Exhibit 99.8.54
FUND PARTICIPATION AGREEMENT
AMONG
XXXXXX RETAIL MANAGEMENT LIMITED PARTNERSHIP
XXXXXX INVESTOR SERVICES, INC.
AND
AMERICAN UNITED LIFE INSURANCE COMPANY, INC.
ONEAMERICA SECURITIES, INC.
THIS AGREEMENT is made as of __________, 2014, by and among Xxxxxx Retail
Management Limited Partnership, distributor of the Xxxxxx Funds (the
"Distributor"), Xxxxxx Investor Services. Inc., the transfer agent and
shareholder servicing agent for the Xxxxxx Funds ("Transfer Agent"), American
United Life Insurance Company, Inc., a life insurance company organized under
the laws of [____________________]and OneAmerica Securities, Inc. (collectively
with American United Life Insurance Company, Inc., the "Company"), on its own
behalf and on behalf of each segregated asset account of the Company set forth
on Schedule A, as the parties hereto may amend it from time to time (the
"Accounts") (individually, a "Party", and collectively, the "Parties").
Distributor and Transfer Agent shall collectively be referred to as "Xxxxxx."
WITNESSETH:
WHEREAS, each Fund set forth on Schedule B hereto (collectively, the
"Funds") is registered with the Securities and Exchange Commission ("SEC") as an
open-end management investment company under the Investment Company Act of 1940,
as amended (the "1940 Act") and shares of the Fund ("Shares") are registered
under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, Xxxxxx desires to make each Fund available to act as an
investment vehicle for separate accounts established for variable annuity
contracts ("Contracts") to be offered by insurance companies that enter into
participation agreements with Xxxxxx (the "Participating Insurance Companies"),
to certain qualified pension and retirement plans ("Plans"), and to the general
public; and
WHEREAS, the beneficial interest in the Fund may be divided into several
series of Shares, and the Fund will make Shares in each of such series listed on
Schedule B hereto as the Parties hereto may amend from time to time available
for purchase by the Accounts; and
WHEREAS, the Company will be the issuer of certain variable annuity
contracts ("Contracts") as set forth on Schedule A hereto, as the Parties hereto
may amend from time to time, which Contracts (hereinafter collectively, the
"Contracts"), will be registered under the 1933 Act unless an exemption from
registration is available; and
WHEREAS, the Company will fund the Contracts through the Accounts, each of
which may be divided into two or more subaccounts ("Subaccounts"; reference
herein to an "Account" includes reference to each Subaccount thereof to the
extent the context requires); and
WHEREAS, the Company will serve as the depositor of the Accounts, each of
which is registered as a unit investment trust investment company under the 1940
Act unless an exemption from registration is available, and the security
interests deemed to be issued by the Accounts under the Contracts will be
registered as securities under the 1933 Act unless an exemption from
registration is available; and
WHEREAS, the Company intends to utilize Shares of one or more Funds as an
investment vehicle of the Accounts; and
WHEREAS, the Funds are available to the general public including investors
other than insurance companies and/or their separate accounts funding variable
annuity and/or variable life insurance policies;
WHEREAS, the Funds do not comply with Section 817(h) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the regulations promulgated
thereunder; and
WHEREAS, Company has determined that the Funds are an appropriate
investment option in the Plans and in the Contracts even though the Funds do not
comply with Section 817(h) of the Code or the regulations thereunder; and
NOW, THEREFORE, in consideration of their mutual promises, the Parties
agree as follows:
ARTICLE I
SALE OF FUND SHARES
1.1 On each day Business Day (as defined below), the Transfer Agent shall
transmit to Company net asset value ("NAV") information for each Fund calculated
on such Business Day. The Transfer Agent shall provide such information via the
National Securities Clearing Corporation's ("NSCC") Mutual Fund Profile System
Phase I or by such other means as the Parties may agree upon from time to time.
Notwithstanding the foregoing, in the event that such information cannot
reasonably be provided through such means, the Transfer Agent shall provide such
information via fax transmission or other means as agreed upon by the Parties.
The Transfer Agent shall use its best efforts to provide such information by no
later than 7:00 P.M. Eastern Time on such Business Day. "Business Day" shall
mean any day on which the New York Stock Exchange is open for regular trading,
the Fund calculates its NAV pursuant to the rules of the SEC, and the Company is
open for business.
1.2 On each Business Day, the Transfer Agent shall transmit to Company
dividend and capital gains distribution information, if any, for each Fund, and
with respect to Funds that
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declare dividends daily, the daily accrual for interest rate factor (mil rate)
information for such Business Day. The Transfer Agent shall provide such
information via the NSCC's Mutual Fund Profile System Phase II or by such other
means as the Parties may agree upon from time to time. Notwithstanding the
foregoing, in the event that such information cannot reasonably be provided
through such means, the Transfer Agent shall provide it via fax transmission or
other means as agreed upon by the Parties. The Transfer Agent shall use its best
efforts to provide such information by no later than 7:00 P.M. Eastern Time on
such Business Day.
