EXHIBIT (h)(5)(d)
AMENDMENT NUMBER 4 TO PARTICIPATION AGREEMENT
This AMENDMENT NO. 4 ("Amendment") executed as of ______, 2003 to the
PARTICIPATION AGREEMENT (the "USL Agreement") dated as of December 1, 1998, as
amended, among THE UNIVERSAL INSTITUTIONAL FUNDS, INC. (formerly XXXXXX XXXXXXX
UNIVERSAL FUNDS, INC.) (the "Fund"), XXX XXXXXX FUNDS, INC. ("VK Funds"),
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC. (formerly XXXXXX XXXXXXX XXXX XXXXXX
INVESTMENT MANAGEMENT INC.) (the "Adviser"), THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK (the "Company"), on its own behalf and on
behalf of each separate account of the Company identified in the USL Agreement
(as defined below), and AMERICAN GENERAL EQUITY SERVICES CORPORATION ("AGESC").
WHEREAS, the parties desire to amend the Agreement to (i) add to Schedule B
of the Agreement the Contracts of the Company relating to the Platinum Investor
PLUS Variable Life Insurance Policies ("Platinum Investor PLUS"), the Platinum
Investor Survivor II Variable Life Insurance Policies ("Platinum Investor
Survivor II"), the Platinum Investor III Variable Life Insurance Policies
("Platinum Investor III"), and the Platinum Investor IVA Immediate Variable
Annuity Policies ("Platinum Investor IVA"); and (ii) solely to the extent the
Agreement relates to Platinum Investor PLUS, Platinum Investor Survivor II,
Platinum Investor III, and Platinum Investor IVA, amend the provisions of
Article III of the Agreement as described below.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Schedule B to the Agreement, a revised copy of which is attached hereto,
is hereby amended and restated to add Platinum Investor PLUS, Platinum
Investor Survivor II, Platinum Investor III, and Platinum Investor IVA.
2. Solely to the extent the Agreement relates to Platinum Investor PLUS,
Platinum Investor Survivor II, Platinum Investor III, and Platinum
Investor IVA, Article III of the Agreement is hereby deleted and
replaced with the following:
"ARTICLE III. Prospectuses, Reports to Shareholders and Proxy
Statements; Voting
3.1. The Fund or its designee shall provide the Company with as many
printed copies of the Fund's current prospectus and statement of
additional information as the Company may reasonably request. If
requested by the Company, in lieu of providing printed copies the
Fund shall provide camera-ready film or computer diskettes
containing the Fund's prospectus and statement of additional
information, and such other assistance as is reasonably necessary
in order for the Company once each year (or more frequently if the
prospectus and/or statement of additional information for the Fund
is amended during the year) to have the prospectus for the
Contracts and the Fund's prospectus printed together in one
document or separately. The Company may elect to print the Fund's
prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and statements
of additional information.
3.2(a). Except as otherwise provided in this Section 3.2., all expenses of
preparing, setting in type and printing and distributing Fund
prospectuses and statements of additional information shall be the
expense of the Company. For prospectuses and statements of
additional information provided by the Company to its existing
owners of Contracts who own shares of the Fund in order to update
disclosure as required by the 1933 Act and/or the 1940 Act, the
cost of setting in type, printing and distributing shall be borne
by the Fund. If the Company chooses to receive camera-ready film or
computer diskettes in lieu of receiving printed copies of the
Fund's prospectus and/or statement of additional information, the
Fund shall bear the cost of typesetting to provide the Fund's
prospectus and/or statement of additional information to the
Company in the format in which the Fund is accustomed to formatting
prospectuses and statements of additional information,
respectively, and the Company shall bear the expense of adjusting
or changing the format to conform with any of its prospectuses
and/or statements of additional information. In such event, the
Fund will reimburse the Company in an amount equal to the product
of x and y where x is the number of such prospectuses distributed
to Participants who own shares of the Fund, and y is the Fund's per
unit cost of printing the Fund's prospectuses. The same procedures
shall be followed with respect to the Fund's statement of
additional information. The Fund shall not pay any costs of
typesetting, printing and distributing the Fund's prospectus and/or
statement of additional information to prospective Participants.
3.2(b). The Fund, at its expense, shall provide the Company with copies of
its proxy statements, reports to shareholders, and other
communications (except for prospectuses and statements of
additional information, which are covered in Section 3.2(a) above)
to shareholders in such quantity as the Company shall reasonably
require for distributing to Participants. The Fund shall not pay any
costs of distributing such proxy-related material, reports to
shareholders, and other communications to prospective Participants.
