EXHIBIT 99.8.61
JPMORGAN DISTRIBUTION SERVICES, INC.
SERVICE AGREEMENT
Shareholder Servicing
This Agreement is entered into between AMERICAN UNITED LIFE INSURANCE COMPANY
("Financial Intermediary") and JPMorgan Distribution Services, Inc. ("JPMDS").
RECITALS
WHEREAS, JPMDS serves as the Shareholder Servicing Agent for each of the
trusts listed on Exhibit A (each, a "Trust"; collectively, the "Trusts") (each
series referred to as a "Fund", collectively the "Funds") each with one or more
classes of shares ("Shares") pursuant to a Shareholder Servicing Agreement
effective as of February 19, 2005 (the "Shareholder Servicing Agreement");
WHEREAS, pursuant to the Shareholder Servicing Agreement, JPMDS is
authorized to delegate the provision of some or all of the services contemplated
by the Shareholder Servicing Agreement to financial intermediaries;
WHEREAS, Financial Intermediary is a life insurance company that issues
variable insurance contracts funded through its separate accounts to plans that
meet the requirements for qualification under Section 401 of the Internal
Revenue Code of 1986, as amended ("Plans");
WHEREAS, the Funds are offered to the general public and are not solely
available for purchase by insurance company separate accounts;
WHEREAS, Financial Intermediary has established a separate account
("Separate Account") exempt from registration with Securities and Exchange
Commission ("SEC") that will invest in Shares and that it will issue variable
insurance contracts funded through the Separate Account solely to Plans and/or
their participants ("Participants");
WHEREAS, the Funds will serve as investment vehicles under variable
insurance contracts offered by Financial Intermediary to such Plans or
Participants; and
WHEREAS, JPMDS desires to retain Financial Intermediary to provide
services to the Plans/Participants that own the variable insurance contracts
offered by the Financial Intermediary ("Contractowners" or "Customers") and who
beneficially own Shares held in the Separate Account on the terms and conditions
set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises set forth
herein, the parties agree as follows:
I. SERVICES.
Financial Intermediary shall accept Contractowners' instructions for
transactions in Shares and transmit them to the Funds in accordance with the
terms and conditions of the applicable current prospectus ("Prospectus") and
Statement of Additional Information ("SAI"), the applicable rules, regulations
and
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requirements, and the operating procedures set forth on Exhibit B. In addition,
Financial Intermediary will provide to its Contractowners each of the applicable
services specified in Exhibit C.
II. TRANSACTIONS IN SHARES.
A. The Funds will execute all accepted orders for the purchase of any Shares at
the next determined public offering price per share (i.e., the net asset value
per share plus the applicable initial sales load, if any) and the Funds will
execute all accepted orders for the redemption of any Shares at the next
determined net asset value per share, in each case as described in the
Prospectus. JPMDS and the Funds reserve the right to reject any purchase request
in their sole discretion.
B. The Financial Intermediary agrees that neither the Funds, JPMDS nor any of
their affiliates or agents will have any responsibility or liability to review
any purchase or redemption request which is presented by Financial Intermediary
(i) to determine whether such request is genuine or authorized by the Customer
or (ii) to determine the suitability of a particular Fund or Class for such
Customer. The Funds, JPMDS and their affiliates and agents will be entitled to
rely conclusively on any purchase or redemption request communicated to the
Funds by Financial Intermediary, and will have no liability whatsoever for any
losses, claims or damages to or against Financial Intermediary or any Customer
resulting from the failure of Financial Intermediary to transmit any such
request, or from any errors contained in any request.
C. Financial Intermediary confirms that it will be considered the Funds' agent
for the sole purpose of receiving purchase and redemption orders on behalf of
the Separate Account for Shares from Contractowners and transmitting them to the
Funds. Financial Intermediary may authorize such intermediaries as it deems
appropriate ("Correspondents") to receive orders on the Funds' behalf. Financial
Intermediary shall be liable to the Funds for each Correspondent's compliance
with applicable regulations, requirements and this Section II to the same extent
as if Financial Intermediary itself had acted or failed to act instead of the
Correspondent.
D. Financial Intermediary certifies that it will at all times follow all
applicable rules, regulations and requirements in connection with the handling
of orders for transactions in the Funds, including, without limitation:
(i) Rule 22c-1(a) and other applicable rules under the Investment
Company Act of 1940, as amended ("Investment Company Act");
(ii) the provisions of this Agreement; and
(iii) the Prospectus and SAI.
E. Financial Intermediary further certifies that it:
(i) will discourage late trading, market timing and/or abusive trading
practices. Financial Intermediary will reserve the right to reject
any request to purchase Shares which it reasonably determines to be
in connection with late trading, market timing and abusive trading
practices by an investor or by accounts of investors under common
control. Upon request of JPMDS, Contractowner's trading history will
be reviewed to confirm Contractowner is engaging in late trading,
market timing and/or abusive trading practices. This procedure will
be enforced against every Contractowner consistently. Any
Contractowner redeeming units with a value of $5,000 or more from an
investment option will be precluded from investing in that option
until 30 calendar days have elapsed since the date of the redemption
transaction. If it is determined that the Contractowner's trading
activity violates any Trust's trading policy, then Contractowner
shall be notified of restrictions on his or her account. In those
instances, Contractowner's access to internet and interactive
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voice response trades will be turned off and Contractowner will be
limited to a specific number of trades per month, as determined by
Financial Intermediary and the respective Trust.
