Exhibit (h)(1)(a)
PARTICIPATION AGREEMENT
BY AND AMONG
AIM VARIABLE INSURANCE FUNDS, INC.,
AIG LIFE INSURANCE COMPANY,
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS,
AND
AIG EQUITY SALES CORP.
TABLE OF CONTENTS
DESCRIPTION PAGE
----------- - ----
Section 1. Available Funds............................................. 2
1.1 Availability................................................ 2
1.2 Addition, Deletion or Modification of Funds................. 2
1.3 No Sales to the General Public.............................. 2
Section 2. Processing Transactions..................................... 2
2.1 Timely Pricing and Orders................................... 2
2.2 Timely Payments............................................. 3
2.3 Applicable Price............................................ 3
2.4 Dividends and Distributions................................. 4
2.5 Book Entry.................................................. 4
Section 3. Costs and Expenses.......................................... 4
3.1 General..................................................... 4
3.2 Registration................................................ 4
3.3 Other (Non-Sales-Related)................................... 5
3.4 Other (Sales-Related)....................................... 5
3.5 Parties To Cooperate........................................ 5
Section 4. Legal Compliance............................................ 5
4.1 Tax Laws.................................................... 5
4.2 Insurance and Certain Other Laws............................ 8
4.3 Securities Laws............................................. 8
4.4 Notice of Certain Proceedings and Other Circumstances....... 9
4.5 AIG To Provide Documents; Information About AVIF............ 10
4.6 AVIF To Provide Documents; Information About AIG............ 11
Section 5. Mixed and Shared Funding.................................... 12
5.1 General..................................................... 12
5.2 Disinterested Directors..................................... 12
5.3 Monitoring for Material Irreconcilable Conflicts............ 12
5.4 Conflict Remedies........................................... 13
5.5 Notice to AIG............................................... 14
5.6 Information Requested by Board of Directors................. 14
5.7 Compliance with SEC Rules................................... 15
5.8 Other Requirements.......................................... 15
Section 6. Termination................................................. 15
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DESCRIPTION PAGE
----------- - ----
6.1 Events of Termination....................................... 15
6.2 Notice Requirement for Termination.......................... 16
6.3 Funds To Remain Available................................... 16
6.4 Survival of Warranties and Indemnifications................. 17
6.5 Continuance of Agreement for Certain Purposes............... 17
Section 7. Parties To Cooperate Respecting Termination................. 17
Section 8. Assignment.................................................. 17
Section 9. Notices..................................................... 17
Section 10. Voting Procedures........................................... 18
Section 11. Foreign Tax Credits......................................... 19
Section 12. Indemnification............................................. 19
12.1 Of AVIF by AIG and AIG Equity............................... 19
12.2 Of AIG and AIG Equity by AVIF............................... 21
12.3 Effect of Notice............................................ 23
12.4 Successors.................................................. 23
Section 13. Applicable Law.............................................. 24
Section 14. Execution in Counterparts................................... 24
Section 15. Severability................................................ 24
Section 16. Rights Cumulative........................................... 24
Section 17. Headings.................................................... 24
Section 18. Confidentiality............................................. 24
Section 19. Trademarks and Fund Names................................... 25
Section 20. Parties to Cooperate........................................ 26
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PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 20/TH/ day of November, 1997
("Agreement"), by and among AIM Variable Insurance Funds, Inc., a Maryland
corporation ("AVIF"); AIG Life Insurance Company, a Delaware life insurance
company ("AIG"), on behalf of itself and each of its segregated asset accounts
listed in Schedule A hereto, as the parties hereto may amend from time to time
(each, an "Account," and collectively, the "Accounts"); and AIG Equity Sales
Corp., an affiliate of AIG and the principal underwriter of the Contracts
(collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, AVIF is registered with the Securities and Exchange Commission
("SEC") as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, AVIF currently consists of nine separate series ("Series"), shares
("Shares") of each of which are registered under the Securities Act of 1933, as
amended (the "1933 Act") and are currently sold to one or more separate
accounts of life insurance companies to fund benefits under variable annuity
contracts and variable life insurance contracts; and
WHEREAS, AVIF will make Shares of each Series listed on Schedule A hereto as
the Parties hereto may amend from time to time (each a "Fund"; reference herein
to "AVIF" includes reference to each Fund, to the extent the context requires)
available for purchase by the Accounts; and
WHEREAS, AIG will be the issuer of certain variable annuity contracts and
variable life insurance contracts ("Contracts") as set forth on Schedule A
hereto, as the Parties hereto may amend from time to time, which Contracts
(hereinafter collectively, the "Contracts"), if required by applicable law,
will be registered under the 1933 Act; and
WHEREAS, AIG will fund the Contracts through the Accounts, each of which may
be divided into two or more subaccounts ("Subaccounts"; reference herein to an
"Account" includes reference to each Subaccount thereof to the extent the
context requires); and
WHEREAS, AIG will serve as the depositor of the Accounts, each of which is
registered as a unit investment trust investment company under the 1940 Act (or
exempt therefrom), and the security interests deemed to be issued by the
Accounts under the Contracts will be registered as securities under the
1933 Act (or exempt therefrom); and
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WHEREAS, to the extent permitted by applicable insurance laws and
regulations, AIG intends to purchase Shares in one or more of the Funds on
behalf of the Accounts to fund the Contracts; and
WHEREAS, AIG Equity is a broker-dealer registered with the SEC under the
Securities Exchange Act of 1934 ("1934 Act") and a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD");
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein, the Parties hereto agree as follows:
SECTION 1. AVAILABLE FUNDS
1.1 AVAILABILITY.
AVIF will make Shares of each Fund available to AIG for purchase and
redemption at net asset value and with no sales charges, subject to the terms
and conditions of this Agreement. The Board of Directors of AVIF may refuse to
sell Shares of any Fund to any person, or suspend or terminate the offering of
Shares of any Fund if such action is required by law or by regulatory
authorities having jurisdiction or if, in the sole discretion of the Directors
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, such action is deemed in the best interests of the
shareholders of such Fund.
1.2 ADDITION, DELETION OR MODIFICATION OF FUNDS.
The Parties hereto may agree, from time to time, to add other Funds to
provide additional funding media for the Contracts, or to delete, combine, or
modify existing Funds, by amending Schedule A hereto. Upon such amendment to
Schedule A, any applicable reference to a Fund, AVIF, or its Shares herein
shall include a reference to any such additional Fund. Schedule A, as amended
from time to time, is incorporated herein by reference and is a part hereof.
1.3 NO SALES TO THE GENERAL PUBLIC.
AVIF represents and warrants that no Shares of any Fund have been or will be
sold to the general public.
SECTION 2. PROCESSING TRANSACTIONS
2.1 TIMELY PRICING AND ORDERS.
(a) AVIF or its designated agent will use its best efforts to provide AIG
with the net asset value per Share for each Fund by 5:30 p.m. Central Time on
each Business Day. As used herein,
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"Business Day" shall mean any day on which (i) the New York Stock Exchange is
open for regular trading, (ii) AVIF calculates the Fund's net asset value, and
(iii) AIG is open for business.
(b) AIG will use the data provided by AVIF each Business Day pursuant to
paragraph (a) immediately above to calculate Account unit values and to process
transactions that receive that same Business Day's Account unit values. AIG
will perform such Account processing the same Business Day, and will place
corresponding orders to purchase or redeem Shares with AVIF by 9:00 a.m.
Central Time the following Business Day; PROVIDED, however, that AVIF shall
provide additional time to AIG in the event that AVIF is unable to meet the
5:30 p.m. time stated in paragraph (a) immediately above. Such additional time
shall be equal to the additional time that AVIF takes to make the net asset
values available to AIG.
