EXHIBIT 3(a)(ii)
FORM OF
MASTER MARKETING AND DISTRIBUTION AGREEMENT
BY AND AMONG
AMERICAN GENERAL LIFE INSURANCE COMPANY,
AMERICAN GENERAL SECURITIES INCORPORATED,
AND XXX XXXXXX AMERICAN CAPITAL DISTRIBUTORS, INC.
TABLE OF CONTENTS
Description Page
SECTION 1. AVAILABLE CONTRACTS........................................... 1
1.1 Availability. ............................................ 1
1.2 Modification of Contracts.................................. 2
1.3 Suspension or Restriction of Sales. ....................... 2
1.4 Reinsurance of Contracts................................... 2
SECTION 2. CONTRACT DISTRIBUTION.......................................... 2
2.1 Exclusive Appointment. .................................... 2
2.2 Best Efforts............................................... 3
2.3 Selling Groups. .......................................... 3
2.4 Suitability Determinations................................. 3
2.5 Sales Persons/Associated Agencies.......................... 4
2.6 Insurance Agent Licensing.................................. 4
2.7 Compliance, Training, and Supervision...................... 5
2.8 Marketing Materials. ..................................... 5
2.9 Marketing Services. ...................................... 6
2.10 Non-Marketing Materials.................................... 7
2.11 Information About AGL and DISTRIBUTOR..................... 8
2.12 Complaints................................................. 8
2.13 Premium Payments........................................... 9
2.14 Limitations on Authority................................... 8
2.15 Independent Contractor..................................... 9
SECTION 3. ADMINISTRATION AND RECORDKEEPING.............................. 10
3.1 Contract Administration.................................... 10
3.2 Performance Standards...................................... 10
3.3 Recordkeeping.............................................. 10
SECTION 4. REPRESENTATIONS AND WARRANTIES................................ 11
4.1 By AGL..................................................... 11
4.2 By AGSI.................................................... 12
4.3 By DISTRIBUTOR ............................................ 12
SECTION 5. COMPENSATION; COSTS AND EXPENSES.............................. 13
5.1 Compensation............................................... 13
5.2 Registration Fees. ....................................... 14
5.3 Each Party To Bear Own Costs............................... 14
SECTION 6. INDEMNIFICATION............................................... 14
6.1 Indemnification by AGL and AGSI............................ 14
6.2 Indemnification by DISTRIBUTOR............................. 15
6.3 Limitation on Liability.................................... 17
6.4 Injunctive Relief.......................................... 17
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Description Page
SECTION 7. TERM AND TERMINATION.......................................... 17
7.1 Term....................................................... 17
7.2 Events of Termination...................................... 17
7.3 Remedy of Events of Default................................ 19
7.4 Parties to Cooperate Respecting Termination................ 19
SECTION 8. ASSIGNMENT.................................................... 19
SECTION 9. CONTRACT LAPSE, TERMINATION, SURRENDER, ETC................... 19
SECTION 10. CONFIDENTIALITY............................................... 20
SECTION 11. ARBITRATION OF DISPUTES....................................... 20
11.1 Arbitration Binding. ..................................... 20
11.2 Initiation of Arbitration. ............................... 20
11.3 Selection of Arbitrators................................... 20
11.4 Impartiality............................................... 21
11.5 Hearing Date and Time...................................... 21
SECTION 12. TRADEMARKS.................................................... 21
12.1 DISTRIBUTOR Trademarks..................................... 21
12.2 AGL Trademarks............................................. 22
12.3 Grant of License........................................... 22
12.4 Prior Approval............................................. 22
12.5 Sample Materials........................................... 22
12.6 Trademarks Valid and Enforceable. ......................... 22
SECTION 13. BONDING AND INSURANCE........................................ 23
SECTION 14. NOTICES...................................................... 23
14.1 Manner of Notices.......................................... 23
14.2 Notice of Regulatory Proceedings........................... 23
SECTION 15. MISCELLANEOUS................................................ 24
15.1 Amendment.................................................. 24
15.2 Governing Law............................................. 24
15.3 Survival of Provisions..................................... 24
15.4 Severability............................................... 24
15.5 Waiver..................................................... 24
15.6 Force Majeure.............................................. 24
15.7 Parties to Cooperate....................................... 25
15.8 Entire Agreement........................................... 25
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MASTER MARKETING AND DISTRIBUTION AGREEMENT
This Master Marketing and Distribution Agreement (the "Agreement") is
made on this 24th day of January, 1997, by and among AMERICAN GENERAL LIFE
INSURANCE COMPANY, a Texas insurance company ("AGL"), on behalf of itself and
each of its separate accounts listed on Schedule A hereto, as the same may be
amended from time to time (each, an "Account"), AMERICAN GENERAL SECURITIES
INCORPORATED, a Texas corporation ("AGSI"), and XXX XXXXXX AMERICAN CAPITAL
DISTRIBUTORS, INC., a Delaware corporation ("DISTRIBUTOR") (each, a "Party,"
collectively, the "Parties").
RECITALS
WHEREAS, AGL and DISTRIBUTOR (including certain affiliates of
DISTRIBUTOR) are jointly developing a variable annuity contract known as the
Generations Annuity ("New Contract"), which is to be issued through AGL's
Separate Account D ("Separate Account D");
WHEREAS, AGL and DISTRIBUTOR (including certain affiliates of
DISTRIBUTOR) may in the future jointly develop other annuity and/or life
insurance contracts (collectively referred to, together with the New Contract
and any certificates under any group contract, as the "Contracts") to be
issued through one or more separate accounts established by AGL for such
purposes (collectively referred to, together with Separate Account D, as the
"Accounts");
WHEREAS, AGL has appointed AGSI the principal underwriter of the New
Contract and currently intends to appoint AGSI the principal underwriter of
all other Contracts;
WHEREAS, AGL and AGSI desire to retain DISTRIBUTOR (and any insurance
agency associated with DISTRIBUTOR and to whom it may assign certain rights or
obligations under this Agreement pursuant to Section 8 hereof (each a "VKAC
Associated Agency")), on an exclusive basis, to market and distribute the
Contracts and DISTRIBUTOR desires to provide such services; and
WHEREAS, AGL, AGSI, and DISTRIBUTOR desire to allocate among themselves
certain functions relating to the administration of the Contracts.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and of the mutual expectations of benefit occurring from the
activities herein contemplated, the Parties hereto agree as follows:
SECTION 1. AVAILABLE CONTRACTS
1.1 AVAILABILITY. AGL shall make available for offer and sale by
DISTRIBUTOR, pursuant to the terms and conditions of this Agreement, the
Contracts described in Schedule A attached hereto and incorporated by
reference herein, as the Parties may amend from time to time by mutual
agreement.
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1.2 MODIFICATION OF CONTRACTS. AGL, in its sole discretion, may modify or
delete the terms of any Contract, to the extent permitted by the Contracts and
applicable law. DISTRIBUTOR may, from time to time, propose modifications to
the terms of any Contract, and AGL agrees to consider any such proposed
modification in good faith, provided, however, that any implementation of such
proposed modification shall remain in AGL's sole discretion.
1.3 SUSPENSION OR RESTRICTION OF SALES. AGL, in its sole discretion, may
suspend or restrict the sale of any Contract in any state or other
jurisdiction upon 30 days' prior written notice to DISTRIBUTOR or upon such
shorter notice period as may be required by applicable law, without incurring
any liability or obligation to DISTRIBUTOR. Upon such notice, DISTRIBUTOR
agrees to immediately cease, and shall instruct all Selling Group Members (as
defined below) to immediately cease, all solicitation activity with respect to
the Contracts in those states or other jurisdictions where AGL has suspended
or restricted the sale of Contracts. In addition, notwithstanding any
provision herein to the contrary, AGL may refuse to sell any Contract to any
applicant for any reason.
1.4 REINSURANCE OF CONTRACTS. AGL may reinsure any of the Contracts with
a reinsurer of its choice at any time, to the extent permitted by applicable
law.
SECTION 2. CONTRACT DISTRIBUTION
2.1 EXCLUSIVE APPOINTMENT.
(a) AGL, as the issuer of the Contracts, and AGSI, as the principal
underwriter of the Contracts, hereby appoint DISTRIBUTOR (including any VKAC
Associated Agency) the exclusive distributor, during the term of this
Agreement, for the marketing and distribution of the Contracts.
(b) The foregoing appointment shall be limited to those states and other
jurisdictions in which the Contracts may lawfully be offered and sold and in
which DISTRIBUTOR and any Associated Agency (as defined below) are properly
licensed as provided in Section 2.5 below, registered or otherwise qualified
to offer and sell the Contracts under the applicable federal securities laws
and the applicable insurance and other laws and regulations of each such state
or other jurisdiction. AGL shall periodically provide DISTRIBUTOR with notice
pursuant to Section 14 hereof of all states and other jurisdictions in which
the Contracts may lawfully be offered and sold.