(ii) will not enter into any agreement with any individual, corporation,
plan or other entity that would permit late trading, market timing,
and/or abusive trading practices. The Trusts will monitor trading at
the omnibus level and enforce their own policies and procedures
based on their respective policies. Financial Intermediary will
cooperate and, to the extent permitted by law, shall share
participant-level trading information with the Trusts to the extent
necessary to assist in the enforcement of these policies.
(iii) will provide information and further certification to JPMDS or its
designee to verify compliance with this Section II and Section D in
Exhibit B; and
(iv) will cooperate in monitoring and enforcing the Trust's market
timing, late trading, and any redemption fee policies as set forth
in the Prospectus and SAI and such other policies established by the
Trust from time to time.
F. The parties agree that in performing its services under to this Agreement:
(i) Financial Intermediary is acting as agent for the Customer; (ii) the
Customer is for all purposes the customer of Financial Intermediary; (iii) each
transaction is initiated solely upon the order of the Customer; (iv) as between
Financial Intermediary and the Customer, the Customer will have full beneficial
ownership of all Shares; (v) each transaction shall be for the benefit of the
Customer and shares will be held in the Financial Intermediary's Separate
Account; (vi) each transaction shall be without recourse to Financial
Intermediary provided that Financial Intermediary acts in accordance with the
terms of this Agreement; and (vii) except for the limited purpose of receiving
orders for Share transactions on behalf of the Separate Account as described in
Section II.C. of this Agreement, Financial Intermediary shall have no authority
to act as agent for JPMDS or the Funds.
III. SHAREHOLDER INFORMATION
A. Financial Intermediary agrees to provide the Fund, upon written request, the
taxpayer identification number ("TIN"), the Individual/International Taxpayer
Identification Number ("ITIN"), or other government-issued identifier ("GII"),
if known, of any or all Shareholder(s) and the amount, date, name or other
identifier of any investment professional(s) associated with the Shareholder(s)
(if known), and transaction type (purchase, redemption, transfer, or exchange)
of every purchase, redemption, transfer, or exchange of Shares held through a
Financial Intermediary Fund Account during the period covered by the request.
(i) Requests must set forth a specific period, not to exceed one year
from the date of the quest, for which transaction information is
sought. A request may be ongoing and continuous (e.g., for each
trading day throughout the year) or for specified periods of time.
The Fund may request transaction information older than one year
from the date of the request as it deems necessary to investigate
compliance with policies established or utilized by the Fund for the
purpose of eliminating or reducing market timing and abusive trading
practices.
(ii) Financial Intermediary agrees to provide, promptly upon request of
the Fund or its designee, the requested information specified in
3(a). If requested by the Fund or its designee, Financial
Intermediary agrees to use best efforts to determine promptly
whether any specific person about whom it has received the
identification and transaction information specified in 3(a) is
itself a financial intermediary ("indirect intermediary")
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and, upon further request of the Fund or its designee, promptly
either (i) provide (or arrange to have provided) the information set
forth in 3(a) for those shareholders who hold an account with an
indirect intermediary; or (ii) restrict or prohibit the indirect
intermediary from purchasing, in nominee name on behalf of other
persons, securities issued by the Fund. Financial Intermediary
additionally agrees to inform the Fund whether it plans to perform
(i) or (ii).Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the
parties; and to the extent practicable, the format for any
transaction information provided to the Fund should be consistent
with the Depository Trust Clearing Corporation ("DTCC") Standardized
Data Reporting Format.
(iii) The Fund agrees not to use the Shareholder information received from
Financial Intermediary pursuant to this Agreement for marketing or
any other similar purpose without the prior written consent of
Financial Intermediary.
B. Financial Intermediary agrees to execute written instructions from the Fund
to restrict or prohibit further purchases or exchanges of Shares by a
Shareholder that has been identified by the Fund as having engaged in
transactions in the Fund's Shares (directly or indirectly through a Financial
Intermediary Fund Account) that violate policies established for the purpose of
eliminating or reducing market timing and abusive trading practices.
(i) Instructions to restrict or prohibit trading must include the TIN,
ITIN, or GII, if known, and the specific restriction(s) to be
executed. If the TIN, ITIN, or GII is not known, the instructions
must include an equivalent identifying number of the Shareholder(s)
or the Financial Intermediary Fund Account(s) or other agreed upon
information to which the instruction relates.
(ii) Financial Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after
receipt of the instructions by the Financial Intermediary.