(c) With respect to payment of the purchase price by AIG and of redemption
proceeds by AVIF, AIG and AVIF shall net purchase and redemption orders with
respect to each Fund and shall transmit one net payment per Fund in accordance
with Section 2.2, below.
(d) If AVIF provides materially incorrect Share net asset value information
(as determined under SEC guidelines), AIG shall be entitled to an adjustment to
the number of Shares purchased or redeemed to reflect the correct net asset
value per Share. Any material error in the calculation or reporting of net
asset value per Share, dividend or capital gain information shall be reported
promptly upon discovery to AIG.
2.2 TIMELY PAYMENTS.
AIG will wire payment for net purchases to a custodial account designated by
AVIF by 1:00 p.m. Central Time on the same day as the order for Shares is
placed, to the extent practicable. AVIF will wire payment for net redemptions
to an account designated by AIG by 1:00 p.m. Central Time on the same day as
the Order is placed, to the extent practicable, but in any event within five
(5) calendar days after the date the order is placed in order to enable AIG to
pay redemption proceeds within the time specified in Section 22(e) of the
1940 Act or such shorter period of time as may be required by law.
2.3 APPLICABLE PRICE.
(a) Share purchase payments and redemption orders that result from purchase
payments, premium payments, surrenders and other transactions under Contracts
(collectively, "Contract transactions") and that AIG receives prior to the
close of regular trading on the New York Stock Exchange on a Business Day will
be executed at the net asset values of the appropriate Funds next computed
after receipt by AVIF or its designated agent of the orders. For purposes of
this Section 2.3(a), AIG shall be the designated agent of AVIF for receipt of
orders relating to Contract transactions on each Business Day and receipt by
such designated agent shall constitute receipt by AVIF; PROVIDED that AVIF
receives notice of such orders by 9:00 a.m. Central Time on the next following
Business Day or such later time as computed in accordance with Section 2.1(b)
hereof.
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(b) All other Share purchases and redemptions by AIG will be effected at the
net asset values of the appropriate Funds next computed after receipt by AVIF
or its designated agent of the order therefor, and such orders will be
irrevocable,
2.4 DIVIDENDS AND DISTRIBUTIONS.
AVIF will furnish notice by wire or telephone (followed by written
confirmation) on or prior to the payment date to AIG of any income dividends or
capital gain distributions payable on the Shares of any Fund. AIG hereby elects
to reinvest all dividends and capital gains distributions in additional Shares
of the corresponding Fund at the ex-dividend date net asset values until AIG
otherwise notifies AVIF in writing, it being agreed by the Parties that the
ex-dividend date and the payment date with respect to any dividend or
distribution will be the same Business Day. AIG reserves the right to revoke
this election and to receive all such income dividends and capital gain
distributions in cash.
2.5 BOOK ENTRY.
Issuance and transfer of AVIF Shares will be by book entry only. Stock
certificates will not be issued to AIG. Shares ordered from AVIF will be
recorded in an appropriate title for AIG, on behalf of its Account.
SECTION 3. COSTS AND EXPENSES
3.1 GENERAL.
Except as otherwise specifically provided herein, each Party will bear all
expenses incident to its performance under this Agreement.
3.2 REGISTRATION.
(a) AVIF will bear the cost of its registering as a management investment
company under the 1940 Act and registering its Shares under the 1933 Act, and
keeping such registrations current and effective; including, without
limitation, the preparation of and filing with the SEC of Forms N-SAR and
Rule 24f-2 Notices with respect to AVIF and its Shares and payment of all
applicable registration or filing fees with respect to any of the foregoing.
(b) AIG will bear the cost of registering, to the extent required, each
Account as a unit investment trust under the 1940 Act and registering units of
interest under the Contracts under the 1933 Act and keeping such registrations
current and effective; including, without limitation, the preparation and
filing with the SEC of Forms N-SAR and Rule 24f-2 Notices with respect to each
Account and its units of interest and payment of all applicable registration or
filing fees with respect to any of the foregoing.
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3.3 OTHER (NON-SALES-RELATED).
(a) AVIF will bear, or arrange for others to bear, the costs of preparing,
filing with the SEC and setting for printing AVIF's prospectus, statement of
additional information and any amendments or supplements thereto (collectively,
the "AVIF Prospectus"), periodic reports to shareholders, AVIF proxy material
and other shareholder communications.
(b) AIG will bear the costs of preparing, filing with the SEC and setting
for printing each Accounts prospectus, statement of additional information and
any amendments or supplements thereto (collectively, the "Account Prospectus"),
any periodic reports to Contract owners, annuitants, insureds or participants
(as appropriate) under the Contracts (collectively, "Participants"), voting
instruction solicitation material, and other Participant communications.
(c) AIG will print in quantity and deliver to existing Participants the
documents described in Section 3.3(b) above and the prospectus provided by AVIF
in camera ready or computer diskette form. AVIF will print the AVIF statement
of additional information, proxy materials relating to AVIF and periodic
reports of AVIF,
3.4 OTHER (SALES-RELATED).
AIG will bear the expenses of distribution. These expenses would include by
way of illustration, but are not limited to, the costs of distributing to
Participants the following documents, whether they relate to the Account or
AVIF: prospectuses, statements of additional information, proxy materials and
periodic reports. These costs would also include the costs of preparing,
printing, and distributing sales literature and advertising relating to the
Funds, as well as filing such materials with, and obtaining approval from, the
SEC, the NASD, any state insurance regulatory authority, and any other
appropriate regulatory authority, to the extent required.
3.5 PARTIES TO COOPERATE.
Each Party agrees to cooperate with the others, as applicable, in arranging
to print, mail and/or deliver, in a timely manner, combined or coordinated
prospectuses or other materials of AVIF and the Accounts.
SECTION 4. LEGAL COMPLIANCE
4.1 TAX LAWS.
(a) AVIF represents and warrants that each Fund is currently qualified as a
regulated investment company ("RIC") under Subchapter M of the Internal Revenue
Code of 1986, as amended (the "Code"), and represents that it will use its best
efforts to qualify and to maintain qualification of each Fund as a RIC. AVIF
will notify AIG immediately upon having a reasonable basis for believing that a
Fund has ceased to so qualify or that it might not so qualify in the future.
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(b) AVIF represents that it will use its best efforts to comply and to
maintain each Fund's compliance with the diversification requirements set forth
in Section 817(h) of the Code and Section 1.817-5(b) of the regulations under
the Code. AVIF will notify AIG immediately upon having a reasonable basis for
believing that a Fund has ceased to so comply or that a Fund might not so
comply in the future. In the event of a breach of this Section 4.1(b) by AVIF,
it will take all reasonable steps to adequately diversify the Fund so as to
achieve compliance within the grace period afforded by Section 1.817-5 of the
regulations under the Code.
