AMENDMENT NO. 3 TO SHAREHOLDER SERVICES AGREEMENT
THIS AMENDMENT NO. 3 TO SHAREHOLDER SERVICES AGREEMENT ("Amendment")
is made as of this 1st day of May, 2008, by and between AMERITAS LIFE INSURANCE
CORP. (the "Company") and AMERICAN CENTURY INVESTMENT SERVICES, INC.
("Distributor").
RECITALS
WHEREAS, the Company and Distributor are parties to a certain
Shareholder Services Agreement dated January 1, 2001, as amended February 6,
2003, July 1, 2007 and by the NSCC Amendment dated August 1, 2004 (the
"Agreement"), in which the Company offers to the public certain variable annuity
contracts and variable life insurance contracts (the "Contracts");
WHEREAS, the parties desire to revise their agreement regarding the
provision of prospectuses and other Issuer documents.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. Addition of Funds. The second "WHEREAS" clause of the Agreement
is hereby deleted in its entirety and the following is substituted in lieu
thereof:
"WHEREAS, the Company wishes to offer as investment options
under the Contracts, Class I of the following finds: VP Balanced Fund,
VP International Fund, VP Capital Appreciation Fund, VP Value Fund, VP
Income & Growth Fund, VP Vista Fund, VP Ultra Fund, and VP Mid Cap
Value Fund (collectively the "Funds") each of which is a series of
mutual fund shares registered under the Investment Company Act of 1940,
as amended."
2. Ratification and Confirmation of ,Agreement. In the event of a
conflict between the terms of this Amendment and the Agreement, it is the
intention of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions of
the Agreement have not been amended by this Amendment, the parties hereby
confirm and ratify the Agreement.
3. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
4. Full Force and Effect. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms, covenants
and conditions of the Agreement shall remain unamended and shall continue to be
in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment
No. 3 as of the date first above written.
AMERITAS LIFE AMERICAN CENTURY
INSURANCE CORP. INVESTMENT SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxx Name:Xxxxx X. Xxxxxxx
Title: Sr. Vice President Title: Vice President
AMENDMENT NO. 2 TO SHAREHOLDER SERVICES AGREEMENT
THIS AMENDMENT NO. 2 TO SHAREHOLDER SERVICES AGREEMENT ("Amendment")
is made as of this 1stday of May, 2007 by and - between AMERITAS LIFE INSURANCE
CORP. (the "Company") and AMERICAN CENTURY INVESTMENT SERVICES, INC.
("Distributor").
RECITALS
WHEREAS, the Company and Distributor are parties to a certain
Shareholder Services Agreement dated January 1, 2001, as amended February 6,
2003 and by the NSCC Amendment dated August 1, 2004 (the "Agreement"), in which
the Company offers to the public certain variable annuity contracts and variable
life insurance contracts (the "Contracts");
WHEREAS, the parties desire to revise their agreement regarding the
provision of prospectuses and other Issuer documents.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. Amendment of Language. Section 5(b) of the Agreement is hereby
deleted in its entirety and replaced with the following:
"(b) If the Company elects to use prospectuses, periodic fund
reports and other materials of the Issuer printed by Distributor,
Distributor will pay the cost of preparing, printing and shipping of
such documents to the Company. In the alternative, the Company may
elect to print such documents itself for distribution to its clients.
If the Company makes such election, the Distributor will reimburse the
Company for its printing cost at the lesser of the actual expense
incurred or the cost to the Distributor to print like quantities of
such documents."
2. Ratification and Confirmation of Agreement. In the event of a
conflict between the terms of this Amendment and the Agreement, it is the
intention of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions of
the Agreement have not been amended by this Amendment, the parties hereby
confirm and ratify the Agreement.
3. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
4. Full Force and Effect. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms, covenants
and conditions of the Agreement shall remain unamended and shall continue to be
in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2
as of the date first above written.