(c) As exclusive distributor for the Contracts, DISTRIBUTOR shall:
(i) assist in servicing the Contracts by, in its sole discretion,
either (A) communicating, as appropriate, with Contract owners,
annuitants, beneficiaries, and participants (collectively, "Contract
owners") regarding such matters as the exercise of rights and privileges
available to them under the terms of the Contracts or offered to them by
AGL; or by (B) referring Contract owners to AGL as appropriate; and
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(ii) enter into agreements ("selling group agreements") with other
persons ("Selling Group Members"), pursuant to which such Selling Group
Members will offer, sell, and service Contracts in those states and other
jurisdictions where they and their Associated Agencies (as defined below)
are properly licensed, registered or otherwise qualified to offer and
sell the Contracts under the applicable insurance and other laws of each
such state or other jurisdiction.
(d) DISTRIBUTOR hereby expressly acknowledges and consents to the offer,
sale, and servicing of Contracts directly by AGSI and AGSI's own Sales Persons
(as defined below). The Parties hereby agree to enter into a selling group
agreement in order to support such activity. This Agreement does not limit the
rights of AGL or AGSI to offer or sell insurance contracts, including, without
limitation, variable annuity contracts and variable life insurance policies,
other than the Contracts.
In addition, DISTRIBUTOR authorizes AGSI to enter into agreements to sell
the Contracts with persons who are qualified to sell as described in Section
2.3. DISTRIBUTOR shall bear no responsibility or liability for any activity
related to sales under such agreements, and in this regard shall be held
harmless by AGL and AGSI. AGSI shall receive DISTRIBUTOR's specific written
consent before entering into any such agreement, which consent, if not
withheld by DISTRIBUTOR, shall be provided within ten calendar days after AGSI
has given notice of its intent to enter into the agreement. Notwithstanding
the foregoing, DISTRIBUTOR, in its sole discretion, may refuse to consent to
the appointment of any Selling Group Member or any Sales Person (as defined
below), or may require revocation of such appointment for any reason.
DISTRIBUTOR shall consult with AGL prior to refusing to consent to an
appointment or renewal of an appointment, or requiring a revocation, as to the
reasons for such decision. DISTRIBUTOR shall not incur any obligation to
compensate or reimburse any expenses of AGL or AGSI as a result of any such
refusal to approve the appointment of any Selling Group Member or Sales Person
for which AGSI seeks approval.
2.2 BEST EFFORTS. DISTRIBUTOR shall use its reasonable best efforts to
recruit Selling Group Members to offer, sell, and service Contracts.
2.3 SELLING GROUPS. Each Selling Group Member shall be registered with
the Securities and Exchange Commission ("SEC") as a broker-dealer under the
Securities Exchange Act of 1934 ("1934 Act") and shall be a member in good
standing of the National Association of Securities Dealers, Inc. ("NASD"),
unless the Selling Group Member is exempt from the broker-dealer registration
requirements of the 1934 Act. In addition, each Selling Group Member shall
have received an appropriate appointment or license by or through AGL and,
unless exempt, a level of qualification with the NASD appropriate to enable it
to offer and sell Contracts. Each Selling Group Member shall enter into a
selling group agreement the form of which shall be as agreed to by the Parties
from time to time. DISTRIBUTOR shall not enter into any selling group
agreement unless and until AGL has given written approval of the Selling Group
Member, which approval shall be provided within ten calendar days after
DISTRIBUTOR has given notice of its intent to enter into the agreement. 2.4
SUITABILITY DETERMINATIONS. AGL, AGSI and DISTRIBUTOR wish to ensure that the
Contracts, the applications for which will be solicited by Selling Group
Members and their respective registered sales representatives (Selling Group
Members and registered sales representatives may be referred to collectively
as "Sales Persons"; if the context so warrants,
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registered sales representatives may be referred to as "Sales Persons.") will
be issued to persons for whom the Contracts will be suitable. Each Selling
Group Member shall take reasonable steps to ensure that neither it nor any
other Sales Person makes recommendations to an applicant to purchase any of
the Contracts, or to select any investment option thereunder, in the absence
of reasonable grounds to believe that the purchase of the Contracts or
selection of that option is suitable for such applicant in compliance with
federal securities law requirements governing suitability obligations. While
not limited to the following, a determination of suitability shall be based on
information furnished to Sales Persons after reasonable inquiry of such
applicant concerning the applicant's insurance and investment objectives and
financial situation and needs, including the likelihood that the applicant
will make sufficient premium payments to derive the benefits thereof, and tax
status. The responsibility of Sales Persons to take such reasonable steps and
make such determinations of suitability shall be a requirement of each selling
group agreement entered into by DISTRIBUTOR.
2.5 SALES PERSONS/ASSOCIATED AGENCIES. DISTRIBUTOR shall enter into a
separate selling agreement whereby Selling Group Members will represent that
such Selling Group Member and its Sales Persons are duly registered and
qualified pursuant to the 1934 Act, NASD regulations, and any other securities
regulatory requirements. DISTRIBUTOR shall insure that any VKAC Associated
Agency is and remains properly licensed under the applicable insurance laws
and regulations or each state of jurisdiction in which such VKAC Associated
Agency is engaged in the offer or sale of the Contracts. DISTRIBUTOR shall
assist in ensuring that any insurance agency associated with a Selling Group
Member (each, an "Associated Agency") is and remains properly licensed under
the applicable insurance laws and regulations of each state or jurisdiction in
which the Associated Agency is engaged in the offer or sale of the Contracts
by including this obligation in each selling group agreement entered into by
DISTRIBUTOR.
2.6 INSURANCE AGENT LICENSING.
(a) Neither DISTRIBUTOR nor any Selling Group Member or other Sales
Person thereof, shall engage in any activities with respect to the offer or
sale of Contracts that would require insurance agent licensing in the state or
jurisdiction where such activities are performed, unless and until such Sales
Persons are properly licensed to perform such services in the particular state
or other jurisdiction.
(b) DISTRIBUTOR shall immediately notify AGL if the license of any VKAC
Associated Agency is revoked, suspended, or terminated, and shall immediately
notify AGL at such time DISTRIBUTOR becomes aware that the license of any
Sales Person or Associated Agency has been revoked, suspended, or terminated.
(c) AGL agrees to take all actions necessary to effect the appointment of
the Sales Persons as insurance agents of AGL, and to effect renewals thereof,
all as required for the business of this Agreement.
(d) DISTRIBUTOR shall, from time to time, advise AGL of the Sales Persons
that DISTRIBUTOR wishes AGL to appoint as AGL insurance agents. AGL shall
forward all approved agent appointment forms that it receives in a timely
manner to the appropriate state insurance departments.
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(e) DISTRIBUTOR and AGL shall cooperate in making arrangements with each
Selling Group Member in order to help to keep costs associated with the
appointment of Sales Persons at reasonable levels.
(f) Notwithstanding the foregoing, AGL, in its sole discretion, may
refuse to appoint or renew the appointment of any Sales Person, or may revoke
such appointment for any reason. AGL shall consult with DISTRIBUTOR prior to
refusing to appoint, renew appointment, or revoking an appointment, as to the
reasons for such decision. Neither AGL nor AGSI shall incur any obligation to
compensate or reimburse any expenses of DISTRIBUTOR as a result of any such
refusal to appoint or renew an appointment of a Sales Person.
2.7 COMPLIANCE, TRAINING, AND SUPERVISION.
(a) Compliance. DISTRIBUTOR shall require each Selling Group Member to
ensure that their respective Sales Persons comply with all applicable federal
and state laws and regulations and the rules of the NASD relating to the offer
and sale of the Contracts. This responsibility shall be a requirement of each
selling group agreement entered into by DISTRIBUTOR.
(b) Training. DISTRIBUTOR agrees to conduct initial and periodic training
and education of the Sales Persons in their solicitations of applications for
the Contracts and all of their activities relating to this Agreement.
DISTRIBUTOR agrees to train the Sales Persons as to the Contracts in
accordance with any guidelines furnished by AGL or AGSI. AGL or AGSI may
assist DISTRIBUTOR by assisting in the training and education of DISTRIBUTOR's
training personnel in product specifications and markets.
(c) Supervision. Selling Group Members shall be responsible for the
supervision of the Sales Persons in their solicitation of applications for the
Contracts and all of their activities relating to this Agreement and that are
provided for under the Selling Group Agreement. DISTRIBUTOR shall establish
reasonable procedures to be implemented by Selling Group Members for periodic
inspection and supervision of sales practices of the Sales Persons and
DISTRIBUTOR, after consultation with Selling Group Members, shall submit
reports to AGL or AGSI as may be reasonably requested from time to time on the
result of such inspections and the compliance with such procedures.
2.8 MARKETING MATERIALS.
(a) DISTRIBUTOR, at its sole cost, shall be responsible for developing
(with the assistance of AGL), printing and distributing all marketing
materials to be used in connection with the offer and sale of the Contracts,
except for (i) any prospectus for the Contracts, including any related
statement of additional information ("SAI"), and any amendments or supplements
to the foregoing (collectively, as the context requires, "Contract
Prospectus") and (ii) any annual or semi-annual reports for an Account
("Account Reports"), the preparation of which shall be the sole responsibility
of AGL. As used herein, "marketing materials" shall mean any "advertisement"
or "sales literature," as those terms are defined in Section 35(a) of the
NASD's Rules of Fair Practice, as amended from time to time, including,
without limitation, any so-called "dealer only" materials.
