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PARTICIPATION AGREEMENT
By and Among
AMERICAN CENTURION LIFE ASSURANCE COMPANY
And
WARBURG PINCUS TRUST
And
WARBURG, XXXXXX COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
THIS AGREEMENT, made and entered into this 7th day of October, 1996 by and among
American Centurion Life Assurance Company, organized under the laws of the State
of New York (the "Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule 1 to this Agreement, as may be amended
from time to time (each account referred to as the "Account"), Warburg Pincus
Trust, an open-end management investment company and business trust organized
under the laws of the Commonwealth of Massachusetts (the "Fund"); Warburg,
Xxxxxx Counsellors, Inc. a corporation organized under the laws of the State of
Delaware (the "Adviser"); and Counsellors Securities Inc., a corporation
organized under the laws of the State of New York ("CSI").
WHEREAS, the Fund engages in business as an open-end management investment
company and was established for the purpose of serving as the investment vehicle
for separate accounts established for variable life insurance contracts and
variable annuity contracts to be offered by insurance companies that have
entered into participation agreements similar to this Agreement (the
"Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Fund has received an order from the Securities and Exchange
Commission (the "SEC") granting Participating Insurance Companies and variable
annuity separate accounts and variable life insurance separate accounts relief
from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended (the "1940 Act"), and Rules 6e-2(b)(15) and 6e-
3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund to
be sold to and held by variable annuity separate accounts and variable life
insurance separate accounts of both affiliated and unaffiliated Participating
Insurance Companies and qualified pension and retirement plans outside of the
separate account context (the "Mixed and Shared Funding Exemptive Order"). The
parties to this Agreement agree that the conditions or undertakings specified in
the Mixed and Shared Funding Exemptive Order and that may be imposed on the
Company, the Fund, the Adviser and/or CSI by virtue of the receipt of such order
by the SEC will be incorporated herein by reference, and such parties agree to
comply with such conditions and undertakings to the extent applicable to each
such party; and
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WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and its shares are registered under the Securities Act of
1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable annuity
contracts (the "Contracts") under the 1933 Act; and
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company
under the insurance laws of the State of New York, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, the Company has registered the Account as a unit investment trust under
the 1940 Act; and
WHEREAS, CSI, the Fund's distributor, is registered as a broker-dealer with the
SEC under the Securities Exchange Act of 1934, as amended (the "1934 Act") and
is a member in good standing of the National Association of Securities Dealers,
Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule 2, as
such schedule may be amended from time to time (the "Designated Portfolios") on
behalf of the Account to fund the Contracts, and the Fund is authorized to sell
such shares to unit investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Adviser and CSI agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company those shares of the
Designated Portfolios that each Account orders, executing such
orders on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its designee of
the order for the shares of the Fund. For purposes of this
Section 1.1, the Company will be the designee of the Fund for
receipt of such orders from each Account and receipt by such
designee will constitute receipt by the Fund; provided that
the Fund receives notice of such order by 10:00 a.m. Eastern
Time on the next following Business Day ("T+1"). "Business
Day" will mean any day on which the New York Stock Exchange,
Inc. (the "NYSE") is open for trading and on which the Fund
calculates its net asset value pursuant to the rules of the
SEC.
1.2. The Company will pay for Fund shares on T+1 in each case that
an order to purchase Fund shares is made in accordance with
Section 1.1 above. Payment will be in federal funds
transmitted by wire. This wire transfer will be initiated by
12:00 p.m. Eastern Time.
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1.3. The Fund agrees to make shares of the Designated Portfolios
available for purchase at the applicable net asset value per share by
Participating Insurance Companies and their separate accounts on those days
on which the Fund calculates its Designated Portfolio net asset value
pursuant to rules of the SEC; provided, however, that the Fund, the Adviser
or CSI may refuse to sell shares of any Portfolio to any person, or suspend
or terminate the offering of shares of any Portfolio if such action is
required by law or by regulatory authorities having jurisdiction or is, in
its or their sole discretion, in necessary in the best interests of the
Fund as described in the prospectus for the Designated Portfolio.
1.4 On each Business Day on which the Fund calculates its net asset value, the
Company will aggregate and calculate the net purchase or redemption orders
for each Account maintained by the Fund in which contractowner assets are
invested. Net orders will only reflect orders that the Company has received
prior to the close of regular trading on the NYSE (currently 4:00 p.m.,
Eastern Time) on that Business Day. Orders that the Company has received
after the close of regular trading on the NYSE will be treated as though
received on the next Business Day. Each communication of orders by the
Company will constitute a representation that such orders were received by
it prior to the close of regular trading on the NYSE on the Business Day on
which the purchase or redemption order is priced in accordance with Rule
22c-1 under the 1940 Act. Other procedures relating to the handling of
orders will be in accordance with the prospectus and statement of
additional information of the relevant Designated Portfolio or with oral or
written instructions that CSI or the Fund will forward to the Company from
time to time.