AMERITAS LIFE AMERICAN CENTURY
INSURANCE CORP. INVESTMENT SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx By: Xxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President Title: Vice President
Novation to Shareholder Services Agreement
WHEREAS, on January 1, 2001, a Shareholder Services Agreement (the "Agreement")
was entered into by and among Ameritas Variable Life Insurance Company ("AVLIC")
and American Century Investment Services, Inc. (the "Distributor"), whereby
AVLIC issues certain individual variable life and/or variable annuity contracts
(the "Contracts"), and Distributor makes certain Funds available as investment
options under the Contracts: A copy of the Agreement is attached hereto and made
a part hereof. The Agreement, by its terms, provides for amendment upon the
written agreement of all parties; and
WHEREAS, the closing of the merger of AVLIC with and into Ameritas Life
Insurance Corp. ("Ameritas"), with Ameritas as the surviving company (the
"Merger") is currently scheduled to occur after the close of business on April
30, 2007; It is therefore agreed:
1. Substitution of Party - The Agreement is amended to provide for
Ameritas to act as the issuer of the Contracts in substitution of
AVLIC.
2. Performance of Duties - Ameritas hereby assumes and agrees to perform
the duties previously performed by AVLIC under the Agreement.
3. Assumption. of Rights - Ameritas hereby assumes the rights previously
held by AVLIC under the Agreement.
4. Effective Date - This Novation shall take effect as of the actual
closing date of the Merger, and such effectiveness is conditioned upon
the closing of the Merger. Ameritas will notify the other parties
hereto of any change in the scheduled closing date and of the actual
closing date.
In witness whereof the parties have signed this instrument.
Executed this 19th day of April, 2007.
AMERITAS VARIABLE LIFE AMERICAN CENTURY INVESTMENT
INSURANCE COMPANY SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
Print: Xxxxxx X. Xxxxx Print: Xxxxx X. Xxxxxx
Title: Vice President Title Vice President
Date: February 7, 2007 Date: 4/19/07
AMERITAS LIFE INSURANCE CORP.
By: /s/ Xxxxxx X. Xxxxx
Print: Xxxxxx X. Xxxxx
Title: Vice President
Date: February 7, 2007
SHAREHOLDER SERVICES AGREEMENT
THIS SHAREHOLDER SERVICES AGREEMENT effective as of January 1, 2001
by and between AMERITAS VARIABLE LIFE INSURANCE COMPANY (the "Company"), and
AMERICAN CENTURY INVESTMENT SERVICES, INC. ("Distributor").
WHEREAS, the Company offers to the public certain group and individual
variable annuity and variable life insurance contracts (the "Contracts"); and
WHEREAS, the Company wishes to make available as an investment option
under the Contracts VP Income & Growth (the "Fund") which is a series of mutual
fund shares registered under the Investment Company Act of 1940, as amended, and
issued by American Century Variable Portfolios, Inc. (the "Issuer"); and
WHEREAS, on the terms and conditions hereinafter set forth,
Distributor desires to make shares of the Funds available as investment options
under the Contracts and to retain the Company to perform certain administrative
services on behalf of the Funds, and the Company is willing and able to furnish
such services;
NOW, THEREFORE, the Company and Distributor agree as follows:
1. Transactions in the Funds. Subject to the terms and conditions of
this Agreement, Distributor will cause the Issuer to make shares of the Funds
available to be purchased, exchanged, or redeemed, by or on behalf of the
Accounts (defined in Section 7(a) below) through a single account per Fund at
the net asset value applicable to each order. The Funds' shares shall be
purchased and redeemed on a net basis in such quantity and at such time as
determined by the Company to satisfy the requirements of the Contracts for which
the Funds serve as underlying investment media. Dividends and capital gains
distributions will be automatically reinvested in full and fractional shares of
the Funds.
2. Administrative Services. The Company agrees to provide all
administrative services for the Contract owners, including but not limited to
those services specified in EXHIBIT A (the "Administrative Services"). Neither
Distributor nor the Issuer shall be required to provide Administrative Services
for the benefit of Contract owners. The Company agrees that it will maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the Administrative Services, and will otherwise comply
with all laws, rules and regulations applicable to the marketing of the
Contracts and the provision of the Administrative Services. Upon request, the
Company will provide Distributor or its representatives reasonable information
regarding the quality of the Administrative Services being provided and its
compliance with the terms of this Agreement.
