EXHIBIT (h)(14)(e)
AMENDMENT NO. 3 TO FUND PARTICIPATION AGREEMENT
This Amendment No. 3, dated as of __________, 2014, by and among XXXXXXXXX
XXXXXX ADVISERS MANAGEMENT TRUST ("Trust"), XXXXXXXXX XXXXXX MANAGEMENT LLC,
(formerly, Xxxxxxxxx Xxxxxx Management Inc.) ("NBM") and AMERICAN GENERAL LIFE
INSURANCE COMPANY ("LIFE COMPANY") is made to the Fund Participation Agreement,
dated as of July 7, 1994, by and among the Trust, NBM and LIFE COMPANY (the
"Agreement"). Terms defined in the Agreement are used herein as therein defined.
WHEREAS, the Trust, NBM and LIFE COMPANY desire to amend the list of
portfolios available for investment by the Separate Accounts designated in the
Agreement as set forth in Appendix A;
WHEREAS, the Trust, NBM and LIFE COMPANY desire to amend the Separate
Accounts as set forth in Appendix B in order to add a Separate Account;
WHERAS, the parties wish to update provisions in the Agreement relating to
representations and warranties, indemnification and confidentiality; and
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties agree as follows:
1. Appendix A of the Agreement is hereby deleted in its entirety and replaced
with new Appendix A attached hereto.
2. Appendix B of the Agreement is hereby deleted in its entirety and replaced
with new Appendix B attached hereto.
3. AMENDMENT TO SECOND PARAGRAPH OF SECTION 4(a). The second paragraph of
Section 4(a) is hereby deleted and replaced with the following:
LIFE COMPANY will submit any bills for printing, duplicating and/or mailing
costs, relating to the TRUST documents described above, to the TRUST for
reimbursement by TRUST. LIFE COMPANY shall monitor such costs and shall use
its best efforts to control these costs. If requested by LIFE COMPANY, the
TRUST shall provide such documentation (including a final copy of the
TRUST's prospectus as set in type or in camera-ready copy) and other
assistance as is reasonably necessary in order for LIFE COMPANY to print
together in one document the current prospectus for the variable contracts
issued by LIFE COMPANY and the current prospectus for the TRUST. Should
LIFE COMPANY wish to print any of these documents in a format different
from that provided by TRUST, LIFE COMPANY shall provide TRUST with sixty
(60) days' prior written notice and LIFE COMPANY shall bear the cost
associated with any format change. LIFE COMPANY may also utilize TRUST's
current prospectus, reports and other informational materials on LIFE
COMPANY'S intranet and internet web-sites. The posting
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of such materials on LIFE COMPANY'S internet or intranet web-sites will not
relieve LIFE COMPANY of its responsibility to deliver such prospectuses,
statements of additional information, proxy statements and periodic reports
of the TRUST as required to be delivered under applicable federal or state
law and interpretations of federal and state securities regulators
thereunder in connection with the offer, sale or acquisition of the
variable contracts.
4. AMENDMENT TO SECTION 5(a). Section 5(a) is hereby deleted in its entirety
and replaced with the following:
LIFE COMPANY will furnish, or will cause to be furnished, to the TRUST and
NBM , a template of each piece of sales literature or other promotional
material in which the TRUST or NBM is named, at least five (5) Business
Days prior to its intended use. Any substantially similar pieces need not
be submitted for review. No such material will be used if the TRUST or NBM
reasonably objects to its use in writing within five (5) Business Days
after receipt of such material.
5. AMENDMENT TO SECTION 8. Section 8 is hereby deleted in its entirety and
replaced with the following:
8. NBM hereby agrees to, and shall, indemnify and hold harmless the LIFE
COMPANY and each person who controls or is affiliated with the LIFE
COMPANY within the meaning of such terms under the 1933 Act or 1940
Act and any officer, director, employee or agent of the foregoing,
against any and all losses, claims, damages or liabilities, joint or
several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted),
to which they or any of them may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Registration Statement, any
prospectus or sales literature or other promotional material of
the TRUST (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances in which they were made; provided
that this obligation to indemnify shall not apply if such
statement or omission was made in reliance upon and in
conformity with information furnished in writing by the LIFE
COMPANY to the TRUST or NBM for use in the Registration
Statement, prospectus or sales literature or promotional
material for the TRUST (or any amendment or supplement to any
of the foregoing) or otherwise for use in connection with the
sale of the variable contracts or TRUST shares; or
(b) arise out of any untrue statement of a material fact contained
in the Registration Statement, Prospectus or sales literature
or other
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promotional material for the variable contracts (or any
amendment or supplement to any of the foregoing), or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were
made, if such statement or omission was made in reliance upon
information furnished in writing by NBM to the LIFE COMPANY; or
(c) arise out of or are based upon wrongful conduct of NBM or
persons under its control with respect to the sale of TRUST
shares; or
(d) arise as a result of any failure by NBM or persons under its
control to provide services, furnish materials or make payments
as required under the terms of this Agreement; or
(e) arise out of any material breach by NBM or persons under its
control of this Agreement (including any breach - whether or
not material - of any warranties contained in Section 10(b) and
11 of the Agreement);
it being understood that in no way shall NBM be liable to the LIFE COMPANY
with respect to any violation of insurance law, compliance with which is a
responsibility of the LIFE COMPANY under this Agreement or otherwise or as
to which the LIFE COMPANY failed to inform NBM. This indemnification is in
addition to any liability that NBM may otherwise have; provided, however,
that no party shall be entitled to indemnification if such loss, claim,
damage or liability is caused by the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the party seeking
indemnification.
