by
them of the books of the Company, as soon as practical after the receipt
thereof.
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13.11. The names "JPMorgan Insurance Trust" and "Trustees of JPMorgan
Insurance Trust" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under a
Declaration of Trust dated June 7, 1993 to which reference is hereby made and a
copy of which is on file at the office of the Secretary of The Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of "JPMorgan Insurance
Trust" entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities,
and are not binding upon any of the Trustees, shareholders or representatives
of the Trust personally, but bind only the assets of the Trust, and all persons
dealing with any series of shares of the Trust must look solely to the assets
of the Trust belonging to such series for the enforcement of any claims against
the Trust.
13.12. The Trust and the Administrator agree to consult with the Company
concerning whether any Portfolio of the Trust qualifies to provide a foreign
tax credit pursuant to Section 853 of the Code.
[SIGNATURE PAGES FOLLOW]
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AMERICAN GENERAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
JPMORGAN INSURANCE TRUST
By: -----------------------------
Name: -----------------------------
Title: -----------------------------
JPMORGAN INVESTMENT ADVISORS INC.
By: -----------------------------
Name: -----------------------------
Title: -----------------------------
▇.▇. ▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.
By: -----------------------------
Name: -----------------------------
Title: -----------------------------
JPMORGAN FUNDS MANAGEMENT, INC.
By: -----------------------------
Name: -----------------------------
Title: -----------------------------
- 19 -
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
-------------------------------
As of April 24, 2009 which Accounts and Contracts may be changed from time to
time upon written notification to the Trust by the Company within a reasonable
time from such change;
Name of Separate Account and Date Form Number
Established by Board of Directors Funded by Separate Account
--------------------------------- -------------------------------------
American General Life Insurance Platinum Investor VA
Company Separate Account D Contract No. 98020
Established: November 19, 1973
Platinum Investor Immediate Variable
Annuity
Contract No. 03017
American General Life Insurance Income Advantage Select VUL
Company Separate Account VL-R Policy No. 08704
Established: May 1, 1997
AG Income Advantage VUL
Policy No. 07704
Protection Advantage Select VUL
Policy No. 07921
Platinum Investor I VUL
Policy No. 97600
Platinum Investor II VUL
Policy No. 97610
Platinum Investor III VUL
Policy No. 00600
Platinum Investor IV VUL
Policy No. 04604
Platinum Investor FlexDirector VUL
Policy No. 03601
Platinum Investor PLUS VUL
Policy No. 02600
Platinum Investor Survivor VUL Policy
No. 99206
Platinum Investor Survivor II VUL
Policy No. 01206
Platinum Investor VIP ▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ VUL
Policy No. 08921
American General Life Insurance Signature II Private Placement VUL
Company Separate Account VL-U LIS
Established: October 19, 1998
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SCHEDULE B
----------
PORTFOLIOS OF THE TRUST
-----------------------
JPMorgan Insurance Trust Balanced Portfolio -Class 1
JPMorgan Insurance Trust Core Bond Portfolio - Class 1
JPMorgan Insurance Trust U.S. Equity Portfolio - Class I (f/k/a JPMorgan
Insurance Trust Diversified Equity Portfolio)
JPMorgan Insurance Trust Diversified Mid Cap Growth Portfolio - Class 1
JPMorgan Insurance Trust Mid Cap Value Portfolio - Class I (f/k/a JPMorgan
Insurance Trust Diversified Mid Cap Value Portfolio)
JPMorgan Insurance Trust Equity Index Portfolio - Class 1
JPMorgan Insurance Trust Core Bond Portfolio (f/k/a JPMorgan Insurance Trust
Government Bond Portfolio)
JPMorgan Insurance Trust International Equity Portfolio - Class 1
JPMorgan Insurance Trust Intrepid Growth Portfolio - Class 1
JPMorgan Insurance Trust Intrepid Mid Cap Portfolio - Class 1
JPMorgan Insurance Trust Large Cap Growth Portfolio - Class 1
JPMorgan Insurance Trust Large Cap Value Portfolio - Class 1
JPMorgan Insurance Trust Small Cap Core Portfolio - Class I (f/k/a JPMorgan
Insurance Trust Small Cap Equity Portfolio)
- 21 -