3. Timing of Transactions. Distributor hereby appoints the Company as
agent for the Funds for the limited purpose of accepting purchase and redemption
orders for Fund shares from the Contract owners. On each day the New York Stock
Exchange (the "Exchange") is open for business (each, a "Business Day"), the
Company may receive instructions from the Contract owners for the purchase or
redemption of shares of the Funds ("Orders"). Orders received and accepted by
the Company prior to the close of regular trading on the Exchange (the "Close of
Trading") on any given Business Day (currently, 4:00 p.m. Eastern time) and
transmitted to the Funds' transfer agent by 9:30 a.m. Eastern time on the next
Business Day will be executed at the net asset value determined as of the Close
of Trading on such previous Business bay. Any Orders received by the Company on
such day but after the Close of Trading, will be executed at the net asset value
determined as of the Close of Trading on the next Business Day following the day
of receipt of such Order. The day as of which an Order is executed by the Funds'
transfer agent pursuant to the provisions set forth above is referred to herein
as the "Trade Date". All orders are subject to acceptance or rejection by
Distributor or the Funds in the sole discretion of either of them.
4. Processing of Transactions.
(a) If transactions in Fund shares are to be settled through the National
Securities Clearing Corporation's Mutual Fund Settlement, Entry, and
Registration Verification (Fund/SERV) system, the terms of the Fund/SERV and
Networking Agreement, between Company and American Century Services Corporation,
an affiliate of Distributor, shall apply.
(b) If transactions in Fund shares are to be settled directly with the
Funds' transfer agent, the following provisions shall apply:
(1) By 6:30 p.m. Eastern time on each Business Day, Distributor (or
one of its affiliates) will provide to the Company via facsimile or other
electronic transmission acceptable to the Company the Funds' net asset value,
dividend and capital gain information and, in the case of income finds, the
daily accrual for interest rate factor (mil rate), determined at the Close of
Trading.
(2) By 9:30 a.m. Eastern time on the following Business Day, the
Company will provide to Distributor via facsimile or other electronic
transmission acceptable to Distributor a report stating whether the instructions
received by the Company from Contract owners by the Close of Trading on such
previous Business Day resulted in the Accounts being a net purchaser or net
seller of shares of the Funds. As used in this Agreement, the phrase "other
electronic transmission acceptable to Distributor" includes the use of remote
computer terminals located at the premises of the Company, its agents or
affiliates, which terminals may be linked electronically to the computer system
of Distributor, its agents or affiliates (hereinafter, "Remote Computer
Terminals").
(3) Upon the timely receipt from the Company of the report described in (2)
above, the Funds' transfer agent will execute the purchase or redemption
transactions (as the case may be) at the net asset value computed as of the
Close of Trading on the Trade Date. Payment for net purchase transactions shall
be made by wire transfer to the applicable Fund custodial account designated by
the Funds on the Business Day next following the Trade Date. Such wire transfers
shall be initiated by the Company's bank prior to 4:00 p.m. Eastern time and
received by the Funds prior to 6:00 p.m. Eastern time on the Business Day next
following the Trade Date ("T+1"). If payment for a purchase Order is not timely
received, such Order will be, at Distributor's option, either (i) executed at
the net asset value determined on the Trade Date, and the Company shall be
responsible for all costs to Distributor or the Funds resulting from such delay,
or (ii) executed at the net asset value next computed following receipt of
payment. Payments for net redemption transactions shall be made by wire transfer
by the Issuer to the account(s) designated by the Company on T+1; provided,
however, the Issuer reserves the right to settle redemption transactions within
the time period set forth in the applicable Fund's then-current prospectus. On
any Business Day when the Federal Reserve Wire Transfer System is closed, all
communication and processing rules will be suspended for the settlement of
Orders. Orders will be settled on the next Business Day on which the Federal
Reserve Wire Transfer System is open and the original Trade Date will apply.
(4) In the event adjustments are required to correct any error in the
computation of the net asset value of any Fund's shares at the shareholder level
as a result of a pricing error that is deemed to be material under the pricing
policy of the Fund's Board of Directors or which Distributor otherwise deems
necessary to correct at the shareholder level:
(a) Distributor shall notify the Company as soon as practicable
after discovering the need for those adjustments which result in a reimbursement
to your clients. Notification shall be made by facsimile or by direct or
indirect systems access acceptable to the Company.