6. AMENDMENT OF SECTION 10. Section 10 of the Agreement is hereby deleted in
its entirety and replaced with the following:
(a) LIFE COMPANY represents and warrants that: (i) LIFE COMPANY is an
insurance company duly organized and in good standing under Texas insurance
law; (ii) each Separate Account is a validly existing separate account,
duly established and maintained in accordance with applicable law;
(iii) the 1940 Act Registration Statement for each Separate Account has
been filed with the SEC in accordance with the provisions of the 1940 Act
and such Account is duly registered as a unit investment trust thereunder;
(iv) the variable contracts' Registration Statement have been declared
effective by the SEC; (v) the variable contracts will be issued in
compliance in all material respects with all applicable Federal and state
laws; (vi) the variable contracts have been filed, qualified and/or
approved for sale, as applicable, under the insurance laws and regulations
of the states in which the variable contracts will be offered as
appropriate; (vii) each Separate Account will maintain its registration
under the 1940 Act and will comply in all material respects with the 1940
Act; (viii) the variable contracts currently are, and at the time of
issuance and for so long as they are outstanding will be, treated as
annuity contracts, life insurance policies, or modified endowment
contracts, whichever is appropriate, under applicable provisions of the
Code; (ix) LIFE COMPANY's entering into and performance of its obligations
under this Agreement does not and will not violate its
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charter documents or by-laws, rules or regulations, or any agreement to
which it is a party; and (x) with respect to the Separate Accounts (a) the
principal underwriter for each such Separate Account and any subaccounts
thereof is a broker or dealer registered with the SEC under the Securities
Exchange Act of 1934 or a person controlled (as defined in the 0000 Xxx) by
such a broker or dealer; (b) shares of a Portfolio are and will continue to
be the only securities held by the relevant subaccount; (c) it will either
(1) seek instructions from Contract Owners with account value in the
Separate Accounts allocated to shares of a Portfolio with regard to the
voting of all proxies solicited in connection with the Portfolio and will
vote those proxies only in accordance with those instructions, or (2) vote
such Portfolio shares held in the Separate Accounts in the same proportion
as the vote of all the Portfolio's other shareholders; and (d) it will not
substitute another security for shares of the Portfolio held in a Separate
Account unless the SEC has approved the substitution in the manner provided
in Section 26 of the 1940 Act. LIFE COMPANY will notify the TRUST promptly
if for any reason it is unable to perform its obligations under this
Agreement.
(b) The TRUST represents and warrants that: (i) the TRUST is duly
organized and validly existing under the laws of Delaware and that each
Portfolio does and will comply in all material respects with the 1940 Act
and the rules and regulations thereunder; (ii) the TRUST's 1940 Act
Registration Statement has been filed with the SEC in accordance with the
provisions of the 1940 Act and the TRUST is duly registered as an open-end
management investment company thereunder; (iii) the TRUST's Registration
Statement has been declared effective by the SEC; (iv) the TRUST shares
will be issued in compliance in all material respects with all applicable
federal laws; (v) the TRUST will remain registered under and will comply in
all material respects with the 1940 Act during the term of this Agreement;
(vi) the TRUST 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 TRUST; (vii) the Portfolios are currently qualified and
will continue to qualify as regulated investment companies under Subchapter
M of the Code and the TRUST shall promptly notify LIFE COMPANY upon having
a reasonable basis for believing that any of the Portfolios has ceased to
so qualify, or that they may not qualify as such in the future; (viii) each
of the Portfolios currently does and will continue to invest, dispose of,
and hold assets in compliance with the requirements of Section 817(h) of
the Code and Treasury Regulations Section 1.817-5 and any amendments or
other modifications of successor provisions to such Section or Regulations,
including, but not limited to, the diversification requirement therein (the
"Tax Diversification Requirements"). Without limiting the foregoing, the
TRUST will notify LIFE COMPANY promptly after forming a reasonable belief
that the Portfolio has ceased to comply with the Tax Diversification
Requirements or might not so comply in the future, and the TRUST shall cure
any non-conformance within the period for cure afforded under Regulation
Section 1.817-5; (ix) the investment policies of each Portfolio are in
material compliance with any investment restrictions set forth as
applicable in this Agreement; (x) the TRUST will comply with any applicable
state insurance laws or regulations, which efforts shall include, without
limitation, the furnishing of information that is not otherwise available
to LIFE COMPANY and that is required by state insurance law to enable LIFE
COMPANY to obtain the authority needed to issue the variable contracts in
any applicable state; (xi) investments by the Portfolios in master limited
partnerships are and will be treated as
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corporations rather than partnerships; (xii) the TRUST shall not take any
action which would impact the treatment of the variable contracts as
annuities under Section 72 of the Code; and (xiii) income earned by the
Portfolios, whether from the ownership of a wholly owned subsidiary that is
a controlled foreign corporation or from other investments, shall
constitute qualifying income to the Portfolios for purposes of section
851(b)(2) of the Code.