1.5. The Fund agrees that shares of the Fund will be sold only to Participating
Insurance Companies and their separate accounts, qualified pension and
retirement plans or such other persons as are permitted under applicable
provisions of the Internal Revenue Code of 1986, as amended, (the "Internal
Revenue Code"), and regulations promulgated thereunder, the sale to which
will not impair the tax treatment currently afforded the Contracts. No
shares of any Portfolio will be sold to the general public except as set
forth in this Section 1.5.
1.6. The Fund agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests
on a daily basis at the net asset value next computed after receipt and
acceptance by the Fund or its designee of the request for redemption. For
purposes of this Section 1.6, the Company will be the designee of the Fund
for receipt of requests for redemption from each Account and receipt by
such designee will constitute receipt by the Fund, provided the Fund
receives notice of request for redemption by 10:00 a.m. Eastern Time on the
next following Business Day. Payment will be in federal funds transmitted
by wire to the Company's account as designated by the Company in writing
from time to time, on the same Business Day the Fund receives notice of the
redemption order from the Company. The
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Fund reserves the right to delay payment of redemption proceeds, but in no
event may such payment be delayed longer than the period permitted by the
0000 Xxx. The Fund will not bear any responsibility whatsoever for the
proper disbursement or crediting of redemption proceeds; the Company alone
will be responsible for such action. If notification of redemption is
received after 10:00 a.m. Eastern Time, payment for redeemed shares will
be made on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund in
accordance with the provisions of such prospectus.
1.8. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate subaccount of each
Account.
1.9. The Fund will furnish same day notice (by telecopier, followed by written
confirmation) to the Company of the declaration of any income, dividends or
capital gain distributions payable on each Designated Portfolio's shares.
The Company hereby elects to receive all such dividends and distributions
as are payable on the Designated Portfolio shares in the form of additional
shares of that Designated Portfolio. The Fund will notify the Company of
the number of shares so issued as payment of such dividends and
distributions. The Company reserves the right to revoke this election upon
reasonable prior notice to the Fund and to receive all such dividends and
distributions in cash.
1.10. The Fund will make the net asset value per share for each Designated
Portfolio available to the Company on a daily basis as soon as
reasonably practical after the net asset value per share is
calculated and will use its best efforts to make such net asset
value per share available by 6:00 p.m., Eastern Time, but in no
event later than 7:00 p.m., Eastern Time, each Business Day.
1.11 In the event adjustments are required to correct any error in the
computation of the net asset value of the Fund's shares, the Fund or CSI
will notify the Company as soon as practicable after discovering the need
for those adjustments that result in an aggregate reimbursement of $150 or
more. The Company will make an adjustmentthat result in an aggregate
reimbursement of $150 or to any contractowner's account that requires an
adjustment of $10 or more. Any such notice will state for each day for
which an error occurred the incorrect price, the correct price and, to the
extent communicated to the Fund's shareholders, the reason for the price
change. The Company may send this notice or a derivation thereof (so long
as such derivation is approved in advance by CSI or the Adviser) to
contractowners whose accounts are affected by the
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price change. The parties will negotiate in good faith to develop a
reasonable method for effecting such adjustments.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act and that the Contracts will be issued and
sold in compliance with all applicable federal and state laws, including
state insurance suitability requirements. The Company further represents
and warrants that it is an insurance company duly organized and in good
standing under applicable law and that it has legally and validly
established each Account as a separate account under applicable state law
and has registered the Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a segregated investment
account for the Contracts, and that it will maintain such registration for
so long as any Contracts are outstanding. The Company will amend the
registration statement under the 1933 Act for the Contracts and the
registration statement under the 1940 Act for the Account from time to time
as required in order to effect the continuous offering of the Contracts or
as may otherwise be required by applicable law. The Company will register
and qualify the Contracts for sale in accordance with the securities laws
of any state only if and to the extent deemed necessary by the Company.
2.2. The Company represents that the Contracts are currently and at the time of
issuance will be treated as annuity contracts under applicable provisions
of the Internal Revenue Code, and that it will make every effort to
maintain such treatment and that it will notify the Fund and the Adviser
immediately upon having a reasonable basis for believing that the Contracts
have ceased to be so treated or that they might not be so treated in the
future.
2.3. The Company represents and warrants that it will not purchase shares of
the Designated Portfolios with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in
connection with such plans.
2.4. The Fund represents and warrants that Fund shares of the Designated
Portfolios sold pursuant to this Agreement will be registered under the
1933 Act and duly authorized for issuance in accordance with applicable law
and that the Fund is and will remain registered under the 1940 Act for as
long as such shares of the Designated Portfolios are sold. The Fund will
amend the registration statement for its shares under the 1933 Act and the
1940 Act from time to time as required in order to effect the continuous
offering of its shares or as may otherwise be required by applicable law.
The Fund will register and qualify the shares of the Designated Portfolios
for sale in accordance with the laws of any state only if and to the extent
deemed advisable by the Fund.
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2.5. The Fund represents that each Designated Portfolio is currently
qualified as a Regulated Investment Company under Subchapter M of the
Internal Revenue Code, and that it will make every effort to maintain such
qualification (under Subchapter M or any successor or similar provision)
and that it will notify the Company immediately upon having a reasonable
basis for believing that it has ceased to so qualify or that a Designated
Portfolio might not so qualify in the future.