1.3 The Fund shall make Shares of its Fund available to the Accounts at
the NAV next computed after receipt of such purchase order by the Fund (or its
agent), as established in accordance with the provisions of the then current
prospectus of the Fund. For the purposes of Sections 1.3 and 1.4, the Fund
hereby appoints the Company as its agent for the limited purpose of receiving
and accepting purchase and redemption orders resulting from investment in and
payments under the Contracts. Notwithstanding anything to the contrary herein,
the Board of Trustees of the Fund (the "Trustees") may refuse to sell Shares of
any Fund to any person, or suspend or terminate the offering of Shares of any
Fund if such action is required by law or by regulatory authorities having
jurisdiction or is deemed in the sole discretion of the Trustees acting in good
faith and in light of their fiduciary duties under federal and any applicable
state laws, in the best interests of the shareholders of such Fund.
The Parties hereto may agree, from time to time, to add other Funds to
provide additional funding media for the Contracts, or to delete, combine, or
modify existing Funds, by amending Schedule B hereto. Upon such amendment to
Schedule B, any applicable reference to the Fund, or its Shares herein shall
include a reference to any such additional Fund. Schedule B, as amended from
time to time, is incorporated herein by reference and is a part hereof.
If Company and Xxxxxx intend to clear trades through, and make use of, the
NSCC's Defined Contribution Clearing and Settlement Fund/SERV ("FundSERV"), the
terms set forth in Section 1.4.2 below shall apply. If the use of Fund/SERV is
not operationally feasible, or the Parties otherwise agree, the terms set forth
in Section 1.4.1 shall apply.
1.4.1 Orders for the purchase or redemption of Shares of the Funds on
behalf of the Accounts ("Instructions") will be placed directly by the Company
with the Transfer Agent. Instructions in good order received by the Company
prior to the close of trading on the New York Stock Exchange on any given
business day Business Day (the "Trade Date") and transmitted to the Transfer
Agent by no later than 8:00 am Eastern time ("ET") the Business Day following
the Trade Date ("Trade Date + 1"), will be executed at the NAV determined as of
the close of trading on the Trade Date,
As set forth below, upon the timely receipt by the Company of the
Instructions, the Fund will execute the purchase or redemption transactions (as
the case may be) at the Share price for each Fund computed as of the close of
trading on the Trade Date.
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(a) Except as otherwise provided herein, all purchase and redemption
transactions will settle on T+1. Settlements will be through net Federal Wire
transfers to an account designated by a Fund.
(b) On any Business Day when the Federal Reserve Wire Transfer System is
closed, all communication and processing rules will be suspended for the
settlement of Instructions. Instructions will be settled on the next Business
Day on which the Federal Reserve Wire Transfer System is open. The original T+1
Settlement Date will not apply. Rather, for purposes of this Paragraph (c) only,
the Settlement Date will be the date on which the Instruction settles.
(c) The Company shall, upon receipt of any confirmation or statement
concerning the Accounts, verify the accuracy of the information contained
therein against the information contained in the Company's internal
record-keeping system and shall promptly, advise the Transfer Agent in writing
of any discrepancies between such information. The Transfer Agent and the
Company shall cooperate to resolve any such discrepancies as soon as reasonably
practicable.
1.4.2 (a) For each Business Day, the Company shall transmit to the
Transfer Agent Instructions received by the close of trading on the New York
Stock Exchange and shall transmit such Instructions without modification to the
Transfer Agent, except for netting and/or aggregation, via the NSCC's Defined
Contribution Clearing and Settlement ("DCC&S") Fund/SERV system no later than
5:00 A.M. Eastern Time on the next Business Day ("DCC&S Trade Date + 1").
Notwithstanding the foregoing, to the extent Instructions are not transmitted to
the Transfer Agent via the DCC&S Fund/SERV system, the Company shall notify the
Transfer Agent, and such Instructions shall be either (i) transmitted via
facsimile or (ii) resubmitted via the DCC&S Fund/SERV system by no later than
8:30 A.M. Eastern Time on DCC&S Trade Date + I. On each Business Day, the
Transfer Agent shall accept, and effect changes in its records upon receipt of
purchase, redemption and registration Instructions from the Company
electronically through DCC&S. On each Business Day, the Transfer Agent shall
accept for processing any Instructions from the Company and shall process such
Instructions in a timely manner.
(b) Transfer Agent shall perform any and all duties, functions, procedures
and responsibilities assigned to it under this Agreement and as otherwise
established by the NSCC. Transfer Agent shall conduct each of the foregoing
activities in a competent manner and in compliance with (a) all applicable laws,
rules and regulations, including NSCC Fund/SERV-DCCS rules and procedures
relating to Fund/SERV; (b) the then-current Prospectus of a Fund; and (c) any
provision relating to Fund/SERV in any other agreement of Transfer Agent that
would affect its duties and obligations pursuant to this Agreement.
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(c) Confirmed trades and any other information provided by Transfer Agent
to Company through Fund/SERV and pursuant to this Agreement shall be accurate,
complete, and in the format prescribed by the NSCC.
(d) Trade information provided by Company to Transfer Agent through
Fund/SERV and pursuant to this Agreement shall be accurate, complete and, in the
format prescribed by the NSCC. All Instructions by Company regarding each
Fund/SERV Account shall be true and correct and will have been duly authorized
by the registered holder.
