AMENDED AND RESTATED
PARTICIPATION AGREEMENT
By and Among
PREMIER VIT
And
AMERICAN CENTURION LIFE ASSURANCE COMPANY
And
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
THIS AGREEMENT, made and entered into this 1st day of September, 2006 by
and among American Centurion Life Assurance Company, a New York Corporation
(hereinafter the "Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule 1 to this Agreement, as may be
amended from time to time (each account referred to as the "Account"), PREMIER
VIT, an open-end diversified management investment company organized under the
laws of the State of Massachusetts (hereinafter the "Fund") and ALLIANZ GLOBAL
INVESTORS DISTRIBUTORS LLC, a Delaware limited liability company (hereinafter
the "Underwriter").
WHEREAS, Company entered into a Participation Agreement on September 17,
1997 with OCC Accumulation Trust (previously known as Quest For Value
Accumulation Trust) and OCC Distributors ("Participation Agreement"); and
WHEREAS, the Participation Agreement was subsequently amended on October
14, 1998 and July 1, 2002; and
WHEREAS, the name of the OCC Accumulation Trust was subsequently changed
to PIMCO Advisors VIT; and
WHEREAS, the name of the PIMCO Advisors VIT was changed to Premier VIT
on May 1, 2005; and
WHEREAS, Company, Fund, Underwriter and OCC Distributors entered into a
Novation of Participation Agreement dated September 1, 2005 agreeing to
Underwriter's replacement of OCC Distributors as principal underwriter under
the Participation Agreement effective September 1, 2005; and
WHEREAS, the parties now wish to amend and restate the Participation
Agreement dated September 17, 1997, as amended on October 14, 1998 and July 1,
2002 to reflect the above changes and to incorporate other changes the parties
now wish to make to the Participation Agreement; and
WHEREAS, the Fund engages in business as an open end diversified,
management investment company and was established for the purpose of serving
as the investment vehicle for separate accounts established for variable xxxx
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially
identical to this Agreement (hereinafter "Participating Insurance Companies");
and
WHEREAS, beneficial interests in the Fund are divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (the "Portfolios"); and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (alternatively referred to as the "SEC" or the "Commission"), dated
February 22, 1995 (File No. 812-9290), granting Participating Insurance
Companies and variable annuity
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separate accounts and variable life insurance separate accounts relief from
the provisions of Sections 9(a), 13 (a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (hereinafter the "1940 Act") and Rules
6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit
shares of the Fund to be sold to and held by variable annuity separate
accounts and variable life insurance separate accounts of both affiliated and
unaffiliated Participating Insurance Companies and qualified pension and
retirement plans ("Plans") (hereinafter the "Mixed and Shared Funding
Exemptive Order"); and
WHEREAS, the Fund is registered as an open end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity contracts (the "Contracts") under the 1933 Act; and
WHEREAS, the Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of New York, to set aside and
invest assets attributable to the Contracts; and
WHEREAS, the Company has registered the Account as a unit investment
trust under the 1940 Act; and
WHEREAS, the Underwriter is registered, as a broker-dealer with 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 insurance laws and
regulations, the Company intends to purchase shares of the Portfolios named in
Schedule 2 on behalf of the
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Account to fund the Contracts and the Underwriter is authorized to sell such
shares to unit investment trusts such as the Account at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund and the Underwriter agree as follows:
ARTICLE I. SALE OF FUND SHARES
-------------------
1.1 The Underwriter agrees to sell to the Company those shares of
the Fund which the Company orders on behalf of the Account, executing such
orders on a daily basis at the net asset value next computed after receipt and
acceptance by the Fund or its agent of the order for the shares of the Fund.
For purposes of this Section 1.1, the Company shall be the designee of the
Fund for receipt of such orders from each Account and receipt by such designee
shall constitute receipt by the Fund; provided that the Fund receives notice
of such order by 10:00 a.m. Eastern Time on the next following Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange is open
for trading and on which the Fund calculates its net asset value pursuant to
the rules of the SEC.
1.2 The Company shall pay for Fund shares on the next Business Day
after it places an order to purchase Fund shares in accordance with Section
1.1 hereof. Payment shall be in federal funds transmitted by wire.
1.3 The Fund agrees to make its shares available indefinitely for
purchase at the applicable net asset value per share by Participating
Insurance Companies and their separate accounts on those days on which the
Fund calculates its net asset value pursuant to rules of the SEC; provided,
however, that the Board of Trustees of the Fund (hereinafter the "Directors")
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
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jurisdiction or is, in the sole discretion of the Directors, 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 any
Portfolio.
