EXHIBIT 99.8.24
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 18th day of November, 2015 by
and between XXXXXXX XXXXX VARIABLE INSURANCE TRUST, a statutory trust formed
under the laws of Delaware (the "Trust"), XXXXXXX, SACHS & CO., a New York
limited partnership (the "Distributor"), and AMERICAN UNITED LIFE INSURANCE
COMPANY, a Mutual life insurance company (the "Company"), on its own behalf and
on behalf of each separate account of the Company identified herein.
WHEREAS, the Trust engages in business as an open-end management investment
company of the series-type offering shares of beneficial interest (the "Trust
Shares") in one or more separate series ("Series"), and each such Series
represents an interest in a particular investment portfolio of securities and
other assets (a "Fund") and may be issued in various classes ("Classes") with
each such Class supporting a distinct charge and expense arrangement; and
WHEREAS, the Trust was established for the purpose of serving as an
investment vehicle for life insurance company separate accounts supporting
variable annuity contracts and variable life insurance policies to be offered by
insurance companies and may also be utilized by certain retirement plans and
other persons as described herein; and
WHEREAS, an order of the Securities and Exchange Commission dated February
2, 1998, (File No. 812-10794) grants certain separate accounts supporting
variable life insurance policies, their life insurance company depositors, and
their principal underwriters, exemptions from Sections 9(a), 13(a), 15(a) and
15(b) of the Investment Company Act of 1940, and from Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary for such separate accounts to
purchase and hold Trust Shares at the same time that such shares are sold to or
held by separate accounts of affiliated and unaffiliated insurance companies
supporting either variable annuity contracts or variable life insurance
policies, or both, or by qualified pension and retirement plans (the "SEC
Order"); and
WHEREAS, the Distributor has the exclusive right to distribute Trust Shares
to qualifying investors; and
WHEREAS, the Company desires that the Trust serve as an investment vehicle
for a certain separate account(s) of the Company and the Distributor desires to
sell Trust Shares of certain Series and/or Class(es) to such separate
account(s);
NOW, THEREFORE, in consideration of their mutual promises, the Trust, the
Distributor and the Company agree as follows:
ARTICLE I
ADDITIONAL DEFINITIONS
1.1. "Accounts" -- the separate accounts of the Company identified in
Schedules 1A, 2A and 3A to this Agreement.
1.2 "Applicable Law" -- the federal securities laws as defined in Rule
38a-1 under the 1940 Act, any rules promulgated under the federal securities
laws, FINRA regulations, any Applicable SEC Guidance, and any state or municipal
laws or regulations that may apply to the Trust, the Distributor, the Company,
the Accounts, or the Contracts.
1.3. "Applicable SEC Guidance" -- any applicable: (a) SEC release,
opinion, or order, as well as any published "no-action" position or written
interpretive guidance by the SEC staff; and (b) FINRA interpretive memoranda or
notices to members, as well as any written interpretive guidance from the FINRA
staff. Applicable SEC Guidance does not include oral statements, speeches, or
informal guidance by the SEC or its staff.
1.4. "Business Day"--each day that the Trust is open for business as
provided in the Trust's Prospectus.
1.5. "Code"--the Internal Revenue Code of 1986, as amended, and any
successor thereto.
1.6. "Contracts"--the class or classes of variable annuity contracts
and/or variable life insurance policies issued by the Company and described more
specifically on Schedules 1B, 2B, or 3B to this Agreement.
1.7. "Contract Owners"--the owners of the Contracts, as distinguished from
all Product Owners.
1.8. "FINRA"--The Financial Industry Regulatory Authority, Inc.
1.9. "Fund Documents" -- documents prepared by the Trust that, pursuant to
Rule 498(e)(l), must be publicly accessible free of charge at the Web site
address shown on the cover page or at the beginning of the Summary Prospectus.
1.10. "Fund Documents Web Site"--the web site maintained by the Trust (or
its agent) where Contract Owners, prospective Contract Owners, participants in
Participating Plans, or individual investors who are Qualified Persons or invest
through a Qualified Person may access Fund Documents.
1.11. "Participating Account"--a separate account investing all or a
portion of its assets in the Trust, including the Accounts.
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1.12. "Participating Insurance Company"--any life insurance company with a
Participating Account, including the Company.
1.13. "Participating Plan"--any pension or profit-sharing plan qualified
under Section 401 of the Code investing in the Trust and certain other
retirement plans that are Qualified Persons investing in the Trust.
1.14. "Participating Investor"--any Participating Account, Participating
Insurance Company, Participating Plan, or other Qualified Person, including the
Accounts and the Company.
1.15. "Products"--variable annuity contracts and variable life insurance
policies supported by Participating Accounts, including the Contracts.
1.16. "Product Owners"--owners of Products, including Contract Owners.
1.17. "Prospectus"--with respect to a Series (or Class) of Trust Shares or
a class of Schedule 1 Contracts, each version of the definitive Prospectus or
Summary Prospectus (where used or required to be used) and supplement thereto
filed with the SEC pursuant to Rule 497 under the 1933 Act. With respect to any
provision of this Agreement requiring a party to take action in accordance with
a Prospectus, PROSPECTUS shall mean the version of the Prospectus for the
applicable Series, Class or Contracts filed most recently (or most current for
Schedule 2 Contracts and Schedule 3 Contracts) prior to the taking of such
action. For purposes of Article IX, the term "Prospectus" shall include any
statement of additional information incorporated therein. With respect to a
class of Schedule 2 Contracts or Schedule 3 Contracts, Prospectus includes any
offering circular or memorandum for such Contracts.
1.18. "Qualified Person" -- a person permitted to hold Trust Shares under
Treasury Regulation Section 1.817-5(f), as supplemented by published rulings
and procedures issued thereunder by the Internal Revenue Service, in order for
any Fund of the Trust to qualify for "look-through" treatment by Participating
Accounts in applying the diversification requirements of Section 817(h) of the
Code by taking into account the portfolio investments of a Fund.
1.19. "Registration Statement"--with respect to the Trust Shares or
Schedule 1 Contracts, the registration statement filed with the SEC to register
such securities under the 1933 Act, or the most recently filed amendment
thereto, in either case in the form in which it was declared or became
effective. The Contracts' Registration Statement for each class of Schedule 1
Contracts is identified on Schedule 1B to this Agreement. The Trust's
Registration Statement is filed on Form N-1A (File No. 333-35883).
1.20. "1940 Act Registration Statement"--with respect to the Trust or
Schedule 1 Accounts, the registration statement filed with the SEC to register
such person as an investment company under the 1940 Act, or the most recently
filed amendment thereto. The Trust's 1940 Act Registration Statement is filed on
Form N-1A (File No. 811-08361).
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1.21. "Schedule 1 Accounts"--Accounts registered under the 1940 Act as unit
investment trusts and listed on Schedule 1A.
1.22. "Schedule 2 Accounts"--Accounts excluded from the definition of an
investment company as provided for by Section 3(c)(11) of the 1940 Act and
listed on Schedule 2A.
1.23. "Schedule 3 Accounts"--Accounts excluded from the definition of an
investment company as provided for by Section 3(c)(l) or Section 3(c)(7) of the
1940 Act and listed on Schedule 3A.
1.24. "Schedule 1 Contracts"--Contracts through which interests in Schedule
1 Accounts are offered and issued, which interests are registered as securities
under the 0000 Xxx.
1.25. "Schedule 2 Contracts"--Contracts through which interests in Schedule
2 Accounts are offered and issued to trustees of qualified pension and
profit-sharing plans and certain government plans identified in Section 3(a)(2)
of the 1933 Act (which Contracts and interests are not registered as securities
in reliance upon Section 3(a)(2) of the 1933 Act).
1.26. "Schedule 3 Contracts"--Contracts through which interests in Schedule
3 Accounts are offered and issued to "accredited investors", as that term is
defined in Regulation D under the 1933 Act, or other investors permitted by
Regulation D (which Contracts and interests are not registered as securities in
reliance upon Regulation D).
1.27. "SEC"--the Securities and Exchange Commission.
1.28. "Statement of Additional Information"--with respect to the shares of
the Trust or Schedule 1 Contracts, each version of the definitive statement of
additional information or supplement thereto filed with the SEC pursuant to Rule
497 under the 1933 Act. With respect to any provision of this Agreement
requiring a party to take action in accordance with a Statement of Additional
Information, STATEMENT OF ADDITIONAL INFORMATION shall mean the last version so
filed prior to the taking of such action.
1.29. "Statutory Prospectus" -- a prospectus that satisfies the
requirements of Section 10(a) of the 0000 Xxx.
1.30. "Summary Prospectus" -- a prospectus described in paragraph (b) of
Rule 498 under the 0000 Xxx.
1.31. "Trust Board"--the board of trustees of the Trust.
1.32. "1933 Act"--the Securities Exchange Act of 1933, as amended.
1.33. "1940 Act"--the Investment Company Act of 1940, as amended.
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ARTICLE II
SALE OF TRUST SHARES
2.1. AVAILABILITY OF SHARES
(a) The Trust has granted to the Distributor exclusive authority to
distribute the Trust Shares and to select which Series or Classes of Trust
Shares shall be made available to Participating Investors. Pursuant to such
authority, and subject to Article X hereof, the Distributor shall make
available to the Company for purchase on behalf of the Accounts, shares of
the Series and Classes listed on Schedules lB, 2B, and 3B to this
Agreement, such purchases to be effected at net asset value in accordance
with Section 2.3 of this Agreement. The Distributor shall make such Series
and Classes available to the Company in accordance with the terms and
provisions of this Agreement until: (i) this Agreement is terminated
pursuant to Article X, or (ii) the Distributor suspends or terminates the
offering of shares of such Series or Classes in the circumstances described
in Article X.
(b) The parties acknowledge and agree that: (i) the Trust may revoke
the Distributor's authority to distribute Trust Shares pursuant to the
terms and conditions of its distribution agreement with the Distributor,
and (ii) the Trust reserves the right in its sole discretion to refuse to
accept a request for the purchase of Trust Shares.
2.2. REDEMPTIONS. At the Company's request, the Trust shall redeem any
full or fractional Trust Shares held by the Company on behalf of an Account at
net asset value in accordance with Section 2.3 of this Agreement. However, the
Trust may delay redemption or suspend the right of redemption of Trust Shares of
any Series or Class to the extent permitted by the Applicable Law or as
disclosed in the Prospectus for such Series or Class. The Company shall not
redeem Trust Shares attributable to Contract Owner investments except in the
circumstances permitted in Article X of this Agreement.
2.3. PURCHASE AND REDEMPTION PROCEDURES
(a) The Trust hereby appoints the Company as its designee for the
limited purpose of receiving purchase and redemption requests for Trust
Shares under Schedule 1 Contracts resulting from purchase and redemption
requests by Owners of Schedule 1 Contracts for units of the Schedule 1
Accounts (but not for units of the Schedule 2 Accounts or Schedule 3
Accounts). Receipt by the Company, as designee of the Trust for this
purpose, of requests for the purchase and redemption of units of the
Schedule 1 Accounts on any Business Day prior to the Trust's close of
business, as disclosed from time to time in the applicable Prospectus for
such Series or Class (which as of the date of execution of this Agreement
is the close of regular trading on the New York Stock Exchange), shall
constitute receipt by the Trust on that Business Day of requests from
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such Schedule 1 Accounts for the purchase and redemption of Trust Shares
necessary to facilitate such purchase and redemption of units of such
Schedule 1 Accounts. This limited agency only extends to requests by the
Schedule 1 Accounts for the purchase and redemption of Trust Shares that
the Trust (or its transfer agent) receives by 9:00 a.m. New York Time on
the next following Business Day. Such requests for the purchase and
redemption of Trust Shares may be communicated by facsimile, electronic
mail, or telephone to the office or person designated by the Trust and
shall be confirmed by facsimile or electronic mail.
(b) The Company shall pay for Trust Shares on the same day that it
provides a purchase request for such Shares. Payment for Trust Shares shall
be made in federal funds transmitted to the Trust by wire by 12:00 p.m. New
York Time on that day (unless the Trust determines and so advises the
Company that sufficient proceeds are available from redemption of Trust
Shares of other Series or Classes on that day by the Company). Proceeds
from the redemption of Trust Shares requested pursuant to an order received
by the Company after the Trust's close of business on any Business Day
shall not be applied to the payment for shares for which a purchase order
was received prior to the Trust's close of business on the same day. If
federal funds are not received on time, issuance of the requested Trust
Shares will be cancelled and such funds will be applied to the purchase of
Trust Shares as soon as practicable after receipt of such funds at the
Share price next computed after receipt. If the issuance of Trust Shares is
canceled because federal funds are not timely received, the Company shall
indemnify the respective Fund and the Distributor with respect to all
costs, expenses and losses relating thereto and the Company shall be
responsible for any impact on Contract Owners.
(c) Payment for Trust Shares redeemed shall be made in federal funds
transmitted by wire to the Company, such funds normally to be transmitted
by 6:00 p.m. New York Time on the next Business Day after the Trust
receives the redemption request (unless redemption proceeds are to be
applied to the purchase of Trust Shares of other Series or Classes in
accordance with Section 2.3(b) of this Agreement). Notwithstanding the
foregoing, the Trust reserves the right to redeem Trust Shares in assets
other than cash to the extent disclosed in the applicable Prospectus and
permitted by Applicable Law. The Trust shall not be responsible for the
proper disbursement or crediting of redemption proceeds by the Company or
the Accounts.
(d) Any purchase or redemption request for Trust Shares held or to be
held by Schedule 2 Accounts, Schedule 3 Accounts, or in the Company's
general account, shall be effected at the net asset value per share next
determined after the Trust's actual receipt of such request, provided that
payment for Trust Shares purchased is received by the Trust in federal
funds prior to the Trust's close of business, as disclosed from time to
time in the Prospectus for such Series or Class.
(e) The Company and the Trust shall provide each other with all
information necessary to effect wire transmissions of federal funds to the
other party or the other
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party's agents pursuant to such protocols and security procedures as the
parties may agree upon from time to time. The Trust and the Company, as
applicable, shall notify the other in writing of any changes in such
information at least three Business Days in advance of when such change is
to take effect. The Company and the Trust shall observe customary
procedures to protect the confidentiality and security of such information,
but the Trust shall not be liable to the Company for any breach of
security.
(f) The procedures set forth in this Section 2.3 are subject to any
additional terms set forth in the applicable Prospectus for the Series or
Class and by the requirements of Applicable Law.
2.4. NET ASSET VALUE. The Trust shall use its best efforts to inform the
Company of the net asset value per share for each Series and Class available to
the Company as soon as reasonably practicable after the computation of the same.
The Trust shall calculate such net asset values in accordance with the
Prospectus for such Series or Class.
