PARTICIPATION AGREEMENT
Between
FIDELITY DISTRIBUTORS CORPORATION
and
AMERICAN UNITED LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of this 30th day of April, 2003,
by and between AMERICAN UNITED LIFE INSURANCE COMPANY, (hereinafter he
"Company"), a Indiana corporation, on its own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A hereto, as may
be amended from time to time, (each such account hereinafter referred to as an
"Account" and collectively as the "Accounts"), and FIDELITY DISTRIBUTORS
CORPORATION (hereinafter the "Underwriter"), a Massachusetts corporation.
WHEREAS, each Fund set forth on Schedule A hereto (which may be amended
from time to time by mutual written consent) engages in business as an open-end
management investment company.
WHEREAS, the beneficial interest in any Fund may be divided into several
series of shares, each designated a "Portfolio" as set forth in Schedule A and
representing the interest in a particular managed portfolio of securities and
other assets; and
WHEREAS, the Company has established the Accounts, to serve as investment
vehicles for the group annuity contracts offered by the Company set forth on
Schedule A (which may be amended from time to time by mutual written consent)
("Contracts"). Selection of a particular investment company is made by the owner
of a Contract ("Contract Owner") in accordance with the provisions of the
applicable Contract; and
WHEREAS, the Underwriter is registered as a broker/dealer with the
Securities and Exchange Commission (the "SEC") under the Securities Exchange Act
of 1934, as amended, (hereinafter the "1934 Act"), and is a member in good
standing of the National Association of Securities Dealers, Inc. (hereinafter
"NASD"); and
WHEREAS, to the extent permitted by applicable securities and insurance
laws and regulations, the Company intends to purchase shares in the Portfolios
on behalf of each Account to fund certain of the aforesaid variable annuity
contracts.
NOW, THEREFORE, in consideration of their mutual promises, the Company and
the Underwriter agree as follows:
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ARTICLE I. Sale of Fund Shares
1.1. The Underwriter agrees to make available shares of the Portfolios
indefinitely for purchase at the applicable net asset value per share next
computed in accordance with the then current prospectus for the applicable Fund
after receipt by the applicable Fund of the order for purchase by the Company
and its Accounts on those days on which the applicable Fund calculates its net
asset value pursuant to rules of the SEC; provided that the Company qualifies
for any sales load waiver described in the then current prospectus for such
Portfolio. For purposes of Sections 1. l and 1.2, the Company shall be the agent
of the Funds for the limited purpose of accepting orders of purchase and
redemption for shares of the Funds on behalf of the Accounts, and receipt by the
Company shall therefore constitute receipt by the Fund of such orders for
purposes of determining the net asset value at which such orders will be
executed, so long as the requirements of the rest of this paragraph are met.
Beginning within three months of the effective date of this Agreement, the
Company agrees that orders for the purchase or redemption of shares of the Funds
on behalf of the Accounts will be placed directly by the Company with the Funds
or their transfer agent by electronic transmission. Company shall transmit
orders directly to the Funds or their designee(s) by 6:30 a.m. Eastern Time of
the calendar day next following the Business Day (NOT the next Business Day) on
which the Order was accepted by Company (provided again that the Company's
orders shall reflect only orders it receives from owners of Contracts or
participants under Contracts prior to 4:00 p.m. Eastern Time). The Funds will
execute purchase and redemption orders at the net asset value determined as of
the close of trading on the day of receipt of such orders by the Company,
provided that such orders are received by the Funds by 6:30 a.m. Eastern Time of
the calendar day next following the Business Day (NOT the following Business
Day) on which the Order was accepted by Company AND payment for such orders is
received by the Funds no later than the close of the Fedwire system on the
Business Day following the day on which purchase instructions are treated as
having been received by the Funds. "Business Day" shall mean any day the New
York Stock Exchange is open for trading. Payment for net purchases shall be
federal funds transmitted by wire by the Company to a custodial account
designated by the Funds. Likewise, orders for net redemptions of shares of the
Funds will be wired from the Funds' custodial account to an account designated
by the Company. Upon receipt by a Fund of the federal funds so wired, for
purposes of Section 2.6 such funds shall cease to be the responsibility of the
Company and shall become the responsibility of the Fund.