1.5 Company shall provide the Funds and Transfer Agent with all
information necessary or appropriate to establish and maintain each transaction
for the purchase or redemption of Shares (and any subsequent changes to such
information), which the Company hereby certifies is and shall remain true and
correct. The Company shall maintain documents required by the Funds and/or
Transfer Agent to effect all such transactions. The Company certifies that all
Instructions delivered to Transfer Agent for any Business Day shall have been
received by the Company from the Plan or participants by the close of trading
(generally 4:00 p.m. ET) on the New York Stock Exchange on such Business Day and
that any Instructions received by it after the close of Trading for any given
Business Day will be transmitted to Transfer Agent on the next Business Day. In
connection with this Section 1.5, the Company represents and warrants that it
will not submit any order for redemptions or engage in any practice, nor will it
allow or suffer any person acting on its behalf to submit any order redemptions
or engage in any practice, that would violate or cause a violation of Section 22
of the 1940 Act or Rule 22c-1 thereunder. In connection with the foregoing, the
Company agrees to provide information, at the Transfer Agent's reasonable
request, on its late trading controls procedures, and the Company represents
that it has controls and procedures in place to prevent the acceptance of orders
or requests for redemption of shares of the Fund after the close of trading on
the New York Stock Exchange on a day on a day for trades that will be based on
the net asset value determined as of the close of trading on the New York Stock
Exchange on such day.
1.6 Issuance and transfer of the Fund's Shares will be by book entry
only. Certificates evidencing the Shares will not be issued to the Company or
the Account. Shares ordered from the Fund will be recorded in the appropriate
title for each Account or the appropriate subaccount of each Account.
1.7 Any material errors in the calculation of NAV, dividend and/or
capital gain information shall be reported to the Company as soon as practicable
after discovering the need for adjustment. All such Material errors and
adjustments will be corrected in accordance with the Fund's Pricing Procedures
as adopted by the Trustees of the Funds.
1.8 The Company understands and agrees that all redemption orders are
subject to any applicable short-term trading fees as set forth in the relevant
Fund prospectus ("STTFs"). The Company agrees, that it will collect all STTFs
due and owing to a Fund arising out of redemption orders received by the
Company. For this purpose, the parties agree that the Company shall not net
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or offset redemption orders by any purchase orders. The Company further agree
that it will remit such STTFs, or cause such STTFs to be remitted, to the
Distributor and/or the Transfer Agent in such manner as may be agreed upon by
the parties from time to time. The Company and further agree that it will
provide written assurances in such form that may be reasonably agreed upon by
the Company, the Transfer Agent, Distributor and/or the Trustees of the Funds,
no more than annually, that it has calculated, collected, and remitted all such
STTFs in conformity with the relevant Fund prospectus.
1.9 The Company further agree to reasonably cooperate with efforts by the
Distributor, the Transfer Agent and the Funds to monitor and eliminate market
timing and inappropriate short-term trading of the Funds through the Contracts.
With respect to monitoring, the Company shall apply its procedures as provided
in writing to the Distributor and/or the Transfer Agent (including any material
modifications to such criteria from time to time), which may differ from
monitoring criteria of the Fund. The Company understand that the Distributor,
the Transfer Agent and the Funds conduct their own monitoring of trading
activity and if potentially inappropriate trading is suspected and not corrected
by the Company after notification from the Distributor or the Transfer Agent,
the Distributor, the Transfer Agent or the Funds may immediately suspend all
Fund purchases through the Company. Company shall provide Distributor, Transfer
Agent and/or the Funds, on an annual basis, with a certification that Company
is in compliance with the obligations set forth in this Section 1.9.
ARTICLE II
OBLIGATIONS OF THE PARTIES
2.1 The Fund shall prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of the Fund.
The Fund shall bear the costs of registration and qualification of its Shares,
preparation and filing of the documents listed in this Section 2.1.
2.2 Xxxxxx shall provide the Company (at Xxxxxx'x expense) with as many
copies of the Fund's current prospectus, annual report, semi-annual report and
other shareholder communications, including any amendments or supplements to any
of the foregoing, as the Company shall request for existing Contract owners for
whom Shares are held by an Account. Xxxxxx shall provide the Company (at the
Company's expense) with as many copies of the Fund's current prospectus,
including any amendments or supplements thereto, as the Company shall request
for prospective purchasers of Contracts. If requested by the Company in lieu
thereof, Xxxxxx shall provide the Company with a camera ready copy of such
documents in a form suitable for printing (at the Company's expense, except that
Xxxxxx will bear the commercially reasonable, prorated cost of printing the
Fund's prospectus in this format for existing Contract owners up to an amount
the Fund would pay on a per copy basis for its own prospectus). Xxxxxx shall
provide the Company with a copy of its statement of additional information in a
form suitable for duplication by the Company. Xxxxxx (at its expense) shall
provide the Company with copies of any Fund-sponsored proxy materials in such
quantity as the
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Company shall reasonably require for distribution to Contract owners. Xxxxxx
shall provide the materials described in this Section 2.2 within a reasonable
time prior to required printing and distribution of such materials.
2.3 (a) Xxxxxx shall bear the costs of distributing the Fund's prospectus,
statement of additional information, shareholder reports and other shareholder
communications to Contract owners of and applicants for policies for which the
Fund is serving or is to serve as an investment vehicle. Xxxxxx shall bear the
costs of distributing proxy materials (or similar materials such as voting
solicitation instructions) to Contract owners. The Company assumes sole
responsibility for ensuring that such materials are delivered to Contract owners
on a timely basis in accordance with applicable federal and state securities
laws.
(b) If the Company elects to include any materials provided by the Fund,
specifically prospectuses, statements of additional information, shareholder
reports and proxy materials, on its web site or in any other computer or
electronic format, the Company assumes sole responsibility for maintaining such
materials in the form provided by Xxxxxx and for promptly replacing such
materials with all updates provided by Xxxxxx.