2.5. DIVIDENDS AND DISTRIBUTIONS. The Trust shall furnish notice to the
Company as soon as reasonably practicable of any income dividends or capital
gain distributions payable on any Series or Class shares. The Company, on its
behalf and on behalf of the Accounts, hereby elects to receive all such
dividends and distributions in the form of additional shares of that Series or
Class. The Company reserves the right, on its behalf and on behalf of the
Accounts, to revoke this election and to receive all such dividends and capital
gain distributions in cash; to be effective, such revocation must be made in
writing and received by the Trust at least ten Business Days prior to a dividend
or distribution date. The Trust shall notify the Company promptly of the number
of Series or Class shares so issued as payment of such dividends and
distributions.
2.6. BOOK ENTRY. Issuance and transfer of Trust Shares shall be by book
entry only. Stock certificates will not be issued to the Company or the
Accounts. Purchase and redemption orders for Trust Shares shall be recorded in
an appropriate ledger for each Account.
2.7. PRICING ERRORS. Any material errors in the calculation of the net
asset value of a Fund, the net asset value per share of any Series or Class of
Trust Shares, dividends or capital gain information shall be reported to the
Company immediately upon discovery. An error shall be deemed "material" based on
the Trust's interpretation of Applicable Law. To the extent necessary for the
Company to reimburse Contract Owners for actual loses, the Distributor shall
reimburse the Company for losses arising as a direct result of any material
error in the calculation of the net asset value of any Fund or the net asset
value per share of any Series or Class of Trust Shares. Neither the Trust, any
Fund, the Distributor, nor any of their affiliates shall be liable for any
information provided to the Company pursuant to this Agreement, which
information is based on incorrect information supplied by or on behalf of the
Company or any other Participating Company to the Trust or the Distributor.
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2.8. LIMITS ON PURCHASERS. The Distributor and the Trust shall sell Trust
Shares only to insurance companies and their separate accounts and to other
Qualified Persons. The Distributor and the Trust shall not sell Trust Shares to
any insurance company or separate account unless an agreement complying with
Article VIII of this Agreement is in effect to govern such sales. The
Distributor and the Trust shall not sell more than 10% of any Series of Trust
Shares to any Participating Plan unless an agreement is in effect between the
Distributor, the Trust and the trustee (or other fiduciary) of the Plan
containing provisions substantially the same as those in Article VIII of this
Agreement. The Distributor and the Trust shall not sell Trust Shares to any
Participating Plan unless a written acknowledgment of the foregoing condition is
received from the trustee (or other fiduciary) of the Plan.
2.9. DISRUPTIVE TRADING.
(a) The Trust has adopted policies designed to prevent frequent
purchases and redemptions of any Series of Trust Shares in quantities great
enough to: (i) disrupt orderly management of the corresponding Fund's
investment portfolio, or (ii) dilute the value of the outstanding Trust
Shares of that Series ("Disruptive Trading Policies"). From time to time,
the Trust and the Distributor implement procedures reasonably designed to
enforce the Trust's Disruptive Trading Policies and shall provide a written
description of such procedures (and revisions thereto) to the Company. As a
procedure in furtherance of its Disruptive Trading Policies, the Trust may
assess fees, to be paid by one or more Accounts or by the Company, upon
redemption of one or more Series or Classes of Trust Shares within certain
stated time periods after such shares have been purchased.
(b) The Company agrees to develop, adopt and maintain policies
regarding transactions in Account units reasonably designed to complement
the Trust's Disruptive Trading Policies and, from time to time, to
implement procedures regarding transactions in Account units reasonably
designed to effectuate the Trust's procedures for preventing disruptive
trading in Trust Shares. In particular, in the event that the Trust or the
Distributor identifies a particular Contract Owner as having engaged in
transactions in Account units that directly or indirectly violate the
Trust's Disruptive Trading Policies, the Company agrees, at the written
request of the Trust or the Distributor, to restrict or prohibit further
transactions in Account units by that Contract Owner which could result in
additional purchases and redemptions of a specified Series and/or Class of
Trust Shares in violation of the Trust's Disruptive Trading Policies.
(c) In furtherance of Section 2.9(b), the Trust and the Distributor
may, from time to time, investigate purchases and redemptions of any Series
or Class of Trust Shares by the Company on behalf of the Accounts that
appears to violate, or has the potential to violate, the Trust's Disruptive
Trading Policies. When requested by the Trust or the Distributor in
writing, the Company agrees to provide the following with respect to
purchases and redemptions of a specific Series and/or Class of Trust Shares
over a designated period:
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- the identity of the Contract Owner or Contract Owners whose
transactions in Account units underlies the Trust share
purchases and redemptions being investigated,
- the amounts and dates of transactions in Account units
during the designated period representing an indirect
investment in the Series and/or Class of Trust Shares being
investigated, and
- the identity of any investment professional known by the
Company to be associated with the Contract Owner or Contract
Owners.
The Company agrees to provide the foregoing information that is on its
books and records promptly. If the requested information is not on its
books and records, it agrees to make reasonable efforts to:
- promptly obtain the requested information, or
- if requested by the Trust or the Distributor restrict or
prohibit further transactions in Account units by that
Contract Owner which could result in additional purchases
and redemptions of a specified Series and/or Class of Trust
Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. COMPANY. The Company represents and warrants that: (a) it is an
insurance company duly organized and in good standing under the laws of the
jurisdiction of its organization, (b) it has legally and validly established
each Account as a segregated asset account under applicable state law to serve
as segregated investment accounts for the Contracts, (c) each Schedule 1 Account
is registered as a unit investment trust under the 1940 Act and each such
Account's 1940 Act Registration Statement has been filed with the SEC in
accordance with the 1940 Act, (d) the Schedule 2 Accounts and Schedule 3
Accounts each qualify for the exclusions on which they rely for not registering
as investment companies under the 1940 Act, (e) it has registered, or will
register, all Schedule 1 Contracts offered and sold pursuant to this Agreement
under the 1933 Act and, except as provided in Article 4.2 of this Agreement, has
effective Registration Statements for that purpose, (f) it will offer and sell
the Contracts in compliance in all material respects with all applicable federal
and state laws and regulations, including, but not limited to, state insurance
law and federal securities law suitability requirements, (g) the Contracts have
been filed, qualified and/or approved for sale, as applicable, under the
insurance laws and regulations of the states in which the Contracts will be
offered, (h) sales of the Schedule 2 Contracts and Schedule 3 Contracts properly
qualify for exemptions on which the Company relies in not registering such
Contracts, or interests in the Account through which each is issued, under the
1933 Act, (i) its activities and those of its employees in
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promoting the sale and distribution of the Contracts and effecting Contract
Owner transactions in Account units have not caused, and will not cause, the
Company to be deemed a broker-dealer, (j) orders it places for the purchase and
redemption of Trust Shares pursuant to Article 2.3 of this Agreement are the net
result of transactions in units issued by an Account, instructions for which are
received by the Company prior to the Trust's close of business as defined from
time to time in the applicable Prospectus for such Series or Class (which as of
the date of execution of this Agreement is the close of regular trading on the
New York Stock Exchange), (k) as long as this Agreement remains in effect, it
shall remain in continuous compliance with Article 6.3, Article 6.4 and Article
6.5 of this Agreement, (1) it complies with the requirements of Rule 498 under
the 1933 Act and Applicable SEC Guidance regarding the Rule in connection with
delivery of Summary Prospectuses for the Series and Classes of Trust Shares
available under this Agreement, (m) it maintains policies and procedures
reasonably designed to ensure that it can meet obligations in connection with
Summary Prospectuses, (n) it will notify the Distributor and the Trust promptly
if for any reason it is unable to perform its obligations under this Agreement,
(o) with respect to any Schedule 3 Accounts: (1) the principal underwriter for
each Schedule 3 Account and any subaccounts thereof is a broker or dealer
registered with the SEC under the Securities Exchange Act of 1934 or a person
controlled (as defined in the 0000 Xxx) by such a broker or dealer; (2) shares
of a Fund are and will continue to be the only securities held by the relevant
subaccount; (3) it will either (i) seek instructions from Contract Owners with
account value in the Schedule 3 Accounts allocated to shares of a Fund with
regard to the voting of all proxies solicited in connection with the Fund and
will vote those proxies only in accordance with those instructions, or (ii) vote
such Fund shares held in the Schedule 3 Accounts in the same proportion as the
vote of all the Fund's other shareholders; and (4) it will not substitute
another security for shares of the Fund held in a Schedule 3 Account unless the
SEC has approved the substitution in the manner provided in Section 26 of the
1940 Act.
3.2. TRUST. The Trust represents and warrants that: (a) it is a statutory
trust duly organized and validly existing under Delaware law, (b) it is
registered under the 1940 Act as an open-end management investment company and
has filed a 1940 Act Registration Statement with the SEC in accordance with the
provisions of the 1940 Act, (c) Trust Shares issued pursuant to this Agreement
have been, or will be, duly authorized and validly issued in accordance with
Applicable Law, (d) it will offer and sell Trust Shares pursuant to this
Agreement in compliance in all material respects with all applicable federal and
state laws and regulations, (e) it has registered, or will register, all Trust
Shares offered and sold pursuant to this Agreement under the 1933 Act and has an
effective Registration Statement for that purpose, (f) as long as this Agreement
remains in effect, it shall remain in continuous compliance with Article 6.1 and
Article 6.2 of this Agreement, (g) the Trust's Board, a majority of whom are not
interested persons of the Trust, have formulated and approved any plans to
finance distribution expenses pursuant to Rule 12b-l under the 1940 Act ("Rule
12b-1 Plans"), (h) the Trust or its service provider complies with the
requirements of Rule 498 under the 1933 Act and Applicable SEC Guidance
regarding the Rule in connection with the offer and sale of Trust Shares, (i)
the Trust or its service provider maintains policies and procedures reasonably
designed to ensure that Fund Documents are available on the Fund Documents Web
Site in the manner required by Rule 498(e)(1), (e)(2), and (e)(3) and Applicable
SEC Guidance related thereto, and (j) as provided by
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Rule 498(e)(4)(ii), the Trust or its service provider shall take prompt action
to ensure that Fund Documents become available in the manner required by Rule
498(e)(1), (e)(2), and (e)(3) and Applicable SEC Guidance as soon as practicable
following the earlier of the time it knows or should reasonably have known that
the Fund Documents are not available in the required manner.
3.3. DISTRIBUTOR. The Distributor represents and warrants that: (a) it is a
limited partnership duly organized and in good standing under New York law, and
(b) it is registered as a broker-dealer under federal and applicable state
securities laws and is a member in good standing of FINRA.
3.4. LEGAL AUTHORITY. Each party represents and warrants that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary corporate,
partnership or trust action, as applicable, by such party, and, when so executed
and delivered, this Agreement will be the valid and binding obligation of such
party enforceable in accordance with its terms.
ARTICLE IV
REGULATORY REQUIREMENTS
4.1. TRUST FILINGS. The Trust shall amend its Registration Statement from
time to time and maintain its effectiveness as required in order to effect the
continuous offering of Trust Shares in compliance with Applicable Law.
Notwithstanding the foregoing, the Trust shall register and qualify Trust Shares
for sale in accordance with the laws of various states if, and to the extent,
deemed advisable by the Trust or the Distributor. The Trust shall amend its 1940
Act Registration Statement as required by the 1940 Act to maintain its
registration under the 1940 Act for as long as Trust Shares are outstanding. The
Trust shall file From 24F-2 and pay 1933 Act registration fees for all Series
and Classes of Trust Shares as required by Rule 24f-2 under the 1940 Act. The
Trust shall comply in all material respects with the 1940 Act.
4.2. ACCOUNT FILINGS. The Company shall amend the Registration Statement
for each Schedule 1 Contract from time to time and maintain its effectiveness as
required in order to effect the continuous offering of such Contracts in
compliance with Applicable Law for as long as purchase payments may be made
under such Contracts. Notwithstanding the foregoing, the Company: (a) may permit
the effectiveness of a Schedule 1 Contract's Registration Statement expire if
the Company has supplied the Trust with an SEC "no-action" letter or opinion of
counsel satisfactory to the Trust's counsel to the effect that maintaining such
Registration Statement on a current basis is no longer required, and (b) shall
register and qualify the Contracts for sale in accordance with the securities
laws of the various states only if, and to the extent, it considers such
registration and qualification necessary. The Company shall amend each Schedule
1 Account's 1940 Act Registration Statement as required by the 1940 Act to
maintain the Account's registration under the 1940 Act for as long as the
Schedule 1 Contracts issued through that Account are in force. With regard to
each Schedule 1 Account and, as applicable,
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Schedule 3 Account, the Company shall comply in all material respects with the
1940 Act. The Company shall make such filings and take such other actions as are
required by the exemptions and exclusions on which it relies.
The Company shall be responsible for filing all Contract forms,
applications, marketing materials and other documents relating to the Contracts
and/or the Accounts with state insurance commissions, as required or as is
customary, and shall use its best efforts: (a) to obtain any and all approvals
thereof, under applicable state insurance law, of each state or other
jurisdiction in which Contracts are or may be offered for sale, and (b) to keep
such approvals in effect for so long as the Contracts are outstanding.
4.3. DELIVERY OF PROSPECTUSES BY THE COMPANY. The Company shall deliver (or
arrange for delivery of) an appropriate Prospectus to each prospective Contract
Owner describing in all material respects the terms and features of the Contract
being offered. Except as provided below, the Company also shall deliver (or
arrange for delivery of) a Summary Prospectus for each Fund that a prospective
Contract Owner identifies on his or her application as an intended investment
option under a Contract or to which a Contract Owner allocates premium payments
to or transfers Contract value. In addition, the Company reserves the right to
deliver (or arrange for delivery of) the Statutory Prospectus in place of the
Summary Prospectus. The Company shall deliver (or arrange for delivery of) such
Summary or Statutory Prospectuses at the times and in the manner required by
applicable provisions of the 1933 Act and rules or regulations thereunder and
Applicable SEC Guidance.
4.4. SPECIFIC REQUESTS FOR SUMMARY PROSPECTUSES. The Company shall not bind
together the Summary Prospectuses or Statutory Prospectuses for the Series and
Classes available under this Agreement with Summary Prospectuses and Statutory
Prospectuses for shares of other investment companies, or any other document
except as expressly permitted by and in Rule 498(c)(2) and any Applicable SEC
Guidance. The Company shall deliver or provide all Summary Prospectuses and all
Statutory Prospectuses in compliance with the Greater Prominence requirements of
Rule 498(f)(2) and any Applicable SEC Guidance.
4.5. WEB SITE POSTING. The Trust or its service provider shall maintain the
Fund Documents Web Site. At the Company's request, the Trust or its service
provider may provide the Company with URLs to the current Fund Documents for use
with the Company's electronic delivery of Fund Documents or on the Company's Web
site. The Company will be responsible for the maintenance of any web links to
such URLs on the Company's Web site. The Trust agrees to use commercially
reasonable efforts to employ procedures consistent with industry practices
designed to reduce exposure to viruses. However, the Trust and the Distributor
make no warranty, express or implied, that the Fund Documents Web Site, the Fund
Documents, or any URLs provided will be free from any defects, bugs, errors or
malfunctions.
