Exhibit 99.B8(A)(i)
Participation Agreement
TMK/United Funds, Inc.
United Investors Life Insurance Company
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
VARIABLE ACCOUNT
TMK/United Funds, Inc. (hereinafter TMK) is a Maryland corporation registered
with the Securities and Exchange Commission under the Investment Company Act of
1940 (the Act) as a management class, open-end, diversified investment company.
It offers its shares exclusively to insurance companies as the investment
vehicles for variable life and variable annuity policies. TMK has authorized
seven classes of shares each of which is a separate fund (Portfolio) being:
Money Market Portfolio, Bond Portfolio, High Income Portfolio, Growth Portfolio,
Income Portfolio, Small Cap Portfolio and Science and Technology Portfolio.
You have advised TMK that you are sponsoring the RetireMAP Variable Account
which is an investment company organized and registered with the Securities and
Exchange Commission as a unit investment trust under the Act (hereinafter the
Trust). You advised that you wish to arrange for the acquisition of TMK's
shares as a funding medium for the Trust. TMK agrees to make the shares of its
seven Portfolios available to you for said purposes subject to the following
terms and conditions:
1. TMK will sell its shares directly to you and on request redeem its
shares at the time and prices specified in its then current prospectus and
Statement of Additional Information (SAI) for the purpose of funding the
investment divisions of the Trust as is more particularly set forth in the
Trust's then current prospectus.
2. (a) Payment for shares in investable funds shall be due on issuance of
shares.
(b) TMK will make payment on redemption of its shares as stated in its
prospectus and SAI.
(c) Purchases and redemptions of shares of the same Portfolio on the
same day may be netted so as to result in a single purchase or single redemption
for the day.
(d) Shares of one Portfolio may be exchanged for shares of another
Portfolio by redemption of shares of a particular Portfolio and the immediate
purchase of shares of the other Portfolio. On your request, TMK will effect
such exchanges by transfer of monies from one Portfolio to the other as
appropriate.
(e) All dividends and capital gains distributions shall be reinvested
in additional shares.
3. TMK will furnish you with adequate number of copies of its Annual and
Semi-annual Reports to Shareholders and TMK's proxy material for shareholder
meetings as you may request for furnishing to the policyowners and will
reimburse you for your expenses in mailing the reports and proxy materials to
the policyowners including return postage with respect to the voting of proxy
cards. With TMK's prior consent, you may include additional items in the
mailing of TMK's Reports to Shareholders provided any extra costs are paid by
you.
4. You shall vote the shares held by the policyholders as set forth in the
Trust's prospectus and any SAI.
5. TMK will furnish you with a copy of its current prospectus and SAI and
all amendments thereto. You shall print and reproduce at your expense such
copies thereof as you may desire with respect to the distribution of interests
in the Trust. You may use TMK's shareholder Reports in the distribution
process. Copies of the Reports will be furnished for such purposes as you
request at your expense.
6. The foregoing, notwithstanding, TMK shall not engage directly or
indirectly in financing any activity which is primarily
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intended to result in the sale of its shares issued by it.
7. Indemnification
A. TMK agrees with you for your benefit and each person, if any, who
controls you within the meaning of Section 15 of the Securities Act of 1933 (the
"Securities Act") and each and all and any of them, to indemnify and hold you
harmless and any such controlling person from and against any and all losses,
claims, damages or liabilities, joint or several, to which you, they or any of
them may become subject under the Securities Act, under any other statute, at
common law or otherwise, and to reimburse you and such controlling persons, if
any, for any legal or other expenses (including the cost of any investigation
and preparation) reasonably incurred by you, them or any of them in connection
with any litigation whether or not resulting in any liability, insofar as such
losses, claims, damages, liabilities or litigation arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or any prospectus or any amendment
thereof or supplement thereto or arise out of or are based upon 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; provided, however,
that this indemnity agreement shall not apply to amounts paid in settlement of
any such litigation if such settlement is effected without the consent of TMK or
to any such losses, claims, damages, liabilities or litigation arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus or any amendment thereof
or supplement thereto, or arising out of or based upon 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, which statement or
omission was made in reliance upon information furnished in writing to TMK by
you for inclusion in any registration statement or any prospectus or any
amendment thereof or supplement thereto. You and each such controlling person
shall
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promptly, after the complaint shall have been served upon you or such
controlling person in any litigation against you or such controlling person in
respect of which indemnity may be sought from TMK on account of its agreement
contained in this paragraph, notify TMK in writing of the commencement thereof.
