EXHIBIT 24(C)(8)(KK)
BUSINESS AGREEMENT
THIS AGREEMENT is entered into as of the 7/th/ day of January, 2011 (the
"Effective Date") by and among MINNESOTA LIFE INSURANCE COMPANY ("Insurance
Company"), a life insurance company organized under the laws of the State of
Minnesota (on behalf of itself and certain of its separate accounts); SECURIAN
FINANCIAL SERVICES, INC. (the "Distributor"), a corporation organized under the
laws of the State of Minnesota; AMERICAN FUNDS DISTRIBUTORS, INC. ("AFD"), a
corporation organized under the laws of the State of California; and CAPITAL
RESEARCH AND MANAGEMENT COMPANY ("CRMC"), a corporation organized under the
laws of the State of Delaware.
WITNESSETH:
WHEREAS, Insurance Company proposes to issue, now and in the future, certain
multi-manager variable annuity contracts that provide certain funds ("Funds")
of the American Funds Insurance Series (the "Series") as investment options
(the "Contracts");
WHEREAS, Insurance Company has established pursuant to the insurance law of
the State of Minnesota one or more separate accounts (each, an "Account") with
respect to the Contracts and has or will register each Account with the U. S.
Securities and Exchange Commission (the "SEC") as a unit investment trust under
the Securities Act of 1933, as amended (the "1933 Act"), and the Investment
Company Act of 1940, as amended (the "1940 Act") (unless the Account is exempt
from such registration);
WHEREAS, the Contracts, which are or will be registered (unless exempt from
such registration) by Insurance Company with the SEC for offer and sale, will
be in compliance with all applicable laws prior to being offered for sale;
WHEREAS, the Distributor, a broker-dealer registered under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and a member of the
Financial Industry Regulatory Authority ("FINRA"), will serve as principal
underwriter of the Contracts and will arrange for the distribution of the
Contracts;
WHEREAS, AFD, a broker-dealer registered under the 1934 Act, a member of
FINRA, and the principal underwriter of the shares of the Series, will provide
certain marketing assistance in connection with the Contracts;
WHEREAS, the Series is divided into various Funds, each Fund being subject
to certain fundamental investment policies which may not be changed without a
majority vote of the shareholders of such Fund;
WHEREAS, the Series has received a "Mixed and Shared Funding Order" from the
SEC granting relief from certain provisions of the 1940 Act and the rules
thereunder to the extent necessary to permit shares of the Series to be sold to
variable annuity and life insurance separate accounts of unaffiliated insurance
companies;
WHEREAS, Class 1 and Class 2 shares of certain Funds in the Series will be
available as an underlying investment to the Contracts pursuant to the terms of
a Fund Participation and Service Agreement among the Insurance Company, AFD,
American Funds Service Company, CRMC and the Series to be executed in the form
attached hereto as Exhibit A (the "Fund Participation Agreement");
WHEREAS, the distribution of Contracts pursuant to this Agreement will take
place primarily through selling agreements between Distributor and certain
non-affiliated broker-dealers ("Members") for distribution of the Contracts
through the Members' registered representatives; and
WHEREAS, CRMC, by virtue of an Investment Advisory and Service Agreement
between CRMC and the Series, will serve as investment adviser to the Series, as
the term "investment adviser" is defined in the 1940 Act.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, Insurance Company, (on behalf of itself and each Account), the
Distributor, AFD and CRMC hereby agree as follows:
1. DUTIES OF INSURANCE COMPANY
a. Insurance Company will administer the Contracts and the Accounts,
including all Contract owner service and communication activities, such as:
filing any reports or other filings required by any law or regulation;
establishing each Account; creating the Contracts, confirmation and other
administrative forms or documents; and obtaining all required regulatory
approvals to permit the sale and maintenance of the Contracts.
b. 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.