(b) If one or more of the Company's client accounts received amounts
from any Fund in excess of the amounts to which it otherwise would have been
entitled prior to an adjustment for an error, the Company will use its best
efforts to collect such excess amounts from the applicable clients.
(c) If an adjustment is to be made in accordance with subsection (a)
above to correct an error which has caused a client account to receive an amount
less than that to which it is entitled, the Fund shall use its best efforts to
make all necessary adjustments to the number of shares owned in the account
and/or distribute to the Company the amount of such underpayment for credit to
the clients' subaccounts.
(d) For purposes of making adjustments as provided above, the Funds
will apply the same standards to all shareholders.
5. Prospectus and Proxy Materials.
(a) Distributor shall provide the Company with copies of the Issuer's
proxy materials, periodic fund reports to shareholders and other materials that
are required by law to be sent to the Issuer's shareholders. In addition,
Distributor shall provide the Company with a sufficient quantity of prospectuses
of the Funds to be used in conjunction with the transactions contemplated by
this Agreement, together with such additional copies of the Issuer's
prospectuses as may be reasonably requested by Company. If the Company provides
for pass-through voting by the Contract owners, or if the Company determines
that pass-through voting is required by law, Distributor will provide the
Company with a sufficient quantity of proxy materials for each, as directed by
the Company. The form of the Issuer's prospectus provided to the Company shall
be the fmal form of prospectus as filed with the Securities and Exchange
Commission which form shall include only those Funds the Company is making
available for purchase.
(b) The cost of preparing, printing and shipping of the prospectuses,
periodic fund reports and other materials of the Issuer to the Company shall be
paid by Distributor or its agents or affiliates; provided, however, that if at
any time Distributor or its agent reasonably deems the usage by the Company of
such items to be excessive, it may, prior to the delivery of any quantity of
materials in excess of what is deemed reasonable, request that the Company
demonstrate the reasonableness of such usage. If Distributor believes the
reasonableness of such usage has not been adequately demonstrated, it may
request that the party responsible for such excess usage pay the cost of
printing (including press time) and delivery of any excess copies of such
materials. Unless the Company agrees to make such payments, Distributor may
refuse to supply such additional materials and Distributor shall be deemed in
compliance with this Section 5 if it delivers to the Company at least the number
of prospectuses and other materials as may be required by the Issuer under
applicable law.
(c) The cost of any distribution of prospectuses, proxy materials,
periodic fund reports and other materials of the Issuer to the Contract owners
shall be paid by the Company and shall not be the responsibility of Distributor
or the Issuer.
6. Compensation and Expenses.
(a) The Accounts shall be the sole shareholder of Fund shares purchased
for the Contract owners pursuant to this Agreement (the "Record Owner"). The
Record Owner shall properly complete any applications or other forms required by
Distributor or the Issuer from time to time.
(b) Distributor acknowledges that it will derive a substantial savings
in administrative expenses, such as a reduction in expenses related to postage,
shareholder communications and recordkeeping, by virtue of having a single
shareholder account per Fund for the Accounts rather than having each Contract
owner as a shareholder. In consideration of the Administrative Services and
performance of all other obligations under this Agreement by the Company,
Distributor will pay the Company a fee (the "Administrative Services Fee") equal
to 25 basis points (0.25%) per annum of the average aggregate amount invested by
the Company under this Agreement.
(c) The payments received by the Company under this Agreement are for
administrative and shareholder services only and do not constitute payment in
any manner for investment advisory services or for costs of distribution.
(d) For the purposes of computing the payment to the Company
contemplated by this Section 6, the average aggregate amount invested by the
Company on behalf of the Accounts in the Funds over a one month period shall be
computed by totaling the Company's aggregate investment (share net asset value
multiplied by total number of shares of the Funds held by the Company) on each
Business Day during the month and dividing by the total number of Business Days
during such month. (e) Distributor will calculate the amount of the payment to
be made pursuant to this Section 6 at the end of each calendar quarter and will
make such payment to the Company within 30 days thereafter. The check for such
payment will be accompanied by a statement showing the calculation of the
amounts being paid by Distributor for the relevant months and such other
supporting data as may be reasonably requested by the Company and shall be
mailed to:
Ameritas Variable Life Insurance Corp.
