Exhibit 1.A.(8)
PARTICIPATION AGREEMENT
TMK / UNITED FUNDS, INC.
United Investors Life Insurance Company
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
VARIABLE ACCOUNT
TMK/United Funds, Inc. (hereinafter TMK) is a Maryland corporation
registered with the Securities and Exchange Commission under the Investment
Company Act of 1940 (the Act) as a management class, open-end, diversified
investment company. It offers its shares exclusively to insurance companies
as the investment vehicles for variable life and variable annuity policies.
TMK has authorized eleven classes of shares each of which is a separate fund
(Portfolio) being: Money Market Portfolio, Bond Portfolio, High Income
Portfolio, Growth Portfolio, Income Portfolio, International Portfolio, Small
Cap Portfolio, Balanced Portfolio, Limited-Term Bond Portfolio, Asset Strategy
Portfolio, and Science and Technology Portfolio.
You have advised TMK that you are sponsoring three variable accounts, United
Investors Life Variable Account, United Investors Annuity Variable Account, and
United Investors Universal Life Variable Account, each of which is an
investment company organized and registered with the Securities and Exchange
Commission as a unit investment trust under the Act (hereinafter collectively,
the Trust). You advised that you wish to arrange for the acquisition of TMK's
shares as the exclusive funding medium for each of the Trusts and the variable
contracts issued by the Trust and registered under the Securities Act of 1933.
TMK agrees to make the shares of its eleven Portfolios available to you for
said purposes subject to the following terms and conditions:
1. TMK will sell its shares directly to you and on request redeem
its shares at the time and prices specified in its then current prospectus and
Statement of Additional Information (SAI) for the purpose of funding the
investment divisions of the Trust as is more particularly set forth in the
Trust's then current prospectus.
2. (a) Payment for shares in investable funds shall be due on
issuance of shares.
(b) TMK will make payment on redemption of its shares as stated
in its prospectus and SAI.
(c) Purchases and redemption of shares of the same Portfolio on
the same day may be netted so as to result in a single purchase or single
redemption for the day.
(d) Shares of one Portfolio may be exchanged for shares of
another Portfolio by redemption of shares of a particular Portfolio and the
immediate purchase of shares of the other Portfolio. On your request, TMK will
effect such exchanges by transfer of monies from one Portfolio to the other as
appropriate.
(e) All dividends and capital gains distributions shall be
reinvested in additional shares of the Portfolios paying such dividends.
3. TMK will furnish you with adequate number of copies of its
Annual and Semi-Annual Reports to Shareholders and TMK's proxy material for
shareholder meetings as you may request for furnishing to the policyowners and
will reimburse you for your expenses in mailing the reports and proxy materials
to the policyowners including return postage with respect to the voting of proxy
cards. With TMK's prior consent, you may include additional items in the mailing
of TMK's Reports to Shareholders provided any extra costs are paid by you.
4. You shall vote the shares held by the policyholders as set forth
in the Trust's prospectus and SAI.
5. TMK will furnish you with a copy of its current prospectus and
SAI and all amendments thereto. You shall print and reproduce at your expense
such copies thereof as you may desire with respect to the distribution of
interests in the Trust. You may use TMK's Shareholder Reports in the
distribution process. Copies of the Reports will be furnished for such purpose
as you request at your expense.
6. The foregoing, notwithstanding, TMK shall not engage directly or
indirectly in financing any activity which is primarily intended to result in
the sale of its shares issued by it.
7. Indemnification.
A. TMK agrees with you for your benefit and each person, if any,
who controls you within the meaning of Section 15 of the Securities Act of 1933
(the "Securities Act") and each and all and any of them, to indemnify and hold
you harmless and any such controlling person from and against any and all
losses, claims, damages or liabilities, joint or several, to which you, they or
any of them may become subject under the Securities Act, under any other
statute, at common law or otherwise, and to reimburse you and such controlling
persons, if any, for any legal or other expenses (including the cost of any
investigation and preparation) reasonably incurred by you, them or any of them
in connection with any litigation whether or not resulting in any liability,
insofar as such losses, claims, damages, liabilities, or litigation arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any TMK registration statement or any TMK prospectus
or any amendment thereof or supplement thereto or arise out of or are based upon
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;
provided, however, that this indemnity agreement shall not apply to amounts paid
in settlement of any such litigation if such settlement is effected without the
consent of TMK or to any such losses, claims, damages, liabilities or litigation
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any TMK registration statement or TMK prospectus or
any amendment thereof or supplement thereto, or arising out of or based upon 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, which
statement or omission was made in reliance upon information furnished in writing
to TMK by you for inclusion in any TMK registration statement or any TMK
prospectus or any amendment thereof or supplement thereto. You and each such
controlling person shall promptly, after the complaint
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shall have been served upon you or such controlling person in any litigation
against you or such controlling person in respect of which indemnity may be
sought from TMK on account of its agreement contained in this paragraph, notify
TMK in writing of the commencement thereof. Your omission or such controlling
person so to notify TMK of any such litigation shall relieve TMK from any
liability which it may have to you or such controlling person on account of the
indemnity agreement contained in this paragraph but shall not relieve TMK from
any liability which it may have to you or controlling person otherwise than on
account of the indemnity agreement contained in this paragraph. In case any such
litigation shall be brought against you or any such controlling person and you
or such controlling person shall notify TMK of the commencement thereof, TMK
shall be entitled to participate in (and, to the extent that it shall wish, to
direct) the defense thereof at its own expense but such defense shall be
conducted by counsel of good standing and satisfactory to you or such
controlling person or persons, defendant or defendants in the litigation. The
indemnity agreement of TMK contained in this paragraph shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of you or any such controlling person and shall survive any delivery of
shares of TMK. TMK agrees to notify you promptly of the commencement of any
litigation or proceeding against it or any of its officers or directors of which
it may be advised in connection with the issue and sale of its shares.