c. Insurance Company will not distribute any prospectus, sales literature,
advertising material or any other printed matter or material relating to the
Contracts, the Series or the Funds, if, to its knowledge, any of the foregoing
contains any material misstatements or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
d. Insurance Company will provide to AFD and/or CRMC, upon AFD's and/or
CRMC'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 or requests for no-action letters,
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and all amendments to any of the above, that materially impacts the Series
relationship to the Contracts. Insurance Company will advise AFD and CRMC
promptly of:
(i)the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement of the Contracts or the
initiation of any proceedings for that purpose;
(ii)the institution of any regulatory proceeding, investigation or
hearing of which it becomes aware that could materially affect its
ability to offer or sell the Contracts; or
(iii)the occurrence of any material event that, if known, makes untrue any
statement made in the registration statement of the Contracts or the
Series or which requires the making of a change therein in order to
make any statement made therein not misleading.
e. Insurance Company or its agents will receive and process applications and
purchase payments in accordance with the terms of the Contracts and the current
prospectus. All applications for Contracts are subject to acceptance or
rejection by Insurance Company in its sole discretion.
f. Insurance Company shall amend its registration statement for its
Contracts under the 1933 Act and the 1940 Act from time to time as required by
law, and, should it ever be required, under the state securities laws, in order
to effect the continuous offering of its Contracts; and Insurance Company shall
file for approval of the Contracts under state insurance laws, when necessary,
and to maintain registration of the Accounts (unless the Accounts are exempt
from such registration) under the 1940 Act.
g. Insurance Company may invoke its then existing limits on transfers as
stated in the Contracts or in a Contract's prospectus. Insurance Company
reserves the right to refuse, to impose limitations on, or to limit any
transaction request if the request would tend to disrupt Contract
administration or is not in the best interest of the Contract holders or an
Account or Subaccount.
h. Insurance Company agrees to provide information (in writing) to AFD and
CRMC monthly , on a Fund basis, regarding the volume of sales of the Contracts
and the amount of sales in each state in which the Contracts are sold.
2. DUTIES OF DISTRIBUTOR
a. Any selling agreement between Distributor and a Member described in this
Section will provide that:
(i)each Member will distribute the Contracts only in those jurisdictions
in
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which the Contracts are registered or qualified for sale and only
through duly licensed registered representatives of the Members who
are properly appointed by Insurance Company to sell the Contracts in
the applicable jurisdiction(s);
(ii)all applications and initial and subsequent payments under the
Contracts collected by the Member will be remitted promptly by the
Member to Insurance Company at such address as it may from time to
time designate; and
(iii)each Member will comply with all applicable federal and state laws,
rules and regulations.
b. The Distributor will promptly provide Members with current prospectuses,
and any supplements thereto, for the Contracts and for the Series. The
Distributor will use reasonable efforts to ensure that its registered
representatives deliver only the currently effective prospectuses of the
Contracts and the Series to existing clients.
c. The Distributor will use reasonable efforts to provide information and
marketing assistance to its registered representatives and to Members,
including preparing and providing such registered representatives with
advertising materials and sales literature, and other promotional or marketing
materials. The Distributor will provide wholesaling and marketing services with
respect to the Contracts.
d. The Distributor will use reasonable efforts to ensure that any sales
literature and advertising materials it disseminates with respect to the
Contracts conforms with the requirements of all pertinent federal and state
laws and rules and regulations thereunder.
e. The Distributor will be responsible for filing sales literature and
advertising materials, where necessary, used in connection with its marketing
efforts for the Contracts with appropriate regulatory authorities, including
FINRA.
f. The Distributor will not distribute any prospectus, sales literature,
advertising material or any other printed matter or material relating to the
Contracts or the Series, if, to its knowledge, any of the foregoing contains
any material misstatements or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
3. DUTIES OF AFD
a. At Insurance Company's request, AFD will conduct training of Insurance
Company's wholesalers regarding CRMC's approach to investment management and
specific Fund positioning and sales. Training will include initial hire
training, periodic training in conjunction with sales meetings, and refresher
training. From time to time, AFD will provide, at its expense, speakers and
panelists at due diligence meetings regarding the Contracts.