4.6. RESPONSE TO REQUESTS FOR ADDITIONAL FUND DOCUMENTS. Within three (3)
Business Days of receiving a request for a paper copy of a Fund Document, the
Trust shall promptly send the same to the person requesting it free of charge.
Within three (3) Business
12
Days of receiving a request for an electronic copy of a Fund Document, the Trust
shall send, by e-mail to the requestor, either a PDF copy of, or an electronic
link to, the same free of charge. The Company shall respond in accordance with
Rule 498(f)(1) to requests for additional Fund Documents made by a person
directly to the Company or one of its affiliates.
4.7. CESSATION OF USE OF SUMMARY PROSPECTUSES. The Trust shall provide the
Company with at least thirty (30) days advance written notice of its intent to
cease using the Summary Prospectus delivery option so that the Company can
arrange to deliver a Statutory Prospectus in place of a Summary Prospectus in
compliance with Section 4.3 of this Agreement. In order to comply with Rule
498(e)(l), the Trust shall continue to maintain the Fund Documents Web Site in
compliance with the requirements of this Agreement and Rule 498 for a minimum of
90 days after the termination of any such notice period.
4.8. VOTING OF TRUST SHARES. To the extent required by the 1940 Act or Rule
6e-2 or Rule 6e-3(T) thereunder, or other Applicable Law, whenever the Trust
shall have a meeting of holders of any Series or Class of Trust Shares, the
Company shall:
- solicit voting instructions from Contract Owners;
- vote Trust Shares held in each Account at such shareholder
meetings in accordance with instructions received from Contract
Owners;
- vote Trust Shares held in each Account for which it has not
received timely instructions in the same proportion as it votes
the applicable Series or Class of Trust Shares for which it has
received timely instructions; and
- vote Trust Shares held in its general account in the same
proportion as it votes the applicable Series or Class of Trust
Shares held by the Accounts for which it has received timely
instructions.
Except with respect to matters as to which the Company has the right in
connection with Schedule 1 Contracts under Rule 6e-2 or Rule 6e-3(T) under the
1940 Act, to vote Trust Shares without regard to voting instructions from
Contract Owners, neither the Company nor any of its affiliates will recommend
action in connection with, or oppose or interfere with, the actions of the Trust
Board to hold shareholder meetings for the purpose of obtaining approval or
disapproval from shareholders (and, indirectly, from Contract Owners) of matters
put before the shareholders.
The Company shall remain responsible for ensuring that it calculates voting
instructions and votes Trust Shares at shareholder meetings in a manner
consistent with other Participating Investors. The Trust will notify the Company
of any changes to the SEC Order or the conditions attaching thereto relating to
voting of Trust Shares of which it becomes aware.
4.9. STATE INSURANCE LAW RESTRICTIONS. The Company acknowledges and agrees
that it is the responsibility of the Company and other Participating Insurance
Companies to determine investment restrictions and any other restrictions,
limitations or requirements under state
13
insurance law applicable to any Fund or the Trust or the Distributor, and that
neither the Trust nor the Distributor shall bear any responsibility to the
Company, other Participating Insurance Companies or any Product Owners for any
such determination or the correctness of such determination. Schedule 4 sets
forth any investment restrictions that the Company and/or other Participating
Insurance Companies have determined are applicable to any Fund and with which
the Trust has agreed to comply as of the date of this Agreement. The Company
shall inform the Trust of any investment restrictions imposed by state insurance
law that the Company determines may become applicable to the Trust or a Fund
from time to time as a result of the Accounts' investment therein, other than
those set forth on Schedule 4 to this Agreement. Upon receipt of any such
information from the Company or any other Participating Insurance Company, the
Trust shall determine whether it is in the best interests of shareholders to
comply with any such restrictions. If the Trust determines that it is not in the
best interests of shareholders (which, for this purpose, shall mean Product
Owners) to comply with a restriction determined to be applicable by the Company,
the Trust shall so inform the Company, and the Trust and the Company shall
discuss alternative accommodations. If the Trust determines that it is in the
best interests of shareholders to comply with such restrictions, the Trust and
the Company shall amend Schedule 4 to this Agreement to reflect such
restrictions, subject to obtaining any required shareholder approval thereof.
4.10. INTERPRETATION OF LAW. The Trust, the Distributor and their
affiliates are not responsible or liable for acts or omissions by the Company or
the Company's affiliates taken (or not taken) in reliance upon any statements or
representations made by the Trust, the Distributor or any of their affiliates or
their legal advisers, to the Company or the Company's affiliates concerning the
applicability of any Applicable Law or Applicable SEC Guidance to the activities
contemplated by this Agreement.
The Company and its affiliates are not responsible or liable for acts or
omissions by the Trust, the Distributor and their affiliates taken (or not
taken) in reliance upon any statements or representations made by the Company or
its affiliates or their legal advisers, to the Trust, the Distributor and their
affiliates concerning the applicability of any Applicable Law or Applicable SEC
Guidance to the activities contemplated by this Agreement.
4.11. DISCLOSURE. The Trust's prospectus shall state that the statement of
additional information for the Trust is available from either the Distributor or
the Trust. The Trust hereby notifies the Company that it is appropriate to
include in Contract Prospectuses, disclosure of the potential risks of mixed and
shared funding.
4.12. DRAFTS OF FILINGS. The Trust and the Company shall provide to each
other copies of draft versions of any Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statements, information statements, solicitations for
voting instructions, applications for exemptions (including applications by the
Company to the SEC seeking approval of substitutions of any Fund under Section
26(c) of the 1940 Act), requests for no-action letters, and all amendments or
supplements to any of the above, prepared by or on behalf of either of them and
that mentions
14
the other party by name. Such drafts shall be provided to the other party
sufficiently in advance of filing such materials with regulatory authorities in
order to allow such other party a reasonable opportunity to review the
documents.
4.13. COPIES OF FILINGS. The Trust and the Company shall provide to each
other at least one complete copy of all Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statements, information statements, solicitations of voting
instructions, applications for exemptions (including applications by the Company
to the SEC seeking approval of substitutions of any Fund under Section 26(c) of
the 1940 Act), requests for "no-action" letters, and all amendments or
supplements to any of the above, that relate to the Trust, the Contracts or the
Accounts, as the case may be, promptly after the filing by or on behalf of each
such party of such document with the SEC or other regulatory authorities (it
being understood that this provision is not intended to require the Trust to
provide to the Company copies of any such documents prepared, filed or used by
Participating Investors other than the Company and the Accounts). If the Trust,
Distributor or any of their affiliates are named in the filing(s), the Company
shall send the filings to the contacts listed in Article XII.
4.14. REGULATORY RESPONSES. Each party shall promptly provide to all other
parties copies of responses to no-action requests, notices, orders and other
rulings received by such party with respect to any filing covered by Section
4.13 of this Agreement. If the Trust, Distributor or any of their affiliates are
named in the regulatory response(s), the Company shall send the regulatory
response(s) to the contacts listed in Article XII.
4.15. COMPLAINTS AND PROCEEDINGS
(a) The Trust and/or the Distributor shall immediately notify the
Company of: (i) the issuance by any court or regulatory body of any stop
order, cease and desist order, or other similar order (but not including an
order of a regulatory body exempting or approving a proposed transaction or
arrangement) with respect to the Trust's Registration Statement or the
Prospectus of any Series or Class, (ii) any request by the SEC for any
amendment to the Trust's Registration Statement or the Prospectus of any
Series or Class, (iii) the initiation of any proceedings for that purpose
or for any other purposes relating to the registration or offering of the
Trust Shares, or (iv) any other action or circumstances that may prevent
the lawful offer or sale of Trust Shares or any Class or Series in any
state or jurisdiction, including, without limitation, any circumstance in
which (A) such shares are not registered and, in all material respects,
issued and sold in accordance with applicable state and federal law or (B)
such law precludes the use of such shares as an underlying investment
medium for the Contracts. The Trust will 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.
15
(b) The Company shall immediately notify the Trust and the Distributor
of: (i) the issuance by any court or regulatory body of any stop order,
cease and desist order, or other similar order (but not including an order
of a regulatory body exempting or approving a proposed transaction or
arrangement) with respect to the Contracts' Registration Statement or the
Contracts' Prospectus, (ii) any request by the SEC for any amendment to the
Contracts' Registration Statement or Prospectus, (iii) the initiation of
any proceedings for that purpose or for any other purposes relating to the
registration or offering of the Contracts, or (iv) any other action or
circumstances that may prevent the lawful offer or sale of the Contracts or
any class of Contracts in any state or jurisdiction, including, without
limitation, any circumstance in which such Contracts are not registered,
qualified and approved, and, in all material respects, issued and sold in
accordance with applicable state and federal laws. The Company will 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.
(c) Each party shall immediately notify the other parties when it
receives notice, or otherwise becomes aware of, the commencement of any
litigation or proceeding against such party or a person affiliated with
such party arising in connection with the Trust or the Accounts or the
issuance or sale of Trust Shares or the Contracts.
(d) The Company shall provide to the Trust and the Distributor any
complaints it has received from Contract Owners pertaining to the Trust or
a Fund, and the Trust and Distributor shall each provide to the Company any
complaints it has received from Contract Owners relating to the Contracts.
4.16. COOPERATION. Each party hereto shall cooperate with the other parties
and all appropriate government authorities (including without limitation the
SEC, FINRA and state securities and insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with any
investigation or inquiry by any such authority relating to this Agreement or the
transactions contemplated hereby. However, such access shall not extend to
attorney-client privileged information.
4.17. MONEY MARKET FUND. The Company acknowledges and agrees that Contract
Owners will suffer no financial loss or other harm in the event that the Trust
Board determines to temporarily or permanently use market values rather than the
amortized cost value to value the assets of the Trust's Money Market Fund,
thereby preventing the Trust from maintaining a constant net asset value per
share for the Money Market Fund Class of Trust Shares.
16
ARTICLE V
SALE, ADMINISTRATION AND SERVICING OF THE CONTRACTS
5.1. SALE OF THE CONTRACTS. The Company shall be fully responsible as to
the Trust and the Distributor for the sale and marketing of the Contracts. The
Company shall provide Contracts, the Contracts' and Trust's Prospectuses (or
Summary Prospectuses), Contracts' and Trust's Statements of Additional
Information, and all amendments or supplements to any of the foregoing to
Contract Owners and prospective Contract Owners, all in accordance with
Applicable Law. Without limiting the generality of the foregoing, the Company
shall: (1) enter into and enforce agreements with affiliated and unaffiliated
parties to, and (2) adopt and implement written compliance policies and
procedures reasonably designed to, ensure that:
- all persons offering or selling the Contracts are duly
licensed and registered under Applicable Law,
- all individuals offering or selling the Contracts are duly
appointed agents of the Company and are registered
representatives of a FINRA member broker-dealer,
- each sale of a Contract satisfies all suitability
requirements under Applicable Law,
- all persons offering or selling the Contracts disclose to
prospective Contract Owners remuneration each expects to
receive in connection with sales of the Contracts and any
conflicts of interest arising therefrom as required by
Applicable Law, and
- no persons offering or selling the Contracts intend to
engage in Account unit transactions that would violate the
Company's or the Trust's Disruptive Trading Policies.
- Prospectuses are delivered as required by Article IV of this
Agreement and Applicable Law.
5.2. ANTI-MONEY LAUNDERING. The Company shall comply with all Applicable
Law designed to prevent money "laundering", and if required by such laws or
regulations, to share with the Trust information about individuals, entities,
organizations and countries suspected of possible terrorist or money
"laundering" activities in accordance with Section 314(b) of the USA Patriot
Act. In particular, the Company agrees that:
- as part of processing an application for a Contract, it will
verify the identity of applicants and, if an applicant is
not a natural person, will verify the identity of
prospective principal and beneficial owners submitting an
application for a Contract,
- as part of its ongoing compliance with the USA Patriot Act,
it will, from time to time, reverify the identity of
Contract Owners, including the
17
identity of principal and beneficial owners of Contracts
held by non-natural persons,
- as part of processing an application for a Contract, it will
verify that no applicant, including prospective principal or
beneficial Contract Owners, is a "specially designated
national" or a person from an embargoed or "blocked" country
as indicated by the Office of Foreign Asset Control ("OFAC")
list of such persons,
- as part of its ongoing compliance with the USA Patriot Act,
it will, from time to time, reverify that no Contract Owner,
including a principal or beneficial Contract Owners, is a
"specially designated national" or a person from an
embargoed or "blocked" country as indicated by the OFAC list
of such persons,
- it will ensure that money tendered to the Trust as payment
for Trust Shares did not originate with a bank lacking a
physical place of business (I.E., a "shell" bank) or from a
country or territory named on the list of high-risk or
non-cooperating countries or jurisdictions published by the
Financial Action Task Force, and
- if any of the foregoing cease to be true, the Trust or its
agents, in compliance with the USA Patriot Act or Bank
Secrecy Act, may seek authority to block transactions in
Account units arising from accounts of one or more such
Contract Owners with the Company or of one or more of the
Company's accounts with the Trust.
The Trust and the Distributor shall comply with all Applicable Laws
designed to prevent money "laundering", and if required by such laws or
regulations, to share with the Company information about individuals, entities,
organizations and countries suspected of possible terrorist or money
"laundering" activities in accordance with Section 314(b) of the USA Patriot
Act.
5.3. ADMINISTRATION AND SERVICING OF THE CONTRACTS. The Company shall be
fully responsible for the underwriting, issuance, service and administration of
the Contracts and for the administration of the Accounts, including, without
limitation, the calculation of performance information for the Contracts, the
timely payment of Contract Owner redemption requests and processing of Contract
transactions, and the maintenance of a service center, such functions to be
performed in all respects at a level commensurate with those standards
prevailing in the variable insurance industry. The Company shall provide to
Contract Owners all Trust reports, information statements, proxy statements and
other voting instruction solicitation materials, and updated Trust Prospectuses
(or Summary Prospectuses) as required by Applicable Law.
5.4. TRUST PROSPECTUSES AND REPORTS. In order to enable the Company to
fulfill its obligations under this Agreement and Applicable Law, the Trust shall
provide the Company with a copy, in camera-ready form or form otherwise suitable
for printing or duplication of: (a) the Trust's Prospectus for the Series and
Classes listed on Schedules lB, 2B, and 3B and any
18
supplement thereto; (b) any Trust proxy soliciting material for such Series or
Classes; and (c) any Trust periodic shareholder reports. The Trust and the
Company may amend this section 5.4, but the Trust reserves the right to require
its prior approval of the printing of the foregoing documents. The Trust shall
make available to the Company on the Trust's website each Statement of
Additional Information and supplement thereto. The Trust shall provide the
Company at least 10 days advance written notice when any such material shall
become available, provided, however, that in the case of a supplement, the Trust
shall provide the Company notice reasonable in the circumstances, it being
understood that circumstances surrounding such supplement may not allow for
advance notice. The Company may not alter any material so provided by the Trust
or the Distributor (including, without limitation, presenting or delivering such
material in a different medium such as electronic mail or attachments thereto)
without the prior written consent of the Distributor.