(c) AIG agrees that if the Internal Revenue Service ("IRS") asserts in
writing in connection with any governmental audit or review of AIG or, to AIG's
knowledge, of any Participant, that any Fund has failed to comply with the
diversification requirements of Section 817(h) of the Code or AIG otherwise
becomes aware of any facts that could give rise to any claim against AVIF or
its affiliates as a result of such a failure or alleged failure:
(i) AIG shall promptly notify AVIF of such assertion or potential claim
(subject to the Confidentiality provisions of Section 18 as to any
Participant);
(ii) AIG shall consult with AVIF as to how to minimize any liability that may
arise as a result of such failure or alleged failure;
(iii) AIG shall use its best efforts to minimize any liability of AVIF or its
affiliates resulting from such failure, including, without limitation,
demonstrating, pursuant to Treasury Regulations Section 1.817-5(a)(2),
to the Commissioner of the IRS that such failure was inadvertent;
(iv) AIG shall permit AVIF, its affiliates and their legal and accounting
advisors to participate in any conferences, settlement discussions or
other administrative or judicial proceeding or contests (including
judicial appeals thereof) with the IRS, any Participant or any other
claimant regarding any claims that could give rise to liability to AVIF
or its affiliates as a result of such a failure or alleged failure;
PROVIDED, however, that AIG will retain control of the conduct of such
conferences discussions, proceedings, contests or appeals;
(v) any written materials to be submitted by AIG to the IRS, any Participant
or any other claimant in connection with any of the foregoing
proceedings or contests (including, without limitation, any such
materials to be submitted to the IRS pursuant to Treasury Regulations
Section 1.817-5(a)(2)), (a) shall be provided by AIG to AVIF (together
with any supporting information or analysis); subject to the
confidentiality provisions of Section 18, at least ten (10) business
days or such shorter period to which the Parties hereto agree prior to
the day on which such proposed materials are to be submitted, and
(b) shall not be submitted by AIG to any such person without the express
written consent of AVIF which shall not be unreasonably withheld;
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(vi) AIG shall provide AVIF or its affiliates and their accounting and legal
advisors with such cooperation as AVIF shall reasonably request
(including, without limitation, by permitting AVIF and its accounting
and legal advisors to review the relevant books and records of AIG) in
order to facilitate review by AVIF or its advisors of any written
submissions provided to it pursuant to the preceding clause or its
assessment of the validity or amount of any claim against its arising
from such a failure or alleged failure;
(vii) AIG shall not with respect to any claim of the IRS or any Participant
that would give rise to a claim against AVIF or its affiliates
(a) compromise or settle any claim, (b) accept any adjustment on audit,
or (c) forego any allowable administrative or judicial appeals, without
the express written consent of AVIF or its affiliates, which shall not
be unreasonably withheld, PROVIDED that AIG shall not be required, after
exhausting all administrative penalties, to appeal any adverse judicial
decision unless AVIF or its affiliates shall have provided an opinion of
independent counsel to the effect that a reasonable basis exists for
taking such appeal; and PROVIDED FURTHER that the costs of any such
appeal shall be borne equally by the Parties hereto; and
(viii) AVIF and its affiliates shall have no liability as a result of such
failure or alleged failure if AIG fails to comply with any of the
foregoing clauses (i) through (vii), and such failure could be shown to
have materially contributed to the liability.
Should AVIF or any of its affiliates refuse to give its written consent to
any compromise or settlement of any claim or liability hereunder, AIG may, in
its discretion, authorize AVIF or its affiliates to act in the name of AIG in,
and to control the conduct of, such conferences, discussions, proceedings,
contests or appeals and all administrative or judicial appeals thereof, and in
that event AVIF or its affiliates shall bear the fees and expenses associated
with the conduct of the proceedings that it is so authorized to control;
PROVIDED, that in no event shall AIG have any liability resulting from AVIFs
refusal to accept the proposed settlement or compromise with respect to any
failure caused by AVIF. As used in this Agreement, the term "affiliates" shall
have the same meaning as "affiliated person" as defined in Section 2(a)(3) of
the 1940 Act.
(d) AIG represents and warrants that the Contracts currently are and will be
treated as annuity contracts or life insurance contracts under applicable
provisions of the Code and that it will use its best efforts to maintain such
treatment; AIG will notify AVIF immediately upon having a reasonable basis for
believing that any of the Contracts have ceased to be so treated or that they
might not be so treated in the future.
(e) AIG represents and warrants that each Account is a "segregated asset
account" and that interests in each Account are offered exclusively through the
purchase of or transfer into a "variable contract," within the meaning of such
terms under Section 817 of the Code and the regulations thereunder. AIG will
use its best efforts to continue to meet such definitional requirements, and it
will notify AVIF immediately upon having a reasonable basis for believing that
such requirements have ceased to be met or that they might not be met in the
future.
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4.2 INSURANCE AND CERTAIN OTHER LAWS.
(a) AVIF will use its best efforts to comply with any applicable state
insurance laws or regulations, to the extent specifically requested by AIG,
including, the furnishing of information not otherwise available to AIG which
is required by state insurance law to enable AIG to obtain the authority needed
to issue the Contracts in any applicable state.
(b) AIG represents and warrants that (i) it is an insurance company duly
organized, validly existing and in good standing under the laws of the State of
New York and has full corporate power, authority and legal right to execute,
deliver and perform its duties and comply with its obligations under this
Agreement, (ii) it has legally and validly established and maintains each
Account as a segregated asset account under Section 2932 of the Delaware
Insurance Law and the regulations thereunder, and (iii) the Contracts comply in
all material respects with all other applicable federal and state laws and
regulations.
(c) AVIF represents and warrants that it is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Maryland
and has full power, authority, and legal right to execute, deliver, and perform
its duties and comply with its obligations under this Agreement.
4.3 SECURITIES LAWS.
(a) AIG represents and warrants that (i) interests in each Account pursuant
to the Contracts will be registered under the 1933 Act to the extent required
by the 1933 Act, (ii) the Contracts will be duly authorized for issuance and
sold in compliance with all applicable federal and state laws, including,
without limitation, the 1933 Act, the 1934 Act, the 1940 Act and Delaware law,
(iii) each Account is and will remain registered under the 1940 Act, to the
extent required by the 1940 Act, (iv) each Account does and will comply in all
material respects with the requirements of the 1940 Act and the rules
thereunder, to the extent required, (v) each Account's 1933 Act registration
statement relating to the Contracts, together with any amendments thereto, will
at all times comply in all material respects with the requirements of the
1933 Act and the rules thereunder, (vi) AIG will amend the registration
statement for its Contracts under the 1933 Act and for its Accounts under the
1940 Act from time to time as required in order to effect the continuous
offering of its Contracts or as may otherwise be required by applicable law,
and (vii) each Account Prospectus will at all times comply in all material
respects with the requirements of the 1933 Act and the rules thereunder.
(b) AVIF represents and warrants that (i) Shares sold pursuant to this
Agreement will be registered under the 1933 Act to the extent required by the
1933 Act and duly authorized for issuance and sold in compliance with Maryland
law, (ii) AVIF is and will remain registered under the 1940 Act to the extent
required by the 1940 Act, (iii) AVIF will amend the registration statement for
its Shares under the 1933 Act and itself under the 1940 Act from time to time
as required in order to effect the continuous offering of its Shares, (iv) AVIF
does and will comply in all material respects with the requirements of the
1940 Act and the rules thereunder, (v) AVIF's 1933 Act registration statement,
together with any amendments thereto, will at all times comply in all material
respects
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with the requirements of the 1933 Act and rules thereunder, and (vi) AVIF's
Prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
(c) AVIF will at its expense register and qualify its Shares for sale in
accordance with the laws of any state or other jurisdiction if and to the
extent reasonably deemed advisable by AVIF.
(d) AVIF currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-l under the 1940 Act or otherwise,
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,
AVIF undertakes to have its Board of Directors, a majority of whom are not
"interested" persons of the Fund, formulate and approve any plan under
Rule 12b-l to finance distribution expenses.
(e) AVIF 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-(l) of the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bond includes coverage for larceny and embezzlement
and is issued by a reputable bonding company.