2.4 The Company agrees and acknowledges that it has no rights to the names
and marks "Xxxxxx" and "Xxxxxx Investments" and that all use of any designation
comprised in whole or part of Xxxxxx or the names of the Fund (each a "Fund
Xxxx") under this Agreement shall inure to the benefit of the Fund and Xxxxxx.
Except as provided in Section 2.5, the Company shall not use any Fund Xxxx on
its own behalf or on behalf of the Accounts or Contracts in any registration
statement, advertisement, sales literature or other materials relating to the
Accounts or Contracts without the prior written consent of Xxxxxx. Upon
termination of this Agreement for any reason, the Company shall cease all use of
any Fund Xxxx as soon as reasonably practicable.
2.5 (a) The Company will provide Xxxxxx with at least one complete copy of
all prospectuses, statements of additional information, annual and semi-annual
reports, proxy statements, applications for exemptions, requests for no-action
letters, and all amendments or supplements to any of the above promptly after
the filing of each such document with the SEC or other regulatory authority
provided that the document relates to an Account and Contract that include the
Fund as one of the underlying funding vehicles for such Contract.
(b) Xxxxxx shall furnish, or shall cause to be furnished, to the Company
or its designee, each piece of sales literature or other promotional material in
which the Company, the Accounts or the Contracts are named, at least fifteen
Business Days prior to its use. No such material shall be used if the Company or
its designee reasonably objects to such use within fifteen Business Days after
receipt of such material. The Company shall furnish, or shall cause to be
furnished, to Xxxxxx or its designee, each piece of sales literature or other
promotional material in which the Fund or Xxxxxx is named, at least fifteen
Business Days prior to its use. No such material shall be used if Xxxxxx or its
designee reasonably objects to such use within fifteen Business Days after
receipt of such material.
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2.6 The Company and its affiliates shall not give any information or make
any representations or statements on behalf of the Fund or concerning Xxxxxx or
any of its affiliates in connection with the sale of the Contracts other than
information or representations contained in and accurately derived from the
registration statement, including the prospectus and statement of additional
information, for the Fund Shares (as such registration statement, prospectus and
statement of additional information may be amended or supplemented from time to
time), reports of the Fund, Fund-sponsored proxy statements, or in sales
literature or other promotional material approved by Xxxxxx or its designee,
except as required by legal process or regulatory authorities or with the
written permission of Xxxxxx or its designee.
2.7 Xxxxxx and its affiliates shall not give any information or make any
representations or statements on behalf of the Company or concerning the Company
or any of its affiliates, the Contracts or the Accounts other than information
or representations contained in and accurately derived from the registration
statement, including the prospectus and statement of additional information, for
the Contracts (as such registration statement, prospectus, and statement of
additional information may be amended or supplemented from time to time), or in
materials approved by the Company or its designee for distribution including
sales literature or other promotional materials; except as required by legal
process or regulatory authorities or with the written permission of the Company
or its designee.
2.8 So long as, and to the extent that the SEC interprets the 1940 Act to
require pass-through voting privileges for owners of variable annuity contracts,
the Company will provide pass-through voting privileges to Contract owners whose
cash values are invested, through the Accounts, in Shares of the Fund, and will
vote the Shares held in such Accounts in a manner consistent with voting
instructions timely received from Contract owners. Xxxxxx shall require all
Participating Insurance Companies to calculate voting privileges in the same
manner and the Company shall be responsible for assuring that the Accounts
calculate voting privileges in the manner established by the Fund. With respect
to each Account, the Company will vote Shares of the Fund held by the Account
and for which no timely voting instructions from Contract owners are received,
as well as Shares it owns that are held by that Account or directly, in the same
proportion as those Shares for which timely voting instructions are received.
The Company and its affiliates and agents will in no way recommend or oppose or
interfere with the solicitation of proxies for Fund Shares held by Contract
owners without the prior written consent of Xxxxxx, which consent may be
withheld in Xxxxxx'x sole discretion.
2.9 The Company shall adopt and implement procedures reasonably designed
to ensure that information concerning the Fund, Xxxxxx and/or its affiliates
that is intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners) ("broker
only materials") is so used, and neither the Fund, Xxxxxx nor any of its
affiliates shall be liable for any losses, damages or expenses relating to the
improper use of such broker only materials.
2.10 For purposes of Sections 2.6 and 2.7, the phrase "sales literature
or other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks
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such as the Internet or other electronic messages), sales literature (i.e., any
written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training materials or
other communications distributed or made generally available to some or all
agents or employees, registration statements, prospectuses, statements of
additional information, shareholder reports, and proxy materials and any other
material constituting sales literature or advertising under the FINRA rules, the
1933 Act or the 0000 Xxx.
2.11 Xxxxxx will 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 with respect to the Fund's registration statement under the 1933
Act or the Fund prospectus; (ii) any request by the SEC for any amendment to
such registration statement or the Fund prospectus that may affect the offering
of Shares of the Fund to the Account; or (iii) the initiation of any proceedings
for that purpose or for any other purpose relating to the registration or
offering of the Fund's Shares; or (iv) if Xxxxxx receives notice that any
applicable law precludes the use of such Shares as an underlying investment
medium of the Contracts issued or to be issued by the Company.