2.6. The Fund represents and warrants that in performing the services described
in this Agreement, the Fund will comply with all applicable laws, rules and
regulations. The Fund makes no representation as to whether any aspect of
its operations (including, but not limited to, fees and expenses and
investment policies, objectives and restrictions) complies with the
insurance laws and regulations of any state. The Fund and CSI agree that
upon request they will use their best efforts to furnish the information
required by state insurance laws so that the Company can obtain the
authority needed to issue the Contracts in any applicable state.
2.7. The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act, although
it reserves the right to make such payments in the future. To the extent
that it decides to finance distribution expenses pursuant to Rule 12b-1,
the Fund undertakes to have its Board of Trustees of the Fund (the "Fund
Board") formulate and approve any plan under Rule 12b-1 to finance
distribution expenses in accordance with the 1940 Act.
2.8. The Fund represents that it is lawfully organized and validly existing
under the laws of The Commonwealth of Massachusetts and that it does and
will comply in all material respects with applicable provisions of the
1940 Act.
2.9. CSI represents and warrants that it will distribute the Fund shares of the
Designated Portfolios in accordance with all applicable federal and state
securities laws including, without limitation, the 1933 Act, the 1934 Act
and the 0000 Xxx.
2.10. CSI represents and warrants that it is and will remain duly
registered under all applicable federal and state securities laws
and that it will perform its obligations for the Fund in accordance
in all material respects with any applicable state and federal
securities laws.
2.11.The Fund represents and warrants that all of its trustees, officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Fund are and continue to be at
all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Fund in an amount not less than the minimal coverage as
required currently by Rule 17g-(1) of the 1940 Act or related provisions as
may be promulgated from time to time. The aforesaid bond
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includes coverage for larceny and embezzlement and is issued by a
reputable bonding company. CSI and the Adviser represent and warrant
that they are and continue to be at all times covered by policies
similar to the aforesaid bond.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Fund or CSI will provide the Company, at the Fund's or its affiliate's
expense, with as many copies of the current Fund prospectus for the
Designated Portfolios as the Company may reasonably request for
distribution, at the Company's expense, to prospective contractowners and
applicants. The Fund or CSI will provide, at the Fund's or its affiliate's
expense, as many copies of said prospectus as necessary for distribution,
at the Company's expense, to existing contractowners. The Fund or CSI will
provide the copies of said prospectus to the Company or to its mailing
agent. If requested by the Company in lieu thereof, the Fund or CSI will
provide such documentation, including a computer diskette or a final copy
of a current prospectus set in type at the Fund's or its affiliate's
expense, and such other assistance as is reasonably necessary in order for
the Company at least annually (or more frequently if the Fund prospectus is
amended more frequently) to have the Fund's prospectus and the prospectuses
of other mutual funds in which assets attributable to the Contracts may be
invested printed together in one document, in which case the Fund or its
affiliate will bear its reasonable share of expenses as described above,
allocated based on the proportionate number of pages of the Fund's and
other funds' respective portions of the document.
3.2 The Fund or CSI will provide the Company, at the Fund's or its affiliate's
expense, with as many copies of the statement of additional information as
the Company may reasonably request for distribution, at the Company's
expense, to prospective contractowners and applicants. The Fund or CSI will
provide, at the Fund's or its affiliate's expense, as many copies of said
statement of additional information as necessary for distribution, at the
Company's expense, to any existing contractowner who requests such
statement or whenever state or federal law otherwise requires that such
statement be provided. The Fund or CSI will provide the copies of said
statement of additional information to the Company or to its mailing agent.
3.3. The Fund or CSI, at the Fund's or its affiliate's expense, will provide
the Company or its mailing agent with copies of its proxy material, if
any, reports to shareholders and other communications to shareholders in
such quantity as the Company will reasonably require. The Company will
distribute this proxy material, reports and other communications to
existing contractowners and tabulate the votes.
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3.4. If and to the extent required by law the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios held in
the Account in accordance with instructions received
from contractowners; and
(c) vote shares of the Designated Portfolios held in the Account
for which no timely instructions have been received, as well
as shares it owns, in the same proportion as shares of such
Designated Portfolio for which instructions have been received
from the Company's contractowners;
so long as and to the extent that the SEC continues to interpret the 1940
Act to require pass-through voting privileges for variable contractowners.