4.4 NOTICE OF CERTAIN PROCEEDINGS AND OTHER CIRCUMSTANCES.
(a) AVIF will immediately notify AIG of (i) the issuance by any court or
regulatory body of any stop order, cease and desist order, or other similar
order with respect to AVDFs registration statement under the 1933 Act or AVIF
Prospectus, (ii) any request by the SEC for any amendment to such registration
statement or AVIF Prospectus that may affect the offering of Shares of AVIF,
(iii) the initiation of any proceedings for that purpose or for any other
purpose relating to the registration or offering of AVIF's Shares, or (iv) any
other action or circumstances that may prevent the lawful offer or sale of
Shares of any Fund in any state or jurisdiction, including, without limitation,
any circumstances in which (a) such Shares are not registered and, in all
material respects, issued and sold in accordance with applicable state and
federal law, or (b) such law precludes the use of such Shares as an underlying
investment medium of the Contracts issued or to be issued by AIG. AVIF will
make every reasonable effort to prevent the issuance, with respect to any Fund,
of any such stop order, cease and desist order or similar order and, if any
such order is issued, to obtain the lifting thereof at the earliest possible
time.
(b) AIG will immediately notify AVIF of (i) the issuance by any court or
regulatory body of any stop order, cease and desist order, or other similar
order with respect to each Account's registration statement under the 1933 Act
relating to the Contracts or each Account Prospectus, (ii) any request by the
SEC for any amendment to such registration statement or Account Prospectus that
may affect the offering of Shares of AVIF, (iii) the initiation of any
proceedings for that purpose or for any other purpose relating to the
registration or offering of each Account's interests pursuant to the Contracts,
or (iv) any other action or circumstances that may prevent the lawful offer or
sale of said interests in any state or jurisdiction, including, without
limitation, any circumstances in which said interests are not registered and,
in all material respects, issued and sold in accordance with applicable state
and federal law. AIG will make every reasonable effort to prevent the issuance
of
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any such stop order, cease and desist order or similar order and, if any such
order is issued, to obtain the lifting thereof at the earliest possible time.
4.5 AIG TO PROVIDE DOCUMENTS: INFORMATION ABOUT AVIF.
(a) AIG will provide to AVIF or its designated agent at least one
(1) complete copy of all SEC registration statements, Account Prospectuses,
reports, any preliminary and final voting instruction solicitation material,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to each Account or the Contracts,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
(b) AIG will provide to AVIF or its designated agent at least one
(1) complete copy of each piece of sales literature or other promotional
material in which AVIF or any of its affiliates is named, at least five
(5) Business Days prior to its use or such shorter period as the Parties hereto
may, from time to time, agree upon. No such material shall be used if AVIF or
its designated agent objects to such use within five (5) Business Days after
receipt of such material or such shorter period as the Parties hereto may, from
time to time, agree upon. AVIF hereby designates AIM as the entity to receive
such sales literature, until such time as AVIF appoints another designated
agent by giving notice to AIG in the manner required by Section 9 hereof.
(c) Neither AIG nor any of its affiliates, will give any information or make
any representations or statements on behalf of or concerning AVIF or its
affiliates in connection with the sale of the Contracts other than (i) the
information or representations contained in the registration statement,
including the AVIF Prospectus contained therein, relating to Shares, as such
registration statement and AVIF Prospectus may be amended from time to time; or
(ii) in reports or proxy materials for AVIF; or (iii) in published reports for
AVIF that are in the public domain and approved by AVIF for distribution; or
(iv) in sales literature or other promotional material approved by AVIF, except
with the express written permission of AVIF.
(d) AIG shall adopt and implement procedures reasonably designed to ensure
that information concerning AVIF and its affiliates that is intended for use
only by brokers or agents selling the Contracts (I.E., information that is not
intended for distribution to Participants) ("broker only materials") is so
used, and neither AVIF nor any of its affiliates shall be liable for any
losses, damages or expenses relating to the improper use of such broker only
materials.
(e) For the purposes of this Section 4.5, 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, and
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proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the 0000 Xxx.
4.6 AVIF TO PROVIDE DOCUMENTS: INFORMATION ABOUT AIG.
(a) AVIF will provide to AIG at least one (1) complete copy of all SEC
registration statements, AVIF Prospectuses, reports, any preliminary and final
proxy material, applications for exemptions, requests for no-action letters,
and all amendments to any of the above, that relate to AVIF or the Shares of a
Fund, contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
(b) AVIF will provide to AIG camera ready or computer diskette copies of all
AVIF prospectuses and printed copies, in an amount specified by AIG, of AVIF
statements of additional information, proxy materials, periodic reports to
shareholders and other materials required by law to be sent to Participants who
have allocated any Contract value to a Fund. AVIF will provide such copies to
AIG in a timely manner so as to enable AIG, as the case may be, to print and
distribute such materials within the time required by law to be furnished to
Participants.
(c) AVIF will provide to AIG or its designated agent at least one
(1) complete copy of each piece of sales literature or other promotional
material in which AIG, or any of its respective affiliates is named, or that
refers to the Contracts, at least five (5) Business Days prior to its use or
such shorter period as the Parties hereto may, from time to time, agree upon.
No such material shall be used if AIG or its designated agent objects to such
use within five (5) Business Days after receipt of such material or such
shorter period as the Parties hereto may, from time to time, agree upon. AIG
shall receive all such sales literature until such time as it appoints a
designated agent by giving notice to AVIF in the manner required by Section 9
hereof.
(d) Neither AVIF nor any of its affiliates will give any information or make
any representations or statements on behalf of or concerning AIG, each Account,
or the Contracts other than (i) the information or representations contained in
the registration statement, including each Account Prospectus contained
therein, relating to the Contracts, as such registration statement and Account
Prospectus may be amended from time to time; or (ii) in published reports for
the Account or the Contracts that are in the public domain and approved by AIG
for distribution; or (iii) in sales literature or other promotional material
approved by AIG or its affiliates, except with the express written permission
of AIG.
(e) AVIF shall cause its principal AIG Equity to adopt and implement
procedures reasonably designed to ensure that information concerning AIG, and
its respective affiliates that is intended for use only by brokers or agents
selling the Contracts (I.E., information that is not intended for distribution
to Participants) ("broker only materials") is so used, and neither AIG, nor any
of its respective affiliates shall be liable for any losses, damages or
expenses relating to the improper use of such broker only materials.
(f) For purposes of this Section 4.6, 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,
11
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, and
proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the 1940 Act.
SECTION 5. MIXED AND SHARED FUNDING
5.1 GENERAL.
The SEC has granted an order to AVIF exempting it from certain provisions of
the 1940 Act and rules thereunder so that AVIF may be available for investment
by certain other entities, including, without limitation, separate accounts
funding variable annuity contracts or variable life insurance contracts,
separate accounts of insurance companies unaffiliated with AIG, and trustees of
qualified pension and retirement plans (collectively, "Mixed and Shared
Funding"). The Parties recognize that the SEC has imposed terms and conditions
for such orders that are substantially identical to many of the provisions of
this Section 5. Sections 5.2 through 5.8 below shall apply pursuant to such an
exemptive order granted to AVIF. AVIF hereby notifies AIG that, in the event
that AVIF implements Mixed and Shared Funding, it may be appropriate to include
in the prospectus pursuant to which a Contract is offered disclosure regarding
the potential risks of Mixed and Shared Funding.
5.2 DISINTERESTED DIRECTORS.
AVIF agrees that its Board of Directors shall at all times consist of
directors a majority of whom (the "Disinterested Directors") are not interested
persons of AVIF within the meaning of Section 2(a)(19) of the 1940 Act and the
Rules thereunder and as modified by any applicable orders of the SEC, except
that if this condition is not met by reason of the death, disqualification, or
bona fide resignation of any director, then the operation of this condition
shall be suspended (a) for a period of forty-five (45) days if the vacancy or
vacancies may be filled by the Board; (b) for a period of sixty (60) days if a
vote of shareholders is required to fill the vacancy or vacancies; or (c) for
such longer period as the SEC may prescribe by order upon application.