1.4 The Fund and the Underwriter agree that shares of the Fund
will be sold only to Participating Insurance Companies and their separate
accounts, Plans and persons participating in such Plans ("participants") or
such other persons as are permitted under applicable provisions of the
Internal Revenue Code of 1986, as amended, (the "Internal Revenue Code"), and
regulations promulgated thereunder, the sale to which will not impair the tax
treatment currently afforded the Contracts. No shares of any Portfolio will be
sold to the general public.
1.5 The Fund and the Underwriter will not sell Fund shares to any
insurance company or separate account unless an agreement containing
provisions substantially the same as Articles I, III, V, and VII of this
Agreement are in effect to govern such sales. The Fund shall make available
upon written request from the Company (i) a list of all other Participating
Insurance Companies and (ii) a copy of the Participation Agreement executed by
any other Participating Insurance Company.
1.6 The Fund agrees to redeem for cash, upon the Company's
request, any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its agent of the request for
redemption. For purposes of this Section 1.6, the Company shall be the
designee of the Fund for receipt of requests for redemption from each Account
and receipt by such designee shall constitute receipt by the Fund; provided
the Fund receives notice of request for redemption by 10:00 a.m. Eastern Time
on the next following Business Day. Payment shall be in federal
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funds transmitted by wire to the Company's account as designated by the
Company in writing from time to time, on the same Business Day the Fund
receives notice of the redemption order from the Company except that the Fund
reserves the right to delay payment of redemption proceeds, but in no event
may such payment be delayed longer than the period permitted under Section
22(e) of the 1940 Act. Neither the Fund nor the Underwriter shall bear any
responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds; the Company alone shall be responsible for such action.
If notification of redemption is received after 10:00 a.m. Eastern Time,
payment for redeemed shares will be made on the next following Business Day.
1.7 The Company agrees to purchase and redeem the shares of the
Portfolios named in Schedule 2 offered by the then current prospectus of the
Fund in accordance with the provisions of such prospectus provided that such
provisions are consistent with the terms of this Agreement. Without limiting
the scope or effect of the foregoing, on any given Business Day, the Company
shall submit orders to purchase or redeem shares of any Portfolio in a manner
consistent with the pricing requirements of Rule 22c-1 under the 1940 Act. The
Company shall submit one net order for the Portfolio to the Fund or its
designee. However, the Fund reserves the right to obtain the breakdown of any
net order per contractowner or the information the Company is required to
provide the Fund or its designee under Rule 22c-2 under the 1940 Act. With
respect to payment of the purchase price by the Company and of redemption
proceeds by the Fund, the Company and the Fund, as appropriate, shall net
purchase and redemption orders with respect to each Portfolio and shall
transmit one net payment for all of the Portfolios.
1.8 Issuance and transfer of the Fund's shares will be by book
entry only. Stock certificates will not be issued to the Company or any
Account. Purchase and redemption
6
orders for Fund shares will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
1.9 The Fund 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 dividends and distributions as are payable on the
Portfolio shares in the form of additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
dividends and distributions in cash. The Fund shall notify the Company of the
number of shares so issued as payment of such dividends and distributions.
1.10 The Fund shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 5:50 p.m.,
Eastern Standard Time, each Business Day. In the event that the Fund is unable
to meet the 5:50 p.m., Eastern Standard Time requirement stated herein, it
shall provide additional time for the Company to place orders for the purchase
and redemption of shares. Such additional time shall be equal to the
additional time which the Fund takes to make the net asset value available to
the Company. However, in the event the Fund makes the net asset value
available the following Business Day, the Company will have until 10:00 a.m.