B. Anything herein to the contrary notwithstanding TMK's agreement
in the foregoing, insofar as it constitutes a basis for reimbursement by TMK for
liabilities (other than payment by TMK of expenses incurred or paid in the
successful defense of any action, suit or proceeding) arising under the
Securities Act, shall not extend to the extent of any interest therein of any
person who is deemed to be an underwriter or a partner or controlling person of
an underwriter within the meaning of Section 15 of the Securities Act or who, at
the date of this Agreement, is a director of TMK, except to the extent that an
interest of such character shall have been determined by a court of appropriate
jurisdiction the question of whether or not such interest is against public
policy as expressed in the Securities Act.
C. You agree to indemnify and hold harmless TMK and its directors
and such officers as shall have signed any registration statement from and
against any and all losses, claims, damages or liabilities, joint or several, to
which TMK or such directors or officers may become subject under the Securities
Act, under any other statute, at common law or otherwise, and will reimburse TMK
or such directors or officers for any legal or other expenses (including the
cost of any investigation and preparation) reasonably incurred by it or them or
any of them in connection with any litigation, whether or not resulting in any
liability insofar as such losses, claims, damages, liabilities or litigation
arise out of, or are based upon, any untrue statement or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, which statement or omission was made in
reliance upon information furnished in writing to TMK by you for inclusion in
any registration statement or any prospectus, or any amendment thereof or
supplement thereto, or which statement was made in, or the alleged omission was
from, any advertising or sales literature (including any reports to shareholders
used as such) which relate to TMK.
You shall not be liable for amounts paid in settlement of any such
litigation if such settlement was effected without its consent. TMK and its
directors and such officers, defendant or defendants, in any such litigation
shall, promptly after the complaint shall have
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been served upon TMK or any such director or officer in any litigation against
TMK or any such director or officer in respect of which indemnity may be sought
from TMK on account of its Agreement contained in this paragraph, notify you in
writing of the commencement thereof. The omission of TMK or such director or
officer so to notify you of any such litigation shall relieve you from any
liability which it may have to TMK or such director or officer on account of the
indemnity agreement contained in this paragraph, but shall not relieve you from
any liability which it may have to TMK or such director or officer otherwise
than on account of the indemnity agreement contained in this paragraph. In case
any such litigation shall be brought against TMK or any such officer or director
and notice of the commencement thereof shall have been given to you, you shall
be entitled to participate in (and, to the extent that it shall wish, to direct)
the defense thereof at its own expense, but such defense shall be conducted by
counsel of good standing and satisfactory to TMK. The indemnity agreement of TMK
contained in this paragraph shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of TMK and shall survive
any delivery of shares of TMK. You agree to notify TMK promptly of the
commencement of any litigation or proceeding against you or any of your officers
or directors or against any such controlling person of which you may be advised,
in connection with the issue and sale of TMK.
D. Notwithstanding any provision contained in this Agreement, no
party hereto and no person or persons in control of any party hereto shall be
protected against any liability to TMK or its security holders, including
beneficial owners or its security to which they would otherwise be subject by
reason performance of their duties or by reason of their reckless disregard of
their obligations and duties under this Agreement.
8. TMK will make shares available and otherwise carry out the terms
of this Agreement until the Trust is terminated; provided, however, it will have
no obligation to issuance of shares other than for purposes of exchange among
Portfolios and reinvestment of dividends and distribution, should the
registration of the Trust securities under the Securities Act of 1933 terminate.
TMK agrees to use its best efforts to keep an adequate number of shares at all
times authorized, but it will not be required to issue its shares if all TMK
shares be issued and outstanding. Notwithstanding any provision contained in
this Agreement to the contrary, TMK retains the right to refuse to sell shares
of any Portfolio to any person, or to suspend or terminate the offering of
shares of any Portfolio, if such action is required by law or applicable
regulatory authority or, in the sole discretion of the TMK directors, acting in
good faith and in light of their fiduciary duties, deemed necessary in the best
interests of the Fund and the shareholders of the affected Portfolio(s).
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If the foregoing is in accordance with your understanding of our Agreement,
please execute your acceptance hereof on the duplicates hereto enclosed for
that purpose and return one copy to TMK/United Funds, Inc., whereupon this
shall become a binding Agreement between you and TMK/United Funds, Inc.
TMK/United Funds, Inc.
By:
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Vice President
Accepted this _________ day of ______________________, 1997.
United Investors Life Insurance Company
By:
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Authorized Signature
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