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b. AFD will furnish to Insurance Company and/or the Distributor such
information with respect to the Series in such form as Insurance Company and/or
the Distributor may reasonably request. AFD will advise Insurance Company
and/or the Distributor upon becoming aware of:
(i)the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement of the Series or the
initiation of any proceedings for that purpose;
(ii)the institution of any proceeding, investigation or hearing of which
it becomes aware that could materially affect the Series' ability to
offer or sell the Funds; or
(iii)the occurrence of any material event, if known, which makes untrue
any statement made in the registration statement of the Series or
which requires the making of a change therein in order to make any
statement made therein not misleading.
4. DUTIES OF CRMC
a. CRMC agrees to allow Insurance Company to include in the Contracts
certain Funds described in the Fund Participation Agreement. CRMC will cause
the Series: (a) to make available for use in the Contracts the Funds in the
Series, as described in the Fund Participation Agreement and (b) to adequately
diversify the Funds of the Series, pursuant to the requirements of
Section 817(h) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder relating to the diversification requirements for
variable annuity, endowment and life insurance contracts.
b. CRMC will furnish to Insurance Company and/or the Distributor such
information with respect to the Series in such form as Insurance Company and/or
the Distributor may reasonably request. CRMC will advise Insurance Company and
the Distributor upon becoming aware of:
(i)the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement of the Series or the
initiation of any proceedings for that purpose;
(ii)the institution of any proceeding, investigation or hearing involving
the offer or sale of the Series of which it becomes aware; or
(iii)the occurrence of any material event, if known, which makes untrue
any statement made in the registration statement of the Series or
which requires the making of a change therein in order to make any
statement made therein not misleading.
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5. JOINT DUTIES
a. All the parties to this Agreement will cooperate in the development of
advertising, sales literature and all other sales materials to be used with
respect to the Funds.
b. The parties shall coordinate with each other in the filing with the SEC
of amendments to the registration statements for the Contracts (if required by
law) and for the Series, respectively.
c. Each of the parties hereto agrees: (a) to comply with all laws applicable
to it in the sale of Contracts and (b) to refrain from participating,
cooperating, or assisting in any way with its or any third party's
(i) development of marketing programs or other activities (written or oral)
which directly encourage exchanges from the Contracts or (ii) creation of
broker and/or client marketing tools which provide direct comparisons between
the Contracts and any other investment products directly targeting the holders
of the Contracts to exchange or transfer assets from the Contracts, unless such
marketing programs or other activities or broker or client tools relate to
variable insurance products issued by Insurance Company or an affiliate; or if
agreed to by the parties. Insurance Company will permit CRMC 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 services performed by Insurance Company under this Agreement.
6. EXPENSES
a. Insurance Company and Distributor will bear their respective expenses
under this Agreement, including:
(i)the cost of providing service to Contract owners;
(ii)the expenses and fees of registering or qualifying the Contracts and
the Account under federal or state laws;
(iii)any expenses incurred by Insurance Company employees in assisting AFD
and/or CRMC in performing AFD's and/or CRMC's duties hereunder;
(iv)the costs attributable to wholesaling efforts, advertising, and
producing and distributing sales literature and prospectuses used by
its registered representatives and the Members with prospective
Contract owners; and
(v)the marketing expense allowance payable to AFD in consideration for
AFD's marketing assistance, as provided for under this Agreement,
which shall be equal to the Marketing Expense Rate indicated below,
multiplied by the dollar amount of new and subsequent purchase
payments (but excluding exchanges into the Funds from other funds
serving as investments to the Contracts) received during the calendar
year (which
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information shall be provided by Insurance Company), paid monthly in
arrears as follows:
Marketing Expense Amount of Purchase
Rate Payments
----------------- ------------------
0.16% $0 - 1.5B
0.14% >$1.5B - $3.0B
0.10% >$3.0B +
In the event a contract or policy holder cancels the contract or
policy within the "free look" period and the marketing expense
allowance relating to such contract or policy has been paid by the
Insurance Company to AFD, then Insurance Company may offset the
amount of marketing expense allowance paid to AFD relating to such
contract or policy against the marketing allowance payable by
Insurance Company in the month following the cancellation. Insurance
Company will notify AFD of the cancellation and the amount of any
offset applied pursuant to this paragraph.
b. CRMC and AFD shall bear their respective expenses under this Agreement,
including costs associated with AFD training of Insurance Company's wholesalers
regarding CRMC's approach to investment management and costs associated with
speakers and panelists at due diligence meetings regarding the Contracts that
AFD may from time to time organize.
