AMENDMENT NO. 5 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 5 TO FUND PARTICIPATION AGREEMENT is effective as of the
I St day of June, 2002, by and among AMERICAN UNITED LIFE INSURANCE COMPANY (the
"Company"), AMERICAN CENTURY VARIABLE PORTFOLIOS, INC. ("ACVP"), and its
investment adviser, AMERICAN CENTURY INVESTMENT MANAGEMENT, INC. ("ACIM").
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Agreement (defined below).
RECITALS
WHEREAS, the Company, ACVP and ACIM are parties to a certain Fund
Participation Agreement dated March 1, 1994, as amended August 31, 1994,
September 16, 1997, May 1, 1999 and May 1, 2001 (the "Agreement") in connection
with the participation by the Funds (as defined in the Agreement) in individual
and group annuity contracts to be issued through one or more separate accounts
established by the Company under state law;
WHEREAS, the parties have agreed to revise the reimbursement terms as set
forth herein;
WHEREAS, the parties now desire to modify the Agreement as provided herein:
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
I. Funds Available. The first paragraph of the Agreement is hereby
deleted in its entirety and the following paragraph is substituted in
lieu thereof.
"American United Life Insurance Company (the "Company"), American
Century Variable Portfolios, Inc. ("ACVP") and its investment advisor,
American Century Investment Management, Inc. ("ACIM") hereby agree to an
arrangement whereby Class I shares of VP Capital Appreciation Fund, VP
International Fund, VP Value Fund, VP Balanced Fund, VP Income & Growth
Fund, VP Global Growth Fund, VP Vista Fund, VP Growth Fund and VP Ultra
Fund (the "Funds") shall be made available to serve as underlying
investment media for Individual and Group Annuity Contracts ("Contracts")
to be offered to the public by the Company, subject to the following
provisions:"
2. Pricing Errors. The following language is hereby added to the
Agreement as Section 3(e):
"3(e). In the event adjustments are required to correct any error in the
computation of the net asset value of any Fund's shares at the
shareholder level as a result of a pricing error that is deemed to be
material under the pricing policy of the Fund's Board of Directors or
which Distributor
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otherwise deems necessary to correct at the shareholder level;
Distributor shall notify the Company as soon as practicable after
discovering the need for those adjustments which result in a
reimbursement to the Company's clients. Notification shall be made by
facsimile or by direct or indirect systems access acceptable to the
Company.
"If one or more of the Company's client accounts received amounts from
any Fund in excess of the amounts to which it otherwise would have
been entitled prior to an adjustment for an error, the Company will
use its best efforts to collect such excess amounts from the
applicable clients.
"If an adjustment is to be made in accordance with this paragraph to
correct an error which has caused a client account to receive an
amount less than that to which it is entitled, the Fund shall use its
best efforts to make all necessary adjustments to the number of shares
owned in the account and/or distribute to the Company the amount of
such underpayment for credit to the clients' subaccounts.
"For purposes of making adjustments as provided above, the Funds will
apply the same standards to all shareholders."
3. Administrative Services. Section 7(a) is hereby amended by deleting the
fourth and fifth sentences in their entirety and inserting in lieu thereof the
following:
"In consideration of the Administrative Services (the "Administrative
Services") as set forth on EXHIBIT A attached hereto, and the
performance of all other obligations under this Agreement by the
Company, ACIM will pay the Company a fee per annum of the total
aggregate amount invested in the Funds by the Company in accordance
with the provisions as set forth on EXHIBIT B, attached hereto."
4. Ratification. In the event of a conflict between the terms of this
Amendment No. 5 and the Agreement, it is the intention of the parties that the
terms of this Amendment No. 5 shall control and the Agreement shall be
interpreted on that basis. To the extent the provisions of the Agreement have
not been amended by this Amendment No. 5, the parties hereby confirm and ratify
the Agreement.
5. Counterparts. This Amendment No. 5 may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
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6. Full Force and Effect. Except as supplemented, amended or consented to
hereby, all of the representations, warranties, terms, covenants and conditions
of the Agreement shall remain unamended and shall continue to be in full force
and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 5 as
of the date first above written.
AMERICAN UNITED LIFE AMERICAN CENTURY INVESTMENT
INSURANCE COMPANY MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: VP Marketing Title: President
AMERICAN CENTURY VARIABLE
PORTFOLIOS, INC.
By:
Name:
Title:
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EXHIBIT A
ADMINISTRATIVE SERVICES
Pursuant to the Agreement to which this is attached, the Company shall
perform all administrative and shareholder services required or requested under
the Contracts with respect to the Contract owners, including, but not limited
to, the following:
I. Maintain separate records for each Contract owner, which records shall
reflect the shares purchased and redeemed and share balances of such Contract
owners. The Company will maintain a single master account with each Fund on
behalf of the Contract owners and such account shall be in the name of the
Company (or its nominee) as the record owner of shares owned by the Contract
owners.
2. Disburse or credit to the Contract owners all proceeds of redemptions of
shares of the Funds and all dividends and other distributions not reinvested in
shares of the Funds.
3. Prepare and transmit to the Contract owners, as required by law or the
Contracts, periodic statements showing the total number of shares owned by the
Contract owners as of the statement closing date, purchases and redemptions of
Fund shares by the Contract owners during the period covered by the statement
and the dividends and other distributions paid during the statement period
(whether paid in cash or reinvested in Fund shares), and such other information
as may be required, from time to time, by the Contracts.
4. Transmit purchase and redemption orders to the Funds on behalf of the
Contract owners in accordance with the procedures set forth in Section 3 to the
Agreement.
5. Distribute to the Contract owners copies of the Funds' prospectus, proxy
materials, periodic fund reports to shareholders and other materials that the
Funds are required by law or otherwise to provide to their shareholders or
prospective shareholders.
6. Maintain and preserve all records as required by law to be maintained
and preserved in connection with providing the Administrative Services for the
Contracts.
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EXHIBIT B
APPLICABLE FEES
No fee shall be paid on any Funds with an expense ratio at or below 45 basis
points. A fee of 5 basis points shall be paid on any Funds with an expense ratio
between 46 basis points and 55 basis points. A fee of 25 basis points shall be
paid on any Funds with an expense ratio between 56 basis points and 74 basis
points. A fee in accordance with the schedule below shall be paid on any Funds
with an expense ratio greater than or equal to 75 basis points.
The expense ratio of each Fund is set forth in each Fund's then-current
prospectus.
Assets(l) Fee
Assets between $0 - $500 million 25.0 basis points
Assets > $500 million 30.0 basis points
(1) The total asset level shall include only those Funds that meet the
requirements for reimbursement in accordance with the applicable fees as set
forth above. The total asset level shall be determined by aggregating the assets
invested in Class I VP shares of the Funds by the Company with the assets
invested in the Investor Class shares of the Funds by the Company under the
Agreement dated 3/1/94, as amended.
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