0000 "0" Xxxxxx
Xxxxxxx, XX 00000
Attention: Sr. Accountant -- Variable Processing Phone No.:
000-000-0000
Fax No.: 000-000-0000
7. Representations.
(a) The Company represents and warrants that (i) this Agreement has
been duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; (ii) it has established the
Separate Account V and the Separate Account VA-2 (the "Accounts"), each of which
is a duly authorized and established separate account under Nebraska Insurance
law, and has registered each Account as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act") to serve as an investment
vehicle for the Contracts; (iii) each Contract provides for the allocation of
net amounts received by the Company to an Account for investment in the shares
of
one or more specified investment companies selected among those companies
available through the Account to act as underlying investment media; (iv)
selection of a particular investment company is made by the Contract owner under
a particular Contract, who may change such selection from time to time in
accordance with the terms of the applicable Contract; and (v) the activities of
the Company contemplated by this Agreement comply in all material respects with
all provisions of federal and state securities laws applicable to such
activities.
(b) Distributor represents that (i) this Agreement has been duly
authorized by all necessary corporate action and, when executed and delivered,
shall constitute the legal, valid and binding obligation of Distributor,
enforceable in accordance with its terms; (ii) the prospectus of each Fund
complies in all material respects with federal and state securities laws, and
(iii) shares of the Issuer are registered and authorized for sale in accordance
with all federal and state securities laws.
(c) The Distributor represents that the Issuer will invest its assets
in such a manner as to ensure that the Contracts will be treated as annuity or
life insurance contracts, whichever is appropriate, under the Code and the
regulations issued thereunder (or any successor provisions). Without limiting
the scope of the foregoing, each Fund complied and will continue to comply with
Section 817(h) of the Code and Treasury Regulation ss. 1.817-5, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts, and any amendments or
other modifications or successor provisions to such Section or Regulations. In
the event of a breach of this Article VI by the Distributor or Issuer, it will
take all reasonable steps (a) to notify the Company of such breach and (b) to
adequately diversify the Fund so as to achieve compliance within the grace
period afforded by Regulation 1.817-5.
8. Additional Covenants and Agreements.
(a) Each party shall comply with all provisions of federal and state
laws applicable to its respective activities under this Agreement. All
obligations of each party under this Agreement are subject to compliance with
applicable federal and state laws.
(b) Each party shall promptly notify the other party in the event that
it is, for any reason, unable to perform any of its obligations under this
Agreement.
(c) The Company covenants and agrees that all Orders accepted and
transmitted by it hereunder with respect to each Account on any Business Day
will be based upon instructions that it received from the Contract owners, in
proper form prior to the Close of Trading of the Exchange on that Business Day.
The Company shall time stamp all Orders or otherwise maintain records that will
enable the Company to demonstrate compliance with Section 8(c) hereof.
(d) The Company covenants and agrees that all Orders transmitted to
the Issuer, whether by telephone, telecopy, or other electronic transmission
acceptable to Distributor, shall be sent by or under the authority and direction
of a person designated by the Company as being duly authorized to act on behalf
of the owner of the Accounts. Distributor shall be entitled to rely on the
existence of such authority and to assume that any person transmitting Orders
for the purchase, redemption or transfer of Fund shares on behalf of the Company
is "an appropriate person" as used in Sections 8-107 and 8-401 of the Uniform
Commercial Code with respect to the transmission of instructions regarding Fund
shares on behalf of the owner of such Fund shares. The Company shall maintain
the confidentiality of all passwords and security procedures issued, installed
or otherwise put in place with respect to the use of Remote Computer Terminals
and assumes full responsibility for the security therefor. The Company further
agrees to be responsible for the accuracy, propriety and consequences of all
data transmitted to Distributor by the Company by telephone, telecopy or other
electronic transmission acceptable to Distributor.
(e) The Company agrees that, to the extent it is able to do so, it
will use its best efforts to give equal emphasis and promotion to shares of the
Funds as is given to other underlying investments of the Accounts, subject to
applicable Securities and Exchange Commission rules. In addition, the Company
shall not impose any fee, condition, or requirement for the use of the Funds as
investment options for the Contracts that operates to the specific prejudice of
the Funds vis-a-vis the other investment media made available for the Contracts
by the Company.