Except as set forth above, the Company reserves the right to vote Fund
shares held in any segregated asset account in its own right, to the
extent permitted by law. The Company will be responsible for assuring that
each of its separate accounts participating in the Fund calculates voting
privileges in a manner consistent with all legal requirements, including
the Mixed and Shared Funding Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Fund either will provide for annual
meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, will
comply with Section 16(c) of the 1940 Act (although the Fund is not one of
the trusts described in Section 16(c) of that Act) as well as with Sections
16(a) and, if and when applicable, 16(b). Further, the Fund will act in
accordance with the SEC's interpretation of the requirements of Section
16(a) with respect to periodic elections of trustees and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. CSI will provide the Company on a timely basis with investment performance
information for each Designated Portfolio in which the Company maintains an
Account, including total return for the preceding calendar month and
calendar quarter, the calendar year to date, and the prior one-year,
five-year, and ten-year (or life of the Designated Portfolio) periods. The
Company may, based on the SEC-mandated information supplied by CSI, prepare
communications for contractowners ("Contractowner Materials"). The Company
will provide copies of all Contractowner Materials concurrently with their
first use for CSI's internal recordkeeping purposes. It is understood that
neither CSI nor any Designated Portfolio will be responsible for errors or
omissions in, or the content of, Contractowner Materials except to the
extent that the error or omission resulted from information provided by or
on behalf of CSI or the Designated Portfolio. Any printed information that
is furnished to the Company other than each Designated
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Portfolio's prospectus or statement of additional information (or
information supplemental thereto), periodic reports and proxy solicitation
materials is CSI's sole responsibility and not the responsibility of any
Designated Portfolio or the Fund. The Company agrees that the Portfolios,
the shareholders of the Portfolios and the officers and governing Board of
the Fund will have no liability or responsibility to the Company in these
respects.
4.2. The Company will not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement, prospectus or statement of
additional information for Fund shares, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in reports or proxy statements for the
Fund, or in published reports for the Fund which are in the public domain
or approved by the Fund or CSI for distribution, or in sales literature or
other material provided by the Fund or by CSI, except with permission of
the Fund or CSI. The Fund and CSI agree to respond to any request for
approval on a prompt and timely basis. Nothing in this Section 4.2 will be
construed as preventing the Company or its employees or agents from giving
advice on investment in the Fund.
4.3. The Fund, the Adviser and CSI will not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, each Account, or the Contracts other than the information or
representations contained in a registration statement, prospectus or
statement of additional information for the Contracts, as such registration
statement, prospectus and statement of additional information may be
amended or supplemented from time to time, or in published reports for each
Account or the Contracts which are in the public domain or approved by the
Company for distribution to contractowners, or in sales literature or other
material provided by the Company, except with permission of the Company.
The Company agrees to respond to any request for approval on a prompt and
timely basis. The Fund, the Adviser or CSI will furnish, or will cause to
be furnished, to the Company or its designee, each piece of sales
literature or other promotional material in which the Company or its
Account is named, at least ten (10) Business Days prior to its use. No such
material will be used if the Company reasonably objects to such use within
five (5) Business Days after receipt of such material.
4.4. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments
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to any of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with the SEC, the NASD
or other regulatory authority.
4.5. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no action letters, and all amendments to any of the above,
that relate to the Contracts or each Account, contemporaneously with the
filing of such document with the SEC, the NASD or other regulatory
authority.
4.6. For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such
as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media (e.g.,
on-line networks such as the Internet or other ---- electronic messages)
sales literature (i.e., any written ---- communication distributed or made
generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts,
reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other
communications distributed or made generally available to some or all
agents or employees, registration statements, prospectuses, statements of
additional information, shareholder reports, proxy materials and any other
material constituting sales literature or advertising under the NASD rules,
the 1933 Act or the 0000 Xxx.
4.7. The Fund and CSI hereby consent to the Company's use of the names Warburg
Pincus Trust - Post-Venture Capital Portfolio (or the name of any other
Designated Portfolio) and Warburg, Xxxxxx Counsellors, Inc. in connection
with the marketing of the Contracts, subject to the terms of Sections 4.1
and 4.2 of this Agreement. Such consent will terminate with the
termination of this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund, the Adviser and CSI will pay no distribution fee or other
compensation to the Company under this Agreement pursuant to Rule 12b-1
under the 1940 Act except if the Fund or any Designated Portfolio adopts
and implements a plan pursuant to Rule 12b-1 to finance distribution
expenses, then, subject to obtaining any required exemptive orders or other
regulatory approvals, the Fund may make payments to the Company if and in
such amounts agreed to by the Fund in writing.
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5.2. All expenses incident to performance by the Fund of this Agreement will be
paid by the Fund to the extent permitted by law. The Fund will bear the
expenses for the cost of registration and qualification of the Fund's
shares; preparation and filing of the Fund's prospectus, statement of
additional information and registration statement, proxy materials and
reports; setting in type and printing the Fund's prospectus; setting in
type and printing proxy materials and reports by it to contractowners
(including the costs of printing a Fund prospectus that contains an annual
report); the preparation of all statements and notices required by any
federal or state law; all taxes on the issuance or transfer of the Fund's
shares; any expenses permitted to be paid or assumed by the Fund pursuant
to a plan, if any, under Rule 12b-1 under the 1940 Act; and all other
expenses set forth in Article III of this Agreement.
ARTICLE VI. Diversification
6.1 The Fund will at all times invest money from the Contracts in such a manner
as to ensure that the Contracts will be treated as variable annuity
contracts under the Internal Revenue Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund will
comply with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, as amended from time to time, relating to the
diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such
Section or Regulation. In the event of a breach of this Article VI by the
Fund, 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 Treasury Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
7.1. The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the contractowners
of all separate accounts investing in the Fund. An irreconcilable material
conflict may arise for a variety of reasons, including: (a) an action by
any state insurance regulatory authority; (b) 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 action by insurance, tax, or securities regulatory
authorities; (c) an administrative or judicial decision in any relevant
proceeding; (d) the manner in which the investments of any Portfolio are
being managed; (e) a difference in voting instructions given by
Participating Insurance Companies or by variable annuity and variable life
insurance contractowners; or (f) a decision by an insurer to disregard the
voting instructions of contractowners. The Fund Board will promptly inform
the Company if it determines that an irreconcilable material conflict
exists and the implications thereof.