7. ADDITION OF NEW SECTION 11. A new Section 11 of the Agreement is hereby
added to the Agreement and all of the sections thereafter are hereby
renumbered accordingly:
NBM represents and warrants that: (i) NBM is a limited liability company
duly organized and in good standing under Delaware law; (ii) NBM is
registered as an investment adviser under federal securities laws;
(iii) the Portfolio shares offered and sold pursuant to the Agreement will
be registered under the 1933 Act and each Portfolio shall be registered
under the 1940 Act prior to and at the time of any issuance or sale of such
shares; (iv) the Portfolios are currently qualified and will continue to
qualify as regulated investment companies under Subchapter M of the Code
and NBM shall promptly notify LIFE COMPANY upon having a reasonable basis
for believing that any of the Portfolios has ceased to so qualify, or that
they may not qualify as such in the future; (v) each of the Portfolios
currently does and will continue to invest, dispose of, and hold assets in
compliance with the requirements of Section 817(h) of the Code and Treasury
Regulations Section 1.817-5 and any amendments or other modifications of
successor provisions to such Section or Regulations, including, but not
limited to, the diversification requirement therein (the "Tax
Diversification Requirements"). Without limiting the foregoing, NBM will
notify LIFE COMPANY promptly after forming a reasonable belief that the
Portfolio has ceased to comply with the Tax Diversification Requirements or
might not so comply in the future, and NBM shall cure any non-conformance
within the period for cure afforded under Regulation Section 1.817-5;
(vi) NBM will comply with any applicable state insurance laws or
regulations, which efforts shall include, without limitation, the
furnishing of information that is not otherwise available to LIFE COMPANY
and that is required by state insurance law to enable LIFE COMPANY to
obtain the authority needed to issue the variable contracts in any
applicable state; (vii) investments by the Portfolios in master limited
partnerships are and will be treated as corporations rather than
partnerships; (viii) NBM shall not take any action which would impact the
treatment of the variable contracts as annuities under Section 72 of the
Code; and (ix) income earned by the Portfolios, whether from the ownership
of a wholly owned subsidiary that is a controlled foreign corporation or
from other investments, shall constitute qualifying income to the
Portfolios for purposes of section 851(b)(2) of the Code.
8. ADDITION OF SECTION 17. Section 17 of the Agreement is hereby added to the
Agreement:
17. CONFIDENTIALITY.
(a) Confidential Information. The parties acknowledge that, in
the performance of the Agreement, they receive or have access to information
about customers and
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other proprietary information of the other parties, including names, addresses,
account balances, account numbers, account activity, social security numbers,
taxpayer identification numbers, and financial and health information, as well
as all forms and types of financial, business, technical, or economic
information, whether tangible or intangible, and whether or how stored,
compiled, or memorialized physically, electronically, graphically,
photographically, or in writing ("Confidential Information"). Confidential
Information excludes information that (1) is independently developed by a party
without violating the disclosing party's proprietary rights, (2) is or becomes
publicly known (other than through unauthorized disclosure), (3) is
intentionally disclosed by the owner of such information to a third party free
of any obligation of confidentiality, (4) is already known by a party, as
evidenced by the written records of that party, free of an obligation of
confidentiality other than pursuant to this Agreement, or (5) is rightfully
received by a party free of any obligation of confidentiality.