(f) The Company shall not, without the written consent of Distributor,
make representations concerning the Issuer or the shares of the Funds except
those contained in the thencurrent prospectus and in current printed sales
literature approved by Distributor or the Issuer.
(g) Advertising and sales literature with respect to the Issuer or the
Funds prepared by the Company or its agents, if any, for use in marketing shares
of the Funds as underlying investment media to Contract owners shall be
submitted to Distributor for review and approval before such material is used.
9. Use of Names. Except as otherwise expressly provided for in this
Agreement, neither Distributor nor any of its affiliates nor the Funds shall use
any trademark, trade name, service xxxx or logo of the Company, or any variation
of any such trademark, trade name, service xxxx or logo, without the Company's
prior written consent, the granting of which shall be at the Company's sole
option. Except as otherwise expressly provided for in this Agreement, the
Company shall not use any trademark, trade name, service xxxx or logo of the
Issuer, Distributor or any variation of any such trademarks, trade names,
service marks, or logos, without the prior written consent of either the Issuer
or Distributor, as appropriate, the granting of which shall be at the sole
option of Distributor and/or the Issuer.
10. Proxy Voting.
(a) The Company shall provide pass-through voting privileges to all
Contract owners so long as the SEC continues to interpret the 1940 Act as
requiring such privileges. It shall be the responsibility of the Company to
assure that it and the separate accounts of the other Participating Companies
(as defined in Section 12(a) below) participating in any Fund calculate voting
privileges in a consistent manner.
(b) The Company will distribute to Contract owners all proxy material
furnished by Distributor and will vote shares in accordance with instructions
received from such Contract owners. The Company shall vote Fund shares for which
no voting instructions are received in the same proportion as shares for which
such instructions have been received. The Company and its agents shall not
oppose or interfere with the solicitation of proxies for Fund shares held for
such Contract owners.
Il. Indemnity.
(a) Distributor agrees to indemnify and hold harmless the Company and
its officers, directors, employees, agents, affiliates and each person, if any,
who controls the Company within the meaning of the Securities Act of 1933
(collectively, the "Indemnified Parties" for purposes of this Section 11(a))
against any losses, claims, expenses, damages or liabilities (including amounts
paid in settlement thereof) or litigation expenses (including legal and other
expenses) (collectively, "Losses"), to which the Indemnified Parties may become
subject, insofar as such Losses result from a breach by Distributor of a
material provision of this Agreement. Distributor will reimburse any legal or
other expenses reasonably incurred by the Indemnified Parties in connection with
investigating or defending any such Losses. Distributor shall not be liable for
indemnification hereunder if such Losses are attributable to the negligence or
misconduct of the Company in performing its obligations under this Agreement.
(b) The Company agrees to indemnify and hold harmless Distributor and
the Issuer, and their respective officers, directors, employees, agents,
affiliates and each person, if any, who controls Issuer or Distributor within
the meaning of the Securities Act of 1933 (collectively, the "Indemnified
Parties" for purposes of this Section 11(b)) against any Losses to which the
Indemnified Parties may become subject, insofar as such Losses result from a
breach by the Company of a material provision of this Agreement or the use by
any person of the Remote Computer Terminals. The Company will reimburse any
legal or other expenses reasonably incurred by the Indemnified Parties in
connection with investigating or defending any such Losses. The Company shall
not be liable for indemnification hereunder if such Losses are attributable to
the negligence or misconduct of Distributor or the Issuer in performing their
obligations under this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 11. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish to, assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnifying party assumes the defense of any such action,
the indemnifying party shall not, without the prior written consent of the
indemnified parties in such action, settle or compromise the liability of the
indemnified parties in such action, or permit a default or consent to the entry
of any judgment in respect thereof, unless in connection with such settlement,
compromise or consent, each indemnified party receives from such claimant an
unconditional release from all liability in respect of such claim.