5.5. TRUST ADVERTISING MATERIAL. Neither the Company or any person directly
or indirectly authorized by the Company (including, without limitation,
underwriters, distributors, and sellers of the Contracts) shall use any piece of
advertising, sales literature or other promotional material in which the Trust,
the Distributor, or an affiliate of either is named, except with the prior
written consent of the Trust or the Distributor. The Company shall furnish to
the Trust or the Distributor each such piece of advertising, sales literature or
other promotional material at least ten (10) days prior to its use. The Trust or
the Distributor shall respond to any request for written consent on a prompt and
timely basis, but failure to respond shall not relieve the Company of the
obligation to obtain the prior written consent of the Trust or the Distributor.
After receiving the Trust's or Distributor's consent to the use of any such
material, no further changes may be made without obtaining the Trust's or
Distributor's written consent to such changes. The Trust or Distributor may at
any time in its sole discretion revoke such written consent, and upon
notification of such revocation, the Company shall no longer use the material
subject to such revocation. The Company shall not be responsible for filing any
materials with FINRA.
5.6. CONTRACTS ADVERTISING MATERIAL. The Trust and the Distributor shall
not use any piece of advertising, sales literature or other promotional material
in which the Company, an Account or a Contract is named, except with the prior
written consent of the Company. The Trust or the Distributor shall furnish to
the Company each such piece of advertising, sales literature or other
promotional material at least ten (10) days prior to its use. The Company shall
respond to any request for written consent on a prompt and timely basis, but
failure to respond shall not relieve the Trust or the Distributor of the
obligation to obtain the prior written consent of the Company. After receiving
the Company's consent to the use of any such material, no further changes may be
made by the Trust or Distributor without obtaining the Company's consent to such
changes. The Company may at any time in its sole discretion revoke any written
consent, and upon notification of such revocation, neither the Trust nor the
Distributor shall use the material subject to such revocation. The Trust and the
Distributor shall not be responsible for filing any such materials with FINRA.
19
5.7. TRADE NAMES. No party shall use any other party's names, logos,
trademarks or service marks, whether registered or unregistered, without the
prior written consent of such other party, or after written consent therefor has
been revoked. The Company shall not use in advertising, publicity or otherwise
the name of the Trust, Distributor, or any of their affiliates nor any trade
name, trademark, trade device, service xxxx, symbol or any abbreviation,
contraction or simulation thereof of the Trust, Distributor, or their affiliates
without the prior written consent of the Trust or the Distributor in each
instance.
5.8. ADDITIONAL COVENANTS AND REPRESENTATIONS BY COMPANY. Except with the
prior written consent of the Trust, the Company shall not give any information
or make any representations or statements about the Trust or the Funds nor shall
it authorize or allow any other person to do so except information or
representations contained in the Trust's Registration Statement or the Trust's
Prospectuses or in proxy statements for the Trust, or in advertisements, sales
literature or other promotional material approved in writing by the Trust or its
designee in accordance with this Article V, or in published reports or
statements of the Trust in the public domain.
The Company represents that advertisements, sales literature or other
promotional material for the Contracts prepared by the Company or its affiliates
are and will be consistent with Applicable Law, including, but not limited to,
FINRA Conduct Rules 2210,2212,2213, and 2214.
The Company has adopted and implemented, or shall adopt and implement,
written compliance procedures reasonably designed to ensure that information
concerning the Trust, the Distributor, or any of their affiliates which is
intended for use by brokers or agents selling the Contracts (I.E., information
that is not intended for distribution to Contract Owners or prospective Contract
Owners) is used solely in the manner so intended. Neither the Trust, the
Distributor, nor any of their affiliates shall be liable for any losses,
damages, or expenses relating to the improper use of such "broker only"
materials by agents of the Company or its affiliates who are unaffiliated with
the Trust or the Distributor.
The parties agree that this Section 5.8 is not intended to imply that the
Company is an underwriter or distributor of the Trust's shares or a dealer in
the Trust's shares.
5.9. ADDITIONAL COVENANTS AND REPRESENTATIONS BY TRUST. Except with the
prior written consent of the Company, the Trust shall not give any information
or make any representations on behalf of the Company or concerning the Company,
the Accounts or the Contracts other than the information or representations
contained in the appropriate Contract Registration Statement or Contract
Prospectus or in published reports of or statements by the Company or the
Accounts which are in the public domain or in advertisements, sales literature
or other promotional material approved in writing by the Company in accordance
with this Article V.
20
The Trust represents that advertisements, sales literature or other
promotional material for the Trust prepared by the Distributor or its affiliates
in connection with the sale of the Contracts are and will be consistent with
Applicable Law, including, but not limited to, FINRA Conduct Rules
2210, 2212, 2213, and 2214.
The Trust or the Distributor shall xxxx information produced by or on
behalf of the Trust which is intended for use by brokers or agents selling the
Contracts (I.E., information that is not intended for distribution to Contract
Owners or prospective Contract Owners) "FOR BROKER USE ONLY," and neither the
Company nor any of its affiliates shall be liable for any losses, damages, or
expenses arising on account of the use by brokers of such information with third
parties in the event that it is not so marked.
5.11. ADVERTISING. For purposes of this Article V, the phrase "advertising,
sales literature or other promotional material" includes, but is not limited to,
any material constituting sales literature, advertising, or communications with
the public under FINRA Conduct rules, the 1940 Act or the 1933 Act. Such
material includes, without limitation, the following materials for prospective
Contract Owners, existing Contract Owners, wholesalers and other broker-dealers,
rating or ranking agencies, or the press:
- 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, websites, 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, electronic mail, or published
article),
- educational or training materials or other communications
distributed or made generally available to some or all agents or
employees, and
- registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials.
ARTICLE VI
COMPLIANCE WITH CODE
6.1. SECTION 817(h). The Trust, on behalf of each Fund, will comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5 thereunder, relating
to the diversification requirements for variable annuity, endowment, or life
insurance contracts, and any amendments or other modifications to such Section
and Regulation or successors thereto, to the extent applicable to the Fund as an
investment company underlying the Account. The Trust shall notify the Company
immediately upon having a reasonable basis for believing that a Fund has ceased
to
21
so comply and will not be able to comply within the grace period afforded by
Treasury Regulation 1.817-5.
6.2. SUBCHAPTER M. The Trust shall maintain the qualification of each Fund
as a regulated investment company (under Subchapter M of the Code or any
successor or similar provision), and the Trust shall notify the Company
immediately upon having a reasonable basis for believing that a Fund has ceased
to so qualify and will not be able to qualify within the grace period afforded
by Section 851 of the Code.
6.3. COMPANY AND CONTRACTS. The Company represents and warrants that it is
a life insurance company within the meaning of Section 816(a) of the Code. The
Company shall ensure that at the time each Contract is issued it is a variable
contract (as defined in Section 817(d) of the Code) which is treated as a life
insurance, endowment, or annuity contract under applicable provisions of the
Code, and that as long as the Accounts hold shares of the Trust the Company
shall maintain such treatment for each outstanding Contract. The Company shall
notify the Trust and the Distributor immediately upon having any basis for
believing that the Contracts will not be treated as life insurance, endowment,
or annuity contracts under applicable provisions of the Code.
6.4 REGULATION 1.817-5(f). The Company shall ensure that no Fund fails to
remain eligible for "look-through" treatment under Treasury Regulation
1.817-5(f) by reason of a current or future failure of the Company, the Accounts
or the Contracts to comply with any applicable requirements of the Code or
Treasury Regulations. The Company shall notify the Trust and the Distributor
immediately upon having any basis for believing that the failure of the Company,
the Accounts or the Contracts to comply with any applicable requirements of the
Code or Treasury Regulations could render a Fund ineligible, or jeopardize a
Fund's eligibility, for "look-through" treatment under Treasury Regulation
1.817-5(f). In the event of such a failure, the Company shall take all
necessary steps to cure any such failure, including, if necessary, obtaining a
waiver or closing agreement with respect to such failure from the U.S. Internal
Revenue Service at the Company's expense.
6.5 MODIFIED ENDOWMENT CONTRACTS. The Company shall ensure that any
Prospectus offering a variable life insurance Contract in circumstances where it
is reasonably probable that such Contract would be a "modified endowment
contract," as that term is defined in Section 7702A of the Code, will identify
such Contract as a modified endowment contract.
ARTICLE VII
EXPENSES
7.1. EXPENSES. All expenses incident to each party's performance under this
Agreement (including expenses expressly assumed by such party pursuant to this
Agreement) shall be borne by such party to the extent permitted by law, except
as otherwise provided below or in a separate agreement.
22
7.2. TRUST EXPENSES. Expenses incident to the Trust's performance of its
duties and obligations under this Agreement include, but are not limited to, the
costs of:
(a) registration and qualification of the Trust Shares under the
federal securities laws;
(b) preparation and filing with the SEC of the Trust's Prospectuses,
Summary Prospectuses, Statement of Additional Information, Registration
Statement, information statements, proxy statements and other proxy
materials, and shareholder reports, and preparation of a "camera-ready"
copy of the foregoing;
(c) preparation of all statements and notices required by Applicable
Law;
(d) provision and maintenance of the Fund Documents Web Site;
(e) printing of all information statements, proxy statements and other
proxy materials, shareholder reports, Prospectuses, Summary Prospectuses
and other documents required to be provided by the Trust to its existing
shareholders, and providing sufficient copies of the same to the Company
for distribution to Contract Owners then invested in Accounts that hold
Trust Shares; provided, however, that if the Company prints copies of a
Trust Prospectus (or portions thereof) or Summary Prospectus as part of a
larger document containing Prospectuses of other investment companies, any
expense obligation of the Trust shall be limited only to its share of the
cost of printing the document. For this purpose, the Trust's share shall be
the percentage of the total cost of the document represented by the ratio
that the number of pages of the Trust's Prospectus or Summary Prospectus
bears to the total number of pages in the document;
(f) all taxes on the issuance or transfer of Trust Shares;
(g) payment of all expenses of operating the Trust, including, without
limitation, expenses relating to fees for custody, auditing, transfer
agency services, legal services, investment management services, and
insurance coverage, as well as Trustee compensation and 1940 Act Rule 24f-2
fees in connection with sales of Trust Shares to Schedule 2 Accounts,
Schedule 3 Accounts, and Qualified Persons;
(h) payment of any expenses permitted to be paid or assumed by the
Trust pursuant to a Rule 12b-l Plan and/or shareholder service plan; and
(i) provision or printing of Trust proxy statements and other proxy
materials required in connection with the Company's obligation to solicit
voting instructions from Contract Owners.
23
7.3. COMPANY EXPENSES. Expenses incident to the Company's performance of
its duties and obligations under this Agreement include, but are not limited to,
the costs of:
(a) registration and qualification of the Schedule 1 Contracts under
Applicable Law;
(b) preparation of Contract Prospectuses, preparation of Registration
Statements with the SEC for Schedule 1 Contracts, payment of registration
fees for Schedule 1 Contracts pursuant to Rule 24f-2 under the 1940 Act;
(c) the sale, marketing and distribution of the Contracts, including
compensation for Contract sales, printing and delivery of Contract
Prospectuses to current and prospective Contract owners, and printing and
delivery of the Trust's Prospectuses or Summary Prospectuses to prospective
Contract Owners;
(d) provision and maintenance of internet websites other than the Fund
Documents Web Site;
(e) administration of the Contracts;
(f) payment of all expenses of operating the Accounts; and
(g) preparation, printing and delivery of all statements and notices
to Contract Owners required by Applicable Law other than those paid for by
the Trust.
7.4. OTHER EXPENSES AND PAYMENTS. The Trust and the Distributor shall pay
no fee or other compensation to the Company under this Agreement. Each party,
however, shall, in accordance with the allocation of expenses specified in this
Agreement, reimburse other parties for expenses paid by such other parties, but
allocated to it. In addition, nothing herein shall prevent the parties from
otherwise agreeing to perform, and arranging for appropriate compensation for,
services relating to the Trust, the Distributor, the Company or the Accounts.
Notwithstanding anything else in this Agreement, pursuant to any Rule 12b-1
Plan adopted by the Trust, and as contemplated by Article 3.2(g) of this
Agreement, the Trust or any Series or Class thereof may pay the Distributor, and
the Distributor may pay the principal underwriter or distributor of one or more
classes of Contracts, for activities primarily intended to result in the sale of
Trust Shares to the Accounts through which such Contracts are issued. Likewise,
pursuant to any shareholder service plan adopted and implemented by the Trust or
any Series or Class thereof under Rule 12b-1 of the 1940 Act or otherwise, the
Trust or the appropriate Series or Class may pay the Distributor and the
Distributor may pay the principal underwriter or distributor of one or more
classes of Contracts, or the Company, for activities related to personal service
and/or maintenance of Contract Owner accounts and/or administration services, as
permitted by such plan.
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ARTICLE VIII
POTENTIAL CONFLICTS
8.1. SEC ORDER. The parties to this Agreement acknowledge that the Trust
has obtained the SEC Order granting exemptions from various provisions of the
1940 Act and the rules thereunder to Participating Accounts supporting variable
life insurance policies to the extent necessary to permit them to hold Trust
Shares when Trust Shares also are sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
Participating Insurance Companies and other Qualified Persons (as defined in
Section 1.18 hereof). The relief provided by the SEC Order is conditioned upon
the Trust and each Participating Insurance Company complying with conditions and
undertakings substantially as provided in this Article VIII. The Trust and the
Distributor reserve the right to determine that one or more provisions of this
Article VIII are no longer applicable, and in that event will notify the Company
to that effect. Upon receipt of such notice by the Company, this Agreement shall
be deemed amended to eliminate the provisions of Article VIII specified in the
notice.
8.2. COMPANY MONITORING REQUIREMENTS. The Company will monitor its
operations and those of the Trust for the purpose of identifying any material
irreconcilable conflicts or potential material irreconcilable conflicts between
or among the interests of Participating Plans, Product Owners of variable life
insurance policies and Product Owners of variable annuity contracts.
8.3. COMPANY REPORTING REQUIREMENTS. The Company shall report any conflicts
or potential conflicts to the Trust Board and will provide the Trust Board, at
least annually, with all information reasonably necessary for the Trust Board to
consider any issues raised by such existing or potential conflicts or by the
conditions and undertakings required by the Exemptive Order. The Company also
shall assist the Trust Board in carrying out its obligations including, but not
limited to: (a) informing the Trust Board whenever it disregards Contract Owner
voting instructions with respect to variable life insurance policies, and (b)
providing such other information and reports as the Trust Board may reasonably
request. The Company will carry out these obligations with a view only to the
interests of Contract Owners.
