PARTICIPATION AGREEMENT FOR RETAIL MUTUAL FUNDS
BY AND AMONG
A I M GROWTH SERIES,
A I M DISTRIBUTORS, INC.,
AND
AMERICAN UNITED LIFE INSURANCE COMPANY
TABLE OF CONTENTS
DEFINITION PAGE
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Sale of Fund Shares. . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Representations and Warranties . . . . . . . . . . . . . . . . . . . 3
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Prospectuses and Proxy Solicitations . . . . . . . . . . . . . . . . 4
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Sales Material and Information . . . . . . . . . . . . . . . . . . . 5
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI.......................................................... 7
Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . .10
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . .14
SCHEDULE "A" . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
SCHEDULE "B" . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
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PARTICIPATION AGREEMENT FOR RETAIL MUTUAL FUNDS
BY AND AMONG
AIM GROWTH SERIES,
A I M DISTRIBUTORS, INC.,
AND
AMERICAN UNITED LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into this 31st day of May, 2002 by and
among American United Life Insurance Company ("Insurer"), a life insurance
company domiciled in Indiana, on its own behalf and on behalf of each segregated
asset account of Insurer set forth on Schedule "A" as may be amended from time
to time (each such account hereinafter referred to as the "Account"), a AIM
Growth Series on behalf of its portfolios set forth on Schedule "B" as may be
amended from time to time (the "Fund"), a Delaware trust and A I M Distributors,
Inc. (the "Underwriter"), a Delaware corporation.
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940 (the "1940 Act") and its shares
are registered under the Securities Act of 1933, as amended (the "1933 Act");
and
WHEREAS, the Fund is available to act as the investment vehicle for
separate accounts funding pension plan contracts, as defined in Section 818 of
the Internal Revenue Code of 1986, as amended (the "Code"), to be offered by
Insurer; and
WHEREAS, Insurer is offering certain registered and unregistered variable
group annuity contracts (the "Contracts"); and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by appropriate corporate resolution of the Insurer's
Board of Trustees to set aside and invest assets attributable to one or more
annuity contracts; and
WHEREAS, the Underwriter is registered as a broker-dealer with the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act of
1934, as amended, (the" 1934 Act"), and is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, Insurer intends to purchase shares in the Fund on behalf of each
Account to fund the various Contracts and the Underwriter is authorized to sell
such shares to each Account at net asset value;
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NOW, THEREFORE, in consideration of their mutual promises, Insurer, the
Fund and the Underwriter agree as follows:
ARTICLE I
SALE OF FUND SHARES
1.1 The Underwriter on behalf of the Fund agrees to sell to Insurer those
Fund shares which each Account orders, executing such orders on a daily basis at
the net asset value next computed after receipt by the Fund or its designee of
the order for the shares of the Fund. For purposes of this Section 1.1, Insurer
shall be the designee of the Fund for receipt of such orders from each Account
and receipt by such designee shall constitute receipt by the Fund, provided that
the Fund receives notice of such order by 10:00 a.m. Eastern Time on the next
Business Day. Business Day shall mean any day on which the New York Stock
Exchange is open for trading which is also a "Business Day of the Fund" as that
term is defined in the Fund's prospectus.
1.2 The Fund agrees to make its shares available indefinitely for purchase
at the applicable net asset value per share by Insurer and its Accounts on each
Business Day and the Fund shall use reasonable efforts to calculate such net
asset value on each Business Day.
1.3 The Fund agrees to redeem, on Insurer's request, any full or fractional
shares of the Fund held by Insurer or the Accounts, executing such requests on a
daily basis at the net asset value next computed after the Fund or its designee
receives the redemption request. For purposes of this Section 1.3, Insurer shall
be the designee of the Fund for receipt of redemption requests from each Account
and receipt by such designee shall constitute receipt by the Fund provided that
the Fund receives notice of such redemption request by 10:00 a.m. Eastern Time
on the next Business Day. Insurer agrees to use its best efforts to notify the
Fund in advance of any large anticipated redemptions in order to avoid any
unnecessary disruption or burden in the management of the Fund's assets.