Eastern Standard Time or two hours after such notice (whichever is later) to
place orders for the purchase and redemption of shares. In the event of an
error in a Portfolio's net asset value per share which, in accordance with
procedures adopted by the Fund's Board consistent with views expressed by the
staff of the SEC regarding appropriate error correction standards, as shall be
in effect or amended from time to time, requires adjustment to transactions
previously effected on behalf of the
7
Account (a "Pricing Error"), the Fund shall notify the Company as soon as
possible after discovery of the Pricing Error. Such notification may be oral,
but shall be confirmed in writing within 24 hours. In such event, the Fund
shall recompute all Account share transactions that were based on the Pricing
Error and credit or debit the Account's account so that the Account has the
correct number of Portfolio's shares had all those transactions had been
correctly priced Notwithstanding anything else in this Section 1.10, neither
the Fund, any Portfolio, the Underwriter, nor any of their affiliates shall be
liable for any information provided to the Company pursuant to this Agreement
which information is based on incorrect information supplied by the Company to
the Fund or the Underwriter.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
------------------------------
2.1 The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act and that the Contracts will be issued
and sold in compliance with all applicable federal and state laws. 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 as a separate account under applicable state law and
has registered the subaccounts of each Account together as a unit investment
trust in accordance with the provisions of the 1940 Act to serve as segregated
investment accounts for the Contracts, and that it will maintain such
registration for so long as any Contracts are outstanding. The Company shall
amend the registration statement under the 1933 Act for the Contracts and the
registration statement under the 1940 Act for the Account from time to time as
required in order to effect the continuous offering of the Contracts or as may
otherwise be required by applicable law. The Company shall register and
qualify the Contracts for sale in accordance with the securities laws of the
various states only if and to the extent deemed necessary by the Company.
8
2.2 The Company represents that it believes that the Contracts are
currently and at the time of issuance will be treated as annuity contracts
under applicable provisions of the Internal Revenue Code and that it will make
every effort to maintain such treatment and that it will notify the Fund and
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.
2.3 The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that the Fund is
and shall remain registered under the 1940 Act for as long as the Fund shares
are sold. The Fund shall amend the registration statement for its shares under
the 1933 Act and the 1940 Act from time to time as required in order to effect
the continuous offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and
to the extent deemed advisable by the Fund or the Underwriter.
2.4 The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Internal Revenue 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 immediately upon having a reasonable basis for believing that it
has ceased to so qualify or that it might not so qualify in the future.
2.5 The Fund represents that its investment objectives, policies
and restrictions comply with applicable state investment laws as they may
apply to the Fund. The Fund makes no representation as to whether any aspect
of its operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws and
9
regulations of any state. The Company alone shall be responsible for informing
the Fund of any insurance restrictions imposed by state insurance laws which
are applicable to the Fund. To the extent feasible and consistent with market
conditions, the Fund will adjust its investments to comply with the
aforementioned state insurance laws upon written notice from the Company of
such requirements and proposed adjustments, it being agreed and understood
that in any such case the Fund shall be allowed a reasonable period of time
under the circumstances after receipt of such notice to make any such
adjustment.
2.6 The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it may make such payments in the future. To the extent
that it decides to finance distribution expenses pursuant to Rule 12b-1, the
Fund undertakes to have its Board of Trustees, a majority of whom are not
interested persons of the Fund, formulate and approve any plan under Rule
12b-1 to finance distribution expenses.
2.7 The Underwriter represents and warrants that it is a member in
good standing of the National Association of Securities Dealers, Inc., "NASD")
and is registered as a broker dealer with the SEC. The Underwriter further
represents that it will sell and distribute the Fund shares in accordance with
all applicable federal and state securities laws, including without limitation
the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.8 The Fund represents that it is lawfully organized and validly
existing under the laws of Massachusetts and that it does and will comply with
applicable provisions of the 0000 Xxx.
2.9 The Underwriter represents and warrants that the Fund's
Adviser, OpCap Advisors LLC, is and shall remain duly registered under all
applicable federal and state securities
10
laws and that the Adviser will perform its obligations to the Fund in
accordance with the laws of Massachusetts and any applicable state and federal
securities laws.
2.10 The Fund and Underwriter represent and warrant that all of
their directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Fund
are and 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 l7g-(1) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid Bond
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
2.11 The Company represents and warrants that all of its officers,
employees, investment advisers, and other individuals/entities dealing with
the money and/or securities of the Fund are covered by a blanket fidelity bond
or similar coverage for the benefit of the Fund, in an amount not less than $5
million. The aforesaid includes coverage for larceny and embezzlement and is
issued by a reputable bonding company. The Company agrees to make all
reasonable efforts, to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
2.12 Each party represents and warrants that the execution and
delivery of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary corporate,
limited liability company, partnership or Fund action, as applicable, by such
party, and, when so executed and delivered, this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms.
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2.13 (a) The Company acknowledges the Fund has adopted policies
and procedures reasonably designed to prevent frequent or excessive purchases,
exchanges and redemptions of the shares of Portfolios, which policies are
summarized in the prospectuses of the Portfolios.