5.3 MONITORING FOR MATERIAL IRRECONCILABLE CONFLICTS.
AVIF agrees that its Board of Directors will monitor for the existence of
any material irreconcilable conflict between the interests of the Participants
in all separate accounts of life insurance companies utilizing AVIF
("Participating Insurance Companies"), including each Account, and participants
in all qualified retirement and pension plans investing in AVIF ("Participating
Plans"). AIG agrees to inform the Board of Directors of AVIF of the existence
of or any potential for any such material irreconcilable conflict of which it
is aware, The concept of a "material
12
irreconcilable conflict" is not defined by the 1940 Act or the rules
thereunder, but the Parties recognize that such a conflict may arise for a
variety of reasons, including, without limitation:
(a) an action by any state insurance or other 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 Fund are being managed;
(e) a difference in voting instructions given by variable annuity contract
and variable life insurance contract Participants or by Participants of
different Participating Insurance Companies;
(f) a decision by a Participating Insurance Company to disregard the voting
instructions of Participants; or
(g) a decision by a Participating Plan to disregard the voting instructions
of Plan participants.
Consistent with the SEC's requirements in connection with exemptive orders
of the type referred to in Section 5.1 hereof, AIG will assist the Board of
Directors in carrying out its responsibilities by providing the Board of
Directors with all information reasonably necessary for the Board of Directors
to consider any issue raised, including information as to a decision by AIG to
disregard voting instructions of Participants.
5.4 CONFLICT REMEDIES.
(a) It is agreed that if it is determined by a majority of the members of
the Board of Directors or a majority of the Disinterested Directors that a
material irreconcilable conflict exists, AIG will, if it is a Participating
Insurance Company for which a material irreconcilable conflict is relevant, at
its own expense and to the extent reasonably practicable (as determined by a
majority of the Disinterested Directors), take whatever steps are necessary to
remedy or eliminate the material irreconcilable conflict, which steps may
include, but are not limited to:
(i) withdrawing the assets allocable to some or all of the Accounts from
AVIF or any Fund and reinvesting such assets in a different investment
medium, including another Fund of AVIF, or submitting the question
whether such segregation should be implemented to a vote of all affected
Participants and, as appropriate, segregating the assets of any
particular group (E.G., annuity Participants, life insurance
Participants or all Participants) that votes in favor of such
segregation, or offering to the affected Participants the option of
making such a change; and
13
(ii) establishing a new registered investment company of the type defined as
a "management company" in Section 4(3) of the 1940 Act or a new separate
account that is operated as a management company.
(b) If the material irreconcilable conflict arises because of AIG's decision
to disregard Participant voting instructions and that decision represents a
minority position or would preclude a majority vote, AIG may be required, at
AVIFs election, to withdraw each Account's investment in AVIF or any Fund. No
charge or penalty will be imposed as a result of such withdrawal. Any such
withdrawal must take place within six (6) months after AVIF gives notice to AIG
that this provision is being implemented, and until such withdrawal AVIF shall
continue to accept and implement orders by AIG for the purchase and redemption
of Shares of AVIF.
(c) If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to AIG conflicts with the majority of
other state regulators, then AIG will withdraw each Accounts investment in AVIF
within six (6) months after AVIF's Board of Directors informs AIG that it has
determined that such decision has created a material irreconcilable conflict,
and until such withdrawal AVIF shall continue to accept and implement orders by
AIG for the purchase and redemption of Shares of AVIF. No charge or penalty
will be imposed as a result of such withdrawal.
(d) AIG agrees that any remedial action taken by it in resolving any
material irreconcilable conflict will be carried out at its expense and with a
view only to the interests of Participants.
(e) For purposes hereof, a majority of the Disinterested Directors will
determine whether or not any proposed action adequately remedies any material
irreconcilable conflict. In no event, however, will AVIF or any of its
affiliates be required to establish a new funding medium for any Contracts. AIG
will not be required by the terms hereof to establish a new funding medium for
any Contracts if an offer to do so has been declined by vote of a majority of
Participants materially adversely affected by the material irreconcilable
conflict.
5.5 NOTICE TO AIG.
AVIF will promptly make known in writing to AIG the Board of Directors'
determination of the existence of a material irreconcilable conflict, a
description of the facts that give rise to such conflict and the implications
of such conflict.
5.6 INFORMATION REQUESTED BY BOARD OF DIRECTORS.
AIG and AVIF (or its investment adviser) will at least annually submit to
the Board of Directors of AVIF such reports, materials or data as the Board of
Directors may reasonably request so that the Board of Directors may fully carry
out the obligations imposed upon it by the provisions hereof or any exemptive
order granted by the SEC to permit Mixed and Shared Funding, and said reports,
materials and data will be submitted at any reasonable time deemed appropriate
by the Board of Directors. All reports received by the Board of Directors of
potential or existing conflicts, and all Board of Directors actions with regard
to determining the existence of a conflict, notifying
14
Participating Insurance Companies and Participating Plans of a conflict, and
determining whether any proposed action adequately remedies a conflict, will be
properly recorded in the minutes of the Board of Directors or other appropriate
records, and such minutes or other records will be made available to the SEC
upon request.
5.7 COMPLIANCE WITH SEC RULES.
If, at any time during which AVIF is serving as an investment medium for
variable life insurance Contracts, 1940 Act Rules 6e-3(T) or, if applicable,
6e-2 are amended or Rule 6e-3 is adopted to provide exemptive relief with
respect to Mixed and Shared Funding, AVIF agrees that it will comply with the
terms and conditions thereof and that the terms of this Section 5 shall be
deemed modified if and only to the extent required in order also to comply with
the terms and conditions of such exemptive relief that is afforded by any of
said rules that are applicable.
5.8 OTHER REQUIREMENTS.
AVIF will require that each Participating Insurance Company and
Participating Plan enter into an agreement with AVIF that contains in substance
the same provisions as are set forth in Sections 4.1(b), 4,l(d), 4.3(a),
4.4(b), 4.5(a), 5, and 10 of this Agreement.
SECTION 6. TERMINATION.
6.1 EVENTS OF TERMINATION.
Subject to Section 6.4 below, this Agreement will terminate as to a Fund:
(a) at the option of any party, with or without cause with respect to the
Fund, upon six (6) months advance written notice to the other parties, or, if
later, upon receipt of any required exemptive relief from the SEC, unless
otherwise agreed to in writing by the parties; or
(b) at the option of AVIF upon institution of formal proceedings against AIG
or its affiliates by the NASD, the SEC, any state insurance regulator or any
other regulatory body regarding AIG's obligations under this Agreement or
related to the sale of the Contracts, the operation of each Account, or the
purchase of Shares, if, in each case, AVIF reasonably determines that such
proceedings, or the facts on which such proceedings would be based, have a
material likelihood of imposing material adverse consequences on the Fund with
respect to which the Agreement is to be terminated; or
(c) at the option of AIG upon institution of formal proceedings against
AVIF, its principal AIG Equity, or its investment adviser by the NASD, the SEC,
or any state insurance regulator or any other regulatory body regarding AVIF's
obligations under this Agreement or related to the operation or management of
AVIF or the purchase of AVIF Shares, if, in each case, AIG reasonably
determines that such proceedings, or the facts on which such proceedings would
be based, have a material likelihood of imposing material adverse consequences
on AIG, or the Subaccount corresponding to the Fund with respect to which the
Agreement is to be terminated; or
15
(d) at the option of any Party in the event that (i) the Fund's Shares are
not registered and, in all material respects, issued and sold in accordance
with any applicable federal or state law, or (ii) such law precludes the use of
such Shares as an underlying investment medium of the Contracts issued or to be
issued by AIG; or
(e) upon termination of the corresponding Subaccount's investment in the
Fund pursuant to Section 5 hereof; or
(f) at the option of AIG if the Fund ceases to qualify as a RIC under
Subchapter M of the Code or under successor or similar provisions, or if AIG
reasonably believes that the Fund may fail to so qualify; or
(g) at the option of AIG if the Fund fails to comply with Section 817(h) of
the Code or with successor or similar provisions, or if AIG reasonably believes
that the Fund may fail to so comply; or
(h) at the option of AVIF if the Contracts issued by AIG cease to qualify as
annuity contracts or life insurance contracts under the Code (other than by
reason of the Fund's noncompliance with Section 817(h) or Subchapter M of the
Code) or if interests in an Account under the Contracts are not registered,
where required, and, in all material respects, are not issued or sold in
accordance with any applicable federal or state law; or
(i) upon another Party's material breach of any provision of this Agreement.
