EXHIBIT (8)(p)
AMENDMENT NO. 3 TO FUND PARTICIPATION AGREEMENT
This Amendment No. 3, dated as of September 10, 2014, by and among XXXXXXXXX
XXXXXX ADVISERS MANAGEMENT TRUST ("Trust"), XXXXXXXXX XXXXXX MANAGEMENT LLC,
(formerly, Xxxxxxxxx Xxxxxx Management Inc.) ("NBM") and AMERICAN GENERAL LIFE
INSURANCE COMPANY ("LIFE COMPANY") is made to the Fund Participation Agreement,
dated as of July 7, 1994, by and among the Trust, NBM and LIFE COMPANY (the
"Agreement"). Terms defined in the Agreement are used herein as therein defined.
WHEREAS, the Trust, NBM and LIFE COMPANY desire to amend the list of
portfolios available for investment by the Separate Accounts designated in the
Agreement as set forth in Appendix A;
WHEREAS, the Trust, NBM and LIFE COMPANY desire to amend the Separate
Accounts as set forth in Appendix B in order to add a Separate Account;
WHERAS, the parties wish to update provisions in the Agreement relating to
representations and warranties, indemnification and confidentiality; and
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties agree as follows:
1. Appendix A of the Agreement is hereby deleted in its entirety and replaced
with new Appendix A attached hereto.
2. Appendix B of the Agreement is hereby deleted in its entirety and replaced
with new Appendix B attached hereto.
3. AMENDMENT TO SECOND PARAGRAPH OF SECTION 4(a). The second paragraph of
Section 4(a) is hereby deleted and replaced with the following:
LIFE COMPANY will submit any bills for printing, duplicating and/or
mailing costs, relating to the TRUST documents described above, to the
TRUST for reimbursement by TRUST. LIFE COMPANY shall monitor such costs
and shall use its best efforts to control these costs. If requested by
LIFE COMPANY, the TRUST shall provide such documentation (including a
final copy of the TRUST's prospectus as set in type or in camera-ready
copy) and other assistance as is reasonably necessary in order for LIFE
COMPANY to print together in one document the current prospectus for the
variable contracts issued by LIFE COMPANY and the current prospectus for
the TRUST. Should LIFE COMPANY wish to print any of these documents in a
format different from that provided by TRUST, LIFE COMPANY shall provide
TRUST with sixty (60) days' prior written notice and LIFE COMPANY shall
bear the cost associated with any format change. LIFE COMPANY may also
utilize TRUST's current prospectus, reports and other informational
materials on LIFE COMPANY'S intranet and internet web-sites. The posting
of such materials on LIFE COMPANY'S internet or intranet web-sites will
not relieve LIFE COMPANY of its responsibility to deliver such
prospectuses, statements of additional
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information, proxy statements and periodic reports of the TRUST as
required to be delivered under applicable federal or state law and
interpretations of federal and state securities regulators thereunder in
connection with the offer, sale or acquisition of the variable contracts.
4. AMENDMENT TO SECTION 5(a). Section 5(a) is hereby deleted in its entirety
and replaced with the following:
LIFE COMPANY will furnish, or will cause to be furnished, to the TRUST and
NBM, a template of each piece of sales literature or other promotional
material in which the TRUST or NBM is named, prior to its intended use.
Any substantially similar pieces need not be submitted for review. No such
material will be used if the TRUST or NBM reasonably objects to its use in
writing within ten (10) Business Days after receipt of such material.
