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FORM N-4, ITEM 24(b)(8.37)
FORM OF PARTICIPATION AGREEMENT BETWEEN AMERICAN UNITED LIFE
AND AMERICAN FUNDS
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FUND PARTICIPATION AND SERVICE AGREEMENT
American United Life Insurance Comany (hereinafter called the "Insurance
Company"), for itself and on behalf of one or more separate accounts of the
Insurance Company (hereinafter called "Separate Accounts"), and OneAmerica
Securities, Inc. (hereinafter called "Dealer"), American Funds Distributors,
Inc. (hereinafter called "Distributor"), American Funds Service Company
(hereinafter called "Transfer Agent") and each of the open-end investment
companies, or series thereof for which Distributor and Transfer Agent provide
services (hereinafter collectively called the "Funds" and, individually, a
"Fund"), for good and valuable consideration, hereby agree on this 16th day of
December 2005, that Class R shares of the Funds ("shares" or "Class R Shares")
shall be made available to serve as underlying investment media for Group
Variable Annuity Contracts (hereinafter called "Contract(s)"; holders of such
Contracts hereinafter called "Contractholder(s)") to be offered by the Insurance
Company subject to the following provisions:
1. Authorization; Services.
a. As principal underwriter of the Funds, Distributor agrees to offer and
sell shares of the Funds listed on the attached Exhibit B to the
Insurance Company for itself and on behalf of the Separate Accounts
pursuant to the terms of this Agreement. The Insurance Company will
offer shares of the Funds in connection with the sale of Contracts to
Plans as defined and set forth in Section 2, below. This Agreement is
in all respects subject to statements regarding the sale and
repurchase or redemption of shares made in the offering prospectuses
of the Funds, and to the applicable Rules of the NASD, which shall
control and override any provision to the contrary in this Agreement.
b. Transfer Agent hereby appoints Insurance Company as limited agent with
respect to shares of the Funds purchased, held, and redeemed by the
Separate Accounts solely for purposes of the provisions of this
Agreement, and Insurance Company accepts such appointment, on the
terms set forth herein.
c. The Insurance Company, directly or through third party recordkeepers
approved by Transfer Agent (including a designated affiliate), shall
listed on the attached Exhibit D, shall provide the certain services
described in this Agreement on behalf of the Distributor, Transfer
Agent and the Funds in connection with the sale and servicing of the
Contracts. The services to be provided by the Insurance Company, by
the third party redcordkeepers approved by the Transfer Agent listed
on the attached Exhibit D, to its Separate Accounts include, (i)
mailing and otherwise making available to Contractholders, shareholder
communications including, without limitation, prospectuses, proxy
materials, shareholder reports, unaudited semi-annual and audited
annual financial statements, and other notices, the cost of which will
be borne by Distributor; (ii) handling general questions regarding the
Funds from Contractholders (and their participants) including, without
limitation, advising as to performance, yield being earned, dividends
declared,
and providing assistance with other questions concerning the Funds;
(iii) preparing and providing electronic periodic account statements
showing the total number of Separate Account units owned by the Plan
participant in that account, the value of such units, and purchases,
redemptions, dividends, and distributions in the account during the
period covered by the statement; (iv) preparing and mailing IRS Form
1099-R and/or IRS Form W-2 as required by applicable Internal Revenue
Service rules and regulations; and (v) such other services and
assistance to the Distributor and Transfer Agent with respect to the
Contractholders as the Distributor and Transfer Agent shall reasonably
request including, without limitation, assistance in maintaining
accounts and records. Administrative services to Contractholders shall
be the responsibility of the Insurance Company and shall not be the
responsibility of Distributor, Transfer Agent or any of their
affiliates.
d. Insurance Company shall comply with the Operational Guidelines
attached hereto, as amended from time to time. To the extent the
provisions of the Operational Guidelines are inconsistent with other
provisions of this Agreement, the terms of the Operational Guidelines
shall control.
e. Insurance Company understands that the Funds are committed to
distributing their shares through retail broker-dealers and banks that
have entered into Selling Group Agreements with the Distributor.
Accordingly, in providing or proposing to provide services to any Plan
(as defined in Section 2, below), Insurance Company shall in good
faith use its best efforts to avoid any interference or conflicts with
the relationships between the Funds/Distributor and such retail
broker-dealers/banks.
f. Insurance Company shall transmit to Transfer Agent or the Funds (or to
any agent designated by either of them) such information in the
possession of Insurance Company concerning the Plans (as defined in
Section 2, below) and participants in the Plans as shall reasonably be
necessary for Transfer Agent to provide services as transfer agent for
the Funds and as any Fund shall reasonably conclude is necessary to
enable that Fund to comply with applicable state Blue Sky laws or
regulations.
2. Marketing of Contracts. The Insurance Company will make reasonable efforts
to market its Contracts. In marketing its Contracts, the Insurance Company
will comply in all material respects with applicable state insurance and
federal and state securities laws. The Insurance Company may market the
Contracts it issues through insurance agencies or brokers including those
which may be controlled by insurance companies. The Insurance Company shall
make the Contracts available only to employer-sponsored retirement plans
established pursuant to Internal Revenue Code Section 403(b) or 457, or
qualified under Code Section 401(a) (each a "Plan," and collectively
"Plans").