6.2 NOTICE REQUIREMENT FOR TERMINATION.
No termination of this Agreement will be effective unless and until the
Party terminating this Agreement gives prior written notice to the other Party
to this Agreement of its intent to terminate, and such notice shall set forth
the basis for such termination. Furthermore:
(a) in the event that any termination is based upon the provisions of
Sections 6.1(a) or 6.1(e) hereof, such prior written notice shall be given at
least six (6) months in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto;
(b) in the event that any termination is based upon the provisions of
Sections 6.1(b) or 6.1(c) hereof, such prior written notice shall be given at
least ninety (90) days in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto; and
(c) in the event that any termination is based upon the provisions of
Sections 6.1(d), 6.1(f), 6.1(g), 6.1(h) or 6.1(i) hereof, such prior written
notice shall be given as soon as possible within twenty-four (24) hours after
the terminating Party learns of the event causing termination to be required.
6.3 FUNDS TO REMAIN AVAILABLE.
16
Notwithstanding any termination of this Agreement, AVIF will, at the option
of AIG, 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."). Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in the Fund (as
in effect on such date), redeem investments in the Fund and/or invest in the
Fund upon the making of additional purchase payments under the Existing
Contracts. The parties agree that this Section 6.3 will not apply to any
terminations under Section 5 and the effect of such terminations will be
governed by Section 5 of this Agreement.
6.4 SURVIVAL OF WARRANTIES AND INDEMNIFICATIONS.
All warranties and indemnifications will survive the termination of this
Agreement.
6.5 CONTINUANCE OF AGREEMENT FOR CERTAIN PURPOSES.
If any Party terminates this Agreement with respect to any Fund pursuant to
Sections 6.1 (b), 6.1(c), 6.1(d), 6.1(f), 6.1(g), 6.1(h) or 6.1(i) hereof, this
Agreement shall nevertheless continue in effect as to any Shares of that Fund
that are outstanding as of the date of such termination (the "Initial
Termination Date"). This continuation shall extend to the earlier of the date
as of which an Account owns no Shares of the affected Fund or a date (the
"Final Termination Date") six (6) months following the Initial Termination
Date, except that AIG may, by written notice shorten said six (6) month period
in the case of a termination pursuant to Sections 6.1 (d), 6.1(f), 6.1 (g), 6.1
(h) or 6.1(i).
SECTION 7. PARTIES TO COOPERATE RESPECTING TERMINATION
The Parties hereto agree to cooperate and give reasonable assistance to one
another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Fund after the Final Termination
Date with respect thereto, or, in the case of a termination pursuant to
Section 6.1(a), the termination date specified in the notice of termination.
Such steps may include combining the affected Account with another Account,
substituting other mutual fund shares for those of the affected Fund, or
otherwise terminating participation by the Contracts in such Fund.
SECTION 8. ASSIGNMENT
This Agreement may not be assigned by any Party, except with the written
consent of each other Party.
SECTION 9. NOTICES
Notices and communications required or permitted by Section 9 hereof will be
given by means mutually acceptable to the Parties concerned. Each other notice
or communication required or permitted by this Agreement will be given to the
following persons at the following addresses and
17
facsimile numbers, or such other persons, addresses or facsimile numbers as the
Party receiving such notices or communications may subsequently direct in
writing:
AIM VARIABLE INSURANCE FUNDS, INC.
00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
AIG LIFE INSURANCE COMPANY
Xxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
AIG EQUITY SALES CORP.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxxx Xxxxxxxxxxx
SECTION 10. VOTING PROCEDURES
Subject to the cost allocation procedures set forth in Section 3 hereof, AIG
will distribute all proxy material furnished by AVIF to Participants to whom
pass-through voting privileges are required to be extended and will solicit
voting instructions from Participants. AIG will vote Shares in accordance with
timely instructions received from Participants. AIG will vote Shares that are
(a) not attributable to Participants to whom pass-through voting privileges are
extended, or (b) attributable to Participants, but for which no timely
instructions have been received, in the same proportion as Shares for which
said instructions have been received from Participants, so long as and to the
extent that the SEC continues to interpret the 1940 Act to require pass through
voting privileges for Participants. Neither AIG nor any of its affiliates will
in any way recommend action in connection with or oppose or interfere with the
solicitation of proxies for the Shares held for such Participants. AIG reserves
the right to vote shares held in any Account in its own right, to the extent
permitted by law, AIG shall be responsible for assuring that each of its
Accounts holding Shares calculates voting privileges in a manner consistent
with that of other Participating Insurance Companies or in the manner required
by the Mixed and Shared Funding exemptive order obtained by AVIF. AVIF will
notify AIG of any changes of interpretations or amendments to Mixed and Shared
Funding exemptive order it has obtained. AVIF will comply with all provisions
of the 1940
18
Act requiring voting by shareholders, and in particular, AVIF 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 will comply with Section 16(c)
of the 1940 Act (although AVIF 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, AVIF will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of directors and with whatever rules the SEC may promulgate with
respect thereto.
SECTION 11. FOREIGN TAX CREDITS
AVIF agrees to consult in advance with AIG concerning any decision to elect
or not to elect pursuant to Section 853 of the Code to pass through the benefit
of any foreign tax credits to its shareholders.