(b) The Fund and the Underwriter acknowledge that the
Company, on behalf of its Accounts, has adopted policies and procedures
reasonably designed to detect and deter frequent transfers of Contract value
among the subaccounts of the Accounts including those investing in Portfolios
available as investment options under the Contracts. These policies and
procedures are described in the current prospectuses of the Accounts through
which the Contracts are offered.
(c) The Fund may consider the Company's policies and
procedures pertaining to frequent transfers of Contract value among the
subaccounts of the Account(s) including those investing in Portfolios when the
Fund periodically reviews or amends the Fund's disruptive trading policies and
procedures from time to time. The Fund and the Underwriter may, but are not
required to, invite comment from and confer with Company regarding any
proposed policy and procedure of the Fund and the Underwriter pertaining to
disruptive trading to determine prior to adopting such proposed policy or
procedure the Company's then-present ability to apply such proposed policy or
procedure to Contract owners who allocate Contract value to subaccounts
investing in Portfolios available under the Contracts, including without
limitation whether the Company can apply such proposed policy or procedure
without the need to modify its automated data processing systems or to develop
and staff manual systems to accommodate the implementation of the Fund's
proposed policy or procedure.
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(d) The Company will cooperate with the Fund's and the
Underwriter's reasonable requests in taking steps to deter and detect such
transfers by any Contract owner. Subject to applicable law and the terms of
each Contract, the Company will furnish other information the Underwriter
reasonably requests regarding frequent transfers by Contract owners among the
subaccounts investing Portfolios available under the Contracts. In compliance
with Rule 22c-2 under the 1940 Act, the Company hereby agrees to (i) provide,
promptly upon request by the Fund, directly or through its agent, the taxpayer
identification number of all Contract owners that purchased, redeemed,
transferred, or exchanged shares of Portfolios held under a Contract, and the
amount and dates of such Contract owner's purchases, redemptions, transfers,
and exchanges involving such Portfolios; and (ii) execute any instructions
from the Fund, directly or through its agent, to restrict or prohibit further
purchases or exchanges of shares of the Portfolios by a Contract owner who has
been identified by the Fund, directly or through its agent, as having engaged
in transactions in Portfolio shares that violate the market timing or
excessive trading policies adopted by the Fund. Furthermore, the Company
further agrees to either assess any applicable redemption fees that the Fund
has adopted to curtail frequent trading, or communicate to the Fund or its
agent any information necessary for the Fund or its agent to assess such
redemption fees directly against payment of redemption proceeds. When the
Company is required under Rule 22c-2 under the 1940 Act to implement
transaction procedures for its Accounts in order to effectuate the Fund's
procedures for preventing disruptive trading in the shares of Portfolios, and
such implementation will require the Company to modify its automated data
processing systems or to develop and staff manual systems to accommodate the
Fund's requirements, the parties shall in good faith negotiate a mutually
agreed upon implementation schedule.
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2.14 Each party to this Agreement represents and warrants that it
shall comply with all the applicable laws and regulations designed to prevent
money laundering, including, without limitation the International Money
Laundering Abatement and Anti-Terrorist Financing Act of 2001 (Title III of
the USA PATRIOT ACT), and if required by such laws or regulations, will share
information with the other parties to this Agreement about individuals,
entities, organizations and countries suspected of possible terrorist or money
laundering activities in accordance with Section 314(b) of the USA PATRIOT
ACT.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
---------------------------------------
3.1 The Underwriter shall provide the Company, at the Company's
expense, with as many copies of the Fund's current prospectus (including
supplements thereto) as the Company may reasonably request for use with
prospective contractowners and applicants. The Underwriter shall print and
distribute, at the Fund's or Underwriter's expense, as many copies of said
prospectus as necessary for distribution to existing contractowners or
participants. If requested by the Company in lieu thereof, the Fund shall
provide such documentation including a final copy of a current prospectus set
in type at the Fund's expense and other assistance as is reasonably necessary
in order for the Company at least annually (or more frequently if the Fund
prospectus is amended more frequently) to have the new prospectus for the
Contracts and the Fund's new prospectus printed together in one document, in
such case the Fund shall bear its share of expenses as described above.