3. Compliance with Laws; Reliance on Instructions.
a. Distributor acknowledges and agrees that Insurance Company is not
responsible
for: (i) any information contained in any prospectus, registration
statement, annual report, proxy statement, or item of advertising or
marketing material prepared by Distributor, which relates to any Fund;
(ii) registration or qualification of any shares of any Fund under any
federal or state laws; or (iii) compliance by Distributor and the
Funds with all applicable federal and state laws, rules and
regulations, the rules and regulations of any self-regulatory
organization with jurisdiction (the foregoing laws, rules and
regulations are collectively referred to herein as "Applicable Law")
over the Distributor or Funds, and the provisions of the Funds'
prospectus and statement of additional information.
b. Insurance Company acknowledges and agrees that it is responsible for
(i) any representations concerning the Funds made by Insurance Company
or its agents that are not included in the prospectuses, statements of
additional information or advertising or marketing material relating
to the Funds and prepared or approved in writing by the Distributor;
(ii) satisfying prospectus delivery requirements, to the extent
required by law; and (iii) in connection with the services performed
in connection with this Agreement, the compliance or failure to comply
with any Applicable Law with jurisdiction over Insurance Company.
c. Each party is entitled to rely on any written records or instructions
provided to it by responsible persons of the other party(ies).
4. Insurance Company Representations and Warranties. The Insurance Company
represents and warrants that: (i) it has the corporate power and the
authority to enter into and perform all of its duties and obligations under
this Agreement; (ii) this Agreement constitutes its legal, valid and
binding obligation, enforceable against each above-named party in
accordance with its terms; (iii) no consent or authorization of, filing
with, or other act by or in respect of any governmental authority is
required in connection with the execution, delivery, performance, validity
or enforceability of this Agreement; (iv) it will or has established the
Separate Accounts as separate accounts under Indiana law; (v) the Insurance
Company has registered the Separate Accounts as unit investment trusts
under the Investment Company Act of 1940, as amended (the "1940 Act"), to
serve as investment vehicles for certain Contracts or, alternatively, has
not registered one or more of the Separate Accounts in proper reliance upon
an exclusion from registration under the 1940 Act; (vi) the Contracts
provide for the allocation of net amounts received by the Insurance Company
to the Separate Accounts, for investment in the shares of specified
investment companies selected among those companies available through the
Separate Accounts to act as underlying investment media; and (vii) (a)
Dealer is a properly registered or licensed broker or dealer under
applicable federal laws and regulations and is complying with and will
continue to comply with all applicable federal laws, rules and regulations,
(b) it is a member of the NASD, and (c) its membership with the NASD is not
currently suspended or terminated. Insurance Company agrees to notify the
Distributor immediately in writing if any of the foregoing representations
ceases to be true to a material extent.
5. Distributor and Transfer Agent Representations and Warranties. Distributor
and Transfer Agent each represents and warrants that: (i) this Agreement
constitutes its legal, valid and binding obligation, and is enforceable
against it in accordance with its terms; (ii) no consent or authorization
of, filing with, or other act by or in respect of any governmental
authority is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement; (iii) the
execution, performance and delivery of this Agreement by it will not result
in its violating any Applicable Law or breaching or otherwise impairing any
of its contractual obligations; (iv) Distributor represents that the Funds
are registered as investment companies under the 1940 Act and Fund shares
sold by the Funds are, and will be, registered under the Securities Act of
1933, as amended; (v) Distributor represents that it is registered as a
broker-dealer under the Securities Exchange Act of 1934, as amended, and
may properly cause Fund shares to be made available for the purposes of
this Agreement pursuant to distribution agreements between the Funds and
the Distributor; (vi) it has the corporate power and the authority to enter
into and perform all of its duties and obligations under this Agreement;
(vii) Distributor and its affiliates are solely responsible for information
contained in any prospectus, registration statement, annual report, proxy
statement, or item of advertising or marketing material prepared by
Distributor relating to any Fund; and (viii) Distributor represents that
prospectuses, other materials concerning the Funds are complete and
accurate in all material respects and do not contain any material omission
or misstatement of a material fact necessary to make the information not
misleading or untrue.
6. Fees.
a. The Funds recognize that the Insurance Company, for itself or on
behalf of the Separate Accounts, will be the sole shareholder of
shares of the Funds issued pursuant to the Contracts. Insurance
Company shall establish one account per Plan on the books of each Fund
in which such Plan beneficially invests via the Contracts.
b. In consideration of the services provided by Insurance Company herein,
wherein the Insurance Company purchases Fund shares on behalf of the
Separate Accounts and keeps records under the Contracts, the
Distributor and Transfer Agent agree to pay to the Insurance Company
such fees as are set forth in Exhibit A attached hereto and hereby
incorporated herein by reference. Notwithstanding the foregoing,
Insurance Company shall not be entitled to fees with respect to any
Separate Account if its services were offered in violation of
paragraph 1(f), above. It is understood that Insurance Company shall
receive no fees from the Funds, Transfer Agent, Distributor or any of
their respective affiliates in connection with any services provided
hereunder other than those provided for in this Section. Insurance
Company shall disclose the rate of compensation received from Transfer
Agent or its affiliates in respect of the Plan's investments in the
Funds. Insurance Company acknowledges that Transfer Agent and its
affiliates may disclose to the Plan sponsor and brokers all
compensation payable to Insurance Company in connection with Plan
investments in the Funds.
7. Pricing Information. The Funds or the Transfer Agent will compute the
closing net asset value, and any distributor information (including
the applicable ex-date, record date, payable date, distribution rate
per share, income accrual and capital gains information) for each Fund
as of the close of regular trading on the New York Stock Exchange
(normally 4:00 p.m. Eastern Time) on each day the New York Stock
Exchange is open for business (a "Business Day") or at such other time
as the net asset value of a Fund is calculated, as disclosed in the
relevant Funds' current prospectuses. The Funds or the Transfer Agent
will use their best efforts to communicate to the Insurance Company
such information by 6:30 p.m. Eastern Time on each Business Day via
facsimile. Such information shall be accurate and true in all respects
and updated continuously.