1.4 Insurer shall pay for Fund shares on the next Business Day after an
order to purchase Fund shares is effected in accordance with the provisions of
Section 1.1, and the Underwriter shall pay redemption proceeds on the next
Business Day after an order to redeem Fund shares is effected in accordance with
the provisions of Section 1.3. Payment shall be in federal funds transmitted by
wire.
1.5 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to Insurer or any Account. Shares ordered
from the Fund will be recorded in an appropriate title for each Account.
1.6 The Fund shall furnish notice by facsimile or telephone, (if by
telephone, it must be followed by written confirmation) to Insurer of any
income, dividends or capital gain distributions payable on the Fund's shares.
Insurer hereby elects to receive all such income dividends and capital gain
distributions in additional shares of that Fund. Insurer reserves the right to
revoke this election
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and to receive all such income dividends and capital gain distributions in cash.
The Fund shall notify Insurer of the number of shares so issued as payment of
such dividends and distributions.
1.7 The Fund shall make the net asset value per share for each Fund
available to Insurer on each Business Day as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 7:00 p.m. Eastern Time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Insurer represents and warrants that the Contracts are either
registered under the 1933 Act or exempt from registration under Section 3(a)(2)
under the 1933 Act; that the Contracts will be issued and sold in compliance
with all applicable federal and state laws and regulations. Insurer further
represents and warrants that it is an insurance company duly organized and in
good standing under the laws of the State of Indiana and that it has legally and
validly established each Account prior to any issuance or sale thereof as a
segregated asset account under Indiana law and each Account is either registered
as an investment company under the 1940 Act or excluded from the definition of
"investment company" under Section 3(c)(11) of the 0000 Xxx.
2.2 The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act, duly authorized for issuance
and sold in compliance with all applicable federal and state laws and
regulations and that the Fund is and shall remain registered under the 0000 Xxx.
The Fund shall amend the Registration Statement for its shares under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares.
2.3 The Fund represents that it is currently qualified as a regulated
investment company under Subchapter M of the Code, and that it will make every
effort to maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify Insurer immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it might
not so qualify in the future.
2.4 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC under the
1934 Act. The Underwriter further represents that it will sell and distribute
the Fund shares in accordance with all applicable state and federal laws and
regulations, including the 1933 Act, the 1934 Act, and the 1940 Act and the
regulations promulgated thereunder.
2.5 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply with
the 1940 Act and the Rules promulgated thereunder.
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2.6 The Fund and Underwriter represent and warrant that all of their
trustees, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage in an amount not less than the minimal coverage as required
currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time. Such bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.7 Insurer represents and warrants that all of its directors, officers,
employees, and other individuals/entities dealing with the money and/or
securities of the Fund are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the Fund, in an
amount not less than the minimal coverage as required currently by entities
subject to the requirements of Rule 17g-1 of the 1940 Act or related provisions
as may be promulgated from time to time. Such bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company.
ARTICLE III
PROSPECTUSES AND PROXY SOLICITATIONS
3.1 The Underwriter shall provide Insurer with as many copies of the Fund's
current prospectus (and any supplements thereto) as Insurer may reasonably
request. If requested by Insurer in lieu thereof, the Fund shall provide such
documentation (including a final copy of the current prospectus as set in type
at the Fund's expense) and other assistance as is reasonably necessary in order
for Insurer once each year (or more frequently if the prospectus for the Fund is
amended) to have the disclosure memoranda for the Contracts and the Fund's
prospectus printed simultaneously. Such documentation shall be provided in a
timely manner.
3.2 The Fund's prospectus shall state that the Statement of Additional
Information ("SAI") for the Fund is available from the Underwriter (or in the
Fund's discretion, the Prospectus shall state that such SAI is available from
the Fund), and the Underwriter (or the Fund), at its expense, shall print and
provide such SAI to Insurer and to any owner/participant of a Contract or
prospective owner/participant who requests such SAI.