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(b) The responsibility for (i) printing and distributing Contract
Prospectuses (including any related SAI) and Account Reports used as marketing
materials and (ii) the costs of printing and distributing such Contract
Prospectuses and Account Reports shall be set forth in the Amended and
Restated Fund Participation Agreement by and among AGL, DISTRIBUTOR, and other
parties thereto ("Participation Agreement"). DISTRIBUTOR shall deliver the
current Contract Prospectus together with the current prospectus of the
investment vehicles available under the Contracts, including any supplements
thereto ("Fund Prospectus") (generally attached thereto) to every applicant
for the related Contract at or prior to the time that an application form or
other marketing materials are submitted to the applicant (other than materials
submitted in compliance with Rules 134 or 482 of the Securities Act of 1933
("1933 Act"). DISTRIBUTOR shall deliver the current SAI related to the
Contracts promptly to any applicant or Selling Group Member who requests one
and AGL shall promptly forward all such requests that it receives to
DISTRIBUTOR. AGL shall at all times keep DISTRIBUTOR informed of the dates of
the appropriate current Contract Prospectus and SAI.
(c) AGL and DISTRIBUTOR shall submit by telecopy or overnight delivery
definitive copies of all marketing materials to the other for its approval,
which approval, unless denied or withheld, shall be provided within at least
ten (10) business days of receipt or such period to which the Parties may
agree from time to time.
(d) DISTRIBUTOR shall, to the extent required, file in a timely manner
all marketing materials with the NASD, the SEC, and any other regulatory body
(other than state insurance regulatory bodies), as appropriate, and shall
obtain any necessary approval of these regulatory bodies of such marketing
materials. AGL shall, to the extent required, file in a timely manner all
marketing materials with the various state insurance regulatory bodies, as
appropriate, and shall obtain any necessary approval of these regulatory
bodies of such marketing materials.
(e) Notwithstanding the foregoing, AGL acknowledges that Selling Group
Members, at their own cost, may from time to time develop, print, and
distribute marketing materials that are not jointly developed by AGL and
DISTRIBUTOR ("supplemental marketing materials"). In no event shall
DISTRIBUTOR utilize, or permit or encourage Selling Group Members to utilize,
any supplemental marketing materials unless AGL has provided its written
approval of such materials prior to their intended first use. The
responsibility of Selling Group Members to obtain AGL's prior written approval
of supplemental marketing materials shall be a requirement of each selling
group agreement entered into by DISTRIBUTOR.
2.9 MARKETING SERVICES. In connection with the offer and sale of
Contracts, DISTRIBUTOR agrees to:
(a) develop a marketing plan for the introduction and continuing sale of
the Contracts through Selling Group Members;
(b) provide AGL on an ongoing basis with information concerning the
marketability of the Contracts and the usefulness of the marketing materials
jointly prepared by AGL and DISTRIBUTOR or any other documents prepared by
AGL, and advise AGL with regard to the desirability of revising or redesigning
the same;
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(c) provide AGL on an ongoing basis with comparative data regarding
products offered by other life insurance companies and mutual fund groups;
(d) initiate and maintain contact with existing and potential Selling
Group Members for purposes of advising AGL on the desirability of developing
and implementing new Contract features;
(e) receive written and oral inquiries from Selling Group Members with
respect to the Contracts and coordinate responses to the same with AGL;
(f) provide assistance to Selling Group Members in arranging for the
insurance licensing and appointment of the Members' Sales Persons;
(g) distribute to Selling Group Members copies of all marketing and
non-marketing materials, described herein, that are approved or prepared by
AGL pursuant to this Agreement;
(h) maintain a toll-free number and support and service unit to render
assistance to Selling Group Members in connection with the offer and sale of
Contracts;
(i) provide Selling Group Members, to the extent requested, with
technical assistance at the time of sale of the Contracts;
(j) participate in seminars for customers and potential customers of
Selling Group Members; and
(k) provide such other marketing services and support as AGL may
reasonably request from time to time.
2.10 NON-MARKETING MATERIALS.
(a) AGL, at its sole cost, shall be responsible for preparing, printing
in quantity and delivering to DISTRIBUTOR: (i) all Contract forms,
applications and related materials, (ii) all documents pertaining to the
processing of premium payments, refunds and other monies, and (iii) all
documents pertaining to transactions, claims, and other features available
under the Contracts, including, but not limited to, full or partial
surrenders, exchanges, transfers, loans, systematic purchases, death claims,
changes in premium allocations, and changes in beneficiary.
(b) AGL, at its sole cost, shall be responsible for preparing, printing,
and distributing all correspondence with Contract owners, except for
correspondence prepared, printed, and distributed by DISTRIBUTOR pursuant to
AGL's prior approval.
(c) The responsibility for printing and distributing Contract
Prospectuses to existing Contract owners shall be set forth in the
Participation Agreement.
(d) AGL, at its sole cost, shall be responsible for preparing, printing,
distributing to existing Contract owners, and, to the extent required, filing
with any appropriate regulatory body, in a timely manner, or causing the same
to be done: (i) all Contract owner account statements, (ii) Account Reports,
(iii) voting cards, as appropriate; and (iv) all reports, forms, and other
information necessary to comply with applicable federal and state tax law.
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(e) AGL shall provide to DISTRIBUTOR or its designated agent at least one
complete copy of all SEC registration statements, Contract Prospectuses,
Account 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 the Account or the Contracts,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
(f) AGL, as agent for AGSI and DISTRIBUTOR shall, upon or prior to the
completion of each Contract transaction for which a confirmation is legally
required, send a written confirmation to the Contract owner for each such
transaction, in a form and manner which complies with the requirements of the
1934 Act, state laws and regulations, and the disclosure requirements of the
NASD. Such confirmations shall be furnished to all Contract owners in
accordance with securities laws, shall reflect the facts of the transaction,
and, if applicable, shall show that they are being sent by AGL on behalf of
AGSI and DISTRIBUTOR.
2.11 INFORMATION ABOUT AGL AND DISTRIBUTOR
(a) Neither AGL nor any of its affiliates will give any information or
make any representations or statements on behalf of or concerning DISTRIBUTOR
or its affiliates in connection with the sale of the Contracts other than the
information or representations provided by or on behalf of DISTRIBUTOR and its
affiliates that are contained (i) in the registration statement, including the
Contract Prospectus contained therein, as such registration statement and
Prospectus may be amended from time to time; (ii) in Account Reports or voting
instruction solicitation materials for each Account; or (iii) marketing
materials prepared, except with the express written permission of DISTRIBUTOR.
As used herein, the term "affiliate" shall have the same meaning as defined in
Section 2(a)(3) of the Investment Company Act of 1940 ("1940 Act").
(b) Neither DISTRIBUTOR nor any of its affiliates will give any
information or make any representations or statements on behalf of or
concerning AGL, AGSI, or their respective affiliates in connection with the
sale of the Contracts other than the information or representations provided
by or on behalf of AGL, AGSI, or their respective affiliates that are
contained in (i) the registration statement, including the Contract Prospectus
contained therein, as such registration statement and Prospectus may be
amended from time to time; (ii) in Account Reports or voting instruction
solicitation materials for each Account; or (iii) in marketing material,
except with the express written permission of AGL.
2.12 COMPLAINTS.
In the case of an oral or written consumer or regulatory agency
complaint, AGL, AGSI, and DISTRIBUTOR shall each promptly notify the others
and shall coordinate and fully cooperate in responding to such complaints.
AGL, AGSI, and DISTRIBUTOR shall jointly develop procedures to coordinate,
investigate and respond to such complaints. AGL, AGSI and DISTRIBUTOR agree to
consult with one another with respect to the disposition of any complaints or
grievances and DISTRIBUTOR shall use its best efforts to obtain the
cooperation of any Sales Person in the disposition thereof. AGSI and
DISTRIBUTOR shall maintain customer complaint files pursuant to applicable
NASD rules.
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2.13 PREMIUM PAYMENTS. DISTRIBUTOR and AGL shall enter into agreements
with Selling Group Members setting forth the method for, and responsibilities
with respect to, the handling and processing of premium payments or other
monies received in connection with the sale of the Contracts.
2.14 LIMITATIONS ON AUTHORITY. DISTRIBUTOR and Sales Persons shall have
no authority to, and shall not:
(a) alter or substitute AGL's Contract applications or forms in any
manner;
(b) guarantee the issuance of any Contract or the reinstatement of any
lapsed Contract (in the case of life insurance Contracts), or the reinvestment
of any Contract (in the case of annuity Contracts);
(c) add, alter, waive or discharge any Contract provision, including,
without limitation, any forfeiture provision, or represent that such can be
done by AGL;
(d) make any settlement of any claim or claims or bind AGL or any of its
affiliates in any way;
(e) extend the time of making any premium payments, or pay or allow any
inducement not specified in the Contracts to any Contract owner or applicant,
or rebate any portion of a premium payment, in any manner whatsoever;
(f) incur any indebtedness or liability on behalf of or expend or
contract for the expenditure of the funds by AGL;
(g) enter into legal proceedings in connection with any matter pertaining
to the business of AGL without the prior written consent of AGL, unless
DISTRIBUTOR or any Sales Person, as the case may be, is named in such
proceedings;
(h) give or offer to give, on behalf of AGL, any tax or legal advice
related to the purchase of a Contract; or
(i) exercise any authority on behalf of AGL other than that expressly
conferred on DISTRIBUTOR or any Sales Person by this Agreement.