5. AMENDMENT TO SECTION 8. Section 8 is hereby deleted in its entirety and
replaced with the following:
8.1 NBM hereby agrees to, and shall, indemnify and hold harmless the
LIFE COMPANY and each person who controls or is affiliated with the
LIFE COMPANY within the meaning of such terms under the 1933 Act or
1940 Act and any officer, director, employee or agent of the
foregoing (LIFE COMPANY shall be referred to as the "Indemnified
Party" for purposes of this Section 8), against any and all losses,
claims, damages or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they or any of
them may become subject under any statute or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Registration Statement, any
prospectus or sales literature or other promotional material
of the TRUST (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances in which they were made; provided
that this obligation to indemnify shall not apply if such
statement or omission was made in reliance upon and in
conformity with information furnished in writing by the LIFE
COMPANY to the TRUST or NBM for use in the Registration
Statement, prospectus or sales literature or promotional
material for the TRUST (or any amendment or supplement to any
of the foregoing) or otherwise for use in connection with the
sale of the variable contracts or TRUST shares; or
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(b) arise out of any untrue statement of a material fact contained
in the Registration Statement, Prospectus or sales literature
or other promotional material for the variable contracts (or
any amendment or supplement to any of the foregoing), or the
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were
made, if such statement or omission was made in reliance upon
information furnished in writing by NBM to the LIFE COMPANY;
or
(c) arise out of or are based upon willful misfeasance, bad faith,
gross negligence or reckless disregard by NBM or persons under
its control with respect to the sale of TRUST shares; or
(d) arise out of any material breach by NBM or persons under its
control of this Agreement (including any breach - whether or
not material - of any warranties contained in Section 10(b)
and 11 of the Agreement);
8.2 NBM shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified NBM in writing within a
reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but
failure to notify NBM of any such claim shall not relieve NBM from
any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought
against an Indemnified Party, NBM shall be entitled to participate
at its own expense in the defense of such action. NBM also shall be
entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from NBM to such party
of NBM's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained by it, and NBM will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by
such party independently in connection with the defense thereof
other than reasonable costs of investigation.
6. AMENDMENT TO SECTION 7. Section 7 is hereby deleted in its entirety and
replaced with the following:
7.1 LIFE COMPANY hereby agrees to and shall indemnify and hold harmless
TRUST and NBM and each of their Trustees, directors, officers,
employees and agents and each person, if any, who controls TRUST or
NBM within the meaning of Section 15 of the '33 Act (collectively,
TRUST and NBM shall be referred to as the "Indemnified Parties" for
purposes of this Section 7) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of LIFE COMPANY, which consent shall not be
unreasonably withheld) or litigation (including legal and other
expenses), to which the
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Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the disclosure documents, or sales literature for the Variable
Contracts or contained in the Variable Contracts (or any
amendment or supplement to any of the foregoing), or arise out
of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not apply as
to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in
conformity with information furnished in writing to LIFE
COMPANY by or on behalf of TRUST for use in the disclosure
documents or sales literature for the Variable Contracts or in
the Variable Contracts (or any amendment or supplement) or
otherwise for use in connection with the sale of the Variable
Contracts or TRUST shares; or
(b) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature of
TRUST not supplied by LIFE COMPANY, or persons under its
control) or wrongful conduct of LIFE COMPANY or any of its
directors, officers, employees or agents, with respect to the
sale or distribution of the Variable Contracts or TRUST
shares; or
(c) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, or sales literature of TRUST or any amendment
thereof or supplement thereto or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading if such statement or omission or such alleged
statement or omission was made in reliance upon and in
conformity with information furnished in writing to TRUST for
inclusion therein by or on behalf of LIFE COMPANY; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by LIFE COMPANY in this
Agreement or arise out of or result from any other material
breach of this Agreement by LIFE COMPANY.
it being understood that in no way shall NBM be liable to the LIFE COMPANY
with respect to any violation of insurance law, compliance with which is a
responsibility of the LIFE
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COMPANY under this Agreement or otherwise or as to which the LIFE COMPANY
failed to inform NBM. This indemnification is in addition to any liability
that NBM may otherwise have; provided, however, that no party shall be
entitled to indemnification if such loss, claim, damage or liability is
caused by the willful misfeasance, bad faith, gross negligence or reckless
disregard of duty by the party seeking indemnification.
7.2 LIFE COMPANY shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified LIFE COMPANY
in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify LIFE COMPANY of any such
claim shall not relieve LIFE COMPANY from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case
any such action is brought against an Indemnified Party, LIFE
COMPANY shall be entitled to participate at its own expense in the
defense of such action. LIFE COMPANY also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from LIFE COMPANY to such party of
LIFE COMPANY's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and LIFE COMPANY will not be liable to such
party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation.