SECTION 12. INDEMNIFICATION
12.1 OF AVIF BY AIG AND AIG EQUITY.
(a) Except to the extent provided in Sections 12.1(b) and 12.1(c), below,
AIG and AIG Equity agree to indemnify and hold harmless AVIF, its affiliates,
and each person, if any, who controls AVIF or its affiliates within the meaning
of Section 15 of the 1933 Act and each of their respective directors and
officers, (collectively, the "Indemnified Parties" for purposes of this
Section 12.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of AIG and AIG
Equity) or actions in respect thereof (including, to the extent reasonable,
legal and other expenses), to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise; provided, the
Account owns shares of the Fund and insofar as such losses, claims, damages,
liabilities or actions:
(i)arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Account's 1933 Act
registration statement, any Account Prospectus, the Contracts, or sales
literature or advertising 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 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 to AIG or AIG Equity by or on
behalf of AVIF for use in any Account's 1933 Act registration statement,
any Account Prospectus, the Contracts, or sales literature or
advertising or otherwise for use in connection with the sale of
Contracts or Shares (or any amendment or supplement to any of the
foregoing); or
19
(ii)arise out of or as a result of any other statements or representations
(other than statements or representations contained in AVIF's 1933 Act
registration statement, AVIF Prospectus, sales literature or advertising
of AVIF, or any amendment or supplement to any of the foregoing, not
supplied for use therein by or on behalf of AIG, AIG Equity or their
respective affiliates and on which such persons have reasonably relied)
or the negligent, illegal or fraudulent conduct of AIG, AIG Equity or
their respective affiliates or persons under their control (including,
without limitation, their employees and "Associated Persons," as that
term is defined in paragraph (m) of Article I of the NASD's By-Laws), in
connection with the sale or distribution of the Contracts or Shares; or
(iii)arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in AVIF's 1933 Act registration
statement, AVIF Prospectus, sales literature or advertising of AVIF, or
any amendment or supplement to any of the foregoing, 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 a statement or omission was made in reliance upon and in conformity
with information furnished to AVIF or its affiliates by or on behalf of
AIG, AIG Equity or their respective affiliates for use in AVIFs 1933 Act
registration statement, AVIF Prospectus, sales literature or advertising
of AVIF, or any amendment or supplement to any of the foregoing; or
(iv)arise as a result of any failure by AIG or AIG Equity to perform the
obligations, provide the services and furnish the materials required of
them under the terms of this Agreement, or any material breach of any
representation and/or warranty made by AIG or AIG Equity in this
Agreement or arise out of or result from any other material breach of
this Agreement by AIG or AIG Equity; or
(v)arise as a result of failure by the Contracts issued by AIG to qualify
as annuity contracts or life insurance contracts under the Code,
otherwise than by reason of any Fund's failure to comply with Subchapter
M or Section 817(h) of the Code.
(b) Neither AIG nor AIG Equity shall be liable under this Section 12.1 with
respect to any losses, claims, damages, liabilities or actions to which an
Indemnified Party would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance by that Indemnified Party of
its duties or by reason of that Indemnified Party's reckless disregard of
obligations or duties (i) under this Agreement, or (ii) to AVIF.
(c) Neither AIG nor AIG Equity shall be liable under this Section 12.1 with
respect to any action against an Indemnified Party unless AVIF shall have
notified AIG and AIG Equity in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
action 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 AIG and AIG Equity of any such action shall not
relieve AIG and AIG Equity from any
20
liability which they may have to the Indemnified Party against whom such action
is brought otherwise than on account of this Section 12.1. Except as otherwise
provided herein, in case any such action is brought against an Indemnified
Party, AIG and AIG Equity shall be entitled to participate, at their own
expense, in the defense of such action and also shall be entitled to assume the
defense thereof, with counsel approved by the Indemnified Party named in the
action, which approval shall not be unreasonably withheld. After notice from
AIG or AIG Equity to such Indemnified Party of AIG's or AIG Equity's election
to assume the defense thereof, the Indemnified Party will cooperate fully with
AIG and AIG Equity and shall bear the fees and expenses of any additional
counsel retained by it, and neither AIG nor AIG Equity will be liable to such
Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection
with the defense thereof, other than reasonable costs of investigation.
12.2 OF AIG AND AIG EQUITY BY AVIF.
(a) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e),
below, AVIF agrees to indemnify and hold harmless AIG, AIG Equity, their
respective affiliates, and each person, if any, who controls AIG, AIG Equity or
their respective affiliates within the meaning of Section 15 of the 1933 Act
and each of their respective directors and officers, (collectively, the
"Indemnified Parties" for purposes of this Section 12.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of AVIF) or actions in respect thereof (including, to the
extent reasonable, legal and other expenses), to which the Indemnified Parties
may become subject under any statute, regulation, at common law, or otherwise;
PROVIDED, the Account owns shares of the Fund and insofar as such losses,
claims, damages, liabilities or actions:
(i)arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in AVIFs 1933 Act registration
statement, AVIF Prospectus or sales literature or advertising of AVIF
(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 to
AVIF or its affiliates by or on behalf of AIG, AIG Equity or their
respective affiliates for use in AVIFs 1933 Act registration statement,
AVIF Prospectus, or in sales literature or advertising or otherwise for
use in connection with the sale of Contracts or Shares (or any amendment
or supplement to any of the foregoing); or
(ii)arise out of or as a result of any other statements or representations
(other than statements or representations contained in any Account's
1933 Act registration statement, any Account Prospectus, sales
literature or advertising for the Contracts, or any amendment or
supplement to any of the foregoing, not supplied for use therein by or
on behalf of AVIF or its affiliates and on which such persons have
reasonably relied) or the negligent, illegal or fraudulent
21
conduct of AVIF or its affiliates or persons under its control
(including, without limitation, their employees and "Associated Persons"
as that Term is defined in Section (n) of Article 1 of the NASD
By-Laws), in connection with the sale or distribution of AVIF Shares; or
(iii)arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Account's 1933 Act
registration statement, any Account Prospectus, sales literature or
advertising covering the Contracts, or any amendment or supplement to
any of the foregoing, 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 was made in reliance upon and in conformity with information
furnished to AIG, AIG Equity or their respective affiliates by or on
behalf of AVIF for use in any Account's 1933 Act registration statement,
any Account Prospectus, sales literature or advertising covering the
Contracts, or any amendment or supplement to any of the foregoing; or
(iv)arise as a result of any failure by AVIF to perform the obligations,
provide the services and furnish the materials required of it under the
terms of this Agreement, or any material breach of any representation
and/or warranty made by AVIF in this Agreement or arise out of or result
from any other material breach of this Agreement by AVIF.
(b) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e)
hereof, AVIF agrees to indemnify and hold harmless the Indemnified Parties from
and against any and all losses, claims, damages, liabilities (including amounts
paid in settlement thereof with, the written consent of AVIF) or actions in
respect thereof (including, to the extent reasonable, legal and other expenses)
to which the Indemnified Parties may become subject directly or indirectly
under any statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or actions directly or indirectly result from or arise out
of the failure of any Fund to operate as a regulated investment company in
compliance with (i) Subchapter M of the Code and regulations thereunder, or
(ii) Section 817(h) of the Code and regulations thereunder, including, without
limitation, any income taxes and related penalties, rescission charges,
liability under state law to Participants asserting liability against AIG
pursuant to the Contracts, the costs of any ruling and closing agreement or
other settlement with the IRS, and the cost of any substitution by AIG of
Shares of another investment company or portfolio for those of any adversely
affected Fund as a funding medium for each Account that AIG reasonably deems
necessary or appropriate as a result of the noncompliance.
(c) AVIF shall not be liable under this Section 12.2 with respect to any
losses, claims, damages, liabilities or actions to which an Indemnified Party
would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance by that Indemnified Party of its duties or
by reason of such Indemnified Party's reckless disregard of its obligations and
duties (i) under this Agreement, or (ii) to AIG, AIG Equity, each Account or
Participants.
(d) AVIF shall not be liable under this Section 12.2 with respect to any
action against an indemnified Party unless the Indemnified Party shall have
notified AVIF in writing within a
22
reasonable time after the summons or other first legal process giving
information of the nature of the action 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 AVIF of any
such action shall not relieve AVIF from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this Section 12,2. Except as otherwise provided herein, in case any such
action is brought against an Indemnified Party, AVIF will be entitled to
participate, at its own expense, in the defense of such action and also shall
be entitled to assume the defense thereof (which shall include, without
limitation, the conduct of any ruling request and closing agreement or other
settlement proceeding with the IRS), with counsel approved by the Indemnified
Party named in the action, which approval shall not be unreasonably withheld.