2.12 The Company will immediately notify the Fund of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or other
similar order with respect to each Account's registration statement under the
1933 Act relating to the Contracts or each Account prospectus; (ii) any request
by the SEC for any amendment to such registration statement or Account
prospectus that may affect the offering of Shares of the Fund; (iii) the
initiation of any proceedings for that purpose or for any other purpose relating
to the registration or offering of each Account's interests pursuant to the
Contracts; or (iv) any other action or circumstances that may prevent the lawful
offer or sale of said interests in any state or jurisdiction, including, without
limitation, any circumstances in which said interests are not registered and, in
all material respects, issued and sold in accordance with applicable state and
federal law. 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.
2.13 The Company provide Xxxxxx or its blue sky reporting vendor with
such reports as Xxxxxx shall reasonably conclude are necessary to enable the
Funds and Xxxxxx to comply with state blue sky requirements including, but not
limited to, a report indicating the number of Shares of each Fund purchased on
behalf of Contract owners resident in one or more states or other jurisdictions.
The Company agrees that such report shall be in compliance with, and such sales
shall be calculated in accordance with, each respective state's particular blue
sky laws.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 The Company represents and warrants (i) that it is an insurance
company duly organized and in good standing under the laws of the
[_______________] and has full corporate power,
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authority and legal right to execute, deliver and perform its duties and comply
with its obligations under this Agreement; (ii) that it has legally and validly
established and maintained each Account as a segregated asset account under such
law and the regulations thereunder; and (iii) that the Contracts comply in all
material respects with all other applicable federal and state laws and
regulations.
3.2 The Company represents and warrants that (i) each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered and each Account will remain registered as a unit investment trust in
accordance with the provisions of the 1940 Act unless an exemption from
registration is available; (ii) each registered Account does and will comply in
all material respects with the requirements of the 1940 Act and the rules
thereunder; (iii) each registered Account's 1933 Act registration statement
relating to the Contracts, together with any amendments thereto, will at all
times comply in all material respects with the requirements of the 1933 Act and
the rules thereunder; (iv) the Company will amend the registration statement for
its Contracts under the 1933 Act and for its registered Accounts under the 1940
Act from time to time as required in order to effect the continuous offering of
its Contracts or as may otherwise be required by applicable law; and (v) each
registered Account prospectus will at all times comply in all material respects
with the requirements of the 1933 Act and the rules thereunder.
3.3 The Company represents and warrants that the Contracts or interests
in the Accounts are or, prior to issuance, will be registered as securities
under the 1933 Act unless an exemption from registration is available. The
Company further represents and warrants that: (i) the Contracts will be issued
and sold in compliance in all material respects with all applicable federal and
state laws; (ii) the Contracts are currently treated as endowment, annuity or
life insurance contracts, under applicable provisions of the Code; (iii) the
Company complies with the Bank Secrecy Act, as amended by the USA PATRIOT Act,
and the regulations thereunder (AML laws), as applicable; and (iv) the Company
does not encourage or facilitate active trading.
3.4 The Company acknowledges that the Funds do not comply with Section
817(h) of the Code or the regulations thereunder. The Company represents and
warrants that the Contracts may invest in the Funds through the Account even
though the Funds do not comply with Section 817 of the Code or the regulations
thereunder
3.5 Xxxxxx represents and warrants that (i) the Fund does and will comply
in all material respects with the requirements of the 1940 Act and the rules
thereunder; (iii) that the Fund's 1933 Act registration statement, together with
any amendments thereto, will at all times comply in all material respects with
the requirements of the 1933 Act and rules thereunder; and (iv) that the Fund's
Prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
3.6 Xxxxxx represents and warrants that the Fund Shares offered and sold
pursuant to this Agreement shall be registered under the 1933 Act to the extent
required by the 1933 Act and the Fund shall be registered under the 1940 Act to
the extent required by the 1940 Act prior to any issuance or sale of such
Shares. The Fund shall amend its registration statement for its shares under the
1933 Act and itself under the 1940 Act from time to time as required in order to
effect the continuous offering of
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its Shares. The Fund shall register and qualify its Shares for sale in
accordance with the laws of the various states only if and to the extent deemed
advisable by the Fund.
3.7 Xxxxxx represents that each Fund intends to qualify as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as
amended, (the "Code") and that it will make every effort to maintain such
qualification (under Subchapter M or any successor or similar provision) and
that it will notify the Company promptly upon having a reasonable basis for
believing that a Fund has ceased to so qualify.
3.8 Certain classes of the Fund's Shares intend to make payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act (the
"12b-1 Plan"). Xxxxxx represents that the 12b-1 Plan for each class of each
applicable Fund has as of the date this Agreement been approved by the Trustees.
Any distribution payments made by the Distributor with respect to the Funds
shall be in accordance with, and pursuant to, that certain Dealer Sales Contract
and Dealer Service Agreement dated as of January 7, 2002 by and between
Distributor and OneAmerica Securities, Inc.
3.9 Xxxxxx represents and warrants that the Fund's Trustees, officers and
employees are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Fund in an amount not
less than the minimal coverage as required currently by Rule 17g-(1) under the
1940 Act or related provisions as may be promulgated from time to time. The
aforesaid Bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
3.10 Each of the Parties represents and warrants that it shall perform
its obligations hereunder in compliance with any applicable state and federal
laws.
