Exhibit (h) (35) (a)
SHAREHOLDER SERVICES AGREEMENT
This SHAREHOLDER SERVICES AGREEMENT ("Agreement") dated April 30, 2013, is
by and between Seasons Series Trust (the "Trust"), on behalf of the Class 2 and
Class 3 shares of its separately designated series, listed on Schedule A (each,
a "Portfolio"), and The United States Life Insurance Company in the City of New
York (the "Life Company"). The Trust and the Life Company are collectively
referred to as the "Parties."
WHEREAS, the Trust has adopted a service plan pursuant to Rule 12b-1 under
the Investment Company Act of 1940 (the "Class 2 Plan" and "Class 3 Plan;"
collectively, the "Plans"), for the Class 2 shares and Class 3 shares,
respectively of certain separate series of the Trust (each, a "Portfolio", and
collectively, the "Portfolios"); and
WHEREAS, the Life Company has agreed to provide, or arrange to provide,
certain shareholder services to the Contract owners who are indirect beneficial
owners of Class 2 and Class 3 shares of the Portfolio ("Covered Services"),
including such Covered Services as may be requested by the Board of Trustees of
the Trust (the "Board") from time to time, in connection with Class 2 and/or
Class 3 shares of the Portfolios; and
WHEREAS, the Life Company issues or underwrites variable life insurance
policies and variable annuity contracts (collectively, the "Contracts"); and
WHEREAS, the Life Company has entered into one or more Participation
Agreements (as may be amended and restated from time to time) with the Trust,
pursuant to which the Trust has agreed to make shares of certain of its
Portfolios available for purchase by one or more of the Life Company's separate
accounts or divisions thereof (each, a "Separate Account"), in connection with
the allocation by Contract owners of purchase payments to corresponding
investment options offered under the Contracts; and
WHEREAS, the Life Company expects that the Trust and its Portfolios can
derive certain benefits from the Life Company's performance of the Covered
Services listed on Schedule B hereto for the Trust in connection with the
Contracts issued or underwritten by the Life Company; and
WHEREAS, the Life Company desires to be compensated for providing such
Covered Services to Contract owners who are indirect beneficial owners of
either Class 2 or Class 3 shares; and
WHEREAS, the Trust desires to retain the Covered Services of the Life
Company and to compensate the Life Company for providing such Covered Services;
WHEREAS, the Trust has authorized the Life Company to enter into agreements
with financial intermediaries to provide compensation to such financial
intermediaries for providing Covered Services to Contract owners who are
indirect beneficial owners of Class 2 or Class 3 shares of a Portfolio
(hereinafter referred to as a "service fee"); and
WHEREAS, the Life Company may reallocate all or a portion of its service fee
(as defined herein) to such financial intermediaries;
NOW, THEREFORE, the Parties agree as follows:
Section 1. Shareholder Services; Payments Therefor.
(a) The Life Company shall provide the Covered Services set out in Schedule
B, attached hereto and made a part hereof, as the same may be amended from time
to time. For such services, the Trust agrees to pay to the Life Company a fee
(the "Service Fee") equal to 0.15% and 0.25% of the average daily net assets of
the Portfolios' Class 2 and Class 3 shares, respectively, attributable to the
Contracts issued by the Life Company.
(b) The Trust shall calculate the Service Fee at the end of each month and
will make such payment to the Life Company, without demand or notice by the
Life Company, within 30 days thereafter, in a manner mutually agreed upon by
the Parties from time to time.
Section 2. Nature of Payments.
The Parties to this Agreement recognize and agree that payments hereunder
are for Covered Services only and do not constitute payment in any manner for
investment advisory or distribution services and are not otherwise related to
investment advisory or distribution services or expenses. The Life Company
represents and warrants that the fees to be paid hereunder for Covered Services
to be rendered by the Life Company pursuant to the terms of this Agreement are
to compensate the Life Company only for providing Covered Services to the
Trust, do not reimburse or compensate the Life Company for providing
distribution services with respect to the Contracts or any Separate Account,
and are not duplicative of any services that the Life Company provides to the
Trust pursuant to any other agreement. Nothing herein shall prohibit the Life
Company from collecting payments in any given year, as provided hereunder, in
excess of expenditures made during such year to financial intermediaries for
the services provided herein.