(iii) Financial Intermediary must provide written confirmation to the Fund
that instructions have been executed. Financial Intermediary agrees
to provide confirmation as soon as reasonably practicable, but not
later than ten business days after the instructions have been
executed.
C. For purposes of this Section 3 of the Agreement:
(i) The term "Financial Intermediary Fund Account" means a direct or
networked Shareholder account with the Fund maintained by Financial
Intermediary or an omnibus account with the Fund maintained by
Financial Intermediary.
(ii) The term "Fund" includes JPMorgan Distribution Services, Inc., which
is the Fund's principal underwriter, the Fund's transfer agent and
the series of the trusts and corporation listed in the Agreement.
(iii) The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by the Fund under the
Investment Company Act of 1940 that are held by or through a
Financial Intermediary Fund Account.
(iv) The term "Shareholder" means (i) the beneficial owner of Shares held
by or through a Financial Intermediary Fund Account; (ii) a
participant in an employee benefit plan owning Shares held by or
through a Financial Intermediary Fund Account, notwithstanding that
the employee benefit plan may be deemed to be the beneficial owner
of Shares; and (iii) the holder of interests in a variable annuity
or variable life insurance
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contract issued by Financial Intermediary owning Shares held by or
through a Financial Intermediary Fund Account.
(v) The term "written" and/or "in writing" includes electronic writings
and facsimile transmissions.
(vi) The term "Financial Intermediary" shall mean a "financial
intermediary" as defined in 22c-2 of the Investment Company Act.
(vii) The term "purchase" does not include the automatic reinvestment of
dividends.
(viii) The term "promptly" as used in 3(a)(ii) shall mean as soon as
practicable but in no event later than ten business days from the
Financial Intermediary's receipt of the request for information from
the Fund or its designee.
IV. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. JPMDS represents and warrants that:
(i) It has the requisite authority to enter into this Agreement and to make
the payments contemplated herein; and
(ii) That the payment to Financial Intermediary of any fees pursuant hereto
is authorized under the Shareholder Servicing Agreement.
B. Financial Intermediary represents, warrants and agrees that:
(i) It is an insurance company duly organized and in good standing under
applicable law and that it has authority authorizing it to conduct a
life insurance business in all states:
(ii) It has established the Separate Account, which is excluded from the
definition of investment company and thus exempt from registration
with the SEC;
(iii) The Separate Account will invest in Shares and will issue variable
insurance contracts funded through the Separate Account solely to Plans
and/or Participants;
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(iv) The Shares are an appropriate investment for the Separate Account and
are an appropriate funding medium for the variable insurance contracts
issued through the Separate Account to Plans and Participants. Without
limitation of the foregoing, Financial Intermediary understands and
acknowledges that the Funds are available for purchase by the general
public, are not solely available for purchase by insurance company
separate accounts, and may not comply with the diversification
requirements of Section 817(h) of the Internal Revenue Code of 1986, as
amended, and Treas. Reg. 1-817.5 thereunder;
(v) It is registered with the appropriate securities authorities in all
states, territories and jurisdictions in which its activities make such
registration necessary;
(vi) It has the requisite authority to enter into this Agreement and to
perform the services contemplated herein;
(vii) The execution and delivery of this Agreement and the performance of the
services contemplated herein have been duly authorized by all necessary
corporate action on its part, and this Agreement constitutes the valid
and binding obligation of Financial Intermediary;
(viii) It currently does, and will, conduct its activities hereunder in
material conformity with all applicable federal, state and industry laws
or regulations and will disclose its receipt of fees hereunder to
Contractowners (and, if required, will obtain their consent to such
receipt) in accordance with applicable laws and regulations;
(ix) To the extent Shares are purchased by Contractowners through a defined
contribution plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") (a "Plan"), the arrangements
provided for in this Agreement will be disclosed to the Plan(s) through
their representatives;
(x) Either (a) it is not a "fiduciary" with respect to the provision of the
services contemplated herein to any Plan(s) as such term is defined in
Section 3(21) of ERISA, and Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"); or (b) its receipt of fees pursuant to
this Agreement and the provision of the services contemplated herein to
any Plan(s) will not constitute a non-exempt "prohibited transaction" as
such term is defined in Section 406 of ERISA and Section 4975 of the
Code;
(xi) That if it plans to participate in the DTCC's Mutual Fund Settlement
Entry and Registration Verification system ("Fund/SERV"), and/or in
Networking, Financial Intermediary is a member of the DTCC or otherwise
has access to Fund/SERV and it has executed and filed with the DTCC the
standard Networking agreement;
(xii) The providing of its services set forth on Exhibit C hereof will in no
event be primarily intended to result in the sale of Shares; and
(xiii) It will maintain comprehensive general liability coverage and will carry
a fidelity bond covering it and each of its employees and authorized
agents with limits of not less than those considered commercially
reasonable and appropriate under current industry practices, each issued
by a qualified insurance carrier with a Financial Strength Rating from
A.M. Best Company rating of at least "A," and, upon JPMDS' request, it
will furnish a certificate of insurance evidencing such coverage.