ARTICLE IV
CONTRACT HOLDER INFORMATION
4.1 Agreement to Provide Contract Holder Information Pursuant to Rule
22c-2 under the 1940 Act
(a) Company agrees to provide the Fund, Transfer Agent and/or Distributor,
upon written request, the taxpayer identification number ("TIN") (or in the case
of non-U.S Contract holders, if the TIN is unavailable, the International
Taxpayer Identification Number or other government issued identifier ("ITIN"))
of any or all Contract holders and the amount, date, name or other identifier of
any investment professional(s) associated with the Contract holder(s) or
account(s) (if known), and transaction type (purchase, redemption, transfer or
exchange) of every purchase, redemption, transfer or exchange of shares of the
Fund(s) held through one or more account(s) maintained by the Company during the
period covered by the request ("transaction information").
(b) Requests must set forth a specific period, not to exceed ninety (90)
business days from the date of the request, for which transaction information is
sought. The Fund, Transfer Agent and/or Distributor may request transaction
information older than ninety
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(90) business days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares of
the Fund.
(c) The Company agrees to transmit the requested transaction information
that is on its books and records to the Fund, Transfer Agent and/or Distributor
promptly, but in any event not later than five (5) business days after receipt
of a request. If the requested transaction information is not on the Company's
books and records, the Company agrees to use its best efforts to: (i) provide or
arrange to provide to the Fund the requested transaction information from
Contract holders who hold an account with an indirect intermediary; or (ii) if
directed by the Fund, Transfer Agent and/or Distributor block further purchases
of shares of the Fund(s) from such indirect intermediary. In such instance, the
Company agrees to inform the Fund whether it plans to perform (i) or (ii).
Responses required by this paragraph must be communicated in writing and in a
format mutually agreed upon by the parties. To the extent practicable, the
format for any transaction information provided to the Fund should be consistent
with the NSCC Standardized Data Reporting Format. For purposes of this
provision, an "indirect intermediary" has the same meaning as in Rule 22c-2
under the 1940 Act.
4.2 Agreement to Restrict Trading; Instructions; Confirmations
(a) Company agrees to execute written instructions from the Fund, Transfer
Agent and/or Distributor to restrict or prohibit further purchases or exchanges
of shares of the Fund(s) by a Contract holder that has been identified by the
Fund, Transfer Agent and/or Distributor as having engaged in transactions of
Fund shares (directly or indirectly through the Company's account) that violate
market timing or frequent trading policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
shares issued by the Fund.
(b) Instructions must include the TIN or ITIN, as applicable, and if
known, the specific restrictions(s) to be executed. If the TIN or ITIN is not
known, the instructions must include an equivalent identifying number of the
Contract holder(s) or account(s) or other agreed upon information to which the
instruction relates.
(c) The Company agrees to execute instructions as soon as reasonably
practicable, but not later than five (5) business days after receipt of the
instructions by the Company.
(d) The Company must provide written confirmation to the Fund, Transfer
Agent and/or Distributor that instructions have been executed. The Company
agrees to provide confirmation as soon as reasonably practicable, but not later
than ten (10) business days after the instructions have been executed.
4.3 Limitations on Use of Information. The Fund and Xxxxxx agree not to
use any transaction information received from the Company solely pursuant to
this Agreement for marketing
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or any other similar purpose without the prior written consent of the Company,
except where it is required to do so under law, rule, or regulation.
ARTICLE V
INDEMNIFICATION
5.1 Indemnification By the Company. The Company agrees to indemnify and
hold harmless the Fund, Xxxxxx, its affiliates and each of its Trustees,
officers, employees and agents and each person, if any, who controls the Fund,
Xxxxxx or any of its affiliates within the meaning of Section 15 of the 1933 Act
(collectively, the "Fund Indemnified Parties" for purposes of this Article V)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Company) or expenses (including
the reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Fund Indemnified
Parties may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in a registration statement or
prospectus for the Contracts or in the Contracts themselves or in advertising or
sales literature for the Contracts (or any amendment or supplement to any of the
foregoing) (collectively, "Company Documents" for the purposes of this Article
V), or arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this indemnity shall not
apply as to any Fund Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and was accurately
derived from written information furnished to the Company or its affiliates by
or on behalf of Xxxxxx or its affiliates for use in Company Documents or
otherwise for use in connection with the sale of the Contracts or Fund Shares;
or
(b) arise out of or result from statements or representations (other than
statements or representations contained in and accurately derived from Fund
Documents as defined in Section 5.2(a)) or the negligent or wrongful conduct of
the Company, or persons under its control (including, without limitation, its
employees), in connection with the sale or distribution of the Contracts or Fund
Shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Fund Documents as defined in Section
5.2(a) or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Fund or its
affiliates by or on behalf of the Company or its affiliates; or
(d) arise out of or result from any failure by the Company to perform the
obligations, provide the services or furnish the materials required under the
terms of this Agreement; or
-13-
(e) arise out of or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of or result
from any other material breach of this Agreement by the Company.