3.3 The Fund, at its expense, shall provide Insurer with copies of its
proxy material, reports to stockholders and other communications to stockholders
in such quantity as Insurer shall reasonably require for distributing to
Contract owners/participants.
3.4 When the Fund submits proposals to shareholders, Insurer shall, if and
to the extent required by law:
(i) solicit voting instructions from owners of or participants in the
Contract;
(ii) vote the Fund shares in accordance with instructions received from
owners of or participants in the Contract; and
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(iii)vote Fund shares for which no instructions have been received in the
same proportion as Fund shares of such Fund for which instructions
have been received (so long as and to the extent that the SEC
continues to interpret the 1940 Act to require pass-through voting
privileges for variable contract owners). Insurer reserves the right
to vote Fund shares held in any segregated asset account in its own
right, to the extent permitted by law.
3.5 The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders.
ARTICLE IV
SALES MATERIAL AND INFORMATION
4.1 Insurer will provide to the Fund at least one (1) complete copy of all
disclosure memoranda, reports, sales literature and other promotional materials,
applications for exemptive relief, requests for no action letters, and all
amendments, if any, that relate to the Contracts or the Fund.
4.2 Insurer, or its designee, shall furnish, or shall cause to be
furnished, to the Advisor, Underwriter or their respective designee(s), each
piece of sales literature or other promotional material in which the Fund,
Advisor or Underwriter is named. No such material will be used until the
approval of any required governmental or self-regulatory authority (i.e., the
NASD) has been obtained, if necessary.
4.3 Insurer shall not give any information or make any representations on
behalf of the Fund, Advisor or Underwriter or concerning the Fund, Advisor or
Underwriter other than the information or representations contained in the
Registration Statement for the Fund, as amended from time to time, or in
published reports for the Fund, Advisor or Underwriter which are in the public
domain or approved by the Fund, Advisor or Underwriter for distribution to
Contract owners, or in sales literature or other promotional material approved
by the Fund, Advisor, Underwriter or the designee of any of them, except with
the permission of the Fund, Advisor or Underwriter.
4.4 The Fund, Underwriter, or their respective designee(s) shall furnish,
or shall cause to be furnished, to Insurer or its designee, each piece of sales
literature or other promotional material in which Insurer and/or its separate
account(s) is named. No such material will be used until the approval of any
required governmental or self-regulatory authority (i.e., the NASD) has approved
the material, if necessary.
4.5 The Fund and the Underwriter shall not give any information or make any
representations on behalf of Insurer or concerning Insurer, the Accounts, or the
Contracts other than the information or representations contained in the
Registration Statements or disclosure memoranda for the Contracts, as such
documents may be amended or supplemented from time to time, or in
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published reports for each Account which are in the public domain or approved by
Insurer for distribution to Contract owners, or in sales literature or other
promotional material approved by Insurer or its designee, except with the
permission of Insurer.
4.6 The Fund will provide to Insurer at least one (1) complete copy of all
registration statements, prospectuses, SAI, reports, proxy statements,
applications for exemptive relief, requests for no-action letters, and all
amendments to any of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published or designed for use in a newspaper, magazine or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media), sales literature
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees.
ARTICLE V
EXPENSES
5.1 To the extent permitted under applicable law, all expenses incident to
performance by the Fund under this Agreement shall be paid by the Fund. The Fund
shall see to it that all of its shares are registered and authorized for
issuance in accordance with applicable federal law and, if and to the extent
deemed advisable by the Fund, in accordance with applicable state laws prior to
their sale. The Fund shall bear the expenses for all taxes on the issuance or
transfer of the Fund's shares, the cost of registration and qualification of the
Fund's shares, preparation and filing of the Fund's prospectus, registration
statements and amendments thereto, proxy materials and reports, setting in type
and printing the Fund's prospectus, setting in type and printing the Fund's
proxy materials and reports to shareholders, the preparation of all Fund
statements and notices required by any federal or state law.