Each party hereto agrees to provide to the other such information or
documentation necessary for such party to fulfill its obligations hereunder and
such other information or documentation as either party may reasonably request.
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V. FEES
For the services provided by Financial Intermediary hereunder, JPMDS agrees to
pay to Financial Intermediary a fee with respect to each Fund, which fee is
calculated daily and paid monthly as set forth on Exhibit D. If JPMDS is waiving
its shareholder servicing fee from a Fund to manage the Fund's expenses in
extraordinary market conditions, JPMDS may, in its sole discretion and upon
notice to Financial Intermediary, reduce the amount of, or eliminate entirely,
the service fee payable to Financial Intermediary with respect to such Fund. If
JPMDS reduces the service fee payable to Financial Intermediary, it will pay
Financial Intermediary a fee at a blended rate that reflects the average
reduction in the fee rate applicable to the shareholder service fee paid by the
Fund to JPMDS for the month.
Financial Intermediary's acceptance of any fees hereunder shall constitute its
representation (which shall survive any payment of such fees and any termination
of this Agreement and shall be reaffirmed each time Financial Intermediary
accepts a fee hereunder) that the fees set forth on Exhibit D are appropriate
and reasonable based upon the services Financial Intermediary provides to
Contractowners holding such Shares.
VI. INDEMNIFICATION
A. Financial Intermediary shall indemnify and hold harmless JPMDS, each Fund,
the transfer agent of the Funds, and their respective subsidiaries, affiliates,
officers, directors (or trustees), and employees from all claims, liabilities,
losses or costs (including reasonable attorney's fees) arising directly from:
(i) any breach by Financial Intermediary of any representations,
covenants or warranties in this Agreement or a material breach of
any provision of this Agreement;
(ii) any Fund's failure to comply with the diversification requirements
of Section 817(h) of the Internal Revenue Code of 1986, as amended,
and Treas. Reg. 1-817.5 thereunder;
(iii) any actions or omissions of JPMDS, any Fund, the transfer agent of
the Funds, and their subsidiaries, affiliates, officers, directors
(or trustees), and employees in reliance upon any oral, written or
computer or electronically transmitted instructions, documents or
materials believed to be genuine and to have been given by or on
behalf of Financial Intermediary; and
(iv) any willful misconduct or negligence (as measured by industry
standards) of Financial Intermediary, its agents and employees, in
the performance of, or failure to perform, its obligations under
this Agreement, or any reckless disregard of its obligations under
this Agreement.
B. JPMDS shall indemnify and hold harmless Financial Intermediary and its
subsidiaries, affiliates, officers, directors, and employees from and against
any and all claims, liabilities, losses or costs (including reasonable
attorney's fees) arising directly from:
(i) any breach by JPMDS of any representations, covenants or warranties
in this Agreement or any material breach of any provision of this
Agreement;
(ii) any alleged untrue statement of a material fact contained in any
Fund's registration statement or Prospectus or any alleged omission
to state therein a material fact required to be stated therein
necessary to make the statements contained therein not misleading;
and
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(iii) any willful misconduct or negligence (as measured by industry
standards) of JPMDS, its agents and employees, in the performance
of, or failure to perform, its obligations under this Agreement, or
any reckless disregard of its obligations under this Agreement.
C. Neither JPMDS nor Financial Intermediary shall be liable for special,
consequential or incidental damages. The indemnification provided for hereunder
shall be in addition to any liability which the parties may otherwise have.
D. The agreement of the parties in this Section VI to indemnify each other is
conditioned upon the party entitled to indemnification (Indemnified Party)
giving notice to the party required to provide indemnification (Indemnifying
Party) promptly after the summons or other first legal process for any claim as
to which indemnity may be sought is served on the Indemnified Party. Such notice
will be given by any means of prompt delivery that provides confirmation of
receipt to the address provided by each party in this Agreement. The Indemnified
Party shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting from it, provided that counsel for the
Indemnifying Party who shall conduct the defense of such claim or litigation
shall be approved by the Indemnified Party (which approval shall not
unreasonably be withheld), and that the Indemnified Party may participate in
such defense at its expense. If the Indemnifying Party does not elect to assume
the defense, the Indemnifying Party will reimburse the Indemnified Party for the
reasonable fees and expenses of any counsel retained by it. The failure of the
Indemnified Party to give notice as provided in this Sub-section (D) shall not
affect the Indemnified Party's right to indemnification hereunder except to the
extent that the Indemnifying Party's interest are actually prejudiced thereby.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
without the written consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term the giving by the claimant or plaintiff to the Indemnified Party of a
release from all liability in respect to such claim or litigation.
E. The provisions of this Section VI shall survive the termination of this
Agreement.