The Funds shall use reasonable efforts to calculate such net asset value on each
day that the New York Stock Exchange is open for trading and to make their net
asset values available to the Company by 7 p.m. Boston time. Notwithstanding the
foregoing, the Board of Trustees of the Funds (hereinafter the "Board") may
refuse to sell shares of any Portfolio to any person, or suspend or terminate
the offering of shares of any Portfolio if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole discretion of the
Board acting in good faith and in light of their fiduciary duties under federal
and any applicable state laws, necessary in the best interests of the
shareholders of such Portfolio.
1.2. Each Fund, on behalf of its Portfolios, agrees to redeem for cash, on
the Company's request, any full or fractional shares of the Portfolios held by
the Company, executing such requests on a daily basis at the net asset value
next computed in accordance with the then current prospectus for the applicable
Fund after receipt by the applicable Fund of the request for redemption.
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1.3. [Intentionally deleted.]
1.4. Issuance and transfer of the Portfolios' shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Portfolios will be recorded in an appropriate title for
each Account or the appropriate subaccount of each Account.
1.5. The Funds shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income, dividends or
capital gain distributions payable on the Fund's shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on the Portfolio shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Funds shall notify
the Company of the number of shares so issued as payment of such dividends and
distributions.
1.6 The Company shall not redeem Fund shares attributable to the Contracts
(as opposed to shares attributable to the Company's assets held in the Account)
except (i) as necessary to implement Contract Owner or plan participant
initiated or approved transactions, or (ii) as required by state and/or federal
laws or regulations or judicial or legal precedent of general application
(hereinafter referred to as "Legally Required Redemptions"). Upon request, the
Company will promptly furnish to the Underwriter the opinion of counsel for the
Company (which counsel shall be reasonably satisfactory to the Underwriter) to
the effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts or the plans funded thereby, the Company shall not
prevent Contract Owners or plan participants, as the case may be, from
allocating payments to a Fund that was otherwise available under the Contracts
or the plans, as appropriate, without first giving the Underwriter 90 days
notice of its intention to do so.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered under the Securities Act of 1933 ("1933 Act") or are exempt from
registration thereof; that the Contracts will be issued and sold in compliance
in all material respects with all applicable Federal and State laws and that the
sale of the Contracts shall comply in all material respects with state insurance
suitability requirements. The Company further represents and warrants that it is
an insurance company duly organized and in good standing under applicable law
and that it has legally and validly established each Account prior to any
issuance or sale thereof as a segregated asset account under Section 27-1-5-1 of
the Indiana Insurance Code and that each Account either (1) is or will be
registered as a unit investment trust in accordance with the provisions of the
Investment Company Act of 1940 (" 1940 Act") to serve as a segregated investment
account for the Contracts or (2) is both (a) not required to register as an
investment company under the 1940 Act, and (b) is not subject to treatment as an
investment company for purposes of Section 12(d) of the 1940 Act.
2.2. The Underwriter represents that each Fund is currently qualified 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
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provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that any Fund ceased to so qualify or might not
so qualify in the future.
2.3. The Company represents that the Contracts are currently treated as
annuity contracts under applicable provisions of the Code and that it will make
every effort to maintain such treatment and that it will notify the Underwriter
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future.
2.4. The Underwriter makes no representation as to whether any aspect of
any Fund's operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or regulations of the
various states.
2.5. The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that: (a) it will sell and distribute the Fund
shares in accordance with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 1940 Act; and
(b) the Funds will be registered under the 1933 and 1940 Acts, and duly
authorized for issuance in compliance with all applicable federal and state
securities laws.