5.2 It shall be the sole responsibility of Insurer to comply with
provisions of federal and state law applicable to the delivery of Fund
prospectuses. Insurer shall bear all costs related to any Contract disclosure
document to be provided to owners or participants in the Contracts. Insurer
shall bear all costs of distributing Contract materials. The Fund and/or
Underwriter shall bear all costs of distributing Fund materials (including
prospectuses, proxy materials and periodic reports) to owners or participants in
the Contracts.
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ARTICLE VI
INDEMNIFICATION
6.1 Indemnification By Insurer
6.1(a) Insurer agrees to indemnify and hold harmless the Fund, its
affiliates (including the Underwriter) and each of their trustees and officers
and each person, if any, who controls the Fund or its affiliates within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 6.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
Insurer) or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares or 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 Registration
Statements or disclosure memoranda for the Contracts or contained in
the Contracts or sales literature for the Contracts (or any amendment
or supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to Insurer by or on
behalf of the Fund or the Underwriter for use in the Registration
Statements or disclosure memoranda for the Contracts or in the
Contracts or sales literature (or any amendment or supplement to any
of the foregoing) or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the Registration
Statement, prospectus or sales literature of the Fund not supplied by
Insurer or persons under its control) or wrongful conduct of Insurer
or persons under its control, with respect to the sale or distribution
of the Contracts or Fund shares; or
(iii)arise out of any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement, prospectus, or
sales literature of the Fund or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading if such a statement or omission was
made in reliance upon information furnished to the Fund by or on
behalf of Insurer; or
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(iv) arise as a result of any material failure by Insurer to 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
and/or warranty made by Insurer in this Agreement or arise out of or
result from any other material breach of this Agreement by Insurer, as
limited by and in accordance with the provisions of Sections 6.1(b)
and 6.1(c) hereof.
6.1(b) Insurer 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 or to the Fund,
whichever is applicable.
6.1(c) Insurer 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 Insurer 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 Insurer of any such claim shall not
relieve Insurer 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 the
Indemnified Parties, Insurer shall be entitled to participate, at its own
expense, in the defense of such action. Insurer also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action.
After notice from Insurer to such party of Insurer's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and Insurer 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.
6.1(d) The Indemnified Parties will promptly notify Insurer of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund shares or the Contracts or the operation of the
Fund with respect to the Account.
6.2. Indemnification by the Underwriter and the Fund
6.2(a) To the extent permitted by law, the Fund and/or the Underwriter each
agree to indemnify and hold harmless Insurer and each of its directors and
officers and each person, if any, who controls Insurer within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes
of this Section 6.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund
and/or the Underwriter) or litigation (including legal and other expenses) to
which the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares and:
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(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement
or prospectus or sales literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Underwriter
or Fund by or on behalf of Insurer for use in the Registration
Statement or prospectus for the Fund or in sales literature (or any
amendment or supplement to any of the foregoing) or otherwise for use
in connection with the sale of Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the Registration
Statements, disclosure memoranda or sales literature for the Contracts
not supplied by the Fund, the Underwriter or persons under the control
of either of them) or wrongful conduct of the Fund or Underwriter or
persons under the control of either of them, with respect to the sale
or distribution of Fund shares; or
(iii)arise out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statements, disclosure
memoranda, or sales literature covering the Contracts, or any
amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance upon
information furnished to Insurer by or on behalf of the Fund or the
Underwriter ; or
(iv) arise as a result of any material failure by the Fund or the
Underwriter to 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
and/or warranty made by the Underwriter or the Fund in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Underwriter or the Fund; as limited by and in
accordance with the provisions of Sections 6.2(b) and 6.2(c) hereof.
6.2(b) The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of 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 and duties under this Agreement or to
Insurer or the Account, whichever is applicable.