(b) Use. The parties may use Confidential Information only in connection
with this Agreement and may not disclose Confidential Information to any other
party except as permitted by the Xxxxx-Xxxxx-Xxxxxx Act, other applicable
federal and state laws and regulations regarding privacy, this Agreement or as
otherwise agreed to in writing by the parties hereto. The parties may disclose
Confidential Information to their respective employees and agents or to third
party vendors (1) who are involved in the issuance, administration or
maintenance of a customer's account or (2) otherwise on a need-to-know basis,
provided that, in each case, they have first adequately apprised any such
employee, agent, and or third party vender to observe this confidentiality. In
the case of employees and/or agents, the party shall provide adequate training
to ensure this confidentiality. The parties will take reasonable steps to
protect the Confidential Information, applying at least the same security
measures and level of care as they employ to protect their own Confidential
Information. If a party is compelled by applicable law to disclose any
Confidential Information, the party so compelled must promptly notify, in
writing, the party whose Confidential Information is being disclosed before
disclosing such Confidential Information so that such other party is afforded
the opportunity to seek relief from such disclosure or to limit the scope of
the disclosure.
(c) Security. Each party shall comply with all federal, state, and local
law or regulation related to privacy, including Regulation S-P of the SEC and
Title V of the Xxxxx-Xxxxx-Xxxxxx Act. Each party shall notify the other
parties promptly upon any breach of Confidential Information. Each party shall
maintain an effective information security program to protect the Confidential
Information, which program includes administrative, technical, and physical
safeguards:
(i) to insure the security and confidentiality of Confidential
Information;
(ii) to protect against any anticipated threats or hazards to the
security or integrity of such Confidential Information; and
(iii) to protect against unauthorized access to or use of
Confidential Information which could result in substantial harm or
inconvenience to either party or other affiliates, or to customers of
any of them.
(d) Injunctive Relief. The parties acknowledge that the unauthorized
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disclosure of Confidential Information is likely to cause irreparable injury to
the disclosing party and that, in the event of a violation or threatened
violation of a party's obligations hereunder, the disclosing party shall have
no adequate remedy at law and shall therefore be entitled to enforce each such
obligation by temporary or permanent injunctive or mandatory relief obtained in
any court of competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other rights
and remedies which may be available at law or in equity.
(e) Information Received in Error. If Confidential Information, which
is not necessary for the purposes of this Agreement, is received by one party
from the other party in error, the other party shall promptly return the
original and destroy all copies of the same and/or destroy or certify in
writing to the requesting party that the Confidential Information has been
destroyed.
(f) Use Upon Termination. At the termination of this Agreement, or in
the event a party makes a request for the return of their Confidential
Information, the other parties will promptly return the original and all copies
of same, or certify in writing to the requesting party that the Confidential
Information has been destroyed, provided however, that each party shall retain
Confidential Information in its possession necessary to service its customers.
This Confidentiality provision shall survive the termination of this Agreement.
9. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect.
10. This Amendment may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same Amendment.
[signature page follows]
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IN WITNESS WHEREOF, duly authorized representatives of the parties hereto have
amended the Agreement as of the date first written above.
AMERICAN GENERAL LIFE XXXXXXXXX XXXXXX
INSURANCE COMPANY MANAGEMENT LLC
By:________________________________ By:________________________________
Name: Name:
Title: Title:
For Notices: XXXXXXXXX XXXXXX ADVISERS
American General Life Ins. Co. MANAGEMENT TRUST
0000 Xxxxx Xxxxxxx, X0-00
Xxxxxxx, XX 00000 By:________________________________
Attn: Legal Department Name:
Title:
For Notices:
Xxxxxxxxx Xxxxxx Management LLC
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Intermediary Support Services
cc: Legal Department, Mutual Funds
telephone: (000) 000-0000
telecopier: (000) 000-0000
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APPENDIX A
XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST PORTFOLIOS
The currently available Portfolios of the TRUST are:
AMT Absolute Return Multi-Manager Portfolio - S Class
AMT Focus Portfolio - S Class
AMT Guardian Portfolio - S Class
AMT International Equity Portfolio - S Class
AMT Mid Cap Growth Portfolio - S Class
AMT Mid Cap Intrinsic Value Portfolio - S Class
AMT Small Cap Growth Portfolio - S Class
AMT Socially Responsive Portfolio - S Class
AMT Balanced Portfolio - I Class
AMT Growth Portfolio - I Class
AMT Guardian Portfolio - I Class
AMT Large Cap Value Portfolio - I Class
AMT Mid Cap Growth Portfolio - I Class
AMT Mid Cap Intrinsic Value Portfolio - I Class
AMT Short Duration Bond Portfolio - I Class
AMT Socially Responsive Portfolio - I Class
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APPENDIX B
Separate Accounts
Separate Account VL-R
Separate Account D
Variable Separate Account
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