7. AMENDMENT OF SECTION 10. Section 10 of the Agreement is hereby deleted in
its entirety and replaced with the following:
(a) LIFE COMPANY represents and warrants that: (i) LIFE COMPANY is an
insurance company duly organized and in good standing under Texas
insurance law; (ii) each Separate Account is a validly existing separate
account, duly established and maintained in accordance with applicable
law; (iii) the 1940 Act Registration Statement for each Separate Account
has been filed with the SEC in accordance with the provisions of the 1940
Act and such Account is duly registered as a unit investment trust
thereunder; (iv) the variable contracts' Registration Statement have been
declared effective by the SEC; (v) the variable contracts will be issued
in compliance in all material respects with all applicable Federal and
state laws; (vi) the variable contracts have been filed, qualified and/or
approved for sale, as applicable, under the insurance laws and regulations
of the states in which the variable contracts will be offered as
appropriate; (vii) each Separate Account will maintain its registration
under the 1940 Act and will comply in all material respects with the 1940
Act; (viii) the variable contracts currently are, and at the time of
issuance and for so long as they are outstanding will be, treated as
annuity contracts, life insurance policies, or modified endowment
contracts, whichever is appropriate, under applicable provisions of the
Code; (ix) LIFE COMPANY's entering into and performance of its obligations
under this Agreement does not and will not violate its
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charter documents or by-laws, rules or regulations, or any agreement to
which it is a party; and (x) with respect to the Separate Accounts (a) the
principal underwriter for each such Separate Account and any subaccounts
thereof is a broker or dealer registered with the SEC under the Securities
Exchange Act of 1934 or a person controlled (as defined in the 0000 Xxx)
by such a broker or dealer; (b) shares of a Portfolio are and will
continue to be the only securities held by the relevant subaccount; (c) it
will either (1) seek instructions from Contract Owners with account value
in the Separate Accounts allocated to shares of a Portfolio with regard to
the voting of all proxies solicited in connection with the Portfolio and
will vote those proxies only in accordance with those instructions, or (2)
vote such Portfolio shares held in the Separate Accounts in the same
proportion as the vote of all the Portfolio's other shareholders; and (d)
it will not substitute another security for shares of the Portfolio held
in a Separate Account unless the SEC has approved the substitution in the
manner provided in Section 26 of the 1940 Act. LIFE COMPANY will notify
the TRUST promptly if for any reason it is unable to perform its
obligations under this Agreement.
(b) The TRUST represents and warrants that: (i) the TRUST is duly
organized and validly existing under the laws of Delaware and that each
Portfolio does and will comply in all material respects with the 1940 Act
and the rules and regulations thereunder; (ii) the TRUST's 1940 Act
Registration Statement has been filed with the SEC in accordance with the
provisions of the 1940 Act and the TRUST is duly registered as an open-end
management investment company thereunder; (iii) the TRUST's Registration
Statement has been declared effective by the SEC and the Portfolio shares
offered and sold pursuant to the Agreement will be registered under the
1933 Act prior to and at the time of any issuance or sale of such shares;
(iv) the TRUST shares will be issued in compliance in all material
respects with all applicable federal laws; (v) the TRUST will remain
registered under and will comply in all material respects with the 1940
Act and 1933 Act during the term of this Agreement; (vi) the TRUST shall
register and qualify its shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the
TRUST; (vii) the Portfolios are currently qualified and will use their
reasonable best efforts to continue to qualify as regulated investment
companies under Subchapter M of the Code and the TRUST shall promptly
notify LIFE COMPANY upon: (a) having a reasonable basis for believing that
any of the Portfolios has ceased to so qualify, or that they may not
qualify as such in the future; or (b) having a reasonable basis for
believing that income earned by the Portfolios from the ownership of a
wholly owned subsidiary that is a controlled foreign corporation should
constitute qualifying income to the Portfolios for purposes of section
851(b)(2); (viii) each of the Portfolios currently does and will continue
to invest, dispose of, and hold assets in compliance with the requirements
of Section 817(h) of the Code and Treasury Regulations Section 1.817-5 and
any amendments or other modifications of successor provisions to such
Section or Regulations, including, but not limited to, the diversification