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6.2(c) The Underwriter 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 the Underwriter 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 the Underwriter of
any such claim shall not relieve the Underwriter 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 the Indemnified Parties, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. The Underwriter also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Underwriter to such party
of the Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Underwriter 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(d) Insurer agrees promptly to notify the Underwriter of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of each Account.
ARTICLE VII
APPLICABLE LAW
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant.
ARTICLE VIII
TERMINATION
8.1 This Agreement shall terminate:
(a) at the option of any party upon one hundred eighty (180) days'
advance written notice to the other parties; or
(b) at the option of Insurer to the extent that shares of Funds are
not reasonably available to meet the requirements of the
Contracts as determined by Insurer in its sole discretion; or
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(c) at the option of the Fund in the event that formal administrative
proceedings are instituted against Insurer by the NASD, the SEC,
any Insurance Commissioner, or any other regulatory body
regarding Insurer duties under this Agreement or related to the
sale of the Contracts, with respect to the operation of any
Account, or the purchase of the Fund shares; provided, however,
that the Fund determines in its sole judgment exercised in good
faith, that any such administrative proceedings will have a
material adverse effect upon the ability of Insurer to perform
its obligations under this Agreement; or
(d) at the option of Insurer in the event that formal administrative
proceedings are instituted against the Fund or Underwriter by the
NASD, the SEC, any Insurance Commissioner, or any other
regulatory body regarding the Fund's or the Underwriter's duties
under this Agreement or related to the sale of the Contracts,
with respect to the operation of the Fund, or the purchase of
Fund shares; provided, however, that Insurer determines in its
sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect
upon the ability of the Fund or Underwriter to perform its
obligations under this Agreement; or
(e) with respect to any Account that intends to change the funding
vehicle and such change would require approval of the State
Insurance Department, with written notice to the Fund or the
Underwriter contemporaneously with application to the State
Insurance Department, upon requisite approval of the State
Insurance Department and Contract owners, if necessary; or
(f) at the option of Insurer, in the event any of the Fund's shares
are not registered, issued or sold in accordance with applicable
state and/or federal law or such law precludes the use of such
shares as the underlying investment media of the Contracts issued
or to be issued by Insurer; or
(g) at the option of Insurer, if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or
under any successor or similar provision, or if Insurer
reasonably believes that the Fund may fail to so qualify; or
(h) at the option of either the Fund or the Underwriter, if (i) the
Fund or the Underwriter, respectively, shall determine in good
faith that Insurer has suffered a material adverse change in its
business or financial condition or is the subject of material
adverse publicity and such material adverse change or material
adverse publicity will have a material adverse impact upon the
business and operations of either the
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Fund or the Underwriter, (ii) the Fund or the Underwriter shall
notify Insurer in writing of such determination and its intent to
terminate this Agreement, and (iii) after considering the actions
taken by Insurer and any other changes in circumstances since the
giving of such notice, such determination of the Fund or the
Underwriter shall continue to apply on the sixtieth (60th) day
following the giving of such notice, which sixtieth (60th) day
shall be the effective date of termination; or
(i) at the option of Insurer, if (i) Insurer shall determine in good
faith that either the Fund or the Underwriter has suffered a
material adverse change in its business or financial condition or
is the subject of material adverse publicity and such material
adverse change or material adverse publicity will have a material
adverse impact upon the business and operations of Insurer, (ii)
Insurer shall notify the Fund and the Underwriter in writing of
such determination and its intent to terminate the Agreement, and
(iii) after considering the actions taken by the Fund and/or the
Underwriter and any other changes in circumstances since the
giving of such notice, such determination shall continue to apply
on the sixtieth (60th) day following the giving of such notice,
which sixtieth (60th) day shall be the effective date of
termination, or
(j) at the option of either the Fund or the Underwriter, if Insurer
gives the Fund and the Underwriter the written notice specified
in Section 8.1(a) hereof and at the time such notice was given
there was no notice of termination outstanding under any other
provision of this Agreement; provided, however, any termination
under this Section 8.1(j) shall be effective forty-five (45) days
after the notice specified in Section 8.1(a) was given.