VII. CONFIDENTIALITY
A. Each party acknowledges and understands that any and all technical, trade
secret, or business information, including, without limitation, financial
information, business or marketing strategies or plans or product development,
which is disclosed to the other or is otherwise obtained by the other, its
affiliates, agents or representatives during the term of this Agreement (the
"Proprietary Information") is confidential and proprietary, constitutes trade
secrets of the owner, and is of great value and importance to the success of the
owner's business. Each party agrees that should it come into possession of
Proprietary Information, it will use its best efforts to hold such information
in confidence and shall refrain from using, disclosing or distributing any such
information except (i) as may be necessary in the ordinary course of performing
the services and transactions contemplated by this Agreement; (ii) with the
written consent of the other party; or (iii) as required by law or judicial
process. Proprietary Information shall not include information a party to this
Agreement can clearly establish was (a) known to the party prior to this
Agreement; (b) rightfully acquired by the party from third parties whom the
party reasonably believes are not under an obligation of confidentiality to the
other party to this Agreement; (c) placed in public domain without fault of the
party or its affiliates; or (d) independently developed by the party without
reference to, or reliance upon, Proprietary Information.
B. All information, including "nonpublic personal information" as that term in
defined in Regulation S-P, relating to Contractowners is and shall remain the
sole property of the Funds and the Financial
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Intermediary and shall not be disclosed to or used by the Funds, the Financial
Intermediary, JPMDS, or their affiliates for any purpose except in the
performance of their respective duties and responsibilities under this Agreement
and except for servicing and informational mailings relating to the Funds or as
permitted by Rule 15 of Regulation S-P. Notwithstanding the foregoing, this
Section VII B shall not prohibit the Financial Intermediary, the Funds, JPMDS,
or any of their affiliates from utilizing the names of Contractowners, for any
purpose if the names are obtained in any manner other than from Financial
Intermediary pursuant to this Agreement.
C. If applicable, Financial Intermediary will deliver the Funds' privacy policy
as required by Regulation S-P.
D. The provisions of this Section VII shall survive the termination of this
Agreement.
VIII. EFFECTIVE DATE, AMENDMENT AND TERMINATION
A. This Agreement shall become effective as of the date executed by JPMDS or
as of the first date thereafter upon which Financial Intermediary performs
any service, or receives any payment pursuant hereto.
B. This Agreement may be amended by JPMDS from time to time by the following
procedure. JPMDS will mail a copy of the amendment to Financial
Intermediary's address, as shown on the signature page hereof. If
Financial Intermediary does not object to the amendment within thirty (30)
days after its receipt, the amendment will become part of the Agreement.
Financial Intermediary's objection must be in writing and be received by
JPMDS within such thirty days. In addition, and without limiting the
foregoing, this Agreement may be amended from time to time by mutual
signed written agreement of the parties hereto.
C. Notwithstanding the foregoing, this Agreement may be terminated as follows:
(i) by any party as to any Fund without cause by giving the other party
at least thirty (30) days' written notice. The termination of this
Agreement with respect to any one Fund will not cause the
Agreement's termination with respect to any other Fund.
(ii) Notwithstanding the foregoing, this Agreement may be terminated at
any time if required by applicable law, rule, regulation, order, or
instruction by a court of competent jurisdiction or regulatory body
or self-regulatory organization with jurisdiction over JPMDS or
Financial Intermediary.
(iii) This Agreement also shall terminate immediately upon termination of
the Shareholder Servicing Agreement.
IX. MISCELLANEOUS
A. CUSTODY. Financial Intermediary represents and warrants, and JPMDS
acknowledges, that Fund shares maintained by the Fund for Contractowners
hereunder are held in custody for the exclusive benefit of Contractowners of
Financial Intermediary and shall be held free of any right, charge, security
interest, lien or claim against Financial Intermediary in favor of the Fund or
its agents acting on behalf of the Fund.
B. USE OF NAMES. Financial Intermediary and JPMDS shall not use the name (or any
trademark, trade name, service xxxx or logo) of the other party or its
affiliates without the other party's written consent and the Financial
Intermediary shall not use the name of the Funds in any manner without written
consent, in each case except as required by any applicable federal or state law,
rule or regulation, and
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except that Financial Intermediary may identify the Funds in a listing of funds
offered through the Separate Accounts.
C. ANTI-MONEY LAUNDERING. Financial Intermediary represents that it has
established an Anti-Money Laundering Program ("AML Program") to the extent
required by applicable U.S. laws, regulations, and guidance, including rules of
self-regulatory organizations, relating to the prevention of money laundering,
terrorist financing, and related financial crimes. Its AML Program includes
written policies and procedures regarding the (i) verification of the identity
of its Contractowners and the source of Contractowners' funds, and (ii)
reporting of any suspicious transactions in a Customer's account. Financial
Intermediary agrees to cooperate with JPMDS to satisfy JPMDS' AML due diligence
policies, which may include annual AML compliance certifications, periodic AML
due diligence reviews and/or other requests deemed necessary to ensure its
compliance with the AML regulations. Financial Intermediary will (but only to
the extent consistent with applicable law) take all steps necessary and
appropriate to provide the Funds and/or JPMDS with any requested information
about Contractowners and their Fund accounts in the event that the Funds and/or
JPMDS shall request such information due to an inquiry or investigation by any
law enforcement, regulatory, or administrative authority.