2.6. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Funds are and shall continue to be at
all times covered by a blanket fidelity bond or similar coverage for the benefit
of the Funds, in an amount not less than the minimum coverage as required
currently of entities subject to the requirements of Rule 17g-1 of 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.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. Unless otherwise required or permitted by applicable federal law, the
Company will distribute to Contract owners all proxy material furnished by the
Funds and will vote Portfolio shares in accordance with instructions received
from those Contract owners with Contract values allocated to Portfolio shares.
The Company shall vote Portfolio shares for which no instructions have been
received in the same proportion as shares for which such instructions have been
received from Contract owners. The Company and its agents will in no way
recommend action in connection with or oppose or interfere with the solicitation
of proxies for Portfolio shares held by Contract owners. The Company reserves
the right to vote Fund shares held in its segregated asset accounts in its own
name to the extent permitted by applicable law.
ARTICLE TV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the
Underwriter or its designee, each piece of sales literature or other promotional
material in which any Fund or its investment adviser or the Underwriter is
named, at least fifteen Business Days prior to its use. No such material
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shall be used if the Underwriter or its designee objects to such use within
fifteen Business Days after receipt of such material.
4.2. The Company shall not give any information or make any representations
or statements on behalf of any Fund or concerning any Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus for such Fund shares, as
such registration statement and prospectus may be amended or supplemented from
time to time, or in reports or proxy statements for such Fund, or in sales
literature or other promotional material approved by the Underwriter or its
designee, except with the permission of the Underwriter or its designee.
4.3. Sales literature in which any Fund or its investment advisor is named
shall be submitted to the SEC or NASD for review as required by applicable law.
Copies of any comments received shall be sent to the Underwriter or its
designee.
4.4. The Underwriter or its designee, at its expense, 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 or any Account is
named, at least fifteen Business Days prior to its use. No such material shall
be used if the Company or its designee objects to such use within fifteen
Business Days after receipt of such material.
4.5. The Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, any Account,
the Contracts other than the information or representations in sales literature
or other promotional material approved by the Company or its designee, except
with the permission of the Company.
4.6. The Company, at its expense, will provide to the Underwriter at least
one complete copy of all registration statements, prospectuses, Statements of
Additional Information, reports, solicitations for voting instructions,
applications for exemptions, requests for no action letters, and all amendments
to any of the above, that relate to the Contracts or any Account,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
4.7. Upon Company's request, the Underwriter, at its expense, will provide
to the Company at least one complete copy of all registration statements,
prospectuses, SAIs, reports, proxy statements, sales literature and other
promotional materials sent to all shareholders, and all amendments to any of the
above, that relate to the Funds or their shares.
4.8. For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media), sales literature
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and
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registration statements, prospectuses, Statements of Additional Information,
shareholder reports, and proxy materials.
ARTICLE V. Fees and Expenses
5.1. The Underwriter shall pay no fee or other compensation to the Company
under this agreement, except that if a Fund or any Portfolio adopts and
implements a plan pursuant to Rule 12b-1 to finance distribution expenses, then
the Underwriter may make payments to the Company or to the underwriter for the
Contracts if and in amounts agreed to by the Underwriter in writing and such
payments will be made out of existing fees otherwise payable to the Underwriter,
past profits of the Underwriter or other resources available to the Underwriter.
5.2. The parties will enter into a Selling Dealer Agreement ("SDA")
contemporaneously with this Participation Agreement, a copy of which is attached
hereto for reference as Schedule D, and the parties mutually agree that the SDA,
as amended from time to time, shall apply to the printing and distribution of
Fund prospectuses and to the printing and solicitation of Fund proxies, except
as otherwise provided herein. Each Fund shall bear the expenses for the cost of
registration and qualification of its shares, preparation and filing of its
prospectus and registration statement, proxy materials and reports. The
Underwriter shall provide to the Company one copy for each Account of each
Fund's prospectus, proxy materials and reports. Company represents and warrants
that it will comply with all applicable legal requirements regarding the
delivery and availability of Fund prospectuses, shareholder reports and proxy
materials to Contract owners and/or plan participants, and will bear the costs
of distributing such materials.