8.4. TRUST BOARD MONITORING DETERMINATION. The Trust Board shall monitor
the Trust for the existence of any material irreconcilable conflicts between or
among the interests of Participating Plans, Product Owners of variable life
insurance policies and Product Owners of variable annuity contracts and
determine what action, if any, should be taken in response to those conflicts. A
majority vote of Trustees who are not interested persons of the Trust as defined
in the 1940 Act (the "disinterested trustees") shall represent a conclusive
determination as to the existence of a material irreconcilable conflict between
or among the interests of Product Owners and Participating Plans and as to
whether any proposed action adequately remedies any material irreconcilable
conflict. The Trust Board shall give prompt written notice to the Company and
Participating Plan of any such determination. Minutes of the meetings of the
Trust Board, or
25
other appropriate records of the Trust, shall record all reports received by the
Board regarding such conflicts and all actions taken by the Board in response.
8.5. UNDERTAKING TO RESOLVE CONFLICT. In the event that a material
irreconcilable conflict of interest arises between Product Owners of variable
life insurance policies or Product Owners of variable annuity contracts and
Participating Plans, the Company will, at its own expense, take whatever action
is necessary to remedy such conflict as it adversely affects Contract Owners up
to and including: (1) establishing a new registered management investment
company, and (2) withdrawing assets from the Trust attributable to reserves for
the Contracts subject to the conflict and reinvesting such assets in a different
investment medium (including another Fund) or submitting the question of whether
such withdrawal should be implemented to a vote of all affected Contract Owners,
and, as appropriate, segregating the assets supporting the Contracts of any
group of such owners that votes in favor of such withdrawal, or offering to such
owners the option of making such a change. The Company will carry out the
responsibility to take the foregoing action with a view only to the interests of
Contract Owners.
8.6. WITHDRAWAL. If a material irreconcilable conflict arises because of
the Company's decision to disregard the voting instructions of Contract Owners
of variable life insurance policies and that decision represents a minority
position or would preclude a majority vote at any Fund shareholder meeting,
then, if Trust Board so requests, the Company will redeem the shares of the
Trust to which the disregarded voting instructions relate and terminate this
Agreement with respect to the Account through which such Contracts were issued.
No charge or penalty, however, will be imposed in connection with such a
redemption.
8.7. EXPENSES ASSOCIATED WITH REMEDIAL ACTION. In no event shall the Trust
be required to bear the expense of establishing a new funding medium for any
Contract. The Company shall not be required by this Article VIII to establish a
new funding medium for any Contract if an offer to do so has been declined by
vote of a majority of the Contract Owners materially adversely affected by the
irreconcilable material conflict.
8.8. SUCCESSOR RULES. If and to the extent that Rule 6e-2 and Rule 6e-3(T)
are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provisions of the 1940 Act or the rules promulgated thereunder with respect to
mixed and shared funding on terms and conditions materially different from those
contained in the SEC Order, then: (a) the Trust and/or the Company, as
appropriate, shall take such steps as may be necessary to comply with Rules 6e-2
and 6e-3(T), as amended, or Rule 6e-3, as adopted, as applicable, to the extent
such rules are applicable, and (b) Sections 8.2 through 8.7 of this Agreement
shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
8.9. MONEY MARKET FUND. The Company acknowledges and agrees that the
Trust's failure to maintain a constant net asset value per share for the Money
Market Fund Class of Trust Shares, as contemplated by Section 4.17 of this
Agreement, will not give rise to a material
26
irreconcilable material conflict between the interests of Contract Owners or any
class of Contract Owners and the interests of any other class of Product Owners,
or Product Owners generally.
ARTICLE IX
INDEMNIFICATION
9.1. INDEMNIFICATION BY THE COMPANY. The Company hereby agrees to, and
shall, indemnify and hold harmless the Trust, the Distributor and each person
who controls or is affiliated with the Trust or the Distributor within the
meaning of such terms under the 1933 Act or 1940 Act (but not any other
Participating Insurance Companies or Qualified Persons) and any officer,
trustee, partner, director, employee or agent of the foregoing, against any and
all losses, claims, damages or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amounts paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they or any of them may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, expenses or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact or alleged untrue statement of material fact contained in a
Contract Registration Statement, Contract Prospectus, sales literature or
other promotional material for the Contracts or the Contracts themselves
(or any amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made; provided
that this obligation to indemnify shall not apply if such statement or
omission was made in reliance upon and in conformity with information
furnished in writing to the Company by the Trust or the Distributor for use
in a Contract Registration Statement, Contract Prospectus or in the
Contracts or sales literature or promotional material for the Contracts (or
any amendment or supplement to any of the foregoing) or otherwise for use
in connection with the sale of the Contracts or Trust Shares; or
(b) arise out of any untrue statement or alleged untrue statement of a
material fact contained in the Trust Registration Statement, any Prospectus
for Series or Classes or sales literature or other promotional material of
the Trust (or any amendment or supplement to any of the foregoing), or the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they were made, if such statement or omission was
made in reliance upon and in conformity with information furnished to the
Trust or Distributor in writing by or on behalf of the Company; or
(c) arise out of or are based upon any wrongful conduct of, or
violation of Applicable Law by, the Company or persons under its control or
subject to its authorization, including without limitation, any
broker-dealers or agents authorized to sell
27
the Contracts, with respect to the sale, marketing or distribution of the
Contracts or Trust Shares, including, without limitation, any impermissible
use of broker-only material, unsuitable or improper sales of the Contracts
or unauthorized representations about the Contracts or the Trust; or
(d) arise as a result of any material failure by the Company or
persons under its control (or subject to its authorization) to provide
services, furnish materials or make payments as required under this
Agreement; or
(e) arise out of any material breach by the Company or persons under
its control (or subject to its authorization) of this Agreement; or
(f) any breach of any warranties contained in Article III hereof, any
failure to transmit a request for redemption or purchase of Trust Shares or
payment therefor on a timely basis in accordance with the procedures set
forth in Article II, or any unauthorized use of the names or trade names of
the Trust or the Distributor.
This indemnification is in addition to any liability that the Company may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage, expense or liability is caused by
the wilful misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
9.2. INDEMNIFICATION BY THE TRUST. The Trust hereby agrees to, and shall,
indemnify and hold harmless the Company and each person who controls or is
affiliated with the Company within the meaning of such terms under the 1933 Act
or 1940 Act and any officer, director, employee or agent of the foregoing,
against any and all losses, claims, damages or liabilities, joint or several
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they or any of them may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages, expenses or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact or alleged untrue statement of material fact contained in the
Trust Registration Statement, any Prospectus for Series or Classes or sales
literature or other promotional material of the Trust (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they were made; provided that this obligation to
indemnify shall not apply if such statement or omission was made in
reliance upon and in conformity with information furnished in writing by
the Company to the Trust or the Distributor for use in the Trust
Registration Statement, Trust Prospectus or sales literature or promotional
material for the Trust (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the
Contracts or Trust Shares; or
28
(b) arise out of any untrue statement of a material fact or alleged
untrue statement of material fact contained in a Contract Registration
Statement, Contract Prospectus or sales literature or other promotional
material for the Contracts (or any amendment or supplement to any of the
foregoing), or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
in light of the circumstances in which they were made, if such statement or
omission was made in strict conformity with and in reasonable reliance upon
information furnished in writing by the Trust to the Company; or
(c) arise out of or are based upon wrongful conduct of the Trust or
its Trustees or officers with respect to the sale of Trust Shares; or
(d) arise as a result of any material failure by the Trust to provide
services, furnish materials or make payments as required under the terms of
this Agreement; or
(e) arise out of any material breach by the Trust of this Agreement
(including any breach of Section 6.1 of this Agreement and any warranties
contained in Article III hereof);
it being understood that in no way shall the Trust be liable to the Company with
respect to any violation of insurance law, compliance with which is a
responsibility of the Company under this Agreement or otherwise or as to which
the Company failed to inform the Trust in accordance with Section 4.9 hereof.
This indemnification is in addition to any liability that the Trust may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is caused by the wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
9.3. INDEMNIFICATION BY THE DISTRIBUTOR. The Distributor hereby agrees to,
and shall, indemnify and hold harmless the Company and each person who controls
or is affiliated with the Company within the meaning of such terms under the
1933 Act or 1940 Act and any officer, director, employee or agent of the
foregoing, against any and all losses, claims, damages or liabilities, joint or
several (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amounts paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they or any of them may
become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, damages, expenses or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact or alleged untrue statement of material fact contained in the
Trust Registration Statement, any Prospectus for Series or Classes or sales
literature or other promotional material of the Trust (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in
29
which they were made; provided that this obligation to indemnify shall not
apply if such statement or omission was made in reliance upon and in
conformity with information furnished in writing by the Company to the
Trust or Distributor for use in the Trust Registration Statement, Trust
Prospectus or sales literature or promotional material for the Trust (or
any amendment or supplement to any of the foregoing) or otherwise for use
in connection with the sale of the Contracts or Trust Shares; or
(b) arise out of any untrue statement of a material fact or alleged
untrue statement of material fact contained in a Contract Registration
Statement, Contract Prospectus or sales literature or other promotional
material for the Contracts (or any amendment or supplement to any of the
foregoing), or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
in light of the circumstances in which they were made, if such statement or
omission was made in strict conformity with and in reasonable reliance upon
information furnished in writing by the Distributor to the Company; or
(c) arise out of or are based upon wrongful conduct of the
Distributor or persons under its control with respect to the sale of Trust
Shares; or
(d) arise as a result of any material failure by the Distributor or
persons under its control to provide services, furnish materials or make
payments as required under the terms of this Agreement; or
(e) arise out of any material breach by the Distributor or persons
under its control of this Agreement (including any breach of Section 6.1 of
this Agreement and any warranties contained in Article III hereof);
it being understood that in no way shall the Distributor be liable to the
Company with respect to any violation of insurance law, compliance with which is
a responsibility of the Company under this Agreement or otherwise or as to which
the Company failed to inform the Distributor in accordance with Section 4.9
hereof. This indemnification is in addition to any liability that the
Distributor may otherwise have; provided, however, that no party shall be
entitled to indemnification if such loss, claim, damage or liability is caused
by the wilful misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
9.4. RULE OF CONSTRUCTION. It is the parties' intention that, in the event
of an occurrence for which the Trust has agreed to indemnify the Company, the
Company shall seek indemnification from the Trust only in circumstances in which
the Trust is entitled to seek indemnification from a third party with respect to
the same event or cause thereof.
9.5. INDEMNIFICATION PROCEDURES. After receipt by a party entitled to
indemnification ("indemnified party") under this Article IX of notice of the
commencement of any action, if a claim in respect thereof is to be made by the
indemnified party against any person obligated to provide indemnification under
this Article IX ("indemnifying party"), such indemnified party
30
will notify the indemnifying party in writing of the commencement thereof as
soon as practicable thereafter, provided that the omission to so notify the
indemnifying party will not relieve it from any liability under this Article IX,
except to the extent that the omission results in a failure of actual notice to
the indemnifying party and such indemnifying party is damaged solely as a result
of the failure to give such notice. The indemnifying party, upon the request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (a) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (b) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX. The
indemnification provisions contained in this Article IX shall survive any
termination of this Agreement.
ARTICLE X
RELATIONSHIP OF THE PARTIES; TERMINATION
10.1. RELATIONSHIP OF PARTIES. The Company is to be an independent
contractor vis-a-vis the Trust, the Distributor, or any of their affiliates for
all purposes hereunder and has no authority to act for or represent any of them
(except to the limited extent the Company acts as designee of the Trust pursuant
to Section 2.3(a) of this Agreement). In addition, no officer or employee of the
Company shall be deemed to be an employee or agent of the Trust, Distributor, or
any of their affiliates. The Company does not act as an "underwriter" or
"distributor" of Trust Shares, as those terms variously are used in the 1940
Act, the 1933 Act, and rules and regulations thereunder. Likewise, the Company
is not a "transfer agent" of the Trust as that term is used in the 1934 Act and
rules thereunder. Consistent with the foregoing, the Company is not a "transfer
agent" or "administrator" to the Trust as those terms are referenced in Rule
38a-1 under the 1940 Act.
10.2. NON-EXCLUSIVITY AND NON-INTERFERENCE. The parties hereto acknowledge
that the arrangement contemplated by this Agreement is not exclusive; the Trust
Shares may be sold to other insurance companies and investors (subject to
Section 2.8 hereof) and the cash value of the Contracts may be invested in other
investment companies, provided, however, that until this Agreement is terminated
pursuant to this Article X:
31
(a) the Company shall promote the Trust and the Funds made available
hereunder on the same basis as other funding vehicles available under the
Contracts;
(b) the Company shall not, without prior notice to the Distributor
(unless otherwise required by Applicable Law), take any action to operate
Schedule 1 Account as a management investment company under the 1940 Act;
(c) the Company shall not, without the prior written consent of the
Distributor (unless otherwise required by Applicable Law), solicit, induce
or encourage Contract Owners to change or modify the Trust to change the
Trust's distributor or investment adviser, to transfer or withdraw Contract
Values allocated to a Fund, or to exchange their Contracts for contracts
not allowing for investment in the Trust;
(d) the Company shall not substitute another investment company for
one or more Funds without providing: (i) written notice to the Distributor
at least 120 days in advance of such substitution; and (ii) copies of any
application by the Company to the SEC seeking approval of such substitution
as required by Section 4.13 of this Agreement; and
(e) the Company shall not redeem Trust Shares attributable to Contract
Owner investments except as necessary to facilitate Contract Owner
transactions, payment of expenses by Accounts, and routine Contract
processing, or as permitted by any SEC order issued pursuant to Section
26(c) of the 1940 Act.
10.3. TERMINATION OF AGREEMENT. This Agreement shall not terminate until:
(a) the Trust is dissolved, liquidated, or merged into another entity, or (b) as
to any Fund that has been made available hereunder, the Account no longer
invests in that Fund and the Company has confirmed in writing to the
Distributor, if so requested by the Distributor, that it no longer intends to
invest in such Fund. However, certain obligations of, or restrictions on, the
parties to this Agreement may terminate as provided in Sections 10.4 through
10.6 and the Company may be required to redeem Trust Shares pursuant to Section
10.7 or in the circumstances contemplated by Article VIII. Articles III and IX
and Section 10.8 shall survive any termination of this Agreement.