PAGE 12
7.2. The Company will report any potential or existing conflicts of which it is
aware to the Fund Board. The Company agrees to assist the Fund Board in
carrying out its responsibilities, as delineated in the Mixed and Shared
Funding Exemptive Order, by providing the Fund Board with all information
reasonably necessary for the Fund Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform the
Fund Board whenever contractowner voting instructions are to be
disregarded. The Company's responsibilities hereunder will be carried out
with a view only to the interest of contractowners.
7.3. If it is determined by a majority of the Fund Board, or a majority of its
disinterested trustees, that an irreconcilable material conflict exists,
the Company will, at its expense and to the extent reasonably practicable
(as determined by a majority of the disinterested trustees), take whatever
steps are necessary to remedy or eliminate the irreconcilable material
conflict, up to and including: (a) withdrawing the assets allocable to some
or all of the Accounts from the Fund or any Designated Portfolio and
reinvesting such assets in a different investment medium, including (but
not limited to) another Portfolio of the Fund, or submitting the question
whether such segregation should be implemented to a vote of all affected
contractowners and, as appropriate, segregating the assets of any
appropriate group (i.e., variable annuity ---- contractowners or variable
life insurance contractowners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the
affected contractowners the option of making such a change; and (b)
establishing a new registered management investment company or managed
separate account.
7.4. If a material irreconcilable conflict arises because of a decision by the
Company to disregard contractowner voting instructions, and the Company's
judgment represents a minority position or would preclude a majority vote,
the Company may be required, at the Fund's election, to withdraw the
affected subaccount of the Account's investment in the Fund and terminate
this Agreement with respect to such subaccount; provided, however, that
such withdrawal and termination will be limited to the extent required by
the foregoing irreconcilable material conflict as determined by a majority
of the disinterested trustees of the Fund Board. No charge or penalty will
be imposed as a result of such withdrawal.
7.5. If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state insurance regulators, then the Company will
withdraw the affected subaccount of the Account's investment in the Fund
and terminate this Agreement with respect to such subaccount; provided,
however, that such withdrawal and termination will be limited to the extent
required by the foregoing
PAGE 13
irreconcilable material conflict as determined by a majority of the
disinterested trustees of the Fund Board. No charge or penalty will be
imposed as a result of such withdrawal.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Fund Board will determine whether any
proposed action adequately remedies any irreconcilable material conflict,
but in no event will the Fund or the Adviser (or any other investment
adviser to the Fund) be required to establish a new funding medium for the
Contracts. The Company will not be required by Section 7.3 to establish a
new funding medium for the Contracts if an offer to do so has been declined
by vote of a majority of contractowners materially affected by the
irreconcilable material conflict.
7.7. The Company will at least annually submit to the Fund Board such reports,
materials or data as the Fund Board may reasonably request so that the
Fund Board may fully carry out the duties imposed upon it as delineated in
the Mixed and Shared Funding Exemptive Order, and said reports, materials
and data will be submitted more frequently if deemed appropriate by the
Fund Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940
Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Mixed and Shared Funding Exemptive Order) on
terms and conditions materially different from those contained in the Mixed
and Shared Funding Exemptive Order, then: (a) the Fund and/or the
Participating Insurance Companies, as appropriate, will take such steps as
may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and
Rule 6e-3, as adopted, to the extent such rules are applicable; and (b)
Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement will
continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as
so amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund, the Adviser,
CSI, and each person, if any, who controls or is associated with the Fund,
the Adviser or CSI within the meaning of such terms under the federal
securities laws and any director, trustee, officer, partner, employee or
agent of the foregoing (collectively, the "Indemnified Parties" for
purposes of this Section 8.1) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the written
consent of the Company) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become
PAGE 14
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:
(1) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the registration statement,
prospectus or statement of additional information for the Contracts or
contained in the Contracts or sales literature or other promotional
material for the 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 or
necessary to make such statements not misleading in light of the
circumstances in which they were made; provided that this agreement to
indemnify will 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 written information furnished to the Company by the
Fund, the Adviser or CSI for use in the registration statement, prospectus
or statement of additional information for the Contracts or in the
Contracts or sales literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations by or on
behalf of the Company or wrongful conduct of the Company or persons under
its control, with respect to the sale or distribution of the Contracts or
Fund shares; or
(3) arise out of any untrue statement or alleged untrue statement of a material
fact contained in the Fund registration statement, prospectus, statement of
additional information or sales literature or other promotional material of
the Fund (or amendment or supplement) or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make such statements not misleading in light of the circumstances in
which they were made, if such a statement or omission was made in reliance
upon and in conformity with information furnished to the Fund by or on
behalf of the Company or persons under its control; or
(4) arise as a result of any failure by the Company to provide the services and
furnish the materials under the terms of this Agreement; or
PAGE 15
(5) arise out of any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or result
from any other material breach by the Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.3 hereof.