D. CERTIFICATION OF CONTRACTOWNERS' TAXPAYER IDENTIFICATION NUMBERS. Financial
Intermediary agrees to obtain any taxpayer identification number certification
from its Contractowners required under the Code, as amended, and any applicable
Treasury regulations, and to provide JPMDS, or its designee with timely written
notice of any failure to obtain such taxpayer identification number
certification in order to enable the implementation of any required backup
withholding. Financial Intermediary will not knowingly accept or act upon any
instruction to purchase Shares from a customer located outside the United States
of America or for the account of any non-US person.
E. REPRESENTATIONS WITH RESPECT TO THE FUNDS. Financial Intermediary and its
agents shall not make any representation concerning a Fund or Shares, except
those contained in the Prospectus or SAI, in current material furnished by JPMDS
to Financial Intermediary for purposes of dissemination, or in materials created
by Financial Intermediary and submitted to and approved in writing by JPMDS.
F. NONEXCLUSIVITY. JPMDS acknowledges that Financial Intermediary may perform
services similar to those to be provided under this Agreement to other
investment companies, investment company sponsors, or service providers to
investment companies. JPMDS may enter into other similar agreements for the
provision of shareholder services with any other person or persons without
Financial Intermediary's consent.
G. FORCE MAJEURE. Neither Financial Intermediary nor JPMDS nor their respective
affiliates shall be liable to the other or to any Fund for any damage, claim or
other loss whatsoever caused by circumstances or events beyond its reasonable
control, provided that such party has exercised such reasonable diligence as the
circumstances require.
H. SECURITY AGAINST UNAUTHORIZED USE OF FUNDS' RECORDKEEPING SYSTEMS. Financial
Intermediary agrees to provide such security as is necessary to prevent any
unauthorized use of the Funds' recordkeeping system, accessed via (a) the world
wide web or any URL maintained by the Funds or JPMDS, (b) a networking/data
access arrangement or (c) computer hardware or software provided to Financial
Intermediary by JPMDS.
I. NOTICES. Except as otherwise specifically provided in this Agreement, all
notices required or permitted to be given pursuant to this Agreement shall be
given in writing and delivered by: (i) personal delivery; (ii) postage prepaid,
registered or certified United States first class mail, return receipt
requested; (iii) overnight courier services; or (iv) facsimile or similar
electronic means of delivery (with a confirming copy by mail as provided
herein).Unless otherwise notified in writing, all such notices shall be given or
sent to the other party at the address on the signature page hereof, Attention:
President.
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J. RECORDS. Financial Intermediary will maintain all records required to be kept
by state and federal law relating to transactions in Shares and, upon request by
the Funds, will promptly make such records available to the Funds or their
designee.
K. DELEGATION OF DUTIES. Either party may employ an affiliate or a third party
to perform any services required to enable the party to perform its functions
under this Agreement. The delegating party will act in good faith in the
selection, use and monitoring of affiliates and other third parties, and any
delegation or appointment hereunder shall not relieve the delegating party of
any of its obligations under this Agreement. The delegating party agrees that it
remains liable to the other party for an affiliate's or third party's compliance
with this Agreement, applicable regulations and requirements to the same extent
as if the delegating party itself had acted or failed to act instead of the
affiliate or third party.
L. ASSIGNMENT AND GOVERNING LAW. This Agreement may not be transferred or
assigned (as that term is defined in the Investment Company Act) by either JPMDS
or Financial Intermediary without the written consent of both parties, and shall
be construed in accordance with the laws of the State of New York.
M. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In the event that one or
more provisions of this Agreement shall be held by any court to be invalid, void
or unenforceable, the remaining provisions shall nevertheless remain and
continue in full force and effect. Facsimile or electronic PDF transmissions of
any executed original document and/or retransmission of any executed facsimile
or electronic PDF transmission shall be deemed to be the same as the delivery of
an executed original.
11
JPMORGAN DISTRIBUTION SERVICES, INC. FINRA CRD Number: 104234
Street Address:
000 Xxxxxxx Xxxxxxx
0xx Xxxxx, XX0-0000
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxxx
------------------------
Title: President
------------------------
Date: 6/9/17
------------------------
AMERICAN UNITED LIFE INSURANCE COMPANY 4173
Financial Intermediary Name FINRA CRD Number
(Please Print or Type)
Address One America Square, P.O. Box 368
City: Indianapolis State IN Zip Code 46206
Phone: 000-000-0000 Fax: 000-000-0000
By: /S/ Xxxxx X. Xxxxx
------------------------
Authorized Signature
Xxxxx X. Xxxxx
------------------------
Print Name or Type Name
Assistant Vice President
------------------------
Title
6/7/17
------------------------
Date
12
EXHIBIT A
TRUSTS
JPMorgan Trust I
JPMorgan Trust II
JPMorgan Trust III
JPMorgan Trust IV
X.X. Xxxxxx Xxxxxxx Mutual Fund Group, Inc.