3.2(c). The Company agrees to provide the Fund or its designee with such
information as may be reasonably requested by the Fund to assure
that the Fund's expenses do not include the cost of typesetting,
printing or distributing any of the foregoing documents other than
those actually distributed to existing Participants.
3.2(d). The Fund shall pay no fee or other compensation to the Company
under this Agreement, except that if the 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.
3.2(e). All expenses, including expenses to be borne by the Fund pursuant
to Section 3.2 hereof, incident to performance by the Fund under
this Agreement shall be paid by the Fund. The Fund shall see to it
that all its shares are registered and authorized for issuance in
accordance with applicable federal law and, if and to the extent
deemed advisable by the Fund, in accordance with applicable state
laws prior to their sale. The Fund shall bear the expenses for the
cost of registration and qualification of the Fund's shares.
3.3. The Fund's statement of additional information shall be obtainable
from the Fund, the Underwriter, the Company or such other person as
the Fund may designate.
3.4. If and to the extent required by law the Company shall distribute
all proxy material furnished by the Fund to Contract Owners to whom
voting privileges are required to be extended and shall:
(i) solicit voting instructions from Contract owners:
(ii) vote the Fund shares in accordance with instructions received
from Contract owners: and
(iii) vote Fund shares for which no instructions have been received
in the same proportion as Fund shares of such Portfolio for which
instructions have been received, so long as and to the extent that
the Securities and Exchange Commission continues to interpret the
1940 Act to require pass-through voting privileges for variable
contract owners. The Company reserves the right to vote Fund shares
held in any segregated asset account in its own right,
to the extent permitted by law. The Fund and the Company shall
follow the procedures, and shall have the corresponding
responsibilities, for the handling of proxy and voting instruction
solicitations, as set forth in Schedule C attached hereto and
incorporated herein by reference. Participating Insurance Companies
shall be responsible for ensuring that each of their separate
accounts participating in the Fund calculates voting privileges in
a manner consistent with the standards set forth on Schedule C,
which standards will also be provided to the other Participating
Insurance Companies.
3.5. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either
provide for annual meetings (except insofar as the Securities and
Exchange Commission may interpret Section 16 not to require such
meetings) or comply with Section 16(c) of the 1940 Act (although
the Fund is not one of the trusts described in Section 16(c) of
that Act) as well as with Sections 16(a) and, if and when
applicable, 16(b). Further, the Fund will act in accordance with
the Securities and Exchange Commission's interpretation of the
requirements of Section 16(a) with respect to periodic elections of
directors and with whatever rules the Commission may promulgate
with respect thereto."
3. Except as amended hereby the Agreement is hereby ratified and confirmed
in all respects.
IN WITNESS WHEREOF, the parties hereto execute this Amendment No. 4 as of
the date first written above.
THE UNITED STATES LIFE INSURANCE AMERICAN GENERAL EQUITY SERVICES
COMPANY IN THE CITY OF NEW YORK CORPORATION
on behalf of itself and each of its
Accounts named in Schedule B to the
Agreement, as amended from time to time
By: By:
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XXXXXX XXXXXXX UNIVERSAL FUNDS, INC. XXX XXXXXX FUNDS INC.
(formerly XXX XXXXXX AMERICAN
CAPITAL DISTRIBUTORS, INC.)
By: By:
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XXXXXX XXXXXXX XXXX XXXXXX XXXXXX XXXXXXXX & XXXXXXXX, LLP
INVESTMENT MANAGEMENT INC. (formerly
XXXXXX XXXXXXX ASSET MANAGEMENT INC.)
By: By:
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SCHEDULE B
SEPARATE ACCOUNTS AND CONTRACTS
Name of Separate Account Form Numbers and Names
and Date Established by of Contracts Funded by
Board of Directors Separate Account
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The United States Life
Insurance Company in the
City of New York Contract Form Number:
Separate Account USL VA-R 98033N
Established: August 8,
1997 Name of Contract:
Generations Combination
Fixed and Variable
Deferred Annuity
Certificate
Contract Form Number:
____N
Name of Contract:
Platinum Investor IVA
Immediate Variable
Annuity Contracts
The United States Life
Insurance Company in the
City of New York Contract Form Number:
Separate Account USL VL-R 97600N
Established: August 8,
1997 Name of Contract:
Platinum Investor
Flexible Payment Variable
Life Insurance Policies
Contract Form Number:
02600N
Name of Contract:
Platinum Investor PLUS
Flexible Payment Variable
Life Insurance Policies
Contract Form Number:
01206N
Name of Contract:
Platinum Investor
Survivor II Flexible
Payment Variable Life
Insurance Policies
Contract Form Number:
00600N
Name of Contract:
Platinum Investor III
Flexible Payment Variable
Life Insurance Policies