10.4. TERMINATION OF OFFERING OF TRUST SHARES. The obligation of the Trust
and the Distributor to make Trust Shares available to the Company for purchase
pursuant to Article II of this Agreement shall terminate at the option of the
Distributor upon written notice to the Company as provided below:
(a) upon institution of formal proceedings against the Company, or the
Distributor's reasonable determination that institution of such proceedings
is being considered by FINRA, the SEC, the insurance commission of any
state or any other regulatory body regarding the Company's duties under
this Agreement or related to the
32
sale of the Contracts, the operation of the Account, the administration of
the Contracts or the purchase of Trust Shares, or an expected or
anticipated ruling, judgment or outcome which would, in the Distributor's
reasonable judgment exercised in good faith, materially impair the
Company's or Trust's ability to meet and perform the Company's or Trust's
obligations and duties hereunder, such termination effective upon 15 days
prior written notice;
(b) in the event any of the Contracts are not registered, issued or
sold in accordance with applicable federal and/or state law, such
termination effective immediately upon receipt of written notice;
(c) if the Distributor shall determine, in its sole judgment exercised
in good faith, that either (1) the Company shall have suffered a material
adverse change in its business or financial condition or (2) the Company
shall have been the subject of material adverse publicity which is likely
to have a material adverse impact upon the business and operations of
either the Trust or the Distributor, such termination effective upon 30
days prior written notice;
(d) if the Distributor suspends or terminates the offering of Trust
Shares of any Series or Class to all Participating Investors or only
designated Participating Investors, if such action is required by law or by
regulatory authorities having jurisdiction or if, in the sole discretion of
the Distributor acting in good faith, suspension or termination is
necessary in the best interests of the shareholders of any Series or Class
(I.E., Product Owners indirectly invested in any Series or Class), such
notice effective immediately upon receipt of written notice, it being
understood that a lack of Participating Investor interest in a Series or
Class may be grounds for a suspension or termination as to such Series or
Class and that a suspension or termination shall apply only to the
specified Series or Class;
(e) upon the Company's assignment of this Agreement (including,
without limitation, any transfer of the Contracts or the Account to another
insurance company pursuant to an assumption reinsurance agreement) unless
the Trust consents thereto, such termination effective upon 30 days prior
written notice;
(f) if the Company is in material breach of any provision of this
Agreement, which breach has not been cured to the satisfaction of the Trust
within 10 days after written notice of such breach has been delivered to
the Company, such termination effective upon expiration of such 10-day
period; or
(g) upon the determination of the Trust's Board to dissolve, liquidate
or merge the Trust as contemplated by Section 10.3(a), upon termination of
the Agreement pursuant to Section 10.3(b), or upon notice from the Company
pursuant to Section 10.5 or 10.6, such termination pursuant hereto to be
effective upon 15 days prior written notice.
33
Except in the case of an option exercised under clause (b), (d) or (g), the
obligations shall terminate only as to Contracts issued after the exercise of
the option and the Distributor shall continue to make Trust Shares available to
the extent necessary to permit owners of Contracts in effect on the effective
date of such termination (hereinafter referred to as "Existing Contracts") to
reallocate investments in the Trust, redeem investments in the Trust and/or
invest in the Trust upon the making of additional purchase payments under the
Existing Contracts.
10.5. TERMINATION OF INVESTMENT IN A FUND. The Company may elect to cease
investing in a Fund, promoting a Fund as an investment option under the
Contracts, or withdraw its investment or the Account's investment in a Fund,
subject to compliance with Applicable Law, upon written notice to the Trust
within 15 days of the occurrence of any of the following events (unless provided
otherwise below):
(a) the Trust informs the Company pursuant to Section 4.9 that it will
not cause such Fund to comply with investment restrictions as requested by
the Company and the Trust and the Company are unable to agree upon any
reasonable alternative accommodations;
(b) shares in such Fund are not reasonably available to meet the
requirements of the Contracts as determined by the Company (including any
non-availability as a result of notice given by the Distributor pursuant to
Section 10.4(d)), and the Distributor, after receiving written notice from
the Company of such non-availability, fails to make available, within 10
days after receipt of such notice, a sufficient number of shares in such
Fund or an alternate Fund to meet the requirements of the Contracts;
(c) such Fund fails to meet the diversification requirements specified
in Section 817(h) of the Code and any regulations thereunder and the Trust,
upon written request, fails to provide reasonable assurance that it will
take action to cure or correct such failure; or
(d) such Fund fails to qualify as a regulated investment company under
Sub-Section 851 of the Code, or any successor provision, or if the Company
reasonably believes that the Fund may fail to so qualify and the Trust,
upon written request, fails to provide reasonable assurance that it will
correct the failure within 30 days.
Such termination shall apply only as to the affected Fund and shall not apply to
any other Fund in which the Company or the Account invests.
10.6. TERMINATION OF INVESTMENT IN THE TRUST. The Company may elect to
cease investing in all Series or Classes of the Trust made available hereunder,
promoting the Trust as an investment option under the Contracts, or withdraw its
investment or the Accounts' investment in the Trust, subject to compliance with
applicable law, upon written notice to the
34
Trust within 15 days of the occurrence of any of the following events (unless
provided otherwise below):
(a) upon institution of formal proceedings against the Trust or the
Distributor (but only with regard to the Trust) by the FINRA, the SEC or
any state securities or insurance commission or any other regulatory body;
or
(b) if the Trust or Distributor is in material breach of a provision
of this Agreement, which breach has not been cured to the satisfaction of
the Company within 10 days after written notice of such breach has been
delivered to the Trust or the Distributor, as the case may be.
10.7. COMPANY REQUIRED TO REDEEM. The parties understand and acknowledge
that it is essential for compliance with Section 817(h) of the Code that the
Contracts qualify as annuity contracts or life insurance policies, as
applicable, under the Code. Accordingly, if any of the Contracts cease to
qualify as annuity contracts or life insurance policies, as applicable, under
the Code, or if the Trust reasonably believes that any such Contracts may fail
to so qualify, the Trust shall have the right to require the Company to redeem
Trust Shares attributable to such Contracts upon notice to the Company and the
Company shall so redeem such Trust Shares in order to ensure that the Trust
complies with the provisions of Section 817(h) of the Code applicable to
ownership of Trust Shares. Notice to the Company shall specify the period of
time the Company has to redeem the Trust Shares or to make other arrangements
satisfactory to the Trust and its counsel, such period of time to be determined
with reference to the requirements of Section 817(h) of the Code. In addition,
the Company may be required to redeem Trust Shares pursuant to action taken or
request made by the Trust Board in accordance with the Exemptive Order described
in Article VIII or any conditions or undertakings set forth or referenced
therein, or other SEC rule, regulation or order that may be adopted after the
date hereof. The Company agrees to redeem shares in the circumstances described
herein and to comply with applicable terms and provisions. Also, in the event
that the Distributor suspends or terminates the offering of a Series or Class
pursuant to Section 10.4(d) of this Agreement, the Company, upon request by the
Distributor, will cooperate in taking appropriate action to withdraw the
Account's investment in the respective Fund.
10.8. CONFIDENTIALITY. All "Confidential Information" (as defined in this
section) supplied by one party to the another party in connection with the
negotiation or carrying out of this Agreement shall remain the property of the
party providing such information and shall be kept confidential by the receiving
party or parties except: (a) as may be required by Applicable Law, (b) as
authorized in writing by the party providing the information, or (c) in the
event that such information is otherwise made public. Each party agrees to take
all reasonable precautions to prevent any unauthorized disclosure of
Confidential Information. Confidential Information means (individually or
collectively) proprietary information of the parties to this Agreement,
including but not limited to, their inventions, "know-how", trade secrets,
business affairs, prospect lists, product designs, product plans, business
strategies, finances, fee structures, etc. Without limiting the generality of
the foregoing, Confidential Information includes:
35
(a) information that the disclosing party designates in writing is confidential
or proprietary, (b) any non-public personal information or personally
identifiable financial information about any Contract Owner or prospective
Contract Owner, and (c) information that a reasonable business-person would
assume to be confidential or proprietary. Notwithstanding the foregoing,
Confidential Information does not include information provided by the Company to
the Distributor pursuant to section 2.9 of this Agreement.
ARTICLE XI
APPLICABILITY TO NEW ACCOUNTS AND NEW CONTRACTS
The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect, as appropriate, changes in or relating to the
Contracts, any Series or Class, additions of new classes of Contracts to be
issued by the Company and Accounts therefor investing in the Trust. Such
amendments may be made effective by executing the form of amendment included on
each schedule attached hereto. The provisions of this Agreement shall be equally
applicable to each such class of Contracts, Series, Class or Account, as
applicable, effective as of the date of amendment of such Schedule, unless the
context otherwise requires. The parties to this Agreement may amend this
Agreement from time to time by written agreement signed by all of the parties.
ARTICLE XII
NOTICE, REQUEST OR CONSENT
Any notice, request or consent to be provided pursuant to this Agreement is
to be made in writing and shall be given:
If to the Trust:
Xxxxxxxx Xxxxx
Secretary
Xxxxxxx Sachs Variable Insurance Trust
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
If to the Distributor:
Xxxxx XxXxxxxx
Xxxxxxx Sachs & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
36
If to the Company:
[NAME]
[TITLE]
American United Life Insurance Company
[STREET ADDRESS] OneAmerican Square
[CITY, STATE] Indianapolis, IN 46206
or at such other address as such party may from time to time specify in writing
to the other party. Each such notice, request or consent to a party shall be
sent by registered or certified United States mail with return receipt requested
or by overnight delivery with a nationally recognized courier, and shall be
effective upon receipt. Notices pursuant to the provisions of Article II may be
sent by facsimile to the person designated in writing for such notices.
ARTICLE XIII
MISCELLANEOUS
13.1. INTERPRETATION. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the state of
Delaware, without giving effect to the principles of conflicts of laws, subject
to the following rules:
(a) This Agreement shall be subject to Applicable Law and the terms
hereof shall be limited, interpreted and construed in accordance therewith.
(b) 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.
(c) 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.
(d) 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.
13.2. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which together shall constitute one and the same
instrument.
13.3. NO ASSIGNMENT. Neither this Agreement nor any of the rights and
obligations hereunder may be assigned by the Company, the Distributor or the
Trust without the prior written consent of the other parties.
37
13.4. DECLARATION OF TRUST. A copy of the Declaration of Trust of the Trust
is on file with the Secretary of State of the state of Delaware, and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Trust as trustees, and is not binding upon any of the Trustees, officers or
shareholders of the Trust individually, but binding only upon the assets and
property of the Trust. No Series of the Trust shall be liable for the
obligations of any other Series of the Trust.
13.5. ARBITRATION. Any controversy or claim between or among the parties
arising out of or relating to this Agreement, or breach thereof, shall be
settled by arbitration in a forum jointly selected by the relevant parties (or
in a forum required by law) in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction over the same.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and behalf by its duly authorized officer on the date
specified below.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
(Trust)
Date: By: /s/ Xxxxx XxXxxxxx
--------------------- ---------------------------------------------
Name: Xxxxx XxXxxxxx
Title: Managing Director
AMERICAN UNITED LIFE INSURANCE COMPANY
(Company)
Date: By: /s/ Xxxxxx Xxxxxx
--------------------- ---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: VP, Sales Support
XXXXXXX, SACHS & CO.