2.15 INDEPENDENT CONTRACTOR. DISTRIBUTOR shall at all times function as,
and be deemed to be, an independent contractor. Nothing contained herein shall
be construed as creating the relationship of employer and employee between or
among AGL, AGSI, and DISTRIBUTOR (or any Sales Person or Associated Agency
thereof).
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SECTION 3. ADMINISTRATION AND RECORDKEEPING
3.1 CONTRACT ADMINISTRATION. Each Party agrees to perform the
administrative duties assigned to such Party under Schedule B attached hereto
and incorporated by reference herein, as the Parties may amend from time to
time by mutual agreement. Each party acknowledges that the other party may
subcontract its rights and responsibilities enumerated in Schedule B to one or
more third party vendors. Although such duties may be delegated, each party
agrees that it is legally liable for the performance of the same.
3.2 PERFORMANCE STANDARDS. Each Party agrees to use its reasonable best
efforts to meet or exceed the standards for performing the various
administrative duties set out in Schedule B attached hereto and incorporated
by reference herein, as the Parties may amend from time to time by mutual
agreement.
3.3 RECORDKEEPING.
(a) Each Party agrees to keep, at its principal office, all accounts,
books and other records (collectively, "records") required by and in
accordance with applicable federal and state law, and the regulations of any
regulatory body having jurisdiction over such records, including, without
limitation, Rules 31a-1 and 31a-2 under the 1940 Act and Rules 17a-3 and 17a-4
under the 1934 Act.
(b) Each Party agrees to maintain any and all records as may pertain to
the Contracts and this Agreement in a manner that clearly and accurately
discloses the precise nature and details of Contract transactions or any
transactions related thereto.
(c) Each Party agrees to assist the others in the timely preparation of
records. In this regard, each Party shall promptly furnish to any other Party
hereto any reports and information that such other Party may request for the
purpose of meeting reporting and recordkeeping requirements under the
insurance laws of the state of Texas or any other state and under the federal
or state securities laws or the rules of the NASD.
(d) To the extent that records maintained by AGL, AGSI or DISTRIBUTOR
(each, a "Maintaining Party" as the case may be) are necessary to satisfy the
recordkeeping requirements imposed by federal securities laws and regulations
on any other Party to this Agreement (the "Responsible Party"), the
Responsible Party hereby appoints the Maintaining Party as its agent for the
purpose of keeping and maintaining such records. As required by 1940 Act Rule
31a-3(a) and 1934 Act Rule 17a-4(i), such records will be the exclusive
property of the Responsible Party, but this shall not preclude the Maintaining
Party from having access to such records or keeping copies of such records for
its own files. In addition, as required by 1940 Act Rule 31a-3(a) and 1934 Act
Rule 17a-4(i), the Maintaining Party shall, promptly upon the request of the
Responsible Party, surrender or provide reasonable access to, as requested,
all records held by it for the Responsible Party pursuant to this Agreement in
a form mutually agreed to by such Parties. In order to comply with 1934 Act
Rule 17a-4(i), with respect to books and records maintained or preserved
subject thereto, the Maintaining Party hereby undertakes to permit examination
of such books and records at any time or from time to time during business
hours by representatives or designees of the SEC, and to promptly furnish to
the SEC or its designee true, correct, complete and current hard copy of any
or all of any part of such books and records.
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SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 BY AGL
AGL represents and warrants that:
(a) it is an insurance company duly organized, validly existing and in
good standing under the laws of the State of Texas and has full corporate
power, authority and legal right to execute, deliver and perform its duties
and comply with its obligations under this Agreement,
(b) it has legally and validly established and maintains each Account as
a segregated asset account under the Texas Insurance Code and the regulations
thereunder,
(c) the Contracts comply in all material respects with all other
applicable federal and state laws and regulations,
(d) interests in each Account pursuant to the Contracts will be
registered under the 1933 Act to the extent required by the 1933 Act,
(e) 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 0000 Xxx, Xxxxx law, and the laws
of any other state in which the Contracts are offered and sold,
(f) each Account is and will remain registered under the 1940 Act, to the
extent required by the 1940 Act, and 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,
(g) 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,
(h) AGL 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
(i) each Contract Prospectus will at all times comply in all material
respects with the requirements of the 1933 Act and the rules thereunder, but
excluding information contained or omitted in reliance upon and in conformity
with information furnished to AGL or AGSI by or on behalf of DISTRIBUTOR.
AGL further represents that:
(a) the Contracts currently are and will be treated as annuity,
endowment, or life insurance contracts under applicable provisions of the
Internal Revenue Code of 1986, as amended ("Code"),
11
that it will use its best efforts to maintain such treatment, and that it will
notify DISTRIBUTOR 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, and
(b) that each Account is a "segregated asset account," that interests in
the 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, that it will use its best efforts to
continue to meet such definitional requirements, and that it will notify
DISTRIBUTOR 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.
4.2 BY XXXX
XXXX represents and warrants that:
(a) it is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Texas and has full power, authority,
and legal right to execute, deliver, and perform its duties and comply with
its obligations under this Agreement,
(b) it is a member in good standing of the NASD and that it has obtained
all approvals necessary to offer the Contracts and otherwise enter into and
carry out all transactions contemplated by this Agreement, has obtained or
will obtain all approvals, licenses, authorizations, orders or consents, and
shall be duly registered or otherwise qualified under the securities laws of
any state or other jurisdiction where offers or sales of the Contracts may be
made,
(c) it is bonded as required by all applicable laws and regulations and
that it will carry out its sales and underwriting obligations hereunder in
continued compliance with the NASD Rules of Fair Practice and federal and
state securities laws and regulations and state insurance laws and
regulations,
(d) it is duly registered with the SEC as a broker-dealer under the 1934
Act, and that the activities of DISTRIBUTOR and Sales Persons in connection
with the offer and sale of Contracts shall be in compliance with applicable
federal and state securities laws and regulations in all material respects,
and
(e) it shall take all actions necessary to obtain and maintain all
regulatory approvals required to underwrite the Contracts for sale in all
states and jurisdictions in which the Contracts may be sold.
4.3 BY DISTRIBUTOR.
DISTRIBUTOR represents and warrants that:
(a) it is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware and has full power,
authority, and legal right to execute, deliver, and perform its duties and
comply with its obligations under this Agreement,
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(b) it is a member in good standing of the NASD and that it or the VKAC
Associated Agencies have or will have obtained all approvals necessary to
offer the Contracts and otherwise enter into and carry out all transactions
contemplated by this Agreement, have obtained or will obtain all approvals,
licenses, authorizations, orders or consents, and shall be duly registered or
otherwise qualified under the securities and insurance laws of any state or
other jurisdiction where offers or sales of the Contracts may be made,
(c) it or each VKAC Associated Agency is bonded as required by all
applicable laws and regulations and will carry out its or their sales and
underwriting obligations hereunder in continued compliance with the NASD Rules
of Fair Practice and federal and state securities laws and regulations and
state insurance laws and regulations,
(d) it is duly registered with the SEC as a broker-dealer under the 1934
Act, and that the activities of DISTRIBUTOR shall be in compliance with
applicable federal and state securities laws and regulations in all material
respects,
(e) neither it nor any of its Sales Persons or the VKAC Associated
Agencies shall make any representations concerning the Contracts, except those
contained in or reasonably derived from the Contract Prospectus, registration
statements, annual or semi-annual reports of each Account, or in other written
materials prepared or approved by or on behalf of AGL, and
(f) to the extent that DISTRIBUTOR assigns rights or obligations under
this Agreement to an Associated Agency pursuant to Section 8 hereof,
DISTRIBUTOR represents and warrants that such Associated Agency will have and
maintain all governmental approvals, licenses, authorizations, orders or
consents that are necessary for it to be assigned such rights and perform any
such obligations. In addition, the representations and warranties made by
DISTRIBUTOR in this Section 4.3 shall be read to apply to each VKAC Associated
Agency where the context so requires.
SECTION 5. COMPENSATION; COSTS AND EXPENSES
5.1 COMPENSATION.
(a) AGL agrees to compensate DISTRIBUTOR for its services hereunder in
accordance with Schedule C attached hereto and incorporated herein by
reference, as the Parties may amend from time to time by mutual agreement.
(b) DISTRIBUTOR agrees that neither it nor any of its Sales Persons or
the VKAC Associated Agencies will pay any commission, or portion thereof, or
other compensation based upon a percentage of premium payments or other
valuable consideration for services rendered in soliciting the sale of the
Contracts to any person or entity (i) that is not duly licensed or appointed
by AGL to sell the Contracts under the applicable laws of any state or
jurisdiction or (ii) that is not duly registered or otherwise qualified under
the 1934 Act and rules thereunder or under any applicable state laws and rules
governing broker-dealers and their Sales Persons, unless exempt therefrom;
provided, however, that this representation shall not prohibit the payment of
compensation to the
13
widow(er) or other beneficiary of a person lawfully entitled to receive such
compensation pursuant to a bona fide contract that calls for such payment.