5.2 Indemnification By Xxxxxx. Xxxxxx agrees to indemnify and hold
harmless the Company, its affiliates and each of its directors, officers,
employees and agents and each person, if any, who controls the Company or any of
its affiliates within the meaning of Section 15 of the 1933 Act (collectively,
the "Company Indemnified Parties" for purposes of this Article V) against any
and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Fund) or expenses (including the
reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection
therewith) (collectively, "Losses"), to which the Company Indemnified Parties
may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements of any material
fact contained in the registration statement or prospectus for the Fund or in
advertising or sales literature for the Fund (or any amendment or supplement to
any of the foregoing), (collectively, "Fund Documents" for the purposes of this
Article V), 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, provided that this indemnity shall not apply as to any
Company Indemnified Party if such statement or omission was made in reliance
upon and was accurately derived from written information furnished to the Fund
or its affiliates by or on behalf of the Company or its affiliates for use in
Fund Documents or otherwise for use in connection with the sale of the Contracts
or Fund Shares; or
(b) arise out of or result from statements or representations (other than
statements or representations contained in and accurately derived from Company
Documents) or the negligent or wrongful conduct of Xxxxxx or persons under their
control (including, without limitation, their employees), in connection with the
sale or distribution of the Fund Shares to the Account; or
(c) arise out of or result from any untrue statement of a material fact
contained in Company Documents or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Company or its
affiliates by or on behalf of the Fund, Xxxxxx or their affiliates; or
(d) arise out of or result from any failure by Xxxxxx to perform the
obligations, provide the services or furnish the materials required under the
terms of this Agreement;
(e) arise out of or result from any material breach of any representation
and/or warranty made by Xxxxxx in this Agreement or arise out of or result from
any other material breach of this Agreement by Xxxxxx; or
-14-
(f) arise out of the failure of the Fund to qualify as a "regulated
investment company" under Subchapter M of the Code.
5.3 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any Losses incurred or
assessed against a Fund Indemnified Party or a Company Indemnified Party, as
applicable (as to each, an "Indemnified Party") to the extent the Losses arise
from such Indemnified Party's willful misfeasance, bad faith or negligence in
the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
5.4 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the Party
against whom Indemnification is sought (the "Indemnifying Party") in writing
within a reasonable time after the summons, or other first written notification,
giving information of the nature of the claim that shall have been served upon
or otherwise received by such Indemnified Party (or after such Indemnified Party
shall have received notice of service upon or other notification to any
designated agent), but failure to notify the Indemnifying Party of any such
claim shall not relieve such Indemnifying Party from any liability which it may
have to the Indemnified Party in the absence of Sections 5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties,
the Indemnifying Party shall be entitled to participate, at its own expense, in
the defense of such action. The Indemnifying Party also shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the Party
named in the action. After notice from the Indemnifying Party to the Indemnified
Party of an election to assume such defense, the Indemnified Party shall
cooperate with the Indemnifying Party and bear the fees and expenses of any
additional counsel retained by it, and the Indemnifying Party will not be liable
to the Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection with
the defense thereof other than reasonable costs of investigation.
ARTICLE VI
CONFIDENTIALITY
6.1 Xxxxxx acknowledges that the identities of the customers of Company
or any of its affiliates (collectively, the "Company Protected Parties" for
purposes of this Article VI), information maintained regarding those customers,
and all computer programs and procedures or other information developed by the
Company Protected Parties or any of their employees or agents in connection with
Company's performance of its duties under this Agreement are the valuable
property of the Company Protected Parties. Xxxxxx agrees that if it comes into
possession of any list or compilation of the identities of or other information
about the Company Protected Parties' customers, or any other information or
property of the Company Protected Parties, other than such information as may be
independently developed or compiled by Xxxxxx from information supplied to it by
the Company Protected Parties' customers who also maintain accounts directly
with Xxxxxx, Xxxxxx will hold such information or property in confidence and
refrain from using, disclosing or distributing any of such information or other
property except: (a) with Company's prior written consent; or (b) as required by
-15-
law or judicial process. The Company acknowledges that the identities of the
customers of the Fund or any of its affiliates (collectively, the "the Fund
Protected Parties" for purposes of this Article VI), information maintained
regarding those customers, and all computer programs and procedures or other
information developed by the Fund Protected Parties or any of their employees or
agents in connection with the Fund's performance of its duties under this
Agreement are the valuable property of the Fund Protected Parties. The Company
agrees that if it comes into possession of any list or compilation of the
identities of or other information about the Fund Protected Parties' customers
or any other information or property of the Fund Protected Parties, other than
such information as may be independently developed or compiled by Company from
information supplied to it by the Fund Protected Parties' customers who also
maintain accounts directly with the Company, the Company will hold such
information or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with Xxxxxx'x
prior written consent; or (b) as required by law or judicial process. Each Party
acknowledges that any breach of the agreements in this Article VI would result
in immediate and irreparable harm to the other Party for which there would be no
adequate remedy at law and agree that in the event of such a breach, the other
Party will be entitled to equitable relief by way of temporary and permanent
injunctions, as well as such other relief as any court of competent jurisdiction
deems appropriate.
ARTICLE VII
TERMINATION
7.1 (a) This Agreement may be terminated by either Party for any reason
by ninety (90) days advance written notice delivered to the other Party.