8. Pricing Adjustments.
a. In the event an adjustment is made to the computation of the net asset
value of Fund shares as reported to Insurance Company under Section
7, (1) the correction will be handled in a manner consistent with SEC
guidelines and the Investment Company Act of 1940, as amended and (2)
the Funds or Transfer Agent shall notify Insurance Company as soon as
practicable after discovering the need for any such adjustment.
Notification may be made in the following manner:
Method of Communication
(i) Fund/SERV Transactions. The parties agree that by April 14, 2006
they will use the National Securiteis Clearing Coproation's
Mutual Fund Settlement, Entry and Registration Verification
("Fund/SERV") system, and if Fund/SERV is used, any corrections
to the fund prices for the prior trade date will be submitted
through the Mutual Fund Profile with the correct fund prices and
applicable date. If the corrections are dated greater than trade
date plus one, a facsimile should be sent in addition to the
Mutual Fund Profile submission; or
(ii) Manual Transactions. Prior to Apirl 14, 2006, or if there are
technical problems with Fund/SERV, or if the parties are not able
to transmit or receive information through Fund/SERV, any
corrections to the fund prices should be communicated by
facsimile or by electronic transmission acceptable to Transfer
Agent, and will include for each day on which an adjustment has
occurred the incorrect Fund price, the correct price, and, to the
extent communicated to the applicable Fund's shareholders, the
reason for the adjustment. Funds and Transfer Agent agree that
the Insurance Company may send this notification or a derivation
thereof (so long as such derivation is approved in advance by
Funds or Distributor, as applicable) to Plan participants whose
accounts are affected by the adjustment.
b. To the extent a price adjustment results in a deficiency or excess to
a Plan participant's account, Insurance Company and Transfer Agent
agree to evaluate the situation together on a case-by-case basis with
the goal towards pursuing an appropriate course of action.
9. Purchases and Redemption Orders; Settlement of Transactions.
(i) Manual Transactions. Manual transactions via facsimile shall be used
by the Insurance Company: (1) until April 14, 2006, as described in
Section 8 above, (2) if there are problems with or malfunctions in the
Fund/SERV system, or (3) if Insurance Company misses a Fund/SERV
trading deadline.
(a) Next Day Transmission of Orders. The Insurance Company will
notify the Transfer Agent by 8:30 a.m. Eastern Time, on the next
Business Day the aggregate amounts of purchase orders and
redemption orders, that were placed by Contractholders in each
Separate Account by 4:00 p.m. Eastern time on the prior Business
Day (the "Trade Date"). Insurance Company represents that orders
it receives after 4:00 p.m. Eastern time on any given Business
Day will be transmitted to the Transfer Agent using the following
Business Day's net asset value. Transfer Agent may process orders
it receives after the 8:30 a.m. deadline using the following
Business Day's net asset value.
(b) Purchases. All orders received by Insurance Company by 4:00 p.m.
on a Business Day and communicated to the Transfer Agent by the
8:30 a.m. deadline shall be treated by the Transfer Agent as if
received as of the close of trading on the Trade Date and the
Transfer Agent will therefore execute orders at the net asset
values determined as of the close of trading on the Trade Date.
Insurance Company will initiate payment by wire transfer to a
custodial account designated by the Funds for the aggregate
purchase amounts prior to 4:00 p.m. Eastern time on the next
Business Day following Trade Date. Dividends and capital gain
distributions shall be automatically reinvested in additional
shares at the ex-dividend-date net asset value.
(c) Redemptions. Aggregate orders for redemption of shares of the
Funds will be paid in cash and wired from the Funds' custodial
account to an account designated by the Insurance Company.
Transfer Agent will initiate payment by wire to Insurance Company
or its designee proceeds of such redemptions by 4:00 p.m.,
Eastern Time, on the next Business Day following the Trade Date.
(ii) Fund/SERV Transactions. By April 14, 2006, the parties will use the
Fund/SERV system, and if in so using Fund/SERV, the following
provisions shall apply:
(a) The Insurance Company and Transfer Agent will be bound by the
terms of the Fund/SERV Agreement filed by each with the NSCC.
Without limiting the generality of the following provisions of
this section, the Insurance Company and Transfer Agent each will
perform any and all duties, functions, procedures and
responsibilities assigned to it and as otherwise established by
the NSCC applicable to Fund/SERV and the Networking Matrix Level
utilized.
(b) Any information transmitted through Networking by any party to
the other and pursuant to this Agreement will be accurate,
complete, and in the format prescribed by the NSCC. Each party
will adopt, implement and maintain procedures reasonably designed
to ensure the accuracy of all transmissions through Networking
and to limit the access to, and the inputting of data into,
Networking to persons specifically authorized by such party.
(c) Same Day Trades. On each Business Day, The Insurance Company
shall aggregate and calculate the purchase orders and redemption
orders for each Plan received by The Insurance Company prior to
the Close of Trading on each Business Day. The Insurance Company
shall communicate to Transfer Agent for that Business Day, by
Fund/SERV, the aggregate purchase orders and redemption orders
(if any) for each Plan received by the Close of Trading such
Business Day (the "Trade Date") by no later than 5:00 a.m.
Eastern Time (NSCC required cutoff) on the following Business
Day. Transfer Agent shall treat all trades communicated to
Transfer Agent in accordance with the foregoing as if received
prior to the Close of Trading on the Trade Date. All orders
received by The Insurance Company after the close of trading on a
Business Day shall not be transmitted to NSCC prior to 5:00 a.m.