Section 3. Reports.
The Life Company acknowledges that the Trust is obligated to provide to the
Board, at least quarterly, a written report of the amounts expended pursuant to
the Plans and this Agreement and the purposes for which such expenditures were
made. Accordingly, the Life Company agrees to provide the Trust with such
assistance as the Trust may reasonably request so that the Trust can report
such information to the Board in a timely manner.
The Life Company further agrees to provide the Trust with such assistance as
the Trust may reasonably request with respect to the preparation and submission
of reports and other documents pertaining to the Trust to appropriate
regulatory bodies and third party reporting services.
Section 4. Term and Termination.
(a) This Agreement shall continue in effect for a period of more than one
year from the date of its execution only so long as such continuance is
specifically approved by a vote of the Board, and of the Trustees who are not
interested persons of the Trust and have no direct or indirect financial
interest in the operation of the Plans or in any agreements related to the
Plans, cast in person at a meeting called for the purpose of voting on the
Plans or agreements.
(b) Any Party may terminate this Agreement, without the payment of any
penalty, on 6 months prior written notice to the other Party. This Agreement
may be terminated as to any Portfolio or class at any time by a vote of a
majority of the members of the Board who are not interested persons of the
Trust and have
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no direct or indirect financial interest in the operation of the Plans or any
agreements related to the Plans or by a vote of a majority of the outstanding
voting securities of the Portfolio or class (as applicable).
(c) This Agreement shall automatically terminate in the event of its
assignment.
Section 5. Amendment; Entire Agreement.
This Agreement may be amended upon mutual agreement of the Parties in
writing. However, the Parties recognize that the Plans that this Agreement
implements may not be amended to increase materially the amount to be spent for
distribution without shareholder approval and that all material amendments of
the Plans must be approved by a vote of the Board, and of the Trustees who are
not interested persons of the Trust and have no direct or indirect financial
interest in the operation of the Plans or in any agreements related to the
Plans, cast in person at a meeting called for the purpose of voting on the
Plans or agreements. This Agreement, together with the Schedules attached
hereto, constitutes the sole agreement between the Parties regarding the
Covered Services listed on Schedule B hereto.
Section 6. Notices.
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered:
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
SEASONS SERIES TRUST
Harborside Financial Center
0000 Xxxxx 0
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
SunAmerica Life Companies
0 XxxXxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
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Section 7. Miscellaneous.
(a) Indemnification. The Life Company agrees to indemnify and hold harmless
the Trust and each of its Trustees, officers, employees and agents and each
person, if any, who controls the Trust within the meaning of Section 15 of the
Securities Act of 1933 (the "Indemnified Parties") against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Life Company) or expenses (including without limitation
the reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses") to which the Indemnified Parties
may become subject under any statute or regulation, or common laws or
otherwise, insofar as such Losses arise out of the Life Company's negligent or
willful act, omission or error relating to this Agreement or the Life Company's
breach of this Agreement.
The Trust agrees to indemnify and hold harmless the Life Company and each of
its officers, directors, employees and agents and each person, if any, who
controls the Life Company within the meaning of Section 15 of the Securities
Act of 1933 (the "Indemnified Parties") against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Trust) or expenses (including without limitation the reasonable
costs of investigating or defending any alleged loss, claim, damage, liability
or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses") to which the Indemnified Parties may become subject
under any statute or regulation, or common laws or otherwise, insofar as such
Losses arise out of the Trust's negligent or willful act, omission or error
relating to this Agreement or the Trust's breach of this Agreement.
(b) Successors and Assigns. This Agreement shall be binding upon the Parties
and their transferees, successors and permitted assigns. The benefits of and
the right to enforce this Agreement shall accrue to the Parties and their
transferees, successors and assigns.