requirement therein (the "Tax Diversification Requirements"). Without
limiting the foregoing, the TRUST will notify LIFE COMPANY promptly after
forming a reasonable belief that the Portfolio has ceased to comply with
the Tax Diversification Requirements or might not so comply in the future,
and the TRUST shall cure any non-conformance within the period for cure
afforded under Regulation Section 1.817-5; (ix) the investment policies of
each Portfolio
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are in material compliance with any investment restrictions set forth as
applicable in this Agreement, if any; (x) the TRUST will use its
reasonable best efforts, consistent with the requirements of the 1940 Act
and each Portfolio's then-effective prospectus, to comply with any
applicable state insurance laws or regulations, which efforts shall
include, without limitation, the furnishing of information upon request of
LIFE COMPANY that is not otherwise available to LIFE COMPANY and that is
required by state insurance law to enable LIFE COMPANY to obtain the
authority needed to issue the variable contracts in any applicable state;
(xi) investments by the Portfolios in master limited partnerships are and
will be treated as corporations rather than partnerships; (xii) the TRUST
shall not take any action which would reasonably be expected to impact the
treatment of the variable contracts as annuities under Section 72 of the
Code; and (xiii) the Fund has received an opinion of counsel that income
earned by the Portfolios from the ownership of a wholly owned subsidiary
that is a controlled foreign corporation should constitute qualifying
income to the Portfolios for purposes of section 851(b)(2) of the Code..
8. ADDITION OF NEW SECTION 11. A new Section 11 of the Agreement is hereby
added to the Agreement and all of the sections thereafter are hereby
renumbered accordingly:
NBM represents and warrants that: (i) NBM is a limited liability company
duly organized and in good standing under New York law and (ii) NBM is
registered as an investment adviser under federal securities laws.
9. ADDITION OF SECTION 17. Section 17 of the Agreement is hereby added to the
Agreement:
17. CONFIDENTIALITY.
(a) Confidential Information. The parties acknowledge that, in the
performance of the Agreement, they receive or have access to information about
customers and other proprietary information of the other parties, including
names, addresses, account balances, account numbers, account activity, social
security numbers, taxpayer identification numbers, and financial and health
information, as well as all forms and types of financial, business, technical,
or economic information, whether tangible or intangible, and whether or how
stored, compiled, or memorialized physically, electronically, graphically,
photographically, or in writing ("Confidential Information"). Confidential
Information excludes information that (1) is independently developed by a party
without violating the disclosing party's proprietary rights, (2) is or becomes
publicly known (other than through unauthorized disclosure), (3) is
intentionally disclosed by the owner of such information to a third party free
of any obligation of confidentiality, (4) is already known by a party, as
evidenced by the written records of that party, free of an obligation of
confidentiality other than pursuant to this Agreement, or (5) is rightfully
received by a party free of any obligation of confidentiality.
(b) Use. The parties may use Confidential Information only in
connection with this Agreement and may not disclose Confidential Information to
any other party except as permitted by the Xxxxx-Xxxxx-Xxxxxx Act, other
applicable federal and state laws and regulations regarding privacy, this
Agreement or as otherwise agreed to in writing by the parties hereto. The
parties may disclose Confidential Information to their respective employees and
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agents or to third party vendors (1) who are involved in the issuance,
administration or maintenance of a customer's account or (2) otherwise on a
need-to-know basis, provided that, in each case, they have first adequately
apprised any such employee, agent, and or third party vender to observe this
confidentiality. In the case of employees and/or agents, the party shall provide
adequate training to ensure this confidentiality. The parties will take
reasonable steps to protect the Confidential Information, applying at least the
same security measures and level of care as they employ to protect their own
Confidential Information. If a party is compelled by applicable law to disclose
any Confidential Information, the party so compelled must promptly notify, in
writing, the party whose Confidential Information is being disclosed before
disclosing such Confidential Information so that such other party is afforded
the opportunity to seek relief from such disclosure or to limit the scope of the
disclosure.