Eastern Time on the following Business Day, and Insurance Company
represents that orders it receives after 4:00 p.m. Eastern time
on any given Business Day will be transmitted to the Transfer
Agent using the following Business Day's net asset value.
Transfer Agent may process orders it receives after the 5:00 a.m.
deadline using the net asset value determined on the Business Day
following the Trade Date.
(iii) Transactions with otherelectronic systems. In lieu of communicating
Instructions via the NSCC Service, Insurance Company may communicate
Instructions to AFS either directly or through an entity that has a
Trading Agreement with AFS via any electronic System acceptable to
AFS. Instructions communicated via the System must be received by AFS
by 10 p.m. Eastern Time on the Business Day on which such Instructions
were received byInsurance Company by the Close of Trading on the
Business Day of Insurance Company's receipt. To the extent Insurance
Comany does not communicate such Instructions by the time limits set
forth in this Section, AFS may, in its discretion, process such
Instructions at the net asset values determined as of the Close of
Trading on the next Business Day. Insurance Company represents that
Instructions received after the Close of Trading on any given Business
Day will be transmitted to AFS on the next Business Day using the
day's net asset value.
(iii) Contingencies. All orders are subject to acceptance by Transfer Agent
and become effective only upon confirmation by Transfer Agent. Upon
confirmation, the Transfer Agent will verify total purchases and
redemptions and the closing share position for each fund/account. In
the case of delayed settlement, Transfer Agent and Insurance Company
shall make arrangements for the settlement of redemptions by wire no
later than the time permitted for settlement of redemption orders by
the Investment Company Act of 1940. Such wires for Insurance Company
should be sent to:
Bank: National City Bank
Name: American United Life Insurance Company
Account#: [omitted]
Routing #: [omitted]
Such wires for Transfer Agent should be sent to:
Xxxxx Fargo Bank
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
ABA#: 000000000
Account#: 4600-076178
For credit to the account of American Funds Service
Company (shareholder account number)
(iv) TPA Transactions. With respect to transactions executed pursuant to an
arrangement described in paragraph (i), by 8:30 a.m. Eastern Time on
the next Business Day following receipt of such instructions,
Insurance Company will provide to the Transfer Agent or its designee
one or more files in a format and via a transmission method acceptable
to Transfer Agent detailing the instructions received with respect to
each Plan prior to 4:00 p.m. Eastern Time on the prior Business Day
for each of the Funds. If for any reason Insurance Company is unable
to transmit the files(s) with respect to any Business Day, Insurance
Company will notify the Transfer Agent or its designee by 8:30 a.m.
Eastern Time on the next following Business Day, and the Transfer
Agent may
process such instructions at the net asset value determined on the
Business Day following the day on which Insurance Company received
such instructions.
(v) Processing Errors. Processing errors which result from any delay or
error caused by Insurance Company may be adjusted through the NSCC
System by Insurance Company by the necessary transactions on a current
basis.
(vi) Coding. If applicable, orders for the purchase of Fund shares shall
include the appropriate coding to enable Transfer Agent to properly
calculate commission payments to any broker-dealer firm assigned to
the Separate Account.
(vii) Reconciliation. Insurance Company shall reconcile share positions
with respect to each Fund for each Separate Account as reflected on
its records to those reflected on statements from Transfer Agent and
shall, on request, certify that each Separate Account's share
positions with respect to each Fund reported by Transfer Agent
reconcile with Insurance Company's share positions for that Separate
Account. Insurance Company shall promptly inform Transfer Agent of any
record differences and shall identify and resolve all non-reconciling
items within five business days.
(viii) Verification. Within a reasonable period of time after receipt of a
confirmation relating to an Instruction, Insurance Company shall
verify its accuracy in terms of such Instruction and shall notify
Transfer Agent of any errors appearing on such confirmation.
(ix) Order Processing. Any order by Insurance Company for the purchase of
shares of the respective Funds through Distributor shall be accepted
at the time when it is received by Distributor/Transfer Agent (or any
clearinghouse agency that Distributor/Transfer Agent may designate
from time to time), and at the offering and sale price next
determined, unless rejected by Distributor, Transfer Agent or the
respective Funds. In addition to the right to reject any order, the
Funds have reserved the right to withhold shares from sale temporarily
or permanently. Distributor/Transfer Agent will not accept any order
from Insurance Company that is placed on a conditional basis or
subject to any delay or contingency prior to execution. The procedure
relating to the handling of orders shall be subject to instructions
that Distributor shall forward from time to time to all members of the
selling group. The shares purchased will be issued by the respective
Funds only against receipt of the purchase price, in collected New
York or Los Angeles Clearing House funds. If payment for the shares
purchased is not received within three days after the date of
confirmation, the sale may be cancelled by the Distributor or by the
respective Funds without any responsibility or liability on the part
of the Distributor or the Funds, and the Distributor and/or the
respective Funds may hold the Insurance Company responsible for any
loss, expense, liability or damage, including loss of profit suffered
by the Distributor and/or the respective Funds, resulting from
Insurance Company's delay or failure to make payment as aforesaid.
10. Account Activity. Upon request, the Transfer Agent shall send to the
Insurance Company, (i) confirmations of activity in each Separate Account
within five (5) business
days after each Trade Date on which a purchase or redemption of shares of a
Fund is effected for a Separate Account; (ii) statements detailing activity
in each Separate Account no less frequently than quarterly; and (iii) such
other information as may reasonably be requested by Insurance Company and
agreed upon by Transfer Agent.
11. Expenses. All expenses incident to each party's performance of this
Agreement shall be paid by the respective party. The Funds shall pay the
cost of registration of their shares with the Securities and Exchange
Commission (the "SEC"), preparation of the Fund's prospectuses, proxy
materials and reports, or the preparation of other related statements and
notices required by Applicable Law. The Funds shall pay the cost of
qualifying Fund shares in states where required.