(b) This Agreement may be terminated by the Company immediately upon
written notice to Xxxxxx with respect to any Fund:
(i) based upon the Company's determination that Shares of such Fund
are not reasonably available to meet the requirements of the Contracts; or
(ii) in the event any of the Fund's Shares are not registered, and
in all material respects issued or sold in accordance with applicable
state and/or federal law or such law precludes the use of such Shares as
the underlying investment media of the Contracts issued or to be issued by
the Company; or
(iii) upon Xxxxxx'x breach of any material provision of this
Agreement, which breach has not been cured to the satisfaction of the
Company within thirty days after written notice of such breach is
delivered to the Fund;
(iv) in the event that such Fund ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any successor
or similar provision, or if the Company reasonably believes that the Fund
may fail to so qualify; or
(c) This Agreement may be terminated immediately by the Fund or Xxxxxx
upon:
-16-
(i) the Company's breach of any material provision of this
Agreement, which breach has not been cured to the satisfaction of the Fund
within ten days after written notice of such breach is delivered to the
Company; or
(ii) if upon Xxxxxx'x sole judgment exercised in good faith that
federal or state securities laws preclude the use of Fund Shares as an
underlying investment vehicle of the Contracts.
(d) This Agreement will terminate as to a Fund upon at least ninety (90)
days advance written notice:
(i) at the option of Xxxxxx upon institution of formal proceedings
against the Company by FINRA, the SEC, or any state securities or
insurance department or any other regulatory body if Xxxxxx shall
determine, in its sole judgment exercised in good faith, that the Company
has suffered a material adverse change in its business, operations,
financial condition, or prospects since the date of this Agreement or is
the subject of material adverse publicity; or
(ii) at the option of the Company upon institution of formal
proceedings against the Fund, Transfer Agent or Distributor by FINRA, the
SEC, or any state securities or insurance department or any other
regulatory body if the Company shall determine, in its sole judgment
exercised in good faith, that the Fund, Transfer Agent or Distributor has
suffered a material adverse change in its business, operations, financial
condition, or prospects since the date of this Agreement or is the subject
of material adverse publicity.
7.2 Notwithstanding any termination of this Agreement under Section 7.1,
Xxxxxx shall, at the option of the Company, continue to make available
additional Shares of the Fund for at least ninety days, pursuant to the terms
and conditions of this Agreement, for all Contracts in effect on the effective
date of termination of this Agreement, provided that the Company continues to
pay the costs set forth in Section 2.3 and meet all obligations of the Company
under this Agreement (treating it as being in full force and effect), and
further provided that Shares of the Fund shall only be required to be made
available with respect to owners of the Contracts for whom Shares are held by an
Account on the effective date of the termination. Such Contract owners will be
permitted to reallocate investments in the Fund and/or invest in the Fund upon
the making of additional purchase payments under the Contracts. The provisions
of this Section 7.2 shall not apply in the event Xxxxxx determines to liquidate
the Fund and end the Fund's existence.
7.3 The provisions of Articles V and VI shall survive the termination of
this Agreement, and the provisions of Articles II shall survive the termination
of this Agreement so long as Shares of the Fund are held on behalf of Contract
owners in accordance with Section 7.2.
7.4 This Agreement will terminate as to a Fund immediately at the option
of the Fund if interests in an Account under the Contracts are not registered,
or, in all material respects, are not issued or sold in accordance with any
applicable federal or state law, upon prior written notice which shall be given
as soon as possible within twenty-four (24) hours after the Fund learns of the
event.
-17-
7.5 The Parties hereto agree to cooperate and give reasonable assistance
to one another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Fund after the effective date of
this Agreement's termination with respect to such Shares or, if such ownership
following termination cannot be avoided, that the duration thereof is as brief
as reasonably practicable. Such steps may include, for example, combining the
affected Account with another Account, substituting other Fund shares for those
of the affected Fund, or otherwise terminating participation by the Contracts in
such Fund.
ARTICLE VIII
NOTICES
Any notice shall be sufficiently given when sent by registered or certified mail
to the other Party at the address of such Party set forth below or at such other
address as such Party may from time to time specify in writing to the other
Party.
If to Xxxxxx: Xxxxxx Investments
Xxx Xxxx Xxxxxx Xxxxxx, X-00
Xxxxxx, XX 00000
Attention: IO Legal/Compliance
If to the Company: American United Life Insurance Company, Inc.
OneAmerica Securities, Inc.
[insert contact information]
ARTICLE IX
MISCELLANEOUS
9.1 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.
9.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
9.3 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.
9.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of Commonwealth of
Massachusetts without regard for that state's principles of conflict of laws and
to the extent not pre-empted by ERISA.
9.5 Each Party shall cooperate with each other Party and all appropriate
governmental authorities (including without limitation the SEC, FINRA, and state
insurance regulators) and shall
-18-
permit such authorities reasonable access to its books and records in connection
with any investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
9.6 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.
9.7 The Parties acknowledge and agree that this Agreement shall not be
exclusive in any respect.
9.8 Neither this Agreement nor any of its rights or obligations hereunder
may be assigned by any Party without the prior written approval of the other
Party; provided however that Xxxxxx may assign its right and obligations
hereunder to an affiliate.
9.9 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
Parties hereto.
-19-
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers to
execute this Agreement as of the date and year first above written.
XXXXXX RETAIL MANAGEMENT LIMITED
PARTNERSHIP
By:
------------------------
Name:
Title:
XXXXXX INVESTOR SERVICES, INC.
By:
------------------------
Name:
Title:
AMERICAN UNITED LIFE INSURANCE
COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
ONEAMERICA SECURITIES, INC.
By:
------------------------
Name:
Title:
-20-
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
NAME OF SEPARATE ACCOUNT AND POLICIES/CONTRACTS FUNDED
DATE ESTABLISHED BY BOARD OF DIRECTORS BY SEPARATE ACCOUNT
SCHEDULE B
PARTICIPATING FUNDS