5.2 REGISTRATION FEES. The fees imposed by the SEC pursuant to Rule 24f-2
under the 1940 Act in connection with the registration of an Account's units
of interest under the 1933 Act shall be borne equally by AGL and DISTRIBUTOR.
5.3 EACH PARTY TO BEAR OWN COSTS. Except as otherwise expressly provided,
each Party to this Agreement shall bear all expenses of fulfilling its duties
and obligations hereunder. To the extent one Party initially bears any costs
or expenses that are the responsibility of another Party, that other Party
shall reimburse the Party that initially bore such expenses promptly upon
request.
SECTION 6. INDEMNIFICATION
6.1 INDEMNIFICATION BY AGL AND AGSI
(a) Except as limited by and in accordance with the provisions of
Sections 6.1(c) and 6.1(d) below, AGL and AGSI, jointly and severally, shall
indemnify and hold harmless DISTRIBUTOR against any loss, claim, damage or
liability (including amounts paid in settlement with the written consent of
DISTRIBUTOR), or litigation (including reasonable counsel fees and other costs
of investigating or defending any alleged loss, claim, damage, or liability)
to which DISTRIBUTOR may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages, or
liabilities are related to the sale of the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the Contract, the
registration statement relating to the Contracts, the Contract
Prospectus, or in any published marketing materials or communications
with any Contract owner (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 or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not apply as
to any Indemnified Party, as defined below, if such statement or omission
or such alleged statement or omission was made in reliance upon and in
conformity with information furnished to AGL or AGSI by or on behalf of
DISTRIBUTOR or any VKAC Associated Agency thereof for use in the
foregoing materials; or
(ii) arise out of the failure of AGL, AGSI, or any of their
respective affiliates, officers, directors, or employees, to comply with
any applicable securities, insurance, or other laws and regulations in
connection with its rendering of Contract issue, recordkeeping,
confirmation or other services under this Agreement; or
(iii) arise out of AGL's or AGSI's negligence or misconduct, or that
of their respective affiliates, officers, directors, or employees in the
performance of its duties hereunder; or
14
(iv) arise as a result of any failure by AGL or AGSI to
substantially provide the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation or warranty made by AGL or AGSI in this Agreement or arise
out of or result from any other material breach of this Agreement by AGL
or AGSI.
(b) The indemnities in this Section 6.1 shall, upon the same terms and
conditions, extend to and inure to the benefit of each director, officer,
Sales Person and affiliate of DISTRIBUTOR or any VKAC Associated Agency and
any person controlling DISTRIBUTOR within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act (each an "Indemnified Party").
(c) AGL and AGSI shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
(d) Neither AGL or AGSI shall be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified AGL and AGSI, if appropriate, in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure to
notify AGL and AGSI of any such claim shall not relieve AGL and AGSI from any
liability which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In
case any such action is brought against an Indemnified Party, AGL and AGSI
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from AGL and AGSI to such party of
AGL's and AGSI's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
AGL will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
6.2 INDEMNIFICATION BY DISTRIBUTOR
(a) Except as limited by and in accordance with the provisions of
Sections 6.2(c) and 6.2(d) below, DISTRIBUTOR shall indemnify and hold
harmless AGL and AGSI against any loss, claim, damage or liability (including
amounts paid in settlement with the written consent of AGL and AGSI), or
litigation (including reasonable counsel fees and other costs of investigating
or defending any alleged loss, claim, damage, or liability) to which AGL or
AGSI may become subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, or liabilities are related
to the sale of the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the Contract, the
registration statement relating to the Contracts, the Contract
Prospectus, or in any published marketing materials or communications
with any Contract owner (or any amendment or supplement to any of the
15
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein or necessary to make the statements therein not
misleading, if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with information
furnished to AGL or AGSI by or on behalf of DISTRIBUTOR or any VKAC
Associated Agency thereof for use in the foregoing materials; or
(ii) arise out of the failure of DISTRIBUTOR or any VKAC Associated
Agency, including affiliates, officers, directors, or employees of the
foregoing, to comply with any applicable securities or other laws and
regulations in connection with its rendering of Contract marketing,
distribution, recordkeeping, or other services under this Agreement; or
(iii) arise out of the negligence or misconduct of DISTRIBUTOR or
any VKAC Associated Agency, or that of any affiliate, officer, director,
or employee of the foregoing, in the performance of its duties hereunder;
or
(iv) arise as a result of any failure by DISTRIBUTOR to
substantially provide the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation or warranty made by DISTRIBUTOR in this Agreement or arise
out of or result from any other material breach of this Agreement by
DISTRIBUTOR.
(b) The indemnities in this Section 6.2 shall, upon the same terms and
conditions, extend to and inure to the benefit of each director, officer, and
affiliate of AGL or AGSI and any person controlling AGL or AGSI within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (each an
"Indemnified Party").
(c) DISTRIBUTOR shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
(d) DISTRIBUTOR shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified DISTRIBUTOR in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify DISTRIBUTOR of
any such claim shall not relieve DISTRIBUTOR from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against an Indemnified Party, DISTRIBUTOR shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the
action. After notice from DISTRIBUTOR to such party of DISTRIBUTOR's election
to assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and DISTRIBUTOR will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation.
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6.3 LIMITATION ON LIABILITY. In no event shall any Party under this
Agreement be liable for lost profits or for exemplary, special, punitive or
consequential damages alleged to have been sustained by the other Party, as
opposed to a third party.
6.4 INJUNCTIVE RELIEF. The Parties each agree that monetary damages may
be an inadequate remedy in the event of a breach by any Party of any of the
covenants in this Agreement, and that any such breach by a Party may cause the
other Parties great and irreparable injury and damage. Accordingly, the
Parties agree that the non-breaching Parties shall be entitled, without
waiving any additional rights or remedies otherwise available to it at law or
in equity or by statute, to injunctive and other equitable relief in the event
of a breach or intended or threatened breach by any other Party of any of said
covenants.
SECTION 7. TERM AND TERMINATION
7.1 TERM. This Agreement shall be effective as of the date first above
written and shall, unless earlier terminated pursuant to Section 7.2 or 7.3,
remain in full force and effect thereafter with respect to all Contracts of
each particular form type until no Contracts of that particular form type
remain outstanding.
7.2 EVENTS OF TERMINATION.
(a) This Agreement shall terminate at any Party's option, without
penalty:
(i) with or without cause, on not less than 180 days' written notice
to the other Parties;
(ii) upon the mutual written consent of the Parties;
(iii) upon written notice of one Party to the other Parties in the
event of bankruptcy or insolvency of such party to which notice is given;
or
(iv) in the event of an assignment of this Agreement, subject to the
provisions of Section 8. Not withstanding the foregoing, AGL and AGSI
specifically consent to the transactions contemplated by the Agreement
and Plan of Merger among Xxxxxx Xxxxxxx Group Inc., MSAM Holdings II,
Inc., and MSAM Acquisition Inc., and VKAC Holding, Inc., dated as of June
21, 1996 (the "Merger Agreement").
(b) This Agreement shall terminate at the option of DISTRIBUTOR, subject
to Section 7.3, in the event of:
(i) fraud, misrepresentation, conversion or unlawful withholding of
funds by AGL or AGSI;
17
(ii) the dissolution or disqualification of AGL or AGSI to do
business under any applicable state or federal law where AGL or AGSI's
ability to perform is materially impaired; however, such termination
shall extend only to the jurisdiction(s) where AGL or AGSI is prohibited
from doing business;
(iii) the suspension or revocation of any material license or permit
held by AGL or AGSI by the appropriate governmental agency or authority;
however, such termination shall extend only to the jurisdiction(s) where
AGL or AGSI is prohibited from doing business;
(iv) the sale (without the prior written consent of DISTRIBUTOR,
which consent shall not be unreasonably withheld) of the AGL or AGSI
business relating to the Contracts, which sale is to an unaffiliated
person or entity, whether by merger, consolidation, or sale of
substantially all of AGL or AGSI's assets, during the term of, and any
extension of, this Agreement; or
(v) upon the institution of formal proceedings against AGL or AGSI
by the NASD, SEC, or any other regulatory body regarding AGL or AGSI's
duties under this Agreement, the sale of the Contracts, or the operation
of any Account, provided that such proceedings result in a finding of
material wrongdoing by AGL or AGSI.