7. APPROVAL OF MARKETING MATERIALS
a. Insurance Company may, based on the SEC-mandated information supplied by
AFD, 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 AFD prior to their first use for its review and
approval. All such material will be deemed approved unless the reviewer for AFD
notifies Insurance Company of any required changes within fifteen business days
of AFD's receipt of Insurance Company materials. It is understood that AFD
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, CRMC or its affiliates,
except those contained in the current promotional literature produced by AFD,
unless specifically approved in writing by AFD. Neither Insurance Company nor
any person associated with Insurance Company shall make use of the names, logos
or any likeness of the Funds, CRMC or its affiliates without the prior written
consent of AFD.
c. References to the Funds on Contractholder statements and on Insurance
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Company's web site shall include the full name of the Fund and a reference to
"American Funds Insurance Series." By way of example, "American Funds Insurance
Series - Growth Fund". If field size prohibits the use of the full name of the
Fund, references to "American Funds Insurance Series" may be abbreviated as
"AFIS" and references to a Fund may be abbreviated as, for example, "AFIS -
Growth Fund". Other methods of abbreviation may be allowed with the approval of
AFD.
d. Insurance Company shall have the right to approve all sales material that
mentions Insurance Company's and/or the Distributor's name (the "Insurance
Company Material") prior to its use. AFD and/or CRMC shall send all Insurance
Company Material to Insurance Company's Director of Marketing Literature at the
address listed in Section 12 of this Agreement (or such other person as
Insurance Company may direct AFD and/or CRMC in writing) at the following
address:
Manager, Investment Operations A7-4478
Securian Financial Group
000 Xxxxxx Xx X
Xx Xxxx, XX 00000-0000
e. Insurance Company Material will be deemed approved unless the reviewer
for Insurance Company notifies AFD and/or CRMC of any required changes within
five business days of his/her receipt of Insurance Company Material. No review
of sales material produced by AFD and/or the Series shall be necessary if all
references contained in such materials regarding Insurance Company and/or the
Distributor are identical to those references that appear in Insurance
Company's current Contract prospectus(es) or statement(s) of additional
information.
8. REPRESENTATIONS AND WARRANTIES
a. Insurance Company represents and warrants to AFD and CRMC that:
(i)each of the recitals applicable to it and/or each Account is true and
correct;
(ii)Insurance Company is validly existing as a stock life insurance
company under the laws of Minnesota, with power (corporate or other)
to own its properties and conduct its business, as described in the
prospectus for the Contracts, and has been duly qualified for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business to the extent such qualification is required;
(iii)the Contracts to be issued through the Account have been duly and
validly authorized and, when issued and delivered against payment
therefor as provided in the prospectus (if a prospectus is required
by law) and in the Contracts, will be duly and validly issued, and
will conform to the description of the Contracts contained in the
prospectuses (if a prospectus is required by law);
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(iv)the performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any statute, any indenture, mortgage, deed of trust,
note agreement or other agreement or instrument to which Insurance
Company is a party or by which Insurance Company is bound, Insurance
Company's charter as a life insurance company or By-Laws or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over Insurance Company or any of their
properties; and no consent, approval, authorization or order of any
court or governmental agency or body which has not been obtained by
the Effective Date of this Agreement is required for the consummation
by Insurance Company of the transactions contemplated by this
Agreement, except for the SEC's approval of the registration
statement referred to in Section 1.f. hereof;
(v)there are no material legal or governmental proceedings pending to
which Insurance Company or the Account is a party or of which any
property of Insurance Company or the Account is subject, other than
as set forth in the prospectus relating to the Contracts, and other
than litigation incidental to the kind of business conducted by
Insurance Company which, if determined adversely to Insurance
Company, would not individually or in the aggregate have a material
adverse effect on the financial position, surplus or operations of
Insurance Company;
(vi)any information furnished in writing by Insurance Company to AFD or
CRMC for use in the registration statement or annual report of the
Series will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, nor result
in the Series' registration statement's failing to materially conform
in all respects to the requirements of the 1933 Act and 1940 Act and
the rules and regulations thereunder; and
(vii)Insurance Company will materially comply with all applicable
requirements of state insurance laws and regulations in connection
with the Contracts.