3.2 The Fund's prospectus shall state that the Statement of
Additional Information for the Fund is available from the Underwriter or
alternatively from the Company (or, in the Fund's discretion, the Prospectus
shall state that such Statement is available from the Fund), and the
Underwriter (or the Fund) shall provide such Statement, at its expense, to the
14
Company and to any owner of or participant under a Contract who requests such
Statement or, at the Company's expense, to any prospective contractowner and
applicant who requests such statement.
3.3 The Fund, at its expense, shall provide the Company with
copies of its proxy material, if any, reports to shareholders and other
communications to shareholders in such quantity as the Company shall
reasonably require and shall bear the costs of distributing them to existing
contractowners or participants.
3.4 If and to the extent required by law the Company shall:
(i) solicit voting instructions from contractowners or
participants;
(ii) vote the Fund shares held in the Account in accordance
with instructions received from contractowners or
participants; and
(iii) vote Fund shares held in the Account for which no
timely instructions have been received, in the same
proportion as Fund shares of such Portfolio for which
instructions have been received from the Company's
contractowners or participants;
so long as and to the extent that the SEC continues to interpret the 1940 Act
to require pass through voting privileges for variable contractowners. 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. Participating
Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in the Fund calculates voting privileges in a
manner consistent with other Participating Insurance Companies.
3.5 The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular as required, the Fund will
either provide for annual meetings or
15
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 SEC 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.
ARTICLE IV. SALES MATERIAL AND INFORMATION
------------------------------
4.1 The Company shall furnish, or shall cause to be furnished, to
the Fund or the Underwriter, each piece of sales literature or other
promotional material in which the Fund or the Fund's adviser or the
Underwriter is named, at least fifteen business days prior to its use. No such
material shall be used if the Fund or the Underwriter reasonably objects in
writing 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 the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the
Fund, or in sales literature or other promotional material approved by the
Fund or by the Underwriter, except with the permission of the Fund or the
Underwriter. The Fund and the Underwriter agree to respond to any request for
approval on a prompt and timely basis.
4.3 The Fund or the Underwriter 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 its separate account is
named, at least fifteen business days prior to its
16
use. No such material shall be used if the Company reasonably objects in
writing to such use within fifteen business days after receipt of such
material.
4.4 The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company,
each Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may be amended or supplemented from time
to time, or in published reports for each Account which are in the public
domain or approved by the Company for distribution to contractowners or
participants, or in sales literature or other promotional material approved by
the Company, except with the permission of the Company. The Company agrees to
respond to any request for approval on a prompt and timely basis.
4.5 The Fund will provide to the Company at least one complete
copy of all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and
all amendments to any of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
4.6 The Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for no
action letters, and all amendments to any of the above, that relate to the
Contracts or each Account, contemporaneously with the filing of such document
with the SEC or other regulatory authorities.
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4.7 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, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under NASD rules, the 1940 Act or the 0000 Xxx.
4.8 The Company agrees and acknowledges that Xxxxxxxxxxx Capital
is the sole owner of the names and marks "OCC" and "OpCap" and that all use of
any designation comprised in whole or part of such names or marks under this
Agreement shall inure to the benefit of Xxxxxxxxxxx Capital. Except as
provided in Section 4.1, the Company shall not use any such names or marks on
its own behalf or on behalf of each Account in connection with marketing the
Contracts without prior written consent of Xxxxxxxxxxx Capital. Xxxxxxxxxxx
Capital consents to the use of the names and marks "OCC" and "OpCap" in
connection with each Account, subject to the terms of this agreement. Upon
termination of this Agreement for any reason, the Company shall cease all use
of any such names or marks.
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ARTICLE V. FEES AND EXPENSE
----------------
5.1 The Fund and Underwriter 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 under the
1940 Act to finance distribution expenses, then, subject to obtaining any
required exemptive orders or other regulatory approvals, 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. Currently, no such payments
are contemplated.
5.2 All expenses incident to performance by the Fund of this
Agreement shall be paid by the Fund to the extent permitted by law. All Fund
shares will be duly authorized for issuance and registered in accordance with
applicable federal law and to the extent deemed advisable by the Fund, in
accordance with applicable state law, prior to sale. The Fund shall bear the
expenses for the cost of registration and qualification of the Fund's shares,
preparation and filing of the Fund's prospectus and registration statement,
Fund proxy materials and reports, setting in type, printing and distributing
the prospectuses, the proxy materials and reports to existing shareholders and
contractowners, the preparation of all statements and notices required by any
federal or state law, all taxes on the issuance or transfer of the Fund's
shares, and any expenses permitted to be paid or assumed by the Fund pursuant
to a plan, if any, under Rule 12b-1 under the 1940 Act.