12. Proxy and Other Communication Materials. The Funds shall distribute to the
Insurance Company their proxy material and periodic Fund reports to
shareholders. The Distributor, Transfer Agent or the Funds shall provide
the Insurance Company with a reasonable quantity of the Funds' prospectuses
and sales literature upon request to be used for the Separate Accounts in
connection with the transactions contemplated by this Agreement.
Distributor, Transfer Agent or the Funds shall provide to Insurance
Company, or its authorized representative, at no expense to Insurance
Company, the following Contractholder communication materials prepared for
circulation to Contractholders in quantities reasonably requested by
Insurance Company which are sufficient to allow mailing thereof by
Insurance Company, to the extent required by Applicable Law, to all
Contractholders in the Separate Accounts: proxy or information statements,
annual reports, semi-annual reports, and all updated prospectuses,
supplements and amendments thereof. The Distributor, Transfer Agent or the
Funds shall provide Insurance Company with other documents and materials as
Insurance Company may reasonably request from time to time.
Distributor will provide Insurance Company on a timely basis with
investment performance information for each Fund, including (a) the top ten
portfolio holdings on a quarterly basis; and (b) on a monthly basis,
average annual total return for the prior one-year, three year, five-year,
ten-year and life of the Fund. Distributor will endeavor to provide the
information in clause (a) to Insurance Company within twenty business days
after the end of each quarter, and will endeavor to provide the information
in clause (b) to Insurance Company within five business days after the end
of each month, and will use its reasonable efforts to assist Insurance
Company in preparing any "requests for proposals" relating to qualified and
non-qualified retirement plans which may make available the Contracts as an
investment alternative.
13. Review of Advertising and Sales Literature; Representations
a. Insurance Company may, based on the SEC-mandated information supplied
by Distributor, prepare communications. In addition, Insurance Company
may prepare such materials, based on performance information supplied
by third party information providers (e.g., Lipper, Morningstar).
Insurance Company shall
provide copies of all such materials to Distributor prior to their
first use for Distributor's review and Distributor shall have five
business days to approve or reject such material. It is understood
that Distributor shall be responsible for errors or omissions in, or
the content of, such materials based upon information supplied by the
Funds. Insurance Company shall be responsible for all other errors or
omissions.
b. Neither Insurance Company nor any person associated with Insurance
Company shall make representations concerning a Fund, Transfer Agent
or any of Transfer Agent's affiliates, except those contained in the
current promotional literature produced by the Distributor, unless
specifically approved in writing by the Distributor. Neither Insurance
Company nor any person associated with Insurance Company shall make
use of the names, logos or any likeness of the Funds, Transfer Agent
or any of Transfer Agent's affiliates without the prior written
consent of Distributor.
14. Proxy Materials/Voting. The Insurance Company will distribute all proxy
material furnished by the Funds to the extent required by Applicable Law.
For so long as the SEC interprets the 1940 Act to require pass-through
voting by insurance companies whose separate accounts are registered as
investment companies under the 1940 Act ("Registered Separate Accounts"),
the Insurance Company shall vote shares of the Funds held in Registered
Separate Accounts at shareholder meetings of the Funds in accordance with
instructions timely received by the Insurance Company (or its designated
agent) from owners of Contracts funded by such Registered Separate Accounts
having a voting interest in the Funds. The Insurance Company shall vote
shares of the Funds held in Registered Separate Accounts that are
attributable to the Contracts as to which no timely instructions are
received, as well as shares held in such Registered Separate Account that
are not attributable to the Contracts and owned beneficially by the
Insurance Company (resulting from charges against the Contracts or
otherwise), in the same proportion as the votes cast by owners of the
Contracts funded by the Registered Separate Account having a voting
interest in the Funds from whom instructions have been timely received. The
Insurance Company shall vote shares of the Funds held in its general
account or in any Separate Account that is not registered under the 1940
Act, if any, in its discretion.
15. Future Registration of Separate Account(s). If Insurance Company registers
a Separate Account as a unit investment trust under the 1940 Act, Insurance
Company will provide to each Fund, as appropriate, at least one complete
copy of all registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no action letters, and all amendments to any of the above,
that relate to the Contracts or any Separate Account contemporaneously with
the filing of such document with the SEC, the NASD or other regulatory
authority.
16. Independent Contractor Status. The Insurance Company shall, for all
purposes herein, be deemed to be an independent contractor and shall have,
unless otherwise expressly
provided or authorized, no authority to act for or represent the
Distributor or the Funds in any way or otherwise be deemed an agent of the
Distributor or the Funds.
17. Termination. At the terminating party's election and the other party's
concurrence, termination of this Agreement may be limited solely as to new
Plans and new Contracts. This Agreement shall terminate as to the sale and
issuance of Contracts:
a. at the option of the Insurance Company, Distributor, Transfer Agent or
the Funds upon 90 days advance written notice to the other parties;
b. at any time by giving 30 day's written notice to the other party in
the event of a material breach of this Agreement by the other party
that is not cured during such 30-day period;
c. at the option of the Insurance Company, Distributor or the Funds, upon
institution of formal proceedings relating to (i) the marketing of the
Contracts, (ii) the Separate Accounts, (iii) the Insurance Company,
(iv) Distributor or (v) the Funds by the NASD, the SEC or any other
regulatory body;
d. at the option of any Fund, the investment adviser to the Funds (the
"Adviser"), or the Insurance Company, upon termination of Adviser's
investment advisory agreement with the Fund. Notice of such
termination shall be promptly furnished. This Section (d) shall not be
deemed to apply if, contemporaneously with such termination, a new
contract of substantially similar terms is entered into between the
Adviser and the Fund.