(c) This Agreement shall terminate at the option of AGL or AGSI, subject
to Section 7.3, in the event of:
(i) fraud, misrepresentation, conversion or unlawful withholding of
funds by DISTRIBUTOR;
(ii) the dissolution or disqualification of DISTRIBUTOR to do
business under any applicable state or federal law where DISTRIBUTOR's
ability to perform is materially impaired; however, such termination
shall extend only to the jurisdiction(s) where DISTRIBUTOR is prohibited
from doing business;
(iii) the suspension or revocation of any material license or permit
held by DISTRIBUTOR by the appropriate governmental agency or authority;
however, such termination shall extend only to the jurisdiction(s) where
DISTRIBUTOR is prohibited from doing business;
(iv) the sale (without the prior written consent of AGL, which
consent shall not be unreasonably withheld) of DISTRIBUTOR's business to
an unaffiliated person or entity, whether by merger, consolidation, or
sale of substantially all of DISTRIBUTOR'S assets during the term of, and
any extension of, this Agreement (Notwithstanding this subsection
7.2(c)(iv), AGL and AGSI specifically consent to the transactions
contemplated by the Merger Agreement.); or
(v) upon the institution of formal disciplinary proceedings against
DISTRIBUTOR by the NASD, SEC, or any other regulatory body, regarding
DISTRIBUTOR's duties under this Agreement or the sale of the Contracts,
provided that such proceedings result in a finding of material wrongdoing
by DISTRIBUTOR.
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7.3 REMEDY OF EVENTS OF DEFAULT. If any Party breaches this Agreement or
is in default in the performance of any of its duties and obligations
hereunder (the "defaulting Party"), including, without limitation, a breach in
any representation or warranty made by the defaulting Party, the
non-defaulting Parties may give written notice thereof to the defaulting
Party, and if such breach is not remedied within 30 days after such written
notice is given, then the non-defaulting Parties may terminate this Agreement
by giving 30 days' written notice of such termination to the defaulting Party.
7.4 PARTIES TO COOPERATE RESPECTING TERMINATION. The Parties agree to
cooperate and give reasonable assistance to each other in effecting an orderly
transition following termination.
SECTION 8. ASSIGNMENT BY DISTRIBUTOR
DISTRIBUTOR may, with the prior written consent of AGL, assign its rights
or obligations under this Agreement to a VKAC Associated Agency to the extent
deemed necessary or appropriate by DISTRIBUTOR in order to comply with
applicable laws or regulations. If obligations under this Agreement are
assigned to a VKAC Associated Agency as permitted herein, DISTRIBUTOR shall
not be relieved of any of such obligations.
SECTION 9. CONTRACT LAPSE, TERMINATION, SURRENDER, ETC.
During the term of this Agreement and for two (2) years following the
termination of this Agreement, neither DISTRIBUTOR nor any of its VKAC
Associated Agencies or Sales Persons, or any affiliate, director, officer or
employee of the foregoing, shall induce or cause, or attempt to induce or
cause, directly or indirectly, any Contract owner (a) to lapse, terminate,
surrender, exchange, or cancel his or her Contract, (b) to cease or
discontinue making premium payments thereunder, or (c) to direct cash value or
premium payments thereunder to any other financial product without the prior
written consent of AGL, unless such act is in response to an enactment of
federal or state legislation, order or decision of any court or regulatory
authority, or a change in circumstances that makes the Contracts or insurance
contracts of that type (E.G., annuity contracts or life insurance contracts)
an unsuitable investment for existing Contract owners. AGL shall have the
right to cease compensation payments to DISTRIBUTOR in the event this
provision is violated; provided, however, that this Section 9 shall have no
effect in the event AGL undertakes either (1) a formal exchange offer of the
Contracts, or (2) a substitution of any series of a fund or funds advised or
sub-advised by an affiliate of DISTRIBUTOR pursuant to Section 26(b) of the
Investment Company Act of 1940, and neither (1) nor (2) is undertaken as a
result of DISTRIBUTOR's or such affiliates inability to perform their
respective obligations hereunder.
SECTION 10. CONFIDENTIALITY
Each Party to this Agreement shall keep confidential any information
about each other Party, or its operations obtained pursuant to this Agreement
or the transactions contemplated herein and shall disclose such information
only if such other Party has authorized such disclosure, or if such
19
disclosure is required by federal, state or any other applicable regulatory
bodies. If any Party hereto receives a request from such regulatory body
requiring such disclosure, that Party shall immediately notify the other
Parties of the request.
SECTION 11. ARBITRATION OF DISPUTES
11.1 ARBITRATION BINDING. Any controversy or claim arising out of or
relating to this Agreement, or the breach hereof, shall be settled by
arbitration under the rules of the NASD in effect at that time. If the NASD
refuses jurisdiction, or the Parties mutually agree in writing, the
arbitration procedure described herein shall be used. In either event, the
decision of the arbitrator(s) shall be final and judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
11.2 INITIATION OF ARBITRATION. To initiate arbitration, the Party
seeking arbitration ("Claimant") shall notify the Party(ies) (each, a
"Respondent") in writing of its desire to arbitrate, stating the nature of its
dispute and the remedy sought. The Respondent(s) shall respond to the
notification in writing within 10 days of its receipt.
11.3 SELECTION OF ARBITRATORS.
(a) The arbitration hearing shall be before a panel of three arbitrators,
each of whom must be (i) a present or former officer of a life insurance or
reinsurance company and/or (ii) an officer and principal of a registered
broker-dealer. The panel must contain at least one representative from each of
(i) and (ii). An arbitrator may not be a present or former affiliate,
director, officer, employee, attorney, or consultant of AGL, AGSI, and
DISTRIBUTOR (or any Associated Agency or Sales Person thereof).
(b) Claimant and Respondent shall each name five (5) candidates to serve
as an arbitrator. Claimant and Respondent shall each choose one candidate from
the other Party's list, and these two candidates shall serve as the first two
arbitrators. Claimant and Respondent shall each present their initial lists of
five (5) candidates by written notification to the other Party within 25 days
of the date of the mailing of the notification initiating the arbitration. Any
subsequent additions to the list that are required shall be presented within
10 days of the date the naming Party receives notice that a candidate that has
been chosen declines to serve.
(c) The two arbitrators shall then select the third arbitrator from the
eight (8) candidates remaining on the lists of the Claimant and Respondent
within 14 days of the acceptance of their positions as arbitrators. If the two
arbitrators cannot agree on the choice of a third, then this choice shall be
referred back to the Parties. Claimant and Respondent shall take turns
striking the name of one of the remaining candidates from the initial eight
(8) candidates until only one candidate remains. If the candidate so chosen
shall decline to serve as the third arbitrator, the candidate whose name was
stricken last shall be nominated as the third arbitrator. This process shall
continue until a candidate has been chosen and accepted. This candidate shall
serve as the third arbitrator. The first turn at striking the name of a
candidate shall belong to the Respondent. Once chosen, the arbitrators are
empowered to decide all substantive and procedural issues by a majority of
votes.
11.4 IMPARTIALITY. The Parties agree that each of the three arbitrators
should be impartial regarding the dispute. Therefore, at no time will any
Party contact or otherwise communicate with any person who is to be or who has
been designated as a candidate to serve as an arbitrator
20
concerning the dispute, except upon the basis of jointly drafted
communications provided by the Parties to inform those candidates actually
chosen as arbitrators of the nature and facts of the dispute. Likewise, any
written or oral arguments provided to the arbitrators concerning the dispute
shall be coordinated with the other Party(ies) and shall be provided
simultaneously to the other Party(ies) or shall take place in the presence of
the other Party(ies). Further, at no time shall any arbitrator be informed
that the arbitrator has been named or chosen by one Party or another.
11.5 HEARING DATE AND TIME. The arbitration hearing shall be held on a
date fixed by the arbitrators. In no event shall this date be later than six
(6) months after the appointment of the third arbitrator. As soon as possible,
the arbitrators shall establish pre-arbitration procedures as warranted by the
facts and issues of the particular case. At least 10 days prior to the
arbitration hearing, each Party shall provide the other Party(ies) and the
arbitrators with a detailed statement of the facts and arguments that it will
present at the arbitration hearing. The arbitrators may consider any relevant
evidence; they shall give the evidence such weight as they deem it entitled to
after consideration of any objections raised concerning it. The Claimant shall
have the burden of proving its case by a preponderance of the evidence. Each
Party may examine any witnesses who testify at the arbitration hearing. Each
Party shall bear its own costs of arbitration, except that the arbitrators
shall apportion their own reasonable fees and expenses between or among the
Parties, as they deem appropriate.
SECTION 12. TRADEMARKS
12.1 DISTRIBUTOR TRADEMARKS. DISTRIBUTOR has filed for a service xxxx in
order to establish ownership to all right, title and interest in and to the
name, trademark and service xxxx "Generations," and such other tradenames,
trademarks and service marks identified in Schedule D hereto, as the Parties
hereto may amend from time to time (the "DISTRIBUTOR licensed marks" or the
"licensor's licensed marks"). DISTRIBUTOR hereby grants to AGL (including its
affiliates) a non-exclusive license to use the DISTRIBUTOR licensed marks in
connection with AGL's performance of the services contemplated under this
Agreement, subject to the terms and conditions set forth in this Section 12.
12.2 AGL TRADEMARKS. AGL owns all right, title and interest in and to the
tradename, trademarks and service xxxx "American General Life Insurance
Company," and such other tradenames, trademarks and service marks identified
in Schedule D hereto, as the Parties hereto may amend from time to time (the
"AGL licensed marks" or the "licensor's licensed marks"). AGL hereby grants to
DISTRIBUTOR (including its affiliates) a non-exclusive license to use the AGL
licensed marks in connection with DISTRIBUTOR's performance of the services
contemplated by this Agreement, subject to the terms and conditions set forth
in this Section 12.