8.2 It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 8.1(a) may be exercised for any
reason or for no reason.
8.3 Notice Requirement. No termination of this Agreement shall be effective
unless and until the party terminating this Agreement gives prior written notice
to all other parties to this Agreement of its intent to terminate which notice
shall set forth the basis for such termination. Furthermore:
(a) In the event that any termination is based upon the provisions of
Sections 8.1(a), 8.1(h), 8.1(i) or 8.1(j) of this Agreement, such
prior written notice shall be given in advance of the effective
date of termination as required by such provisions; and
(b) In the event that any termination is based upon the provisions of
Sections 8.1(c) or 8.1(d) of this Agreement, such prior written
notice
12
shall be given at least ninety (90) days before the effective
date of termination.
8.4 Effect of Termination. Notwithstanding any termination of this
Agreement, the Fund and the Underwriter shall, at Insurer's option, continue to
make available additional Fund shares pursuant to the terms and conditions of
this Agreement, for all Contracts in effect on the effective date of termination
of this Agreement (the "Existing Contracts"), but not to new Contracts or
participants. Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to reallocate investments in the Fund, redeem
investments in the Fund and/or invest in the Fund upon the making of additional
purchase payments under the Existing Contracts. Notwithstanding the foregoing,
the Board of Directors of the Fund may refuse to sell shares of any Fund to any
person, or suspend or terminate the offering of shares of the Fund if such
action is required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of the Board of Directors acting in good faith and in
light of their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Fund.
ARTICLE IX
NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail to the applicable party at the address set forth below or at such other
address as may be specified in writing to the other parties.
IF TO THE FUND:
AIM Growth Series
00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
IF TO THE UNDERWRITER:
A I M Distributors, Inc.
00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxx, Esq.
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IF TO INSURER:
American United Life Insurance Company
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
ARTICLE X
MISCELLANEOUS
10.1 All persons dealing with the Fund must look solely to the property of
the Fund for the enforcement of any claims against the Fund as neither the
Board, officers, agents or shareholders of the Fund assume any personal
liability for obligations entered into on behalf of the Fund.
10.2 Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, without the express written consent of the affected party shall
not disclose, disseminate or utilize such names and addresses and other
confidential information until such time as it may come into the public domain.
10.3 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
10.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.5 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including the SEC, the NASD, and state
insurance regulators) and shall permit such authorities reasonable access to its
books and records in connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby. Each party hereto
further agrees to furnish any state insurance department with any information or
reports in connection with services provided under this Agreement if such state
so requests.
10.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
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10.8 No part of this Agreement may be assigned without the prior written
consent of the other parties. Such consent will not be unreasonably withheld.
______________________________________________
15
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified below.
AIM GROWTH SERIES
Attest: /s/ Xxxxx X. Xxxxxx By:/s/ Xxxxx X Xxxxxxx
Name: Xxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
Title: Assistant Secretary Senior Vice President
AIM DISTRIBUTORS, INC.
Attest:Xxxxx X. Xxxxxx By:/s/ Gene Needles
Name: Xxxxx X. Xxxxxx Xxxx Needles
Title: Assistant Secretary Executive Vice President
AMERICAN UNITED LIFE
INSURANCE COMPANY
Attest: /s/ Xxxxxxx X. Xxxxxx By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Associate General Counsel Title: Vice President,
Marketing Retirement
Services
16
SCHEDULE "A"
SEPARATE ACCOUNTS
AUL American Unit Trust
(established 08/17/89)
Group Retirement Annuity Separate Account I
(established 08/17/89)
Group Retirement Annuity Separate Account II
(established 08/17/89)
Group Retirement Annuity Separate Account III
(established 03/31/00)
17
SCHEDULE "B"
FUNDS
AIM GROWTH SERIES Class A Shares
AIM Basic Value Fund
AIM Mid Cap Equity Fund
AIM Small Cap Growth Fund
18