b. The Distributor represents and warrants to AFD and CRMC that:
(i)each of the recitals applicable to it is true and correct;
(ii)The Distributor is validly existing as a corporation under the laws
of the
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State of Minnesota, and it is a broker-dealer duly registered with
the SEC pursuant to the 1934 Act and is a member in good standing of
FINRA, with power (corporate or other) to own its properties and
conduct its business, and has been duly qualified for the transaction
of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business to the extent such qualification is required;
(iii)there are no material legal or governmental proceedings pending to
which the Distributor is a party or of which any property of the
Distributor is subject, other than as set forth in the prospectus
relating to the Contracts, and other than litigation incidental to
the kind of business conducted by the Distributor which, if
determined adversely to the Distributor, would not individually or in
the aggregate have a material adverse effect on the financial
position, surplus or operations of the Distributor;
(iv)any information furnished in writing by the Distributor to AFD or
CRMC for use in the registration statement or annual report of the
Series will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, nor result
in the registration statement's failing to conform materially in all
respects to the requirements of the 1933 Act and 1940 Act and the
rules and regulations thereunder;
(v)any exchanges or replacements of existing variable insurance policies
and contracts with the Contracts will be effected in compliance with
all applicable federal and state securities rules and regulations;
(vi)the Distributor will comply with all applicable requirements of state
insurance laws and regulations in connection with the sale of the
Contracts; and
(vii)the Distributor will not pay commissions to persons who, to the best
of the Distributor's knowledge, are not appropriately licensed in a
manner as to comply with applicable state insurance laws and
regulations.
c. AFD and CRMC represent and warrant to Insurance Company and the
Distributor that:
(i)each of the recitals applicable to it, them, and/or the Series is
true and correct;
(ii)AFD is validly existing as a corporation under the laws of the State
of California and it is a broker-dealer duly registered with the SEC
pursuant to the 1934 Act and is a member in good standing of FINRA,
with power
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(corporate or other) to own its properties and conduct its business,
and has been duly qualified for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business to the extent
such qualification is required;
(iii)CRMC is validly existing as a corporation under the laws of the State
of Delaware and it is an investment adviser duly registered with the
SEC pursuant to the Investment Advisers Act of 1940, with power
(corporate or other) to own its properties and conduct its business,
and has been duly qualified for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business to the extent
such qualification is required;
(iv)the shares to be issued by the Series have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided in the Series prospectus, will be duly and validly issued,
and will conform to the description of such shares contained in that
prospectus;
(v)the performance of duties under this Agreement by AFD and CRMC will
not result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any statute, any indenture,
mortgage, deed of trust, note agreement or other agreement or
instrument to which AFD or CRMC is a party or by which AFD or CRMC is
bound, the Articles of Incorporation or By-Laws of AFD or CRMC, or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over AFD or CRMC or its property;
(vi)there are no material legal or governmental proceedings pending to
which AFD or CRMC is a party or of which any property of AFD or CRMC
is subject, other than as set forth in the prospectus relating to the
Series, and other than litigation incidental to the kind of business
conducted by AFD or CRMC which, if determined adversely to AFD or
CRMC, would not individually or in the aggregate have a material
adverse effect on the financial position, surplus or operations of
AFD or CRMC;
(vii)any information furnished in writing by AFD or CRMC to Insurance
Company or the Distributor for use in a registration statement (if
required by law) of the Contracts will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, nor result in the registration statement's
failing to materially conform in all respects to the requirements of
the 1933 Act and the rules and regulations thereunder; and
(viii)AFD will comply with all applicable requirements of state
broker-dealer
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regulations and the 1934 Act as each applies to AFD and shall conduct
its affairs in accordance with the rules of FINRA.