e. except for Insurance Company's delegation of its duties to a
subcontractor or to an affiliate, upon assignment of this Agreement,
at the option of any party not making the assignment, unless made with
the written consent of the other parties;
f. in the event interests in the Separate Accounts, the Contracts, or
Fund shares are not registered, issued or sold in conformity with
Applicable Law or such Applicable Law precludes the use of Fund shares
as an underlying investment medium of Contracts issued or to be issued
by the Insurance Company. Prompt notice shall be given by the
terminating party to the other parties in the event the conditions of
this provision occur;
g. for Registered Separate Accounts, they may terminate upon a decision
by the Insurance Company, in accordance with regulations of the SEC
for Registered Separate Accounts, to substitute Fund shares with the
shares of another investment company for Contracts for which the Fund
shares have been selected to serve as the underlying investment medium
for Registered Separate Accounts. The Insurance Company will give 60
days' written notice to the applicable Fund and the Distributor upon
the occurrence of the earlier of the following actions taken for the
purpose of substituting shares of the Fund: (1) an application made
to the SEC, (2) a proposed Contractholder vote, or (3) the Insurance
Company's determination to substitute Fund shares with the shares of
another investment company.
The Funds or the Distributor will in no way recommend action in
connection with, or oppose or interfere with any application made to
the SEC by the Insurance Company with regard to the substitution of
Fund shares with shares of another investment company or seek in any
manner to oppose or interfere with a proposed Contractholder vote; or
h. upon such shorter notice as is required by law, order or instruction
by a court of competent jurisdiction or a regulatory body or
self-regulatory organization with jurisdiction over the terminating
party.
Upon termination and at the request of the requesting party, the other
party shall deliver to the requesting party, any records which the
requesting party may be required by law or regulations to have access to or
to maintain.
18. Notices. All notices under this Agreement, unless otherwise specified in
the Agreement shall be given in writing and delivered via overnight
delivery (postage prepaid, return receipt requested), facsimile
transmission or registered or certified mail, as follows:
If to the Insurance Company:
Xxxx Xxxxxx
OneAmerica
Mail Buzz 0000
XxxXxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
with a copy to:
Xxxxx Xxxxx
OneAmerica
Mail Buzz 0000
XxxXxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 000000-0000
If to the Distributor, Transfer Agent or to the Funds:
Xxxxxxx X. Xxxxxxxxxx
American Funds Distributors, Inc.
000 Xxxxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxx X. Xxxxx Xxxxx X. Xxxxxx
American Funds Distributors, Inc. American Funds Service Company
000 Xxxxx Xxxx Xxxxxx 0000 Xxxxxxx Xxxx.
00xx Xxxxx Xxx Xxxxxxx, XX 00000-0000
Xxx Xxxxxxx, XX 00000
or to such other address or person as may be specified in a written notice
given to the other parties. The date of service of any notice shall be the
date it is received by the recipient.
19. Books and Records. Each party hereto shall cooperate with the other parties
and all appropriate governmental authorities and shall permit authorities
reasonable access to its books and records upon proper notice in connection
with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby. Each party shall maintain and preserve
all records in its possession as required by law to be maintained and
preserved in connection with the provision of the services contemplated
hereunder. Upon the request of a party, the other party shall provide
copies of all records as may be necessary to (a) monitor and review the
performance of either party's activities, (b) assist either party in
resolving disputes, reconciling records or responding to auditor's
inquiries, (c) comply with any request of a governmental body or
self-regulatory organization, (d) verify compliance by a party with the
terms of this Agreement, (e) make required regulatory reports, or (f)
perform general customer service. The parties agree to cooperate in good
faith in providing records to one another under this provision.
In addition, Insurance Company shall establish and maintain procedures to
meet the following requirements: (i) respond to written inquiries within
five days concerning a transaction processed within the last six months to
a Plan participant's account; (ii) respond to requests for a transcript
within 20 business days; (iii) respond to dividend (earnings) inquiries
within 10 business days; and (iv) maintain all relevant documentation to
support transactions processed on behalf of the Plan participant's account.
Insurance Company shall track the number of complaints to Insurance Company
regarding transactions that were not processed correctly. Insurance Company
shall, on request, report to Transfer Agent the total number of
transactions and the total number of complaints received by Insurance
Company, which arose from processing errors by Insurance Company.
20. Indemnification.
a. Insurance Company shall indemnify and hold harmless Distributor,
Transfer Agent, each of the Funds, and each of its directors,
officers, employees and agents
and each person who controls them within the meaning of the Securities
Act of 1933, as amended, from and against any and all losses, claims,
damages, liabilities and expenses, including reasonable attorneys'
fees ("Losses"), they may incur, insofar as such Losses arise out of
or are based upon (i) Insurance Company's negligence or willful
misconduct in the performance of its duties and obligations under this
Agreement, (ii) Insurance Company's violation of any Applicable Law in
connection with the performance of its duties and obligations under
this Agreement, and (iii) any breach by Insurance Company of any
provision of this Agreement, including any representation, warranty or
covenant made in the Agreement. Insurance Company shall also reimburse
Distributor, Transfer Agent or the Funds for any legal or other
expenses reasonably incurred by any of them in connection with
investigating or defending against such Losses. This indemnity
provision is in addition to any other liability which Insurance
Company may otherwise have to Distributor, the Transfer Agent or the
Funds.
b. Distributor and Transfer Agent, as applicable, shall indemnify and
hold harmless, Insurance Company and its directors, officers,
employees and agents and each person who controls them within the
meaning of the Securities Act of 1933, as amended, from and against
any and all Losses they may incur, insofar as such Losses arise out of
or are based upon (i) Distributor's or Transfer Agent's negligence or
willful misconduct in the performance of its duties and obligations
under this Agreement, (ii) Distributor's or Transfer Agent's violation
of Applicable Law in connection with the performance of its duties and
obligations under this Agreement, and (iii) any breach by Distributor
or Transfer Agent of any provision of this Agreement, including any
representation, warranty or covenant made in the Agreement.