ARTICLE VI. DIVERSIFICATION
---------------
The Fund will at all times invest money from the Contracts in such
a manner as to ensure that the Contracts will be treated as variable contracts
under the Internal Revenue Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund will comply with Section 817(h)
of the internal Revenue Code and Treasury Regulation 1.817-5,
19
relating to the diversification requirements for variable annuity, endowment,
or life insurance contracts and any amendments or other modifications to such
Section or Regulations in accordance with guidelines provided by the Company
prior to the execution of this Agreement and as necessary thereafter. In the
event of a breach of this Article VI by the Fund, it will take all reasonable
steps (a) to notify the Company of such breach and (b) to adequately diversify
the Fund so as to achieve compliance with the grace period afforded by
Treasury Regulation 1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
-------------------
7.1 The Board of Trustees of the Fund (the "Fund Board") will
monitor the Fund for the existence of any material irreconcilable conflict
among the interests of the contractowners of all separate accounts investing
in the Fund. An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or securities laws
or regulations, or a public ruling, private letter ruling, no action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Portfolio
are being managed; (e) a difference in voting instructions given by
Participating Insurance Companies or by variable annuity contract and variable
life insurance contractowners, or (f) a decision by an insurer to disregard
the voting instructions of contractowners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and
the implications thereof. A majority of the Fund Board shall consist of
persons who are not "interested" persons of the Fund.
7.2 The Company will report any potential or existing conflicts of
which it is aware to the Fund Board. The Company agrees to assist the Fund
Board in carrying out its
20
responsibilities as delineated in the application for a mixed and shared
funding exemptive order, by providing the Fund Board with all information
reasonably necessary for the Fund Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform the
Fund Board whenever contractowner voting instructions are disregarded. The
Fund Board shall record in its minutes or other appropriate records, all
reports received by it and all action with regard to a conflict.
7.3 If it is determined by a majority of the Fund Board, or a
majority of its disinterested Directors, that an irreconcilable material
conflict exists, the Company and other Participating Insurance Companies
shall, at their expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Directors), take whatever steps
are necessary to remedy or eliminate the irreconcilable material conflict, up
to and including: (1) withdrawing the assets allocable to some or all of the
subaccounts of the separate accounts from the Fund or any Portfolio and
reinvesting such assets in a different investment medium, including (but not
limited to) another Portfolio of the Fund, or submitting the question whether
such segregation should be implemented to a vote of all affected
contractowners and, as appropriate, segregating the assets of any appropriate
group (i.e., variable annuity contractowners or variable life insurance
contractowners, of one or more Participating Insurance Companies) that votes
in favor of such segregation, or offering to the affected contractowners the
option of making such a change; and (2) establishing a new registered
management investment company or managed separate account.
7.4 If the Company's disregard of voting instructions could
conflict with the majority of contractowner voting instructions, and the
Company's judgment represents a minority position or would preclude a majority
vote, the Company may be required, at the Fund's election, to withdraw the
affected subaccount of the Account's investment in the Fund and
21
terminate this Agreement with respect to such subaccount of the Account. Any
such withdrawal and termination must take place within 60 days after the Fund
gives written notice to the Company that this provision is being implemented.
Until the end of such 60 day period the Underwriter and Fund shall continue to
accept and implement orders by the Company for the purchase (and redemption)
of shares of the Fund.
7.5 If a particular state insurance regulator's decision
applicable to the Company conflicts with the majority of other state insurance
regulators, then the Company will withdraw the affected subaccount of the
Account's investment in the Fund and terminate this Agreement with respect to
such subaccount of the Account. Any such withdrawal and termination must take
place within 60 days after the Fund gives written notice to the Company that
this provision is being implemented. Until the end of such 60 day period the
Underwriter and Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Fund Board shall determine
whether any proposed action adequately remedies any irreconcilable material
conflict, but in no event will the Fund be required to establish a new funding
medium for the Contracts. The Company shall not be required by Section 7.3 to
establish a new funding medium for the Contracts if an offer to do so has been
declined by vote of a majority of contractowners materially adversely affected
by the irreconcilable material conflict.