ARTICLE VI. Indemnification
6.1. Indemnification by the Company
6.1(a). The Company agrees to indemnify and hold harmless each Fund
and each trustee of the Board and officers and each person, if any, who
controls any Fund within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 6.1)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company) or litigation
(including legal and other expenses), to which the Indemnified Parties may
become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale or
acquisition of any Fund's shares or of the Contracts and arise out of or
result from or are based upon:
(i) any untrue statements or alleged untrue statements of any
material fact contained in the Registration Statement or prospectus
for the Contracts or contained in the Contracts or sales literature
for the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not apply
as to any
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Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of any Fund for
use in the Registration Statement or prospectus for the Contracts or
in the Contracts or sales literature (or any amendment or supplement
thereto) or otherwise for use in connection with the sale of the
Contracts or any Fund shares; or
(ii) statements or representations (other than statements or
representations contained in the Registration Statement, prospectus or
sales literature of any Fund not supplied by the Company, or persons
under its control) or wrongful conduct of the Company or persons under
its control, with respect to the sale or distribution of the Contracts
or any Fund Shares; or
(iii) untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement, prospectus, or sales literature
of any Fund or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance upon
information furnished to the Underwriter by or on behalf of the
Company; or
(iv) failure by the Company to provide the services and furnish the
materials under the terms of this Agreement; or
(v) material breach of any representation and/or warranty made by the
Company in this Agreement or any other material breach of this
Agreement by the Company.
6.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation expenses to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of his or her duties or by
reason of his or her disregard of obligations or duties under this
Agreement. The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Company of any such claim shall not relieve the Company from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the
Company shall be entitled to participate, at its own expense, in the
defense of such action. The Company also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Company to such party of the Company's
election to assume the defense thereof, the Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
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6.1(c). The Indemnified Parties will promptly notify the Company of
the commencement of any litigation or proceedings against them in
connection with the issuance or sale of any Fund's Shares or the Contracts
or the operation of any Fund.
6.2. Indemnification by the Underwriter
6.2(a). The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 6.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Underwriter) or
litigation (including legal and other expenses) to which the Indemnified
Parties may become subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale or
acquisition of any Fund's shares or the Contracts and arise out of or
result from or are based upon any:
(i) untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or prospectus or sales
literature of any Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not apply
as to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in
conformity with information furnished to the Underwriter by or on
behalf of the Company for use in the Registration Statement or
prospectus for any Fund or in sales literature (or any amendment or
supplement thereto) or otherwise for use in connection with the sale
of the Contracts or any Fund shares; or
(ii) statements or representations (other than statements or
representations contained in the Registration Statement, prospectus or
sales literature for the Contracts not supplied by the Underwriter or
persons under its control) or wrongful conduct of any Fund, or
Underwriter or persons under their control, with respect to the sale
or distribution of the Contracts or any Fund shares; or
(iii) untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement, prospectus, or sales literature
covering the Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to the
Company by or on behalf of any Fund; or
(iv) failure by any Fund to provide the services and furnish the
materials under the terms of this Agreement; or
(v) material breach of any representation and/or warranty made by the
Underwriter in this Agreement or any other material breach of this
Agreement by the Underwriter.
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6.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation expenses to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of his or her duties or by
reason of his or her disregard of obligations or duties under this
Agreement. The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Underwriter in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but failure
to notify the Underwriter of any such claim shall not relieve the
Underwriter from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Underwriter will be entitled to participate, at
its own expense, in the defense thereof. The Underwriter also shall be
entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Underwriter to such party
of the Underwriter's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and the Underwriter will not be liable to such
party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
6.2(c). The Company agrees promptly to notify the Underwriter of the
commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the
Contracts or the operation of any Account.