(Distributor)
Date: By: /s/ Xxxxx XxXxxxxx
--------------------- ---------------------------------------------
Name: Xxxxx XxXxxxxx
Title: Managing Director
38
SCHEDULE 1
SCHEDULE 1A
SEPARATE ACCOUNTS OF THE COMPANY REGISTERED UNDER THE 1940 ACT AS
UNIT INVESTMENT TRUSTS
The following separate accounts of the Company are subject to the
Agreement:
Date Established by
Board of Directors of SEC 1940 Act Type of Product
Name of Account the Company Registration Number Supported By Account
------------------------------------------------------- ----------------------- --------------------- ------------------------
AUL American Individual Unit Trust April 4, 1994 811-8536 Variable Annuity
AUL American Individual Variable Annuity Unit Trust November 11, 1998 811-09193 Variable Annuity
AUL American Individual Variable Annuity Unit Trust B November 11, 1998 811-09193 Variable Annuity
AUL American Individual Variable Life Unit Trust July 10, 1997 811-08311 Variable Life Insurance
SCHEDULE 1B
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE CONTRACTS
REGISTERED UNDER THE SECURITIES ACT OF 1933
The following Contracts are subject to the Agreement:
Type of
1933 Act Product
Registration Supported by
Name of Contract Available Funds/Share Classes Number Account
------------------------- -------------------------------------------------------------------- -------------- -----------------
IVA -- AUL American OneAmerica Asset Director Portfolio-O 33-79562 Variable Annuity
Individual Unit Trust OneAmerica Investment Grade Bond Portfolio-O
Individual Variable OneAmerica Value Portfolio-O
Annuity Contracts AB VPS International Growth Portfolio-A
AB VPS International Value Portfolio-A
AB VPS Small/Mid Cap Value Portfolio-A
Xxxxx Large Cap Growth Portfolio-1-2
Xxxxx Small Cap Growth Portfolio-1-2
39
American Century VP Capital Appreciation Fund-I
American Century VP Income & Growth Fund-I
American Century VP International Fund-I
American Century VP Mid cap Value Fund-II
American Century VP Ultra Fund-I
Xxxxxxx XX SRI Mid Cap Growth Portfolio
Columbia Variable Portfolio-Small Cap Value Fund-1
Columbia Variable Portfolio-US Government Mortgage Fund-1
Dreyfus Investment Portfolios, Small Cap Stock Index
Portfolio-Service
Dreyfus Investment Portfolios, Technology Growth Portfolio-Service
Dreyfus Variable Investment Fund, Appreciation Portfolio-Service
Fidelity VIP Asset Manager Portfolio-Initial
Fidelity VIP Contrafund Portfolio-Initial
Fidelity VIP Equity-Income Portfolio-Initial
Fidelity VIP Freedom 2005 Portfolio-Initial
Fidelity VIP Freedom 2010 Portfolio-Initial
Fidelity VIP Freedom 2015 Portfolio-Initial
Fidelity VIP Freedom 2020 Portfolio-Initial
Fidelity VIP Freedom 2025 Portfolio-Initial
Fidelity VIP Freedom 2030 Portfolio-Initial
Fidelity VIP Freedom Income Portfolio-Initial
Fidelity VIP Growth Portfolio-Initial
Fidelity VIP High Income Portfolio-Initial
Fidelity VIP Index 500 Portfolio-Initial
Fidelity VIP Mid Cap Portfolio-Service 2
Fidelity VIP Overseas Portfolio-Initial
Franklin Founding Funds Allocation VIP Fund-1
Franklin Small Cap Value VIP Fund-1
Xxxxxxxxx Foreign VIP Fund-2
Xxxxxxxxx Global Bond VIP Fund-1
Xxxxxxx Xxxxx VIT Money Market-Svc
Invesco V.I. Core Equity Fund-Series II
Invesco V.I. Diversified Dividend Fund-Series I
Invesco V.I. Global Health Care Fund-Series I
Invesco V.I. Global Real Estate Fund-Series I
Invesco V.I. High Yield Fund-Series I
Invesco V.I. International Growth Fund-Series II
Invesco V.I. Managed Volatility Fund-Series I
Invesco V.I. Mid Cap Growth Fund-Series I
Janus Aspen Flexible Bond Portfolio-Institutional
40
Janus Aspen Forty Portfolio-Institutional
Janus Aspen Global Research Portfolio-Institutional
Janus Aspen Overseas Portfolio-Service
Janus Aspen Xxxxxxx Mid Cap Value Portfolio-Service
Xxxxxxxxx Xxxxxx AMT Mid Cap Growth Portfolio-Service
Xxxxxxxxx Xxxxxx Mid Cap Intrinsic Value Portfolio-I
Xxxxxxxxx Xxxxxx Short Duration Bond Portfolio-I
Pioneer Emerging Markets VCT Portfolio-I
Pioneer Equity Income VCT Portfolio-II
Pioneer Fund VCT Portfolio-I
Pioneer Select Mid Cap Growth VCT Portfolio-I
Royce Capital Small-Cap Portfolio-Investor
X. Xxxx Price Blue Chip Growth Portfolio
X. Xxxx Price Equity Income Portfolio
X. Xxxx Price Limited-Term Bond Portfolio
Xxxxxxx Plan Conservative Growth Variable
Xxxxxxx Plan Strategic Growth Variable
Vanguard VIF Diversified Value Portfolio
Vanguard VIF Mid-Cap Index Portfolio
Vanguard VIF Small Company Growth Portfolio
Vanguard VIF Total Bond Market Index Portfolio
STARPOINT -- OneAmerica Asset Director Portfolio-O (In order of Variable Annuity
Individual Flexible OneAmerica Investment Grade Bond Portfolio-O contract)
Premium Deferred Variable OneAmerica Value Portfolio-O
Annuity AB VPS International Growth Portfolio-A 333-99191
AB VPS International Value Portfolio-A 333-l41415
AB VPS Small/Mid Cap Value Portfolio-A 333-70065
VOYAGE PROTECTOR Xxxxx Large Cap Growth Portfolio-I-2 333-70049
- Individual Flexible Xxxxx Small Cap Growth Portfolio-I-2
Premium Deferred American Century VP Capital Appreciation Fund-I
Variable Annuity American Century VP Income & Growth Fund-I
American Century VP International Fund-I
American Century VP Mid Cap Value Fund-II
DIRECTPOINT - American Century VP Ultra Fund-I
Individual Flexible Xxxxxxx XX SRI Mid Cap Growth Portfolio
Premium Deferred Variable Columbia Variable Portfolio-Small Cap Value Fund-1
Annuity Columbia Variable Portfolio-US Government Mortgage Fund-1
Dreyfus Investment Portfolios, Small Cap Stock Index
Portfolio-Service
41
SELECTPOINT - Individual Dreyfus Investment Portfolios, Technology Growth Portfolio-Service
Flexible Premium Deferred Dreyfus Variable Investment Fund, Appreciation Portfolio-Service
Variable Annuity Fidelity VIP Asset Manager Portfolio-Initial
Fidelity VIP Contrafund Portfolio-Initial
Fidelity VIP Equity-Income Portfolio-Initial
Fidelity VIP Freedom 2005 Portfolio-Initial
Fidelity VIP Freedom 2010 Portfolio-Initial
Fidelity VIP Freedom 2015 Portfolio-Initial
Fidelity VIP Freedom 2020 Portfolio-Initial
Fidelity VIP Freedom 2025 Portfolio-Initial
Fidelity VIP Freedom 2030 Portfolio-Initial
Fidelity VIP Freedom Income Portfolio-Initial
Fidelity VIP Growth Portfolio-Initial
Fidelity VIP High Income Portfolio-Initial
Fidelity VIP Index 500 Portfolio-Initial
Fidelity VIP Mid Cap Portfolio-Service 2
Fidelity VIP Overseas Portfolio-Initial
Franklin Founding Funds Allocation VIP Fund-1
Franklin Small Cap Value VIP Fund-1
Xxxxxxxxx Foreign VIP Fund-2
Xxxxxxxxx Global Bond VIP Fund-1
Xxxxxxx Xxxxx VIT Money Market-Svc
Invesco V.I. Core Equity Fund-Series II
Invesco V.I. Diversified Dividend Fund-Series I
Invesco V.I. Global Health Care Fund-Series I
Invesco V.I. Global Real Estate Fund-Series I
Invesco V.I. High Yield Fund-Series I
Invesco V.I. International Growth Fund-Series II
Invesco V.I. Managed Volatility Fund-Series I
Invesco V.I. Mid Cap Growth Fund-Series I
Janus Aspen Flexible Bond Portfolio-Institutional
Janus Aspen Forty Portfolio-Institutional
Janus Aspen Global Research Portfolio-Institutional
Janus Aspen Overseas Portfolio-Service
Janus Aspen Xxxxxxx Mid Cap Value Portfolio-Service
Xxxxxxxxx Xxxxxx AMT Mid Cap Growth Portfolio-Service
Xxxxxxxxx Xxxxxx Mid Cap Intrinsic Value Portfolio-I
Xxxxxxxxx Xxxxxx Short Duration Bond Portfolio-I
Pioneer Emerging Markets VCT Portfolio-I
Pioneer Equity Income VCT Portfolio-II
42
Pioneer Fund VCT Portfolio-I
Pioneer Select Mid Cap Growth VCT Portfolio-I
Royce Capital Small-Cap Portfolio-Investor
X. Xxxx Price Blue Chip Growth Portfolio
X. Xxxx Price Equity Income Portfolio
X. Xxxx Price Limited-Term Bond Portfolio
X. Xxxx Price Mid-Cap Growth Portfolio
Xxxxxxx Plan Conservative Growth Variable
Xxxxxxx Plan Strategic Growth Variable
TOPS Managed Risk Balanced ETF Portfolio-2
TOPS Managed Risk Growth ETF Portfolio-2
TOPS Managed Risk Moderate Growth ETF Portfolio-2
Vanguard VIF Diversified Value Portfolio
Vanguard VIF Mid-Cap Index Portfolio
Vanguard VIF Small Company Growth Portfolio
Vanguard VIF Total Bond Market Index Portfolio
OneAmerica Asset Director Portfolio-O
OneAmerica Investment Grade Bond Portfolio-O
OneAmerica Value Portfolio-O
American Accumulator AB VPS International Growth Portfolio-A
AB VPS International Value Portfolio-A
AB VPS Small/Mid Cap Value Portfolio-A
Flexible Premium Xxxxx Large Cap Growth Portfolio-I-2
Adjustable Variable Life Xxxxx Small Cap Growth Portfolio-I-2
American Century VP Capital Appreciation Fund-I (In order)
American Century VP Income & Growth Fund-I 333-152925 Variable Life
Modified Single Premium American Century VP International Fund-I 333-32531 Insurance
Variable Life American Century VP Mid Cap Value Fund-II 333-32553
American Century VP Ultra Fund-I
Xxxxxxx XX SRI Mid Cap Growth Portfolio
Columbia Variable Portfolio-Small Cap Value Fund-1
Columbia Variable Portfolio-US Government Mortgage Fund-1
Dreyfus Investment Portfolios, Small Cap Stock Index
Portfolio-Service
Dreyfus Investment Portfolios, Technology Growth Portfolio-Service
Dreyfus Variable Investment Fund, Appreciation Portfolio-Service
Fidelity VIP Asset Manager Portfolio-Initial
Fidelity VIP Contrafund Portfolio-Initial
Fidelity VIP Equity-Income Portfolio-Initial
43
Fidelity VIP Freedom 2005 Portfolio-Initial
Fidelity VIP Freedom 2010 Portfolio-Initial
Fidelity VIP Freedom 2015 Portfolio-Initial
Fidelity VIP Freedom 2020 Portfolio-Initial
Fidelity VIP Freedom 2025 Portfolio-Initial
Fidelity VIP Freedom 2030 Portfolio-Initial
Fidelity VIP Freedom Income Portfolio-Initial
Fidelity VIP Growth Portfolio-Initial
Fidelity VIP High Income Portfolio-Initial
Fidelity VIP Index 500 Portfolio-Initial
Fidelity VIP Mid Cap Portfolio-Service 2
Fidelity VIP Money Market Portfolio-Initial
Fidelity VIP Overseas Portfolio-Initial
Franklin Founding Funds Allocation VIP Fund-1
Franklin Small Cap Value VIP Fund-1
Xxxxxxxxx Foreign VIP Fund-2
Xxxxxxxxx Global Bond VIP Fund-1
Xxxxxxx Xxxxx VIT Money Market-Svc
Invesco V.I. Core Equity Fund-Series II
Invesco V.I. Diversified Dividend Fund-Series I
Invesco V.I. Global Health Care Fund-Series I
Invesco V.I. Global Real Estate Fund-Series I
Invesco V.I. High Yield Fund-Series I
Invesco V.I. International Growth Fund-Series II
Invesco V.I. Managed Volatility Fund-Series I
Invesco V.I. Mid Cap Growth Fund-Series I
Janus Aspen Flexible Bond Portfolio-Institutional
Janus Aspen Forty Portfolio-Institutional
Janus Aspen Global Research Portfolio-Institutional
Janus Aspen Overseas Portfolio-Service
Janus Aspen Xxxxxxx Mid Cap Value Portfolio-Service
Xxxxxxxxx Xxxxxx AMT Mid Cap Growth Portfolio-Service
Xxxxxxxxx Xxxxxx Mid Cap Intrinsic Value Portfolio-I
Xxxxxxxxx Xxxxxx Short Duration Bond Portfolio-I
Pioneer Emerging Markets VCT Portfolio-I
Pioneer Equity Income VCT Portfolio-II
Pioneer Fund VCT Portfolio-I
Pioneer Select Mid Cap Growth VCT Portfolio-I
Royce Capital Small-Cap Portfolio-Investor
X. Xxxx Price Blue Chip Growth Portfolio
44
X. Xxxx Price Equity Income Portfolio
X. Xxxx Price Limited-Term Bond Portfolio
X. Xxxx Price Mid-Cap Growth Portfolio
Xxxxxxx Plan Conservative Growth Variable
Xxxxxxx Plan Strategic Growth Variable
Vanguard VIF Diversified Value Portfolio
Vanguard VIF Mid-Cap Index Portfolio
Vanguard VIF Small Company Growth Portfolio
Vanguard VIF Total Bond Market Index Portfolio
45
[FORM OF AMENDMENT TO SCHEDULE 1A]
Effective as of , the following separate accounts of the Company are hereby
added to this Schedule 1A and made subject to the Agreement:
Date Established by
Board of Directors of SEC 1940 Act Type of Product
Name of Account the Company Registration Number Supported by Account
-------------------------------------------------------- ----------------------- --------------------- -------------------------
AUL American Individual Unit Trust April 4, 1994 811-8536 Variable Annuity
AUL American Individual Variable Annuity Unit Trust November 11, 1998 811-09193 Variable Annuity
AUL American Individual Variable Annuity Unit Trust B November 11, 1998 811-09193 Variable Annuity
AUL American Individual Variable Life Unit Trust July 10, 1997 811-08311 Variable Life Insurance
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend
this Schedule 1A in accordance with Article XI of the Agreement.
/s/ Xxxxxx Xxxxxx
--------------------------------------- --------------------------------------
Xxxxxxx Sachs Variable Insurance Trust American United Life Insurance Company
Name: Name: Xxxxxx Xxxxxx
Title: Title: VP, Sales Support
---------------------------------------
Xxxxxxx, Sachs & Co.