This indemnification will be in addition to any liability that the
Company otherwise may have.
(b) No party will be entitled to indemnification under Section 8.1(a) to the
extent such loss, claim, damage, liability or litigation is due to the
willful misfeasance, bad faith, or gross negligence in the performance of
such party's duties under this Agreement, or by reason of such party's
reckless disregard of its obligations or duties under this Agreement by the
party seeking indemnification.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with the issuance or sale
of the Fund shares or the Contracts or the operation of the Fund.
8.2. Indemnification By The Adviser, the Fund and CSI
(a) The Adviser, the Fund and CSI, in each case solely to the extent relating
to such party's responsibilities hereunder, agree to indemnify and hold
harmless the Company and each person, if any, who controls or is associated
with the Company within the meaning of such terms under the federal
securities laws and any director, trustee, officer, partner, employee or
agent of the foregoing (collectively, the "Indemnified Parties" for
purposes of this Section 8.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the written
consent of the Adviser) or litigation (including reasonable legal and other
expenses) to which the 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:
(1) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement,
prospectus or statement of additional information for the Fund or sales
literature or other promotional material of the Fund (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 or necessary to make such statements not misleading in light
of the circumstances in which they were made
PAGE 16
(in each case substantially as transmitted to you by the Fund or CSI);
provided that this agreement to indemnify will 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 to the Adviser, CSI or the Fund by or on behalf of the Company
for use in the registration statement, prospectus or statement of
additional information for the Fund or in sales literature of the Fund (or
any amendment or supplement thereto) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations
or wrongful conduct of the Adviser, the Fund or CSI or persons
under the control of the Adviser, the Fund or CSI
respectively, with respect to the sale of the Fund shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus, statement of
additional information or sales literature or other
promotional material covering the Contracts (or any
amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact
required to be stated or necessary to make such
statement or statements not misleading in light of
the circumstances in which they were made, if such
statement or omission was made in reliance upon and
in conformity with written information furnished to
the Company by the Adviser, the Fund or CSI or
persons under the control of the Adviser, the Fund
or CSI; or
(4) arise as a result of any failure by the Fund, the
Adviser or CSI to provide the services and furnish
the materials under the terms of this Agreement
(including a failure, whether unintentional or in
good faith or otherwise, to comply with the
diversification requirements and procedures related
thereto specified in Article VI of this Agreement);
or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser, the Fund
or CSI in this Agreement, or arise out of or result from any
other material breach of this Agreement by the Adviser, the
Fund or CSI;
except to the extent provided in Sections 8.2(b) and 8.3
hereof.
PAGE 17
(b) No party will be entitled to indemnification under
Section 8.2(a) to the extent such loss, claim, damage,
liability or litigation is due to the willful
misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement,
or by reason of such party's reckless disregard of its
obligations or duties under this Agreement by the party
seeking indemnification.
(c) The Indemnified Parties will promptly notify the Adviser, the Fund
and CSI of the commencement of any litigation, proceedings,
complaints or actions by regulatory authorities against them in
connection with the issuance or sale of the Contracts or the
operation of the Account.
8.3. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.3) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.3) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the claim
will have been served upon such Indemnified Party (or after such party
will have received notice of such service on any designated agent), but
failure to notify the Indemnifying Party of any such claim will not
relieve the Indemnifying Party from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of the indemnification provision of this Article VIII, except to
the extent that the failure to notify results in the failure of actual
notice to the Indemnifying Party and such Indemnifying Party is damaged
solely as a result of failure to give such notice. In case any such action
is brought against the Indemnified Party, the Indemnifying Party will be
entitled to participate, at its own expense, in the defense thereof. The
Indemnifying Party also will be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action. After notice
from the Indemnifying Party to the Indemnified Party of the Indemnifying
Party's election to assume the defense thereof, the Indemnified Party will
bear the fees and expenses of any additional counsel retained by it, and
the Indemnifying Party 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, unless: (a) the Indemnifying Party and
the Indemnified Party will have mutually agreed to the retention of such
counsel; or (b) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
The Indemnifying Party xxxx
XXXX 18
not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there is a final
judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. A successor by law of the parties to this
Agreement will be entitled to the benefits of the indemnification
contained in this Article VIII. The indemnification provisions contained
in this Article VIII will survive any termination of this Agreement.