Your omission or such controlling person so to notify TMK of any such litigation
shall relieve TMK from any liability which it may have to you or such
controlling person on account of the indemnity agreement contained in this
paragraph but shall not relieve TMK from any liability which it may have to you
or controlling person otherwise than on account of the indemnity agreement
contained in this paragraph. In case any such litigation shall be brought
against you or any such controlling person and you or such controlling person
shall notify TMK of the commencement thereof, TMK shall be entitled to
participate in (and, to the extent that it shall wish, to direct) the defense
thereof at its own expense but such defense shall be conducted by counsel of
good standing and satisfactory to you or such controlling person or persons,
defendant or defendants in the litigation. The indemnity agreement of TMK
contained in this paragraph shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of you or any such
controlling person and shall survive any delivery of shares of TMK. TMK agrees
to notify you promptly of the commencement of any litigation or proceeding
against it or any of its officers or directors of which it may be advised in
connection with the issue and sale of its shares.
B. Anything herein to the contrary notwithstanding TMK's agreement in the
foregoing, insofar as it constitutes a basis for reimbursement by TMK for
liabilities (other than payment by TMK of expenses incurred or paid in the
successful defense of any action, suit or proceeding) arising under the
Securities Act, shall not extend to the extent of any interest therein of any
person who is deemed to be an underwriter or a partner or controlling person of
an underwriter within the meaning of Section 15 of the Securities Act or who, at
the date of this Agreement, is a director of TMK, except to the extent that an
interest of such character shall have been
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determined by a court of appropriate jurisdiction the question of whether or not
such interest is against public policy as expressed in the Securities Act.
C. You agree to indemnify and hold harmless TMK and its directors and such
officers as shall have signed any registration statement from and against any
and all losses, claims, damages or liabilities, joint or several, to which TMK
or such directors or officers may become subject under the Securities Act, under
any other statute, at common law or otherwise, and will reimburse TMK or such
directors or officers for any legal or other expenses (including the cost of any
investigation and preparation) reasonably incurred by it or them or any of them
in connection with any litigation, whether or not resulting in any liability
insofar as such losses, claims, damages, liabilities or litigation arise out of,
or are based upon, any untrue statement or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which statement or omission was made in reliance upon
information furnished in writing to TMK by you for inclusion in any registration
statement or any prospectus, or any amendment thereof or supplement thereto, or
which statement was made in, or the alleged omission was from, any advertising
or sales literature (including any reports to shareholders used as such) which
relate to TMK.
You shall not be liable for amounts paid in settlement of any such
litigation if such settlement was effected without its consent. TMK and its
directors and such officers, defendant or defendants, in any such litigation
shall, promptly after the complaint shall have been served upon TMK or any such
director or officer in any litigation against TMK or any such director or
officer in respect of which indemnity may be sought from TMK on account of its
agreement contained in this paragraph, notify you in writing of the commencement
thereof. The omission of TMK or such director or officer so to notify you of
any such litigation shall relieve you from any liability which it may have to
TMK or such director or
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officer on account of the indemnity agreement contained in this paragraph, but
shall not relieve you from any liability which it may have to TMK or such
director or officer otherwise than on account of the indemnity agreement
contained in this paragraph. In case any such litigation shall be brought
against TMK or any such officer or director and notice of the commencement
thereto shall have been given to you, you shall be entitled to participate in
(and, to the extent that it shall wish, to direct) the defense thereof at its
own expense, but such defense shall be conducted by counsel of good standing and
satisfactory to TMK. The indemnity agreement of TMK contained in this paragraph
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of TMK and shall survive any delivery of
shares of TMK. You agree to notify TMK promptly of the commencement of any
litigation or proceeding against you or any of your officers or directors or
against any such controlling person of which you may be advised, in connection
with the issue and sale of TMK.
D. Notwithstanding any provision contained in this Agreement, no party
hereto and no person or persons in control of any party hereto shall be
protected against any liability to TMK or its security holders, including
beneficial owners or its security to which they would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of their duties or by reason of their reckless disregard of their obligations
and duties under this Agreement.
8. TMK will make shares available and otherwise carry out the terms of
this Agreement until the Trust is terminated; provided, however, it will have no
obligation to issuance of shares other than for purposes of exchange among
Portfolios and reinvestment of dividends and distribution, should the
registration of the Trust securities under the Securities Act of 1933 terminate.
TMK agrees to use its best efforts to keep an adequate number of shares at all
times authorized, but it will not be required to issue its shares if all TMK
shares be issued and outstanding. TMK will be relieved of
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responsibility hereunder for issuing shares by reason of any governmental rule,
regulation or order or order of court of any competent jurisdiction or when for
reasons beyond its control, it is unable to issue such shares.
If the foregoing is in accordance with your understanding of our Agreement,
please execute your acceptance hereof on the duplicates hereto enclosed for that
purpose and return one copy to TMK/United Funds, Inc., whereupon this shall
become a binding Agreement between you and TMK/United Funds, Inc.
TMK/United Funds, Inc.
by:
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Vice President
Accepted this day of 199 .
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United Investors Life Insurance Company
by:
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Authorized Signature
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