7.7 The Company shall at least annually submit to the Fund Board
such reports, materials or data as the Fund Board may reasonably request so
that the Fund Board may fully carry out the duties imposed upon it as
delineated in the Mixed and Shared Funding
22
Exemptive Order, and said reports, materials and data shall be submitted more
frequently if deemed appropriate by the Fund Board.
7.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the Act or the rules promulgated thereunder with respect to mixed
or shared funding (as defined in the Mixed and Shared Funding Exemptive Order)
on terms and conditions materially different from those contained in the Mixed
and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may be necessary
to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted,
to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2,
7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the
extent that terms and conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
---------------
8.1 Indemnification By The Company
------------------------------
(a) The Company agrees to indemnify and hold harmless the
Fund, the Underwriter, and each person, if any, who controls or is associated
with the Fund or the Underwriter within the meaning of such terms under the
federal securities laws and any director, officer, employee or agent of the
foregoing (collectively, the "indemnified parties" for purposes of this
Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or litigation (including reasonable 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:
23
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any
material fact contained in the registration
statement, prospectus or statement of additional
information for the Contracts or contained in
the Contracts or sales literature or other
promotional material 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 in light of the
circumstances in which they were made; 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 Company by or on
behalf of the Fund for use in the registration
statement, prospectus or statement of additional
information for the Contracts or in the
Contracts or sales literature (or any amendment
or supplement) or otherwise for use in
connection with the sale of the Contracts or
Fund shares; or
(ii) arise out of or as a result of statements or
representations by or on behalf of the Company
(other than statements or representations
contained in the Fund registration statement,
Fund prospectus, Fund statement of additional
information or sales literature or other
promotional material of the 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 Fund shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in
the Fund registration statement, Fund
prospectus, statement of additional information
or sales literature or other promotional
material of the 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 in
right of the circumstances in which they were
made, if such a statement or omission was made
in reliance upon and in conformity with
information furnished to the Fund by or on
behalf of the Company or persons under its
control; or
24
(iv) arise as a result of any failure by the Company
to provide the services and furnish the
materials or to make any payments under the
terms of this Agreement; or
(v) arise out of 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 by the
Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) No party shall be entitled to indemnification if such
loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
(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 the Fund shares or the Contracts or
the operation of the Fund.
8.2 Indemnification By the Underwriter
(a) The Underwriter, on its own behalf and on behalf of the
Fund, agrees to indemnify and hold harmless the Company and each person, if
any, who controls or is associated with the Company within the meaning of such
terms under the federal securities laws and any director, officer, employee or
agent of the foregoing (collectively, the "indemnified parties" for purposes
of this Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Underwriter) or litigation (including reasonable 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:
25
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the registration
statement, prospectus or statement of additional
information for the Fund or sales literature or
other promotional material of the 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 in light of the
circumstances in which they were made; 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 or Fund
by or on behalf of the Company for use in the
registration statement, prospectus or statement
of additional information for the Fund or in
sales literature of the Fund (or any amendment
or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or
Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts or in
the Contract or Fund registration statement, the
Contract or Fund prospectus or statement of
additional information or sales literature or
other promotional material for the Contracts or
of the Fund not supplied by the Underwriter or
the Fund or persons under the control of the
Underwriter or the Fund respectively) or
wrongful conduct of the Underwriter or the Fund
or persons under the control of the Underwriter
or the Fund respectively, with respect to the
sale or distribution of the Contracts or Fund
shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in
a registration statement prospectus, statement
of additional information or sales literature or
other promotional material 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 in light of the circumstances in
which they were made, if such statement or
omission was made in reliance upon and in
conformity with information furnished to the
Company by
26
or on behalf of the Underwriter or the Fund or
persons under the control of the Underwriter or
the Fund; or
(iv) arise as a result of any failure by the Fund to
provide the services and furnish the materials
under the terms of this Agreement (including a
failure, whether unintentional or in good faith
or otherwise, to comply with the diversification
requirements and procedures related thereto
specified in Article VI of this Agreement except
if such failure is a result of the Company's
failure to comply with the notification
procedures specified in Article VI); or
(v) arise out of or result from any material breach
of any representation and/or warranty made by
the Underwriter or the Fund in this Agreement or
arise out of or result from any other material
breach of this Agreement by the Underwriter or
the Fund;
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Underwriter
may otherwise have.
(b) No party shall be entitled to indemnification if such
loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
(c) The indemnified parties will promptly notify the
Underwriter and the Fund of the commencement of any litigation or proceedings
against them in connection with the issuance or sale of the Contracts or the
operation of the Account.