Distributor and Transfer Agent, as applicable, shall also reimburse
Insurance Company for any legal or other expenses reasonably incurred
in connection with investigating or defending against such Losses.
This indemnity provision is in addition to any other liability which
Distributor or Transfer Agent may otherwise have to Insurance Company.
Notwithstanding the foregoing, neither the Transfer Agent,
Distributor, any of their affiliates nor the Funds shall indemnify or
hold Insurance Company harmless pursuant to this paragraph for Losses
to the extent such loss results from a determination that Insurance
Company's receipt of fees as provided in paragraph 6(b), above,
violates the Employee Retirement Income Security Act of 1974, as
amended, or any other federal or state law.
c. Promptly after receipt by a party entitled to indemnification under
this paragraph 20 (an "Indemnified Party") of notice of the
commencement of an investigation, action, claim or proceeding, such
Indemnified Party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 20, notify the
indemnifying party of the commencement thereof. The indemnifying party
will be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnified Party. After notice from the
indemnifying party of its intention to assume the defense of an action
and the appointment of satisfactory counsel,
Indemnified Party shall bear the expenses of any additional counsel
obtained by it, and the indemnifying party shall not be liable to such
Indemnified Party under this paragraph for any legal expenses
subsequently incurred by such Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation. The
indemnifying party shall not, without the prior written consent of the
Indemnified Party, settle or compromise the liability of the
Indemnified Party; provided, however, that in the event that the
Indemnified Party fails to provide its written consent, the
indemnifying party shall thereafter be liable to provide
indemnification only to the extent of the amount for which the action
could otherwise have been settled or compromised.
21. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California exclusive of conflicts
of laws.
22. Sub Chapter M. The Distributor will endeavor to have each Fund comply with
Subchapter M of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder and shall qualify as a regulated investment company
thereunder.
23. Entire Agreement/Amendments. This Agreement and the Fund account
application completed by the Insurance Company contain the entire
understanding and agreement among the parties with respect to the subject
matter of this Agreement and may not be amended except by written agreement
of the parties.
24. Assignability. This Agreement shall extend to and be binding upon the
Insurance Company, the Distributor and the Transfer Agent and their
respective successors and assigns; provided, however, that neither this
Agreement nor any rights, privileges, duties or obligations of the parties
may be assigned by any party without the prior written consent of the other
parties or as expressly contemplated by this Agreement.
25. Proprietary Information. The Distributor and the Funds agree that the
names, addresses, and other information relating to the Contractholders or
participants or prospects for the sale of the Contracts developed by
Insurance Company are the exclusive property of the Insurance Company and
may not be used by Distributor, Transfer Agent or the Funds without the
written consent of the Insurance Company except for carrying out the terms
of this Agreement or as otherwise provided for in this Agreement and any
amendments thereto. Each party to this Agreement agrees to maintain the
confidentiality of all information (including personal financial
information of the customers of either party) received from the other party
pursuant to this Agreement. Each party agrees not to use any such
information for any purpose, or disclose any such information to any
person, except as permitted or required by applicable laws, rules and
regulations, including the Xxxxx-Xxxxx-Xxxxxx Act and any regulations
promulgated thereunder. This provision, to the extent permissible by
applicable law, shall not be construed to limit the parties' obligation to
comply with SEction 19, above.
26. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
the Agreement shall not be affected thereby.
27. No Waiver. No waiver of any provision of this Agreement will be binding
unless in writing and executed by the party granting such waiver. Any valid
waiver of a provision set forth herein shall not constitute a waiver of any
other provision of this Agreement. In addition, any such waiver shall
constitute a present waiver of such provision and shall not constitute a
permanent future waiver of such provision.
28. No Joint Venture, Etc. Neither the execution nor performance of this
Agreement shall be deemed to create a partnership or joint venture by and
among Insurance Company, Distributor, and the Funds.
29. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
30. Survival. The provisions of Sections 4, 5, 20 and 25 survive termination of
this Agreement.
31. Non-exclusivity. Each of the parties acknowledges and agrees that this
Agreement and the arrangements described herein are intended to be
non-exclusive and that each of the parties is free to enter into similar
agreements and arrangements with other entities.
32. Insurance. At all times Insurance Company shall maintain insurance coverage
that is reasonable and customary in light of all its responsibilities
hereunder. Such coverage shall insure for losses resulting from the
criminal acts or errors and omissions of Insurance Company's employees and
agents.
33. Oversight of Insurance Company. Insurance Company will permit Transfer
Agent or its representative to have reasonable access to Insurance
Company's personnel and records pertaining to this Agreement in order to
facilitate the monitoring of the quality of the services performed by
Insurance Company under this Agreement.
34. Independent Audit. In the event Transfer Agent determines, based on a
review of complaints received in accordance with Section 19, above, that
Insurance Company is not processing Plan transactions accurately, Transfer
Agent reserves the right to require that Insurance Company's data
processing activities as they relate to this Agreement be subject to an
audit by an independent accounting firm to ensure the existence of, and
adherence to, proper operational controls. Insurance Company shall make
available upon Transfer Agent's request a copy of any report by such
accounting firm as it relates to said audit. Insurance Company shall
immediately notify Transfer Agent in the event of a material breach of
operational controls.