X.X. Xxxxxx Mutual Fund Investment Trust
Undiscovered Managers Funds
13
EXHIBIT B
OPERATING PROCEDURES
JPMDS and Financial Intermediary shall follow the following operating procedures
in connection with transactions in Fund Shares by Contractowners through
Financial Intermediary, except as otherwise agreed to in writing by the parties.
A. Net asset value per share is generally provided on a daily basis to NASDAQ by
6:30 p.m. Eastern time. On each business day, JPMDS will use commercially
reasonable efforts to provide to Financial Intermediary prior to 7:00 p.m. (ET),
each Fund's NAV as of its final Market Close (defined below) for that day.
B. JPMDS will furnish notice of the declaration of any income, dividends, or
capital gains distributions payable by the Funds. This information will include
the ex, record and payable dates along with the Fund's reinvestment price.
Typically, this notice will be given by fax transmission, but may be given by
other means as may be reasonable under the circumstances.
C. Dividends and capital gains distributions paid by each of the X.X. Xxxxxx
Funds are automatically reinvested in additional shares of the same Fund unless
the Customer has elected to have them paid in cash.
D. Execution of orders for Shares
The execution of all orders for Share transactions will be subject to the terms
of the Prospectus and SAI, these Operating Procedures, JPMDS' written
instructions to Financial Intermediary from time to time and, if executed
through Fund/SERV, the DTCC's rules and procedures.
1. Funds
(a) The Financial Intermediary certifies as follows:
(i) orders to purchase and redeem shares received by Financial
Intermediary or its Correspondents (as defined in Section II.C. of
the Agreement) prior to the close of a Fund (generally, 4:00 p.m.,
Eastern Time ("ET") other than a money market fund, which generally
close multiple times each day (each close of a Fund, a "Market
Close")) on any day that a Fund is open for business ("Day 1") will
be electronically transmitted to the Funds by 8:00 a.m., ET on the
next day that the Fund is open for business ("Day 2")(such orders
are referred to as "Day 1 Trades"); and
(ii) orders to purchase and redeem shares received by Financial
Intermediary or its Correspondents after the final Market Close on
Day 1, but prior to the final Market Close on Day 2 ("Day 2 Trades")
will be electronically transmitted to the Funds by 8:00 a.m., ET on
the second day that the Fund is open for business following Day 1.
(iii) If the Financial Intermediary cannot electronically transmit Day 1
Trades to the Funds by 8:00 a.m., ET on Day 2, Financial
Intermediary will transmit such orders by facsimile prior to the
beginning of trading on the New York Stock Exchange (generally 9:30
a.m. ET) on Day 2.
(b) Day 1 Trades will be effected at the NAV next calculated by the Fund
following receipt of the trade by Financial Intermediary or its Correspondents
on Day 1, and Day 2 Trades will be effected at the NAV next calculated by the
Fund following receipt of the trade by the Financial Intermediary or its
14
Correspondents on Day 2. Dividends shall accrue as set forth in the applicable
Prospectus and SAI. (c) Upon JPMDS' reasonable request, Financial Intermediary
agrees to promptly provide JPMDS with information separating customer orders
received before and after a designated Market Close in order for JPMDS to
validate the timing of Financial Intermediary's receipt of orders.
F. Payments for Shares shall be made as specified in the Prospectus. If payment
for any purchase order is not received in accordance with the terms of the
Prospectus, JPMDS reserves the right, without notice, to cancel the sale and to
hold Financial Intermediary responsible for any loss sustained as a result
thereof, including loss of profit.
G. Issuance and transfer of each Fund's shares will be by book entry only. The
Funds will not issue stock certificates.
H. JPMDS will make available to Financial Intermediary, via the DTCC's Mutual
Fund Service Profile II, a list of the states or other jurisdictions in which
Shares are eligible for sale, which list may be revised from time to time.
Financial Intermediary agrees to sell or offer to sell Shares only in the states
and other jurisdictions appearing on the most recent list made available by
JPMDS. Financial Intermediary will not knowingly accept or act upon any
instruction to purchase Shares from a Customer located outside the United States
of America or for the account of any non-US person.
I. Financial Intermediary agrees to provide each Fund, each Fund's transfer
agent and/or other parties designated by them with information, on a daily
basis, regarding the state or jurisdiction of residence of each Customer for
which Financial Intermediary provides services under this Agreement. Such
information shall be provided for purposes of the Funds' regulatory requirements
and shall be in a form mutually agreeable to JPMDS and Financial Intermediary.
J. The Fund or its designee will provide Financial Intermediary with
confirmations of executed trades through Fund/SERV when applicable or by mail or
electronic means. Periodic account statements will be provided to Financial
Intermediary showing the total number of Shares held, Share transactions,
dividends and other distribution during the statement period, and such other
information as may be required from time to time.