After notice from AVIF to such Indemnified Party of AVIFs election to assume
the defense thereof, the Indemnified Party will cooperate fully with AVIF and
shall bear the fees and expenses of any additional counsel retained by it, and
AVIF will not be liable to such Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof, other than reasonable
costs of investigation.
(e) In no event shall AVIF be liable under the indemnification provisions
contained in this Agreement to any individual or entity, including, without
limitation, AIG, AIG Equity or any other Participating Insurance Company or any
Participant, with respect to any losses, claims, damages, liabilities or
expenses that arise out of or result from (i) a breach of any representation,
warranty, and/or covenant made by AIG or AIG Equity hereunder or by any
Participating Insurance Company under an agreement containing substantially
similar representations, warranties and covenants; (ii) the failure by AIG or
any Participating Insurance Company to maintain its segregated asset account
(which invests in any Fund) as a legally and validly established segregated
asset account under applicable state law and as a duly registered unit
investment trust under the provisions of the 1940 Act (unless exempt
therefrom); or (iii) the failure by AIG or any Participating Insurance Company
to maintain its variable annuity or life insurance contracts (with respect to
which any Fund serves as an underlying funding vehicle) as annuity contracts or
life insurance contracts under applicable provisions of the Code.
12.3 EFFECT OF NOTICE.
Any notice given by die indemnifying Party to an Indemnified Party referred
to in Sections 12.1(c) or 12.2(d) above of participation in or control of any
action by the indemnifying Party will in no event be deemed to be an admission
by the indemnifying Party of liability, culpability or responsibility, and the
indemnifying Party will remain free to contest liability with respect to the
claim among the Parties or otherwise.
12.4 SUCCESSORS.
A successor by law of any Party shall be entitled to the benefits of the
indemnification contained in this Section 12.
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SECTION 13. APPLICABLE LAW
This Agreement will be construed and the provisions hereof interpreted under
and in accordance with Maryland law, without regard for that state's principles
of conflict of laws.
SECTION 14. EXECUTION IN COUNTERPARTS
This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together will constitute one and the same instrument.
SECTION 15. SEVERABILITY
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will not
be affected thereby.
SECTION 16. RIGHTS CUMULATIVE
The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, that the Parties are entitled to under federal and state
laws.
SECTION 17. HEADINGS
The Table of Contents and headings used in this Agreement are for purposes
of reference only and shall not limit or define the meaning of the provisions
of this Agreement.
SECTION 18. CONFIDENTIALITY
AVIF acknowledges that the identities of the customers of AIG or any of its
affiliates (collectively, the "AIG Protected Parties" for purposes of this
Section 18), information maintained regarding those customers, and all computer
programs and procedures or other information developed by the AIG Protected
Parties or any of their employees or agents in connection with AIG's
performance of its duties under this Agreement are the valuable property of the
AIG Protected Parties. AVIF agrees that if it comes into possession of any list
or compilation of the identities of or other information about the AIG
Protected Parties' customers, or any other information or property of the AIG
Protected Parties, other than such information as may be independently
developed or compiled by AVIF from information supplied to it by the AIG
Protected Parties' customers who also maintain accounts directly with AVIF,
AVIF 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 AIG's prior written consent; or (b) as required by law or
judicial process. AIG acknowledges that the identities of the customers of AVIF
or any of its affiliates
24
(collectively the "AVIF Protected Parties" for purposes of this Section 18),
information maintained regarding those customers, and all computer programs and
procedures or other information developed by the AVIF Protected Parties or any
of their employees or agents in connection with AVIF's performance of its
duties under this Agreement are the valuable property of the AVIF Protected
Parties. AIG agrees that if it comes into possession of any list or compilation
of the identities of or other information about the AVIF Protected Parties'
customers or any other information or property of the AVIF Protected Parties,
other than such information as may be independently developed or compiled by
AIG from information supplied to it by the AVIF Protected Parties' customers
who also maintain accounts directly with AIG, AIG 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 AVIF'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 18 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.
SECTION 19. TRADEMARKS AND FUND NAMES
(a) AIM Management Group Inc. ("AIM" or "licensor"), an affiliate of AVIF,
owns all right, title and interest in and to the name, trademark and service
xxxx "AIM" and such other tradenames, trademarks and service marks as may be
set forth on Schedule B, as amended from time to time by written notice from
AIM to AIG (the "AIM licensed marks" or the "licensor's licensed marks") and is
authorized to use and to license other persons to use such marks. AIG and its
affiliates are hereby granted a non-exclusive license to use the AIM licensed
marks in connection with AIG's performance of the services contemplated under
this Agreement, subject to the terms and conditions set forth in this
Section 19.
(b) The grant of license to AIG and its affiliates (the "licensee") shall
terminate automatically upon termination of this Agreement. Upon automatic
termination, the licensee shall cease to use the licensor's licensed marks,
except that AIG shall have the right to continue to service any outstanding
Contracts bearing any of the AIM licensed marks. Upon AIM's elective
termination of this license, AIG and its affiliates shall immediately cease to
issue any new annuity or life insurance contracts bearing any of the AIM
licensed marks and shall likewise cease any activity which suggests that it has
any right under any of the AIM licensed marks or that it has any association
with AIM, except that AIG shall have the right to continue to service
outstanding Contracts bearing any of the AIM licensed marks.
(c) The licensee shall obtain the prior written approval of the licensor for
the public release by such licensee of any materials bearing the licensor's
licensed marks. The licensor's approvals shall not be unreasonably withheld.
(d) During the term of this grant of license, a licensor may request that a
licensee submit samples of any materials bearing any of the licensor's licensed
marks which were previously approved by the licensor but, due to changed
circumstances, the licensor may wish to reconsider.
25
If, on reconsideration, or on initial review, respectively, any such samples
fail to meet with the written approval of the licensor, then the licensee shall
immediately cease distributing such disapproved materials. The licensor's
approval shall not be unreasonably withheld, and the licensor, when requesting
reconsideration of a prior approval, shall assume the reasonable expenses of
withdrawing and replacing such disapproved materials. The licensee shall obtain
the prior written approval of the licensor for the use of any new materials
developed to replace the disapproved materials, in the manner set forth above.
(e) The licensee hereunder: (i) acknowledges and stipulates that, to the
best of the knowledge of the licensee, the licensor's licensed marks are valid
and enforceable trademarks and/or service marks and that such licensee does not
own the licensor's licensed marks and claims no rights therein other than as a
licensee under this Agreement; (ii) agrees never to contend otherwise in legal
proceedings or in other circumstances; and (iii) acknowledges and agrees that
the use of the licensor's licensed marks pursuant to this grant of license
shall inure to the benefit of the licensor.
SECTION 20. PARTIES TO COOPERATE
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 (including copies
thereof) in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
26
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in
their names and on their behalf by and through their duly authorized officers
signing below.
AIM VARIABLE INSURANCE FUNDS INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- ---------------------------------
Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Assistant Secretary Title: President
AIG LIFE INSURANCE COMPANY, on behalf of
itself and its separate accounts
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary Title: Vice President
AIG EQUITY SALES CORP.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Title: Vice President
27
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
.. AIM VARIABLE INSURANCE FUNDS, INC.
AIM V.I. Capital Appreciation Fund
ABM V.I. International Equity Fund
AIM V.I. Value Fund
SEPARATE ACCOUNTS UTILIZING THE FUNDS
.. Variable Account I
.. Variable Account II
.. Variable Account IV
.. Variable Account V
.. Variable Account VII
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
.. Individual and Group Variable Annuities
.. Individual and Group Variable Life Insurance
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SCHEDULE B
.. AIM VARIABLE INSURANCE FUNDS, INC.
AIM __________ Fund
.. AIM and Design
[AIM LOGO]
29