ARTICLE IX. Applicable Law
9.1. This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Minnesota.
9.2. This Agreement will be subject to the provisions of the 1933 Act, the 1934
Act and the 1940 Act, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the Mixed
and Shared Funding Exemptive Order) and the terms hereof will be
interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, with respect to
some or all of the Designated Portfolios, upon ninety (90) days'
advance written notice to the other parties or, if later, upon
receipt of any required exemptive relief or orders from the SEC,
unless otherwise agreed in a separate written agreement among the
parties; or
(b) at the option of the Company, upon receipt of the Company's written
notice by the other parties, with respect to any Designated
Portfolio if shares of the Designated Portfolio are not reasonably
available to meet the requirements of the Contracts as determined in
good faith by the Company; or
(c) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with
respect to any Designated Portfolio in the event any of
the Designated Portfolio's shares are not registered,
issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such shares
as the underlying investment media of the Contracts
issued or to be issued by Company; or
(d) at the option of the Fund, upon receipt of the Fund's written notice
by the other parties, upon institution of formal proceedings against
the Company by the NASD, the SEC, the insurance commission of any
state or any other
PAGE 19
regulatory body regarding the Company's duties under this Agreement
or related to the sale of the Contracts, the administration of the
Contracts, the operation of the Account, or the purchase of the Fund
shares, provided that the Fund determines in its sole judgment,
exercised in good faith, that any such proceeding would have a
material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the
Company's written notice by the other parties, upon
institution of formal proceedings against the Fund or CSI
by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body,
provided that the Company determines in its sole
judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on the
Fund's or CSI's ability to perform its obligations under
this Agreement; or
(f) at the option of the Company, upon receipt of the
Company's written notice by the other parties, if, with
respect to any Designated Portfolio, the Designated
Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code,
or under any successor or similar provision, or if the
Company reasonably and in good faith believes that the
Designated Portfolio may fail to so qualify; or
(g) at the option of the Company, upon receipt of the Company's written
notice by the other parties, if, with respect to any Designated
Portfolio, the Designated Portfolio fails to meet the
diversification requirements specified in Article VI hereof or if
the Company reasonably and in good faith believes the Designated
Portfolio may fail to meet such requirements; or
(h) at the option of any party to this Agreement, upon written notice to
the other parties, upon another party's material breach of any
provision of this Agreement; or
(i) at the option of the Company, if the Company determines
in its sole judgment exercised in good faith, that either
the Fund, the Adviser or CSI has suffered a material
adverse change in its business, operations or financial
condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to
have a material adverse impact upon the business and
operations of the Company, such termination to be
effective sixty (60) days' after receipt by the other
parties of written notice of the election to terminate;
or
PAGE 20
(j) at the option of the Fund or CSI, if the Fund or CSI
respectively, determines in its sole judgment exercised
in good faith, that the Company has suffered a material
adverse change in its business, operations or financial
condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to
have a material adverse impact upon the business and
operations of the Fund or the Adviser, such termination
to be effective sixty (60) days' after receipt by the
other parties of written notice of the election to
terminate; or
(k) at the option of the Company or the Fund upon receipt of
any necessary regulatory approvals and/or the vote of the
contractowners having an interest in the Account (or any
subaccount) to substitute the shares of another
investment company for the corresponding Designated
Portfolio shares of the Fund in accordance with the terms
of the Contracts for which those Designated Portfolio
shares had been selected to serve as the underlying
investment media. The Company will give sixty (60) days'
prior written notice to the Fund of the date of any
proposed vote or other action taken to replace the Fund's
shares; or
(l) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a
majority of the disinterested Fund Board members, that an
irreconcilable material conflict exists among the
interests of: (1) all contractowners of variable
insurance products of all separate accounts; or (2) the
interests of the Participating Insurance Companies
investing in the Fund as set forth in Article VII of this
Agreement; or
(m) at the option of the Fund in the event any of the Contracts are not
issued or sold in accordance with applicable federal and/or state
law. Termination will be effective immediately upon such occurrence
without notice.
10.2. Notice Requirement
Except as specified in Section 10.1(m), no termination of this Agreement
will be effective unless and until the party terminating this Agreement
gives prior written notice to all other parties of its intent to
terminate, which notice will set forth the basis for the termination.
10.3. Effect of Termination
In the event of any termination of this Agreement other than pursuant to
subsection (l) of Section 10.1, the Fund and CSI will, 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 "Existing Contracts").
PAGE 21
Specifically, without limitation, the owners of the Existing Contracts
will be permitted to reallocate investments in the Designated Portfolios
(as in effect on such date), redeem investments in the Designated
Portfolios and/or invest in the Designated Portfolios upon the making of
additional purchase payments under the Existing Contracts.
10.4 Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive and
not be affected by any termination of this Agreement. In addition, each
party's obligations under Section 12.6 will survive and not be affected by
any termination of this Agreement. Finally, with respect to Existing
Contracts, all provisions of this Agreement also will survive and not be
affected by any termination of this Agreement.
ARTICLE XI. Notices
11.1 Any notice will be deemed duly given when sent by registered or certified
mail to the other party at the address of such party set forth below or at
such other address as such party may from time to time specify in writing
to the other parties.
If to the Company:
American Centurion Life Assurance Company
c/o American Express Financial Advisors Inc.
IDS Tower 10
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxxx
Manager - Product Development
With a simultaneous copy to:
American Centurion Life Assurance Company
c/o American Express Financial Advisors Inc.