Name:
Title:
46
[FORM OF AMENDMENT TO SCHEDULE 1B]
Effective as of , the following Contracts are hereby added to this
Schedule 1B and made subject to the Agreement:
1933 Act Type of Product
Registration Supported by
Name of Contract Available Funds/Share Classes Number Account
------------------------- -------------------------------------------------------------------- -------------- -----------------
IVA -- AUL American OneAmerica Asset Director Portfolio-O
Individual Unit Trust OneAmerica Investment Grade Bond Portfolio-O
Individual Variable OneAmerica Value Portfolio-O
Annuity Contracts AB VPS International Growth Portfolio-A
AB VPS International Value Portfolio-A
AB VPS Small/Mid Cap Value Portfolio-A
Xxxxx Large Cap Growth Portfolio-I-2
Xxxxx Small Cap Growth Portfolio-I-2
American Century VP Capital Appreciation Fund-I
American Century VP Income & Growth Fund-I
American Century VP International Fund-I
American Century VP Mid Cap Value Fund-II
American Century VP Ultra Fund-I
Xxxxxxx XX SRI Mid Cap Growth Portfolio
Columbia Variable Portfolio-Small Cap Value Fund-1
Columbia Variable Portfolio-US Government Mortgage Fund-1
Dreyfus Investment Portfolios, Small Cap Stock Index
Portfolio-Service
Dreyfus Investment Portfolios, Technology Growth Portfolio-Service 33-79562 Variable Annuity
Dreyfus Variable Investment Fund, Appreciation Portfolio-Service
Fidelity VIP Asset Manager Portfolio-Initial
Fidelity VIP Contrafund Portfolio-Initial
Fidelity VIP Equity-Income Portfolio-Initial
Fidelity VIP Freedom 2005 Portfolio-Initial
Fidelity VIP Freedom 2010 Portfolio-Initial
Fidelity VIP Freedom 2015 Portfolio-Initial
Fidelity VIP Freedom 2020 Portfolio-Initial
Fidelity VIP Freedom 2025 Portfolio-Initial
Fidelity VIP Freedom 2030 Portfolio-Initial
Fidelity VIP Freedom Income Portfolio-Initial
Fidelity VIP Growth Portfolio-Initial
Fidelity VIP High Income Portfolio-Initial
Fidelity VIP Index 500 Portfolio-Initial
47
Fidelity VIP Mid Cap Portfolio-Service 2
Fidelity VIP Overseas Portfolio-Initial
Franklin Founding Funds Allocation VIP Fund-1
Franklin Small Cap Value VIP Fund-1
Xxxxxxxxx Foreign VIP Fund-2
Xxxxxxxxx Global Bond VIP Fund-1
Xxxxxxx Xxxxx VIT Money Market-Svc
Invesco V.I. Core Equity Fund-Series II
Invesco V.I. Diversified Dividend Fund-Series I
Invesco V.I. Global Health Care Fund-Series I
Invesco V.I. Global Real Estate Fund-Series I
Invesco V.I. High Yield Fund-Series I
Invesco V.I. International Growth Fund-Series II
Invesco V.I. Managed Volatility Fund-Series I
Invesco V.I. Mid Cap Growth Fund-Series I
Janus Aspen Flexible Bond Portfolio-Institutional
Janus Aspen Forty Portfolio-Institutional
Janus Aspen Global Research Portfolio-Institutional
Janus Aspen Overseas Portfolio-Service
Janus Aspen Xxxxxxx Mid Cap Value Portfolio-Service
Xxxxxxxxx Xxxxxx AMT Mid Cap Growth Portfolio-Service
Xxxxxxxxx Xxxxxx Mid Cap Intrinsic Value Portfolio-I
Xxxxxxxxx Xxxxxx Short Duration Bond Portfolio-I
Pioneer Emerging Markets VCT Portfolio-I
Pioneer Equity Income VCT Portfolio-II
Pioneer Fund VCT Portfolio-I
Pioneer Select Mid Cap Growth VCT Portfolio-I
Royce Capital Small-Cap Portfolio-Investor
X. Xxxx Price Blue Chip Growth Portfolio
X. Xxxx Price Equity Income Portfolio
X. Xxxx Price Limited-Term Bond Portfolio
Xxxxxxx Plan Conservative Growth Variable
Xxxxxxx Plan Strategic Growth Variable
Vanguard VIF Diversified Value Portfolio
Vanguard VIF Mid-Cap Index Portfolio
Vanguard VIF Small Company Growth Portfolio
Vanguard VIF Total Bond Market Index Portfolio
48
STARPOINT -- Individual OneAmerica Asset Director Portfolio-O
Flexible Premium Deferred OneAmerica Investment Grade Bond Portfolio-O (In order of
Variable Annuity OneAmerica Value Portfolio-O contract)
AB VPS International Growth Portfolio-A 333-99191
VOYAGE PROTECTOR - AB VPS International Value Portfolio-A 333-141415
Individual Flexible AB VPS Small/Mid Cap Value Portfolio-A 333-70065
Premium Deferred Variable Xxxxx Large Cap Growth Portfolio-I-2 333-70049 Variable Annuity
Annuity Xxxxx Small Cap Growth Portfolio-I-2
American Century VP Capital Appreciation Fund-I
DIRECTPOINT - Individual American Century VP Income & Growth Fund-I
Flexible Premium Deferred American Century VP International Fund-I
Variable Annuity American Century VP Mid Cap Value Fund-II
American Century VP Ultra Fund-I
SELECTPOINT - Individual Xxxxxxx XX SRI Mid Cap Growth Portfolio
Flexible Premium Deferred Columbia Variable Portfolio-Small Cap Value Fund-1
Variable Annuity Columbia Variable Portfolio-US Government Mortgage Fund-1
Dreyfus Investment Portfolios, Small Cap Stock Index
Portfolio-Service
Dreyfus Investment Portfolios, Technology Growth Portfolio-Service
Dreyfus Variable Investment Fund, Appreciation Portfolio-Service
Fidelity VIP Asset Manager Portfolio-Initial
Fidelity VIP Contrafund Portfolio-Initial
Fidelity VIP Equity-Income Portfolio-Initial
Fidelity VIP Freedom 2005 Portfolio-Initial
Fidelity VIP Freedom 2010 Portfolio-Initial
Fidelity VIP Freedom 2015 Portfolio-Initial
Fidelity VIP Freedom 2020 Portfolio-Initial
Fidelity VIP Freedom 2025 Portfolio-Initial
Fidelity VIP Freedom 2030 Portfolio-Initial
Fidelity VIP Freedom Income Portfolio-Initial
Fidelity VIP Growth Portfolio-Initial
Fidelity VIP High Income Portfolio-Initial
Fidelity VIP Index 500 Portfolio-Initial
Fidelity VIP Mid Cap Portfolio-Service 2
Fidelity VIP Overseas Portfolio-Initial
Franklin Founding Funds Allocation VIP Fund-1
Franklin Small Cap Value VIP Fund-1
Xxxxxxxxx Foreign VIP Fund-2
Xxxxxxxxx Global Bond VIP Fund-1
Xxxxxxx Xxxxx VIT Money Market-Svc
Invesco V.I. Core Equity Fund-Series II
49
Invesco V.I. Diversified Dividend Fund-Series I
Invesco V.I. Global Health Care Fund-Series I
Invesco V.I. Global Real Estate Fund-Series I
Invesco V.I. High Yield Fund-Series I
Invesco V.I. International Growth Fund-Series II
Invesco V.I. Managed Volatility Fund-Series I
Invesco V.I. Mid Cap Growth Fund-Series I
Janus Aspen Flexible Bond Portfolio-Institutional
Janus Aspen Forty Portfolio-Institutional
Janus Aspen Global Research Portfolio-Institutional
Janus Aspen Overseas Portfolio-Service
Janus Aspen Xxxxxxx Mid Cap Value Portfolio-Service
Xxxxxxxxx Xxxxxx AMT Mid Cap Growth Portfolio-Service
Xxxxxxxxx Xxxxxx Mid Cap Intrinsic Value Portfolio-I
Xxxxxxxxx Xxxxxx Short Duration Bond Portfolio-I
Pioneer Emerging Markets VCT Portfolio-I
Pioneer Equity Income VCT Portfolio-II
Pioneer Fund VCT Portfolio-I
Pioneer Select Mid Cap Growth VCT Portfolio-I
Royce Capital Small-Cap Portfolio-Investor
X. Xxxx Price Blue Chip Growth Portfolio
X. Xxxx Price Equity Income Portfolio
X. Xxxx Price Limited-Term Bond Portfolio
X. Xxxx Price Mid-Cap Growth Portfolio
Xxxxxxx Plan Conservative Growth Variable
Xxxxxxx Plan Strategic Growth Variable
TOPS Managed Risk Balanced ETF Portfolio-2
TOPS Managed Risk Growth ETF Portfolio-2
TOPS Managed Risk Moderate Growth ETF Portfolio-2
Vanguard VIF Diversified Value Portfolio
Vanguard VIF Mid-Cap Index Portfolio
Vanguard VIF Small Company Growth Portfolio
Vanguard VIF Total Bond Market Index Portfolio
American Accumulator OneAmerica Asset Director Portfolio-O (In order)
OneAmerica Investment Grade Bond Portfolio-O 333-152925
Flexible Premium OneAmerica Value Portfolio-O 333-32531
Adjustable Variable Life AB VPS International Growth Portfolio-A 333-32553 Variable Life
AB VPS International Value Portfolio-A Insurance
50
Modified Single Premium AB VPS Small/Mid Cap Value Portfolio-A
Variable Life Xxxxx Large Cap Growth Portfolio-I-2
Xxxxx Small Cap Growth Portfolio-I-2
American Century VP Capital Appreciation Fund-I
American Century VP Income & Growth Fund-I
American Century VP International Fund-I
American Century VP Mid Cap Value Fund-II
American Century VP Ultra Fund-I
Xxxxxxx XX SRI Mid Cap Growth Portfolio
Columbia Variable Portfolio-Small Cap Value Fund-1
Columbia Variable Portfolio-US Government Mortgage Fund-1
Dreyfus Investment Portfolios, Small Cap Stock Index
Portfolio-Service
Dreyfus Investment Portfolios, Technology Growth Portfolio-Service
Dreyfus Variable Investment Fund, Appreciation Portfolio-Service
Fidelity VIP Asset Manager Portfolio-Initial
Fidelity VIP Contrafund Portfolio-Initial
Fidelity VIP Equity-Income Portfolio-Initial
Fidelity VIP Freedom 2005 Portfolio-Initial
Fidelity VIP Freedom 2010 Portfolio-Initial
Fidelity VIP Freedom 2015 Portfolio-Initial
Fidelity VIP Freedom 2020 Portfolio-Initial
Fidelity VIP Freedom 2025 Portfolio-Initial
Fidelity VIP Freedom 2030 Portfolio-Initial
Fidelity VIP Freedom Income Portfolio-Initial
Fidelity VIP Growth Portfolio-Initial
Fidelity VIP High Income Portfolio-Initial
Fidelity VIP Index 500 Portfolio-Initial
Fidelity VIP Mid Cap Portfolio-Service 2
Fidelity VIP Money Market Portfolio-Initial
Fidelity VIP Overseas Portfolio-Initial
Franklin Founding Funds Allocation VIP Fund-1
Franklin Small Cap Value VIP Fund-1
Xxxxxxxxx Foreign VIP Fund-2
Xxxxxxxxx Global Bond VIP Fund-1
Xxxxxxx Xxxxx VIT Money Market-Svc
Invesco V.I. Core Equity Fund-Series II
Invesco V.I. Diversified Dividend Fund-Series I
Invesco V.I. Global Health Care Fund-Series I
Invesco X.x. Global Real Estate Fund-Series I
Invesco V.I. High Yield Fund-Series I
51
Invesco V.I. International Growth Fund-Series II
Invesco V.I. Managed Volatility Fund-Series I
Invesco V.I. Mid Cap Growth Fund-Series I
Janus Aspen Flexible Bond Portfolio-Institutional
Janus Aspen Forty Portfolio-Institutional
Janus Aspen Global Research Portfolio-Institutional
Janus Aspen Overseas Portfolio-Service
Janus Aspen Xxxxxxx Mid Cap Value Portfolio-Service
Xxxxxxxxx Xxxxxx AMT Mid Cap Growth Portfolio-Service
Xxxxxxxxx Xxxxxx Mid Cap Intrinsic Value Portfolio-I
Xxxxxxxxx Xxxxxx Short Duration Bond Portfolio-I
Pioneer Emerging Markets VCT Portfolio-I
Pioneer Equity Income VCT Portfolio-II
Pioneer Fund VCT Portfolio-I
Pioneer Select Mid Cap Growth VCT Portfolio-I
Royce Capital Small-Cap Portfolio-Investor
X. Xxxx Price Blue Chip Growth Portfolio
X. Xxxx Price Equity Income Portfolio
X. Xxxx Price Limited-Term Bond Portfolio
X. Xxxx Price Mid-Cap Growth Portfolio
Xxxxxxx Plan Conservative Growth Variable
Xxxxxxx Plan Strategic Growth Variable
Vanguard VIF Diversified Value Portfolio
Vanguard VIF Mid-Cap Index Portfolio
Vanguard VIF Small Company Growth Portfolio
Vanguard VIF Total Bond Market Index Portfolio
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule lB in accordance with Article XI of the Agreement.
--------------------------------------- ---------------------------------------
Xxxxxxx Xxxxx Variable Insurance Trust American United Life Insurance Company
Name: Name:
Title: Title:
---------------------------------------
Xxxxxxx, Sachs & Co.
Name:
52
Title:
53
SCHEDULE 2
SCHEDULE 2A
SEPARATE ACCOUNTS OF THE COMPANY EXCLUDED FROM THE DEFINITION OF
AN INVESTMENT COMPANY AS PROVIDED FOR BY SECTION 3(c)(11)
OF THE 1940 ACT
The following separate accounts of the Company are subject to the Agreement:
Date Established by
Board of Directors of Type of Product
Name of Account the Company Supported by Account
-------------------------------------------------------- ----------------------- -------------------------
N/A Variable Annuity
Variable Annuity
Variable Annuity
Variable Life Insurance
SCHEDULE 2B
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE CONTRACTS
NOT REGISTERED UNDER THE SECURITIES ACT OF 1933 IN RELIANCE
UPON SECTION 3(a)(2) OF THE ACT
The following Contracts are subject to the Agreement:
Available Funds/Share Type of Product
Name of Contract Classes Group or Individual Supported by Account
--------------------------------- --------------------------- --------------------- ------------------------
N/A Group Variable Annuity
Group Variable Annuity
Individual Variable Annuity
Group Variable Life Insurance
54
[FORM OF AMENDMENT TO SCHEDULE 2A]
Effective as of , the following separate accounts of the Company are hereby
added to this Schedule 2A and made subject to the Agreement:
Date Established by
Board of Directors of Type of Product
Name of Account the Company Supported by Account
-------------------------------------------------------- ----------------------- -------------------------
N/A
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 2A in accordance with Article XI of the Agreement.
/s/ Xxxxxx Xxxxxx
--------------------------------------- ---------------------------------------
Xxxxxxx Sachs Variable Insurance Trust American United Life Insurance Company
Name: Name: Xxxxxx Xxxxxx
Title: Title: VP, Sales Support
---------------------------------------
Xxxxxxx, Sachs & Co.
Name:
Title:
55
[FORM OF AMENDMENT TO SCHEDULE 2B]
Effective as of , the following Contracts are hereby added to this
Schedule 2B and made subject to the Agreement:
Available Funds/Share Type of Product
Name of Contract Classes Group or Individual Supported by Account
--------------------------------- --------------------------- --------------------- ------------------------
N/A
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 2B in accordance with Article XI of the Agreement.
/s/ Xxxxxx Xxxxxx
--------------------------------------- ---------------------------------------
Xxxxxxx Xxxxx Variable Insurance Trust American United Life Insurance Company
Name: Name: Xxxxxx Xxxxxx
Title: Title: VP, Sales Support
---------------------------------------
Xxxxxxx, Xxxxx & Co.
Name:
Title:
56
SCHEDULE 3
SCHEDULE 3A
SEPARATE ACCOUNTS OF THE COMPANY EXCLUDED FROM THE DEFINITION OF
AN INVESTMENT COMPANY AS PROVIDED FOR BY SECTION 3(c)(1) OR 3(c)(7)
OF THE 1940 ACT
The following separate accounts of the Company are subject to the Agreement:
Date Established by
Board of Directors of Type of Product
Name of Account the Company Supported by Account
-------------------------------------------------------- ----------------------- ------------------------
N/A Variable Annuity
Variable Annuity
Variable Annuity
Variable Life Insurance
SCHEDULE 3B
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE CONTRACTS
NOT REGISTERED UNDER THE SECURITIES ACT OF 1933 IN RELIANCE UPON
SECTION 4(2) OF THE ACT AND REGULATION D
THEREUNDER
The following Contracts are subject to the Agreement:
Available Funds/Share Type of Product
Name of Contract Classes Group or Individual Supported by Account
--------------------------------- --------------------------- --------------------- ------------------------
Group Variable Annuity
Group Variable Annuity
Individual Variable Annuity
Group Variable Life Insurance
57
[FORM OF AMENDMENT TO SCHEDULE 3A]
Effective as of , the following separate accounts of the Company are hereby
added to this Schedule 3A and made subject to the Agreement:
Date Established by
Board of Directors of Type of Product
Name of Account the Company Supported by Account
-------------------------------------------------------- ----------------------- ------------------------
N/A
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 3A in accordance with Article XI of the Agreement.
/s/ Xxxxxx Xxxxxx
--------------------------------------- ---------------------------------------
Xxxxxxx Xxxxx Variable Insurance Trust American United Life Insurance Company
Name: Name: Xxxxxx Xxxxxx
Title: Title: VP, Sales Support
---------------------------------------
Xxxxxxx, Xxxxx & Co.
Name:
Title:
58
[FORM OF AMENDMENT TO SCHEDULE 3B]
Effective as of , the following Contracts are hereby added to this
Schedule 3B and made subject to the Agreement:
Available Funds/Share Type of Product
Name of Contract Classes Group or Individual Supported by Account
--------------------------------- --------------------------- --------------------- ------------------------
N/A
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 3B in accordance with Article XI of the Agreement.
/s/ Xxxxxx Xxxxxx
--------------------------------------- ---------------------------------------
Xxxxxxx Xxxxx Variable Insurance Trust American United Life Insurance Company
Name: Name: Xxxxxx Xxxxxx
Title: Title: VP, Sales Support
---------------------------------------
Xxxxxxx, Xxxxx & Co.
Name:
Title:
59
SCHEDULE 4
60