12. Potential Conflicts
(a) The Company has received a copy of an application for exemptive
relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and
the order issued by the SEC in response thereto (the "Shared Funding Exemptive
Order"). The Company has reviewed the conditions to the requested relief set
forth in such application for exemptive relief. As set forth in such
application, the Board of Directors of the Issuer (the "Board") will monitor the
Issuer for the existence of any material irreconcilable conflict between the
interests of the contract owners of all separate accounts ("Participating
Companies") investing in funds of the Issuer. An irreconcilable material
conflict may arise for a variety of reasons, including: (i) an action by any
state insurance regulatory authority; (ii) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar
actions by insurance, tax or securities regulatory authorities; (iii) an
administrative or judicial decision in any relevant proceeding; (iv) the manner
in which the investments of any portfolio are being managed; (v) a difference in
voting instructions given by variable annuity contract owners and variable life
insurance contract owners; or (vi) a decision by an insurer to disregard the
voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
(b) The Company will report any potential or existing conflicts of which it
is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared
Funding Exemptive Order by providing the Board with all information reasonably
necessary for the Board to consider any issues raised. This includes, but is not
limited to, an obligation by the Company to inform the Board whenever contract
owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested
Board members, determines that a material irreconcilable conflict exists with
regard to contract owner investments in a Fund, the Board shall give prompt
notice to all Participating Companies. If the Board determines that the Company
is responsible for causing or creating said conflict, the Company shall at its
sole cost and expense, and to the extent reasonably practicable (as determined
by a majority of the disinterested Board members), take such action as is
necessary to remedy or eliminate the irreconcilable material conflict. Such
necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund
and reinvesting such assets in a different investment medium or
submitting the question of whether such segregation should be
implemented to a vote of all affected contract owners and as
appropriate, segregating the assets of any appropriate group
(i.e., annuity contract owners, life insurance contract owners,
or variable contract owners of one or more Participating
Companies) that votes in favor of such segregation, or offering
to the affected contract owners the option of making such a
change; and/or
(ii) establishing a new registered management investment company or
managed separate account.
(d) If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard its contract owner voting instructions and
said decision represents a minority position or would preclude a majority vote
by all of its contract owners having an interest in the Issuer, the Company at
its sole cost, may be required, at the Board's election, to withdraw an
Account's investment in the Issuer and terminate this Agreement; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
(e) For the purpose of this Section 12, a majority of the
disinterested Board members shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Issuer be required to establish a new funding medium for any Contract. The
Company shall not be required by this Section 12 to establish a new funding
medium for any Contract if an offer to do so has been declined by vote of a
majority of the Contract owners materially adversely affected by the
irreconcilable material conflict.
13. Termination; Withdrawal of Offering.
(a) This Agreement may be terminated by either party upon 30 days'
prior written notice to the other party. Notwithstanding the above, the Issuer
reserves the right, without prior notice, to suspend sales of shares of any
Fund, in whole or in part, or to make a limited offering of shares of any of the
Funds in the event that (i) any regulatory body commences formal proceedings
against the Company, Distributor, affiliates of Distributor, or the Issuer,
which proceedings Distributor reasonably believes may have a material adverse
impact, on the ability of Distributor, the Issuer or the Company to perform its
obligations under this Agreement or (ii) in the judgment of Distributor,
declining to accept any additional instructions for the purchase or sale of
shares of any such Fund is warranted by market, economic or political
conditions. Notwithstanding the foregoing, this Agreement may be terminated
immediately (A) by any party as a result of any other breach of this Agreement
by another party, which breach is not cured within 30 days after receipt of
notice from the other party, or (B) by any party upon a determination that
continuing to perform under this Agreement would, in the reasonable opinion of
the terminating party's counsel, violate any applicable federal or state law,
rule, regulation or judicial order. Termination of this Agreement shall not
affect the obligations of the parties to make payments under Section 4 for
Orders received by the Company prior to such termination and shall not affect
the Issuer's obligation to maintain the Accounts as set forth by this Agreement.
Following termination, Distributor shall not have any Administrative Services
payment obligation to the Company (except for payment obligations accrued but
not yet paid as of the termination date).
(b) Notwithstanding any termination of this Agreement, the Fund and
the Distributor shall, at the option of the Company, continue to make available
additional shares of the Fund pursuant to the terms and conditions of this
Agreement, for all Contracts in effect on the effective date of termination of
this Agreement (hereinafter referred to as the "Existing Contract"), unless the
Distributor requests that the Company seek an order pursuant to Section 26(b) of
the 1940 Act to permit substitution of other securities for the shares of the
designated portfolios. The Distributor agrees to bear all costs of seeking any
order requested by Distributor, and the Company agrees that it shall reasonably
cooperate with the Distributor and seek such an order upon request.