ARTICLE VII. Applicable Law
7.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
7.2. This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1. This Agreement shall continue in full force and effect until the first
to occur of:
(a) termination by any party for any reason on ninety (90) days' advance
written notice delivered to the other parties; or
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(b) termination by the Company by written notice to the Underwriter with
respect to any Portfolio based upon the Company's determination that
shares of such Portfolio are not reasonably available to meet the
requirements of the Contracts; or
(c) termination by the Company by written notice to the Underwriter with
respect to any Portfolio in the event any of the Portfolio's shares
are not registered, issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such shares as the
underlying investment media of the Contracts issued or to be issued by
the Company; or
(d) termination by the Company by written notice to the Underwriter with
respect to any Portfolio in the event that such Portfolio 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 such Fund may fail to so qualify; or
(e) termination by the Underwriter by written notice to the Company, in
its sole judgment exercised in good faith, that the Company and/or its
affiliated companies 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
(f) termination by the Company by written notice to the Underwriter, if
the Company shall determine, in its sole judgment exercised in good
faith, that the Underwriter 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.
8.2 Notwithstanding any termination of this Agreement, the Underwriter
shall, at the option of the Company, continue to make available additional
shares of the Funds pursuant to the terms and conditions of this Agreement, for
all Contracts in effect on the effective date of termination of this Agreement.
The provisions of Articles II (Representations and Warranties), VI
(Indemnification), VII (Applicable Law) and X (Miscellaneous), excluding section
10.8, shall survive termination of this Agreement. In addition, all other
applicable provisions of this Agreement shall survive termination as long as
shares of the Fund are held on behalf of Contract owners in accordance with this
section 8.2, except that the Underwriter shall have no further obligation to
make Fund shares available in Contracts issued after termination.
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ARTICLE IX. 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 the Underwriter:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
If to the Company:
Xxx Xxxxxxxx Xxxxxx, XX Xxx 000
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
ARTICLE X. Miscellaneous
10.1. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until after such time, if any, as it has come into the
public domain.
10.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
10.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.4. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
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10.6. 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.
10.7. This Agreement or any of the rights and obligations hereunder may not
be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Underwriter may assign this Agreement or any
rights or obligations hereunder to any affiliate of or company under common
control with the Underwriter, if such assignee is duly licensed and registered
to perform the obligations of the Underwriter under this Agreement.
10.8. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee copies of the following reports:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles ("GAAP")), as soon as practical and in any event
within 90 days after the end of each fiscal year;
(b) the Company's quarterly statements (statutory and GAAP), as soon as
practical and in any event within 45 days after the end of each
quarterly period;
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/ or policyholders, as soon as
practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial reports of
the Company filed with the Securities and Exchange Commission or any
state insurance regulator, as soon as practical after the filing
thereof;
(e) any other nonconfidential report submitted to the Company by
independent accountants in connection with any annual, interim or
special audit made by them of the books of the Company, as soon as
practical after the receipt thereof.
10.9. All persons dealing with any Fund must look solely to the property of
the Fund for the enforcement of any claims against the Fund as neither the
Board, officers, agents or shareholders of any Fund assume any personal
liability for obligations entered into or on behalf of the Fund.
12
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified below.
AMERICAN UNITED LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: VP Marketing
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxxxx Xxxxxxx 4-30-03
Xxxxxx Xxxxxxx
Executive Vice President
13
SCHEDULE A
Name and Date of Policy Form Numbers of Contracts Corresponding Mutual
Formation of Separate Account Issued Through Separate Account Fund or Fund Portfolio
AUL Group Retirement GRA 12 FA Equity Income,
Annuity Separate Account II FA Growth & Income, FA
03/31/2003 Mid Cap, FA Dynamic
Capital
Appreciation, FA Small
Cap, FA Diversified
International, FA
International Capital
Appreciation
AUL Unit Investment Trust GVA NAV FA Equity Income, FA
06/01/2003 Growth & Income, FA
Mid Cap, FA Dynamic
Capital Appreciation, FA
Small CAP, FA Diversified
International, FA
International Capital
Appreciation
# 331729 v2