(c) Security. Each party shall comply with all federal, state, and
local law or regulation related to privacy, including Regulation S-P of the SEC
and Title V of the Xxxxx-Xxxxx-Xxxxxx Act. Each party shall notify the other
parties promptly upon any breach of Confidential Information. Each party shall
maintain an effective information security program to protect the Confidential
Information, which program includes administrative, technical, and physical
safeguards:
(i) to insure the security and confidentiality of Confidential
Information;
(ii) to protect against any anticipated threats or hazards to
the security or integrity of such Confidential Information;
and
(iii) to protect against unauthorized access to or use of
Confidential Information which could result in substantial
harm or inconvenience to either party or other affiliates, or
to customers of any of them.
(d) Injunctive Relief. The parties acknowledge that the unauthorized
disclosure of Confidential Information is likely to cause irreparable injury to
the disclosing party and that, in the event of a violation or threatened
violation of a party's obligations hereunder, the disclosing party shall have no
adequate remedy at law and shall therefore be entitled to enforce each such
obligation by temporary or permanent injunctive or mandatory relief obtained in
any court of competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other rights
and remedies which may be available at law or in equity.
(e) Information Received in Error. If Confidential Information,
which is not necessary for the purposes of this Agreement, is received by one
party from the other party in error, the other party shall promptly return the
original and destroy all copies of the same and/or destroy or certify in writing
to the requesting party that the Confidential Information has been destroyed.
(f) Use Upon Termination. At the termination of this Agreement, or
in the event a party makes a request for the return of their Confidential
Information, the other parties will promptly return the original and all copies
of same, or certify in writing to the requesting
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party that the Confidential Information has been destroyed, provided however,
that each party shall retain Confidential Information in its possession
necessary to service its customers. This Confidentiality provision shall survive
the termination of this Agreement.
10. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect.
11. This Amendment may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same Amendment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, duly authorized representatives of the parties hereto have
amended the Agreement as of the date first written above.
AMERICAN GENERAL LIFE XXXXXXXXX XXXXXX
INSURANCE COMPANY MANAGEMENT LLC
By: /s/ Xxxxxx X. Xxxxxxxxxxx By: /s/
-------------------------- ---------------------------
Name: Xxxxxx X. Xxxxxxxxxxx Name:
Title: Executive Vice President, Title:
Individual and Group
Retirement
For Notices:
American General Life Ins. Co. XXXXXXXXX XXXXXX ADVISERS
0000 Xxxxx Xxxxxxx, L4-01 MANAGEMENT TRUST
Xxxxxxx, XX 00000
Attn: Legal Department By: /s/
----------------------------
Name:
Title:
For Notices:
Xxxxxxxxx Xxxxxx Management LLC
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Intermediary Support Services
cc: Legal Department, Mutual Funds
telephone: (000) 000-0000
telecopier: (000) 000-0000
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APPENDIX A
XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST PORTFOLIOS
The currently available Portfolios of the TRUST are:
Absolute Return Multi-Manager Portfolio - S Class
Guardian Portfolio - S Class
International Equity Portfolio - S Class
Mid Cap Growth Portfolio - S Class
Mid Cap Intrinsic Value Portfolio - S Class
Small Cap Growth Portfolio - S Class
Socially Responsive Portfolio - S Class
Balanced Portfolio - I Class
Growth Portfolio - I Class
Guardian Portfolio - I Class
Large Cap Value Portfolio - I Class
Mid Cap Growth Portfolio - I Class
Mid Cap Intrinsic Value Portfolio - I Class
Short Duration Bond Portfolio - I Class
Socially Responsive Portfolio - I Class
00
XXXXXXXX X
Separate Accounts
Separate Account VL-R
Separate Account D
Variable Separate Account
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