Specifically, the owners of the Existing Contracts may be permitted to
reallocate investments in the fund, redeem investments in the Fund and or invest
in the Fund upon the making of additional purchase payments under the Existing
Contracts (subject to any such election by the Distributor.)
14. Non-Exclusivity. Both parties acknowledge and agree that this Agreement
and the arrangement described herein are intended to be non-exclusive and that
each party is free to enter into similar agreements and arrangements with other
entities.
15. Survival. The provisions of Section 9 (Use of Names) and Section 11
(Indemnity) of this Agreement shall survive termination of this Agreement.
16. Amendment. Neither this Agreement, nor any provision hereof, may be
amended, waived, discharged or terminated orally, but only by an instrument in
writing signed by all of the parties hereto.
17. Notices. All notices and other communications hereunder shall be given
or made in writing and shall be delivered personally, or sent by telex,
telecopier, express delivery or registered or certified mail, postage prepaid,
return receipt requested, to the party or parties to whom they are directed at
the following addresses, or at such other addresses as may be designated by
notice from such party to all other parties.
18. To the Company:
Ameritas Variable Life Insurance Company
General Counsel
0000 "0"
Xxxxxx Xxxxxxx, XX 00000
(000) 000-0000 (office number)
To the Issuer or Distributor:
American Century Investment Services, Inc.
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
(000) 000-0000 (office number) (816)
340-4964 (telecopy number)
Any notice, demand or other communication given in a manner prescribed in this
Section 17 shall be deemed to have been delivered on receipt.
18. Successors and Assigns. This Agreement may not be assigned without the
written consent of both parties to the Agreement at the time of such assignment.
This Agreement shall be binding upon and inure to the benefit both parties
hereto and their respective permitted successors and assigns.
19. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
20. Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
21. Entire Agreement This Agreement, including the attachments hereto,
constitutes the entire agreement between the parties with respect to the matters
dealt with herein, and supersedes all previous agreements, written or oral, with
respect to such matters. -
If the foregoing correctly sets forth our understanding, please indicate
your agreement to and acceptance thereof by signing below, whereupon this
Agreement shall become a binding agreement between us as of the latest date
indicated.
AMERICAN CENTURY INVESTMENT SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title Executive Vice President
Date: 12/20/00
We agree to and accept the terms of the foregoing Agreement.
AMERITAS VARIABLE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. X'Xxxxx
Name: Xxxxxx X. X'Xxxxx
Title: Assistant Vice President
Date: January 1, 2001
EXHIBIT A
ADMINISTRATIVE SERVICES
Pursuant to the Agreement to which this is attached, the Company shall perform
all administrative and shareholder services required or requested under the
Contracts with respect to the Contract owners, including, but not limited to,
the following:
1. Maintain separate records for each Contract owner, which records shall
reflect the shares purchased and redeemed and share balances of such Contract
owners. The Company will maintain a single master account with each Fund on
behalf of the Contract owners and such account shall be in the name of the
Company (or its nominee) as the record owner of shares owned by the Contract
owners.
2. Disburse or credit to the Contract owners all proceeds of redemptions of
shares of the Funds and all dividends and other distributions not reinvested in
shares of the Funds.
3. Prepare and transmit to the Contract owners, as required by law or the
Contracts, periodic statements showing the total number of shares owned by the
Contract owners as of the statement closing date, purchases and redemptions of
Fund shares by the Contract owners during the period covered by the statement
and the dividends and other distributions paid during the statement period
(whether paid in cash or reinvested in Fund shares), and such other information
as may be required, from time to time, by the Contracts.
4. Transmit purchase and redemption orders to the Funds on behalf of the
Contract owners in accordance with the procedures set forth in Section 4 to the
Agreement.
5. Distribute to the Contract owners copies of the Funds' prospectus, proxy
materials, periodic fund reports to shareholders and other materials that the
Funds are required by law or otherwise to provide to their shareholders or
prospective shareholders.
6. Maintain and preserve all records as required by law to be maintained and
preserved in connection with providing the Administrative Services for the
Contracts.