IDS Tower 10
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxx Xxxxxxx
Counsel
If to the Fund, the Adviser and/or CSI:
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Senior Vice President
ARTICLE XII. Miscellaneous
12.1. The Fund, the Adviser and CSI acknowledge that the identities of the
customers of the Company or any of its affiliates (collectively the
"Company Protected Parties" for purposes of this Section 12.1),
information maintained regarding those customers, and all computer
programs and procedures or other information developed or used by
the Company Protected Parties or any of their
PAGE 22
employees or agents in connection with the Company's performance of
its duties under this Agreement are the valuable property of the
Company Protected Parties. The Fund, the Adviser and CSI agree that
if they come into possession of any list or compilation of the
identities of or other information about the Company Protected
Parties' customers, or any other information or property of the
Company Protected Parties, other than such information as is
publicly available or as may be independently developed or compiled
by the Fund, the Adviser or CSI from information supplied to them by
the Company Protected Parties' customers who also maintain accounts
directly with the Fund, the Adviser or CSI, the Fund, the Adviser
and CSI will hold such information or property in confidence and
refrain from using, disclosing or distributing any of such
information or other property except: (a) with the Company's prior
written consent; or (b) as required by law or judicial process. The
Company acknowledges that the identities of the customers of the
Fund, the Adviser, CSI or any of their affiliates (collectively the
"Adviser Protected Parties" for purposes of this Section 12.1),
information maintained regarding those customers, and all computer
programs and procedures or other information developed or used by
the Adviser Protected Parties or any of their employees or agents in
connection with the Funds', the Adviser's or CSI's performance of
their respective duties under this Agreement are the valuable
property of the Adviser Protected Parties. The Company agrees that
if it comes into possession of any list or compilation of the
identities of or other information about the Adviser Protected
Parties' customers, or any other information or property of the
Adviser Protected Parties, other than such information as is
publicly available or as may be independently developed or compiled
by the Company from information supplied to them by the Adviser
Protected Parties' customers who also maintain accounts directly
with the Company, the Company will hold such information or property
in confidence and refrain from using, disclosing or distributing any
of such information or other property except: (a) with the Fund's,
the Adviser's or CSI's prior written consent; or (b) as required by
law or judicial process. Each party acknowledges that any breach of
the agreements in this Section 12.1 would result in immediate and
irreparable harm to the other parties for which there would be no
adequate remedy at law and agree that in the event of such a breach,
the other parties will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as
any court of competent jurisdiction deems appropriate.
12.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
PAGE 23
12.3. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together will
constitute one and the same instrument.
12.4. If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
12.5. This Agreement will not be assigned by any party hereto
without the prior written consent of all the parties.
12.6. Each party to this Agreement will maintain all records
required by law, including records detailing the services
it provides. Such records will be preserved, maintained
and made available to the extent required by law and in
accordance with the 1940 Act and the rules thereunder.
Each party to this Agreement will cooperate with each
other party and all appropriate governmental authorities
(including without limitation the SEC, the NASD and state
insurance regulators) and will permit each other and such
authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby.
Upon request by the Fund or CSI, the Company agrees to
promptly make copies or, if required, originals of all
records pertaining to the performance of services under
this Agreement available to the Fund or CSI, as the case
may be. The Fund agrees that the Company will have the
right to inspect, audit and copy all records pertaining
to the performance of services under this Agreement
pursuant to the requirements of any state insurance
department. Each party also agrees to promptly notify
the other parties if it experiences any difficulty in
maintaining the records in an accurate and complete
manner. This provision will survive termination of this
Agreement.
12.7. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary corporate or board
action, as applicable, by such party and when so executed and
delivered this Agreement will be the valid and binding obligation of
such party enforceable in accordance with its terms.
12.8. The parties to this Agreement acknowledge and agree that
all liabilities of the Fund arising, directly or
indirectly, under this agreement, will be satisfied
solely out of the assets of the Fund and that no trustee,
officer, agent or holder of shares of beneficial interest
of the Fund will be personally liable for any such
liabilities. No Portfolio will be liable for the
obligations or liabilities of any other Portfolio.
PAGE 24
12.9. The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect changes in or relating to the
Contracts, the Accounts or the Designated Portfolios of the Fund or
other applicable terms of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the date specified below.
AMERICAN CENTURION LIFE
ASSURANCE COMPANY
SEAL By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Chairman and President
ATTEST:
By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
General Counsel and Secretary
WARBURG PINCUS TRUST
SEAL By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Vice President & Secretary
WARBURG, XXXXXX COUNSELLORS, INC.
SEAL By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Senior Vice President &
Assistant Secretary
COUNSELLORS SECURITIES INC.
SEAL By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Vice President
PAGE 25
Schedule 1
PARTICIPATION AGREEMENT
By and Among
AMERICAN CENTURION LIFE ASSURANCE COMPANY
And
WARBURG PINCUS TRUST
And
WARBURG, XXXXXX COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
The following separate accounts of American Centurion Life Assurance Company are
permitted in accordance with the provisions of this Agreement to invest in
Designated Portfolios of the Fund shown in Schedule 2:
ACL Variable Annuity Account 1, established October 12, 1995
October 7, 1996
PAGE 26
Schedule 2
PARTICIPATION AGREEMENT
By and Among
AMERICAN CENTURION LIFE ASSURANCE COMPANY
And
WARBURG PINCUS TRUST
And
WARBURG, XXXXXX COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
The Separate Account(s) shown on Schedule 1 may invest in the following
Designated Portfolios of the Warburg Pincus Trust:
Post-Venture Capital Portfolio
October 7, 1996
10/3/96