(c) Intended Beneficiaries. Nothing in this Agreement shall be construed to
give any person or entity other than the Parties any legal or equitable claim,
right or remedy. Rather, this Agreement is intended to be for the sole and
exclusive benefit of the Parties.
(d) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which shall together constitute
one and the same instrument.
(e) Applicable Law. This Agreement shall be interpreted, construed, and
enforced in accordance with the laws of the State of New York without reference
to the conflict of law principles thereof; provided that if New York law
conflicts with the Investment Company Act of 1940, the provisions of the latter
shall control.
(f) Severability.
(i) This Agreement shall be severable as it applies to each Portfolio,
and action on any matter shall be taken separately for each Portfolio affected
by the matter.
(ii) This Agreement shall be considered to be a separate and severable
agreement between the Trust and each respective Life Company.
(iii) If any portion of this Agreement shall be found to be invalid or
unenforceable by a court or tribunal or regulatory agency of competent
jurisdiction, the remainder shall not be affected thereby, but shall have the
same force and effect as if the invalid or unenforceable portion had not been
inserted.
(g) Liability of Massachusetts Business Trusts. With respect to the Trust,
which is organized as
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a Massachusetts business trust, the declaration of trust establishing the
Trust, a copy of which is on file in the office of the Secretary of The
Commonwealth of Massachusetts, provides that the name of the Trust refers to
the trustees collectively as Trustees, not as individuals or personally; and
that no Trustee, shareholder, officer, employee or agent of such Trust shall be
held to any personal liability, nor shall resort be had to their private
property for the satisfaction of any obligation or claim or otherwise in
connection with the affairs of the Trust or any Portfolio; but that the Trust
estate shall be liable. Notice is hereby given that nothing contained herein
shall be construed to be binding upon any of the Trustees, officers, or
shareholders of such trust individually.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
of first above written.
THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
By: -----------------------------
Name:
Title:
SEASONS SERIES TRUST
By: -----------------------------
Name:
Title:
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SCHEDULE A
Portfolios of Seasons Series Trust
Allocation Balanced Portfolio*
Allocation Growth Portfolio*
Allocation Moderate Growth Portfolio*
Allocation Moderate Portfolio*
Asset Allocation: Diversified Growth Portfolio
Cash Management Portfolio
Diversified Fixed Income Portfolio
Focus Growth Portfolio
Focus Value Portfolio
International Equity Portfolio
Large Cap Value Portfolio
Large Cap Growth Portfolio
Mid Cap Value Portfolio
Mid Cap Growth Portfolio
Multi-Managed Growth Portfolio
Multi-Managed Moderate Growth Portfolio
Multi-Managed Income/Equity Portfolio
Multi-Managed Income Portfolio
Real Return Portfolio*
Small Cap Portfolio
Stock Portfolio
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* Portfolio does not have Class 2 shares.
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SCHEDULE B
The Life Company shall provide the Covered Services as set forth below. This
Schedule, which may be amended from time to time as mutually agreed upon by the
Life Company and the Trust, constitutes an integral part of the Agreement to
which it is attached. Capitalized terms used herein shall, unless otherwise
noted, have the same meaning as the defined terms in the Agreement to which
this Schedule relates.
Covered Services shall include without limitation:
a) Distribution of shareholder reports, annual prospectuses, and annual
statements of additional information to existing Contract owners (but not to
prospective investors);
b) The preparation, printing and distribution of reports of values to owners
of Contracts who have contract values allocated to the Portfolios;
c) Compensating financial intermediaries and broker-dealers to pay or
reimburse them for their services or expenses solely in connection with
their provision of the types of services covered by this Agreement and the
respective Plan to existing Contract owners;
d) Receiving and answering correspondence from existing Contract owners
(including requests for prospectuses and statements of additional
information for the Trust);
e) Answering questions about the Portfolios from existing Contract owners;
f) Preparation, printing and distribution of subaccount performance figures
for subaccounts investing in the Portfolios; and
g) Other shareholder services as mutually agreed upon by the parties.
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