12.3 GRANT OF LICENSE. The grant of license by DISTRIBUTOR and AGL (each,
a "licensor") to the other and affiliates thereof (the "licensees") shall
terminate automatically when the Contracts (or any particular form of
Contract) cease to be outstanding or by either Party at its election upon
termination of this Agreement. Upon automatic termination, each licensee shall
cease to use a licensor's licensed marks. Upon AGL's elective termination of
this license, DISTRIBUTOR (including its affiliates) shall immediately cease
to distribute marketing material relating to any Contract and shall likewise
cease any activity that suggests that it has any right under the AGL
21
licensed marks or that it has any association with AGL or any affiliate of AGL
in connection with any such Contracts. Similarly, upon DISTRIBUTOR's elective
termination of this license, AGL (including its affiliates) shall cease to
issue as soon as reasonably practicable, any new Contracts bearing any of the
DISTRIBUTOR licensed marks and shall likewise cease any activity which
suggests that it has any right under any of the DISTRIBUTOR licensed marks or
that it has any association with DISTRIBUTOR or any affiliate of DISTRIBUTOR,
except that AGL shall have the right to continue to administer any outstanding
Contracts bearing any of the DISTRIBUTOR licensed marks and in connection
therewith to use the DISTRIBUTOR licensed marks.
12.4 PRIOR APPROVAL. Notwithstanding any provision in this Agreement to
the contrary, a 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 approval shall not be unreasonably
withheld.
12.5 SAMPLE MATERIALS. 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 that were previously approved by the
licensor but, due to changed circumstances, the licensor may wish to
reconsider, or that were not previously approved in the manner set forth
above. If, on the 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. 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.
12.6 TRADEMARKS VALID AND ENFORCEABLE. Each licensee hereunder: (a)
acknowledges and stipulates that 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; (b) agrees never to contend otherwise in legal
proceedings or in other circumstances; and (c) 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 13. BONDING AND INSURANCE
Each Party shall maintain sufficient fidelity bond coverage (including
coverage for larceny and embezzlement) and errors and omissions insurance
coverage as may be required by applicable law or as such Party seems necessary
in light of its obligations under this Agreement. DISTRIBUTOR shall maintain
errors and omissions coverage from a reputable insurance company in an amount
and form acceptable to AGL at all times during the term of this Agreement.
SECTION 14. NOTICES
14.1 MANNER OF NOTICES. Unless otherwise provided in this Agreement, any
notice required or permitted to be sent under this Agreement shall be given to
the following persons at the
22
following addresses and facsimile numbers, or such other persons, addresses or
facsimile numbers as the Party receiving such notices or communications may
subsequently direct in writing:
American General Life Insurance Company
0000-X Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
American General Securities Incorporated
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: F. Xxxx Xxxxxx, Xx.
Telecopier: (000) 000-0000
Xxx Xxxxxx American Capital Distributors, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 000000
Attn: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
14.2 NOTICE OF REGULATORY PROCEEDINGS.
(a) AGL and AGSI shall immediately notify DISTRIBUTOR 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 any Contract or to any Account's
registration statement under the 1933 Act relating to the Contracts or any
Contract Prospectus or any order having a material effect with respect to
AGL's or AGSI's ability to perform their respective obligations hereunder,
(ii) any request by the SEC or other regulatory body for any amendment to such
registration statement or Contract Prospectus, (iii) the initiation of any
proceeding for that purpose or for any other purpose relating to the offering
of any Contract, or the registration or offering of the Account's interests
pursuant to the Contracts, or (iv) any other action or circumstances that may
prevent or otherwise materially affect 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.
AGL and AGSI shall make every reasonable effort to prevent the issuance 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.
AGL and AGSI shall also immediately notify DISTRIBUTOR if any of their Sales
Persons or Associated Agencies is or becomes subject to any proceedings or is
sanctioned or suspended (i) by the SEC or NASD, (ii) by any court for
securities law violations, or (iii) by any state regulatory authority.
(b) DISTRIBUTOR shall immediately notify AGL of: (i) the issuance by any
court or regulatory body of any order having a material effect with respect to
DISTRIBUTOR's ability to perform its obligations hereunder, (ii) the
initiation of any proceeding for any purpose relating to the sale of the
Contracts, and (iii) any other actions or circumstances that may prevent the
lawful offer or sale of any of the Contracts in any state or jurisdiction.
DISTRIBUTOR shall also immediately notify AGL if any of its Sales Persons or
any VKAC Associated Agency is or becomes subject to any
23
proceedings or is sanctioned or suspended (i) by the SEC or NASD, (ii) by any
court for securities law violations, or (iii) by any state regulatory
authority.
SECTION 15. MISCELLANEOUS
15.1 AMENDMENT. This Agreement may be amended at any time by a writing
executed by the parties.
15.2 GOVERNING LAW. This Agreement shall be interpreted in accordance
with and governed by the laws of the State of Texas.
15.3 SURVIVAL OF PROVISIONS. Upon termination of this Agreement, the
following provisions shall survive: Sections 2.11, 2.12, 3.3, 6, 9, 10, 11,
12, 14, and 15.
15.4 SEVERABILITY. Should any provision of this Agreement be held or made
invalid by a court decision, statute, rule, or otherwise, the remainder of
this Agreement shall not be affected thereby.
15.5 WAIVER. Any failure or delay by any Party to enforce at any time any
of the provisions of this Agreement, or to exercise any right or option which
is herein provided, or to require at any time the performance of any of the
provisions hereof, shall in no way be construed to be a waiver of such
provision of this Agreement. If any Party waives the breach of any provision
of this Agreement by another Party, the waiving Party still has the right to
require performance of that provision and its conduct shall not be construed
to waive succeeding breaches of that provision or any breaches of any other
provision.
15.6 FORCE MAJEURE. No Party shall be liable for damages due to delay or
failure to perform any obligation under this Agreement where such delay or
failure results directly or indirectly from circumstances beyond the control
and without the fault or negligence of such Party.
15.7 PARTIES TO COOPERATE.
(a) AGL, AGSI, DISTRIBUTOR, and any necessary Associated Agencies and
Selling Group Members shall cooperate fully in any insurance or securities
regulatory examination, investigation, or proceeding or any judicial
proceeding with respect to AGL, AGSI, DISTRIBUTOR, and their respective
affiliates, agents and representatives to the extent that such examination,
investigation, or proceeding arises in connection with Contracts distributed
under this Agreement. DISTRIBUTOR shall furnish applicable federal and state
regulatory authorities with any information or reports in connection with its
services under this Agreement that authorities may request in order to
ascertain whether AGL's operations are being conducted in a manner consistent
with any applicable law or regulations.
(b) DISTRIBUTOR shall execute such papers and do such acts and things as
shall from time to time be reasonably requested by AGL for the purpose of
qualifying and maintaining qualification of the Contracts for sale under the
applicable laws of any state, and maintaining the registration of the
Contracts under the 1933 Act and any Account under the 1940 Act.
24
15.8 ENTIRE AGREEMENT. This Agreement shall be the sole and only
agreement among AGL, AGSI, and DISTRIBUTOR regarding the marketing and
distribution of Contracts, and it supersedes all prior and contemporaneous
agreements. The Parties recognize that AGL and DISTRIBUTOR may be parties to
other agreements, the terms and conditions of which may pertain to their
respective duties and obligations under this Agreement. To the extent anything
in those other agreements contradicts the terms of this Agreement, this
Agreement shall control. This Agreement may not be amended, supplemented, or
modified, except as expressly permitted herein, without the written agreement
of the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first written above.
AMERICAN GENERAL LIFE INSURANCE COMPANY
on behalf of itself and each Account
named in Schedule A hereto,
as amended from time to time
/s/XXXXXX X. XXXXXX, XX.
BY: ------------------------
Xxxxxx X. Xxxxxx, Xx.
President
AMERICAN GENERAL SECURITIES INCORPORATED
/s/F. XXXX XXXXXX, XX.
BY: ------------------------
F. Xxxx Xxxxxx, Xx.
President
XXX XXXXXX AMERICAN CAPITAL DISTRIBUTORS, INC.
/s/XXXXXXX X. XXXXXXXX
BY: ------------------------
Xxxxxxx X. Xxxxxxxx
President
25
SCHEDULE A
NAMES OF SEPARATE ACCOUNTS
American General Life Insurance Company Separate Account D
AVAILABLE CONTRACTS (IDENTIFIED BY FORM NUMBER)
Generations Variable Annuity
Contract form numbers: 95020 Rev 896
95021 Rev 896
A-1
SCHEDULE B
AGL ADMINISTRATIVE RESPONSIBILITIES
1. Contract Maintenance
(a) File and obtain state approvals for the Contracts being issued, and
any amendments thereof.
(b) Notify DISTRIBUTOR of the effective date for each state in which
the Contracts become available for issue.
(c) Customize and support state specific requirements where
administratively feasible.
2. Contract Servicing
(a) Issue and maintain master records for Contracts applied for and
accepted.