9. INDEMNIFICATION
a. Insurance Company and Distributor, as applicable, shall indemnify and
hold harmless AFD, CRMC, the Series, the Funds and each of their affiliates,
directors, officers, employees and agents and each person who controls them
within the meaning of the 1933 Act, 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 or Distributor's violation of any Applicable Law (as defined in the
Fund Participation Agreement) in connection with the performance of its duties
and obligations under this Agreement, and (iii) any breach by Insurance Company
or Distributor of any provision of this Agreement, including any
representation, warranty or covenant made in the Agreement. Insurance Company
and Distributor shall also reimburse AFD, CRMC, the Series, the Funds and their
respective affiliates 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 or Distributor may otherwise have to AFD, CRMC, the Series, the Funds
or their respective affiliates.
b. AFD and CRMC, as applicable, shall indemnify and hold harmless, Insurance
Company, Distributor and each of their directors, officers, employees and
agents and each person who controls them within the meaning of the 1933 Act,
from and against any and all Losses they may incur, insofar as such Losses
arise out of or are based upon (i) AFD's or CRMC's negligence or willful
misconduct in the performance of its duties and obligations under this
Agreement, (ii) AFD's or CRMC's violation of Applicable Law in connection with
the performance of its duties and obligations under this Agreement, and
(iii) any breach by AFD or CRMC of any provision of this Agreement, including
any representation, warranty or covenant made in the Agreement by AFD or CRMC.
AFD and CRMC, as applicable, shall also reimburse Insurance Company and
Distributor 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 AFD or CRMC may otherwise have to
Insurance Company or Distributor.
c. Promptly after receipt by a party entitled to indemnification under this
paragraph 9 (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 paragraph 9, 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
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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.
10. RULE 12B-1 FEE
a. The Series will pay Insurance Company a Rule 12b-1 service fee to be
accrued daily and paid monthly at an annual rate of 0.25% of the average daily
net assets of the Class 2 assets of each Fund attributable to the Contracts for
personal services and account maintenance services for Contract owners with
investments in Subaccounts corresponding to the Class 2 shares of each Fund so
long as the Series' 12b-1 plan is effective with respect to the Class 2 shares
of a Fund. Such payments shall be calculated by the Series and be paid by the
Series to Insurance Company as soon as practicable after the end of each month
and in any event within thirty days.
b. The Series will promptly notify Insurance Company of any potential change
in its 12b-1 plan. If the Series 12b-1 plan is no longer effective or is no
longer applicable to the Funds in the Contracts (the "12b-1 Termination"), AFD,
CRMC and the Series shall discuss with Insurance Company, in good faith,
alternate fee arrangements and/or a reallocation of marketing expenses. If no
new agreement is reached within thirty days after the 12b-1 Termination (or at
such later date mutually acceptable to all of the parties), Insurance Company,
at its option, may elect to terminate this Agreement, and/or may elect to
obtain an order of exemption pursuant to Section 26(b) of the 1940 Act
("Substitution Order") for the Fund(s) or a vote of Contract owners authorizing
redemption and substitution of Fund shares. The Series, AFD and CRMC shall
cooperate with Insurance Company in obtaining and implementing any such
Substitution Order.
11. TERMINATION
a. This Agreement may be terminated:
(i)by mutual agreement at any time; or
(ii)by any party at any time upon six months written notice to the other
parties; or
(iii)at Insurance Company's option, pursuant to Section 10.b. hereof.
(iv)at Insurance Company's option by written notice to AFD and/or CRMC if
Insurance Company shall determine in its sole judgment
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exercised in good faith, that either AFD or CRMC 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.
(v)at AFD or CRMC's option by written notice to Insurance Company if AFD
or CRMC shall determine in its sole judgment exercised in good faith,
that Insurance Company or Distributor 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.
b. If this Agreement terminates, the parties shall cooperate after
termination to effect an orderly windup of the business.
12. NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing, and will be deemed to have been duly received:
(a) when delivered by hand (with written confirmation of receipt); (b) when
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested; or (c) the day after it
is sent by a nationally recognized overnight delivery service, in each case to
the appropriate addresses and telecopier numbers set forth below (or to such
other addresses and facsimile numbers as a party may designate by notice to the
other parties):
IF TO INSURANCE COMPANY:
Minnesota Life Insurance Company
Attn: General Counsel
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000-0000
Fax: 000-000-0000
WITH A COPY TO:
Minnesota Life Insurance Company
Attention: Investment Operations A7-4478
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000-0000
Fax: 000-000-0000
14
IF TO THE DISTRIBUTOR:
Securian Financial Services, Inc.
Attn: Law Department
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000-0000
Fax: 000-000-0000
IF TO AFD:
American Funds Distributors, Inc.
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, President
Facsimile No.: (000) 000-0000
WITH A COPY TO:
American Funds Distributors, Inc.
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior
Counsel,
Fund Business Management Group, Capital Research and Management Company
Facsimile No.: (000) 000-0000
IF TO CRMC:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President and Legal Counsel,
Fund Business Management Group, and Secretary
Facsimile No.: (000) 000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior
Counsel,
Fund Business Management Group
Facsimile No.: (000) 000-0000
15
13. MISCELLANEOUS
a. This Agreement shall be governed by the laws of the State of New York.
b. This Agreement (together with the Fund Participation Agreement) contains
the entire understanding and agreement among the parties with respect to the
subject matter of this Agreement and supersedes any and all prior agreements,
understandings, documents, projections, financial data, statements,
representations and warranties, oral or written, express or implied, between
the parties hereto and their respective affiliates, representatives and agents
in respect of the subject matter hereof. This agreement may not be amended
except by written agreement of the parties. If there should be any conflict
between the terms of this Agreement and those of the Fund Participation
Agreement, the terms of the Fund Participation Agreement shall govern.
c. This Agreement shall extend to and be binding upon the Insurance Company,
the Distributor, AFD and CRMC and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person or corporation, other than the parties hereto and
their respective successors and permitted assigns, any legal or equitable
right, remedy or claim in respect of this Agreement or any provision herein
contained. Neither this Agreement nor any rights, privileges, duties or
obligations of the parties hereto may be assigned by any party without the
prior written consent of the other parties or as expressly contemplated by this
Agreement; provided, however, that a merger of, reinsurance arrangement by, or
change of control of a party shall not be deemed to be an assignment for
purposes of this Agreement.
d. The provisions of this Agreement are severable. 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.
e. 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.
f. Neither the execution nor performance of this Agreement shall be deemed
to create a partnership or joint venture by and among Insurance Company,
Distributor, AFD, CRMC and the Funds.
g. This Agreement and any amendment to it may be executed in one or more
counterparts. All of those counterparts shall constitute one and the same
agreement. Neither this Agreement nor any amendment shall become effective
until all counterparts have been fully executed and delivered.
h. The provisions contained in Sections 9, 10 and 12 shall survive the
termination of this Agreement for so long as any of the Series shares remain as
investment options in any of the Contracts.
16
i. 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.
j. 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.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and attested as of the date first above written.
MINNESOTA LIFE INSURANCE COMPANY
(ON BEHALF OF ITSELF AND EACH ACCOUNT)
Attest:
[GRAPHICS] By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Its: Executive Vice President
SECURIAN FINANCIAL SERVICES, INC.
Attest:
[GRAPHICS] By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Its: President and CEO
AMERICAN FUNDS DISTRIBUTORS, INC.
Attest:
[GRAPHICS] By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Its: Senior Vice President
CAPITAL RESEARCH AND MANAGEMENT
COMPANY
Attest:
[GRAPHICS] By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Senior Vice President and
Secretary
Approved for Signature [GRAPHICS]
by CRMC Legal Dept.
Signature page to Minnesota Life Business Agreement