K. If JPMDS provides materially incorrect shares net asset value information
through no fault of the Financial Intermediary, the Financial Intermediary shall
be entitled to an adjustment with respect to the Shares purchased or redeemed to
reflect the correct net asset value per shares and subsequently determined by
JPMDS. The determination of the materiality of any net asset value pricing error
shall be based on JPMDS policy for correction of pricing errors (the "Pricing
Policy"). The Financial Intermediary shall correct such error in its records and
in the records prepared by it for Contractowners in accordance with information
provided by JPMDS. Any material error in the calculation or reporting of net
asset value per shares, dividend or capital gain information shall be reported
promptly upon discovery to the Company.
15
EXHIBIT C
SERVICES PROVIDED BY FINANCIAL INTERMEDIARY
Pursuant to the Services Agreement to which this is attached and made a part,
Financial Intermediary hereby agrees to provide each of the applicable personal
shareholder liaison services and account information services ("Shareholder
Services") described in this Exhibit C.
For purposes of this Agreement, Shareholder Services shall include:
a) assisting in establishing and maintaining accounts with the Funds;
b) answering Customer inquiries (through electronic and other means)
regarding account status and history, Share prices, dividend amounts
and payment dates, and the manner in which purchases and redemptions
of Shares may be effected;
c) providing Contractowners with information through electronic means;
d) assisting Contractowners in completing application forms,
designating and changing dividend options, account designations and
addresses;
e) facilitating the settlement with the Fund of Contractowners' Share
transactions in accordance with the Fund's Prospectus and this
Agreement;
f) verifying Customer requests for changes to account information;
g) handling correspondence from Contractowners about their accounts;
h) distributing to Contractowners copies of the Funds' prospectuses,
proxy materials, periodic fund reports to shareholders, dividend and
tax notices, and other materials that are required by law to be
provided to fund Shareholders or prospective shareholders; and
i) providing such other shareholder services as JPMDS or a Customer may
reasonably request.
Financial Intermediary will forward or cause to be forwarded to Contractowners
the Funds' current effective statutory prospectus (the "Statutory Prospectus"),
currently effective SAI, periodic financial reports, proxy materials and other
Fund communications as required to be delivered to, or received by,
Contractowners under applicable laws, rules and regulations ("Applicable Law")
or as reasonably requested by JPMDS or a Fund. However, Financial Intermediary
may provide a current effective summary prospectus (the "Summary Prospectus") in
lieu of a Statutory Prospectus as permitted under Applicable Law, unless
instructed otherwise by JPMDS or a Fund. Financial Intermediary shall respond to
requests for a Summary Prospectus, Statutory Prospectus, SAI, currently
effective annual report or currently effective semi-annual report made by a
customer directly to Financial Intermediary with the documents that JPMDS or a
Fund has provided to it hereunder, including any applicable supplements, as
required under Applicable Law. Unless instructed by JPMDS or a Fund to the
contrary, Financial Intermediary may consolidate or utilize "household" mailing
for the delivery of the above-described materials where permissible under, and
in accordance with, Applicable Law, and, unless instructed by JPMDS or a Fund to
the contrary, the delivery of the materials may be accomplished via electronic
means, so long as the methodologies utilized by Financial Intermediary comply
with Applicable Law relating to the delivery and receipt of such materials,
including, but not limited to, that Financial Intermediary received informed
consent from all applicable shareholders permitting the method and manner of
such use, and Financial Intermediary maintains, and agrees to provide to JPMDS
or a Fund upon request, records of each such delivery.
16
EXHIBIT D
CALCULATION AND PAYMENT OF FEES PURSUANT TO SECTION IV
A. For the services provided by Financial Intermediary hereunder, JPMDS agrees
to pay to Financial Intermediary a fee set forth below, with respect to the
classes of Shares of each Fund set forth below, calculated daily and paid
monthly in arrears, at an annual rate based on the average daily net asset value
of the total number of such shares of a Fund held in accounts at Financial
Intermediary (determined by multiplying the number of such shares times the
publicly-reported net asset value of each share), excluding the value of (i)
shares held in an account with Financial Intermediary prior to the effective
date of the Agreement as to the Fund issuing such shares, and (ii) shares first
placed or purchased in an account with Financial Intermediary after the
termination of the Agreement as to the Fund issuing such shares; all as follows:
- 0.25% ON R2, R3, AND R4 SHARES OF EACH FUND
- 0.10% ON R5 SHARES OF EACH FUND
- 0.00% ON R6 SHARES OF EACH FUND
JPMDS reserves the right not to pay fees to Financial Intermediary if Financial
Intermediary's fee payments for a given month are deemed to be de minimis. JPMDS
currently adheres to a $25.00 de minimis threshold, but reserves the right to
change that threshold from time to time.
B. JPMDS shall pay Financial Intermediary such fee by wire transfer or other
form acceptable to Financial Intermediary and the payment shall be separate from
payments related to redemption proceeds and distributions.
17