(b) Provide maintenance support for all Contract features:
(i) Purchase Payments (new issues, 1035 Exchanges, EFT,
additions);
(ii) Withdrawals (SAFEs, partial, full, cancellations, and death
claims);
(iii) Exchanges among Divisions, change of allocations;
(iv) Title Changes (beneficiary, ownership, name, assignments);
(v) Rebalancing, Dollar-Cost Averaging;
(vi) Annuitization.
3. Customer Correspondence
(a) Generate and provide various customer correspondence documents:
(i) Contract (with appropriate riders and endorsements);
(ii) Confirmations of financial transactions;
(iii) Quarterly statements of account activity and balances;
(iv) Billing forms, in a manner agreed to between Owner and AGL.
4. Customer Service Functions
(a) Provide a telephone staff or other medium to respond to customer
inquiries.
(b) Prepare and update service forms necessary to support the Contract.
(c) Respond to written inquiries from Contract Owners.
B-1
(d) Coordinate complaint resolution (formal and informal).
5. Compliance
(a) Coordinate the printing and mailing of the following documents:
(i) Separate Account semiannual and annual reports;
(ii) Evergreen prospectus.
(b) Coordinate proxy solicitations as outlined in the Participation
Agreement.
(c) Prepare updates and regulatory filings as warranted.
(d) Generate tax reporting for Contract Owners as warranted by account
activity.
(e) Maintain appropriate books and records.
6. Financial
(a) Calculate unit values on business days of the separate account.
(b) Place trades with corresponding Trust funds and settle such trades
as defined in the Participation Agreement.
(c) Prepare Separate Account semiannual and annual reports .
7. Licensing/Contracting and Compensation
(a) Establish the initial record and perform ongoing maintenance for
representatives appointed to sell the product.
(b) Maintain copies of all approved Selling Group Agreements.
(c) Arrange for payment of appointment fees.
(d) Pay compensation based on arrangements of marketing and Selling
Group Agreements.
8. Reporting
(a) Provide sales or other reports as mutually agreed upon by AGL and
Distributor or Selling Group Member.
9. Communications
(a) Provide review and feedback/approval for all marketing pieces
associated with the Contract.
B-2
DISTRIBUTOR ADMINISTRATIVE RESPONSIBILITIES
1. Distribution
(a) Solicit and obtain Selling Group Agreements.
(b) Assist in appointing Sales Persons.
(c) Assist in arranging for payment of appointment fees as required.
2. Marketing Support
(a) Provide wholesaling support to prospective and current Selling
Group Members.
(b) Draft and distribute approved marketing and product literature as
well as all forms associated with the Contract (applications,
service forms, etc.).
(c) Provide sales reporting data to wholesalers.
(d) Provide training on Contract features and procedures.
(e) Provide hypothetical data and illustrations for Fund performance.
B-3
SCHEDULE C
This Schedule governs the compensation to be paid by AGL in connection
with the Contracts issued in accordance with the Agreement. The defined terms
used herein shall have the same meaning as in the Agreement to which this
Schedule C is attached or as in the Contracts, whichever is applicable.
1. DISTRIBUTION FEE TO DISTRIBUTOR.
AGL shall pay or cause to be paid to DISTRIBUTOR, each semi-monthly
period, a Distribution Fee ("Fee") equal to one percent (1%) of Purchase
Payments received by AGL during such period that are attributable to all
Contracts issued by AGL. All Purchase Payments upon which the Fee may be based
must be received by AGL in accordance with the Agreement and such other
requirements that AGL and DISTRIBUTOR may, from time to time, establish. The
Fee shall constitute the sole and exclusive payment by AGL to DISTRIBUTOR with
respect to the Contracts issued pursuant to the Agreement and all services
rendered under or in contemplation of this Agreement.
2. COMPENSATION TO SELLING GROUP MEMBERS.
AGL shall remit to DISTRIBUTOR, or cause to be remitted, the amounts set
out in the schedules below, which DISTRIBUTOR agrees to pay as compensation to
the appropriate Selling Group Members who have submitted applications for
Contracts that AGL has approved for issuance ("Sales Commissions"). The
Parties agree that more than one schedule may be in effect at a time with
respect to a Selling Group Member.
SALES COMMISSION SCHEDULES
Schedule 1: 6% commission, 0% trail commission
Schedule 2: 4.75% commission, plus a 0.25% trail
commission commencing at the end of the 15th
month after receipt of the Purchase Payment
and continuing through the end of the
seventh year following receipt of the
Purchase Payment, followed by a 0.50% trail
commission commencing at the end of the
third month of the eighth year following
receipt of the Purchase Payment.
Schedule 3: 5.5% commission plus a 0.50% trail
commission commencing at the end of the
third month of the eighth year following
receipt of the Purchase Payment.
C-1
Commissions shall be paid semi-monthly (unless otherwise agreed). As used
in the above schedules, the term "commission" refers to an amount equal to a
fixed percentage of Purchase Payments received by AGL during each semi-monthly
period that are attributable to Contracts solicited by Sales Persons. All
Purchase Payments upon which the commission may be based must be received by
AGL in accordance with the Agreement and such other requirements that AGL and
DISTRIBUTOR may, from time to time, establish.
As used in the above schedules, the term "trail commission" refers to an
amount equal to an annual percentage of that portion of Contract Account Value
attributable to Purchase Payments eligible for a trail commission. Trail
commissions shall be computed by multiplying 0.0625% (in the case of a 0.25%
trail commission) or 0.125% (in the case of a 0.50% trail commission) and such
portion of Contract Account Value at the end of the relevant three month
period following receipt of the Purchase Payment. Trail commissions shall be
paid at the end of the calendar quarter immediately following the computation
of the trail commission. Trail commissions shall begin as of the date
specified in the above schedules, and shall continue until annuitization,
surrender, or death which requires distribution of the Contract Account Value.
3. COMMISSION REDUCTIONS.
Notwithstanding the foregoing, the following commission reductions shall
apply to all DISTRIBUTOR Fees and Sales Commissions, except as otherwise
noted, under the circumstances described below.
(a) REDUCTIONS FOR PURCHASE PAYMENTS AT AGE 81 AND LATER. A 50%
commission reduction shall apply with respect to Purchase Payments made on or
after the Annuitant's eighty-first birthday (regardless of whether the
Contract has a Contingent Annuitant). Such commission reduction is not
applicable to trail commissions.
(b) CHARGEBACKS FOR WITHDRAWALS. The following commission chargebacks
shall apply on full or partial withdrawals (excluding withdrawals made
pursuant to the Systematic Withdrawal Program that are within the 10% Free
Withdrawal Privilege):
o 100% for full or partial withdrawal of a Purchase Payment made
during the first six months following its receipt; and
o 50% for full or partial withdrawal of a Purchase Payment made during
the next six months following its receipt.
The foregoing chargebacks shall not apply in the event of the death of
the Annuitant or Owner during the periods specified above.
4. NO COMPENSATION PAYABLE.
Notwithstanding the foregoing, no compensation shall be payable, and any
compensation already paid by AGL hereunder shall either be promptly returned
by check payable to AGL on request or will
C-2
be deducted by AGL from future payments due under this Schedule C, under each
of the following conditions:
(a) if AGL, in its sole discretion, determines not to issue the Contract
applied for or rescinds the Contract;
(b) if the Contract owner returns the Contract pursuant to the "Free
Look" provision of the Contract;
(c) if a Purchase Payment is received within 60 days following a prior
partial withdrawal, and such Purchase Payment is reasonably believed to be a
reinvestment of part or all of the prior partial withdrawal;
(d) if AGL refunds all or any portion of the Purchase Payment as a result
of a complaint or grievance;
(e) if the Contract owner, at the time the Contract is purchased, is (i)
an employee or registered representative (or the spouse or minor child of an
employee or registered representative) of any broker-dealer authorized to sell
the Contracts, or (ii) is an officer, director, or bona-fide employee of AGL,
AGSI, or any of their company affiliates, or DISTRIBUTOR; provided, however,
that the owner shall have completed, at the time the Contract is purchased,
appropriate documents supplied by AGL which provide for a waiver of all
surrender charges; or
(f) if AGL or AGSI determines that any Sales Person signing an
application or any person or entity receiving compensation for soliciting
purchases of the Contracts is not duly licensed to sell the Contracts in the
state or jurisdiction of such attempted sale and registered or otherwise
qualified under the 1934 Act and rules thereunder and any applicable state
laws and rules governing broker-dealers and their related persons.
In addition, if AGL determines that any Contract applied for is a
replacement of any insurance or annuity product issued by AGL or any of its
affiliates, AGL reserves the right not to pay any compensation and to require
the return of any compensation already paid.
5. MISCELLANEOUS.
The Parties may also supplementally agree that AGL will directly pay
Sales Commissions to the appropriate Selling Group Member. AGL, in its
discretion, may offset against compensation payable by it pursuant to this
paragraph any due and unpaid amounts owed to AGL by DISTRIBUTOR.
C-3
SCHEDULE D
(AS OF AUGUST 12, 1996)
DISTRIBUTOR TRADEMARKS
The name "Xxx Xxxxxx American Capital"
The product name "Generations"
The phrase "A wealth of knowledge, a knowledge of wealth," and its
logo design
AGL TRADEMARKS
The name "American General Corporation"
The name "American General Life Insurance Company"
The American General logo
D-1