35. Trading Relationships with Third Parties. If Insurance Company provides
third parties with trading services, Insurance Company may not give such
third parties access to the Funds without the prior written consent of the
Distributor.
36. Breach of Agreement. In addition to all other remedies available at law or
in equity for breach of this Agreement, Transfer Agent and Distributor
reserve the right to withhold payment of fees under Section 6(b) of this
Agreement for any breach of this Agreement by Insurance Company.
37. Arbitration. In the event of a dispute between the parties with respect to
this Agreement, and in the event the parties are unable to resolve the
dispute between them, such dispute shall be settled by arbitration; one
arbitrator to be named by each party to the disagreement and a third
arbitrator to be selected by the two arbitrators named by the parties. The
decision of a majority of the arbitrators shall be final and binding on all
parties to the arbitration. The expenses of such arbitration shall be paid
by the non-prevailing party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
AMERICAN UNITED LIFE INSURANCE COMPANY
for itself and on behalf of the Separate Accounts
By: /s/ Xxxxx X. Xxxxx
Print Name: Xxxxx X. Xxxxx
Title: AVP Markting, Retirement Services
ONEAMERICA SECURITIES, INC.
By: /s/ Xxxx X. Xxxxxx
Print Name: Xxxx X. Xxxxxx
Title: Secretary
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
AMERICAN FUNDS DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Malbaja
Print Name: Xxxxxxx X. Malbaja
Title: Sr V.P.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
AMERICAN FUNDS SERVICE COMPANY
By: /s/ Xxxxx Xxxxxx
Print Name: Xxxxx Xxxxxx
Title: Vice President
22
EXHIBIT A
Distribution Fees
In consideration for the services provided by Insurance Company, the Distributor
will pay the Insurance Company ongoing compensation on a quarterly basis, at the
applicable annual rate set forth below, of the average daily net asset value of
Class R shares of Funds listed on the attached Exhibit B that are held in a Plan
account assigned to Insurance Company at the end of the quarter for which
payment is made. The payment of this ongoing compensation is subject to the
limitations contained in each Fund's Plan of Distribution and may be varied or
discontinued at any time.
R Share Class Annual Compensation Rate
Class R-1 1.00%
Class R-2 0.75%
Class R-3 0.50%
Class R-4 0.25%
Class R-5 No compensation paid
Service Fees
In connection with defined contribution-type and defined benefit-type Plans that
are beneficially invested in the Class R shares of the Funds through the
Separate Accounts,
(i) for the services rendered by Insurance Company pursuant to this Agreement,
Transfer Agent agrees to pay Insurance Company a quarterly fee at the
annual rates set forth below applied to the average daily net asset value
of Class R shares of the Funds held by the Plan during the applicable
quarter:
---------------------------- ----------------------------
Class of Shares Annual Fee
---------------------------- ----------------------------
---------------------------- ----------------------------
---------------------------- ----------------------------
---------------------------- ----------------------------
R-1 0.10%
---------------------------- ----------------------------
---------------------------- ----------------------------
R-2 0.10%
---------------------------- ----------------------------
---------------------------- ----------------------------
R-3 0.10%
---------------------------- ----------------------------
---------------------------- ----------------------------
R-4 0.10%
---------------------------- ----------------------------
---------------------------- ----------------------------
R-5 0.05%
---------------------------- ----------------------------
(ii) such fee shall be paid by AFS to Insurance Company within 30 days following
the end of the quarter for which such fees are payable (currently the
quarters for which fees are payable end on the last Business Day of
January, April, July and October).
All payments to Insurance Company shall be remitted to the following address:
American United Life Insurance Company
Attn: Xxxxxx Xxxxxxx
Xxx Xxxxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxxxxxxxx, XX 00000-000
(iii) With respect to services rendered by the third party recordkeepers listed
on Exhibit D to the Agreement, Insurance Company shall be paid Service Fees
only if: (a) such third party recordkeepers have execute an Authorization
for Payment to Third Party form that authorizes the Transfer Agent to pay
Service Fees directly to Insurance Company.
EXHIBIT B
Fund Share Class(es)
EXHIBIT C
OPERATIONAL GUIDELINES
1. When setting up accounts (including pooled, plan-level accounts) for Plans,
Insurance Company shall include (a) detailed registration information that
includes the Plan name and a unique number given to Insurance Company to
facilitate payment of recordkeeping fees, and (b) the name of the firm
receiving the Rule 12b-1 compensation from the Funds and the applicable
registered representative, if any, assigned to the account.
2. When transmitting instructions for the purchase and/or redemption of Class
A and R shares of the Funds, Insurance Company shall submit one order for
all participant purchase transactions and one order for all participant
redemption transactions. Redemption orders shall not be netted against
purchase orders for a Business Day. Settlement of a purchase order and a
redemption order may not be netted; such settlements shall be independent
of one another. Insurance Company shall process as new money only the
following: mapped takeover assets; salary deferrals; and employer matching,
discretionary, and mandatory contributions.
3. With respect to Plan participant transactions, Provider shall abide by
requirements of the Funds' frequent trading policy as described in their
prospectuses and statements of additional information.
4. References to the Funds on Plan participant statements and on Insurance
Company's web site shall include the full name of the Fund and a reference
to "American Funds." By way of example, "American Funds - The Investment
Company of America". If field size prohibits the use of the full name of
the Fund and a reference to "American Funds", the Fund name may be
abbreviated with the approval of the Distributor.
EXHIBIT D
LIST OF THIRD PARTY RECORDKEEPERS APPROVED BY TRANSFER AGENT