8.3 Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article
VIII ("indemnifying party" for the purpose of this Section 8.3) shall not be
liable under the indemnification provisions of this Article VIII with respect
to any claim made against a party entitled to indemnification under this
Article VIII ("indemnified party" for the purpose of this Section 8.3) unless
such indemnified party shall have notified the indemnifying party in writing
27
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 party shall have received notice of such
service on any designated agent), but failure to notify the indemnifying party
of any such claim shall not relieve the indemnifying party from any liability
which it may have to the indemnified party against whom such action is brought
under the indemnification provision of this Article VIII, except to the extent
that the failure to notify results in the failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result
of failure to give such notice. In case any such action is brought against the
indemnified party, the indemnifying party will be entitled to participate, at
its own expense, in the defense thereof. The indemnifying party also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the indemnifying party to the
indemnified party of the indemnifying party'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 indemnifying party 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, unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party
28
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this Article
VIII. The indemnification provisions contained in this Article VIII shall
survive any termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
--------------
9.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2 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 grant (including, but not limited to the Mixed and Shared Funding
Exemptive Order) and the terms hereof shall be interpreted and construed in
accordance therewith.
ARTICLE X. TERMINATION
-----------
10.1 This Agreement shall terminate:
(a) at the option of any party upon 90 days' advance written
notice to the other parties unless otherwise agreed in a separate written
agreement among the parties; or
(b) at the option of the Company if shares of the Portfolios
delineated in Schedule 2 are not reasonably available to meet the requirements
of the Contracts as determined by the Company; or
(c) at the option of the Fund upon institution of formal
proceedings against the Company by the NASD, the SEC, the insurance commission
of any state or any other regulatory body regarding the Company's duties under
this Agreement or related to the sale of
29
the contracts, the administration of the Contracts, the operation of the
Account, or the purchase of the Fund shares, which would have a material
adverse effect on the Company's ability to perform its obligations under this
Agreement; or
(d) at the option of the Company upon institution of formal
proceedings against the Fund by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body, which would have a material
adverse effect on the Fund's ability to perform its obligations under this
Agreement; or
(e) at the option of the Company or the Fund upon receipt of
any necessary regulatory approvals and/or the vote of the contractowners
having an interest in the Account (or any subaccount) to substitute the shares
of another investment company for the corresponding Portfolio shares of the
Fund in accordance with the terms of the Contracts for which those Portfolio
shares had been selected to serve as the underlying investment media. The
Company will give 30 days prior written notice to the Fund of the date of any
proposed vote or other action taken to replace the Fund's shares; or
(f) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a majority of the
disinterested Fund Board members, that an irreconcilable material conflict
exists among the interests of (i) all contractowners of variable insurance
products of all separate accounts or (ii) the interests of the Participating
Insurance Companies investing in the Fund as delineated in Article VII of this
Agreement; or
(g) at the option of the Company if the Fund ceases to
qualify as a Regulated Investment Company under Subchapter M of the Internal
Revenue Code, or under any successor or similar provision, or if the Company
reasonably believes that the Fund may fail to so qualify; or
30
(h) at the option of the Company if the Fund fails to meet
the diversification requirements specified in Article VI hereof, or
(i) at the option of any party to this Agreement, upon
another party's material breach of any provision of this Agreement; or
(j) at the option of the Company, if the Company determines
in its sole judgment exercised in good faith, that either the Fund or the
Underwriter has suffered a material adverse change in its business, operations
or financial condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Company; or
(k) at the option of the Fund or Underwriter, if the Fund or
Underwriter respectively, shall determine in its sole judgment exercised in
good faith, that the Company has suffered a material adverse change in its
business, operations or financial condition since the date of this Agreement
or is the subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the Fund or
Underwriter; or
(l) at the option of the Fund in the event any of the
Contracts are not issued or sold in accordance with applicable federal and/or
state law. Termination shall be effective immediately upon such occurrence
without notice.
10.2 Notice Requirement
(a) In the event that any termination of this Agreement is
based upon the provisions of Article VII, such prior written notice shall be
given in advance of the effective date of termination as required by such
provisions.
(b) In the event that any termination of this Agreement is
based upon the provisions of Sections 10.1(b) - (d) or 10.1(g) - (i), prompt
written notice of the election to
31
terminate this Agreement for cause shall be furnished by the party terminating
the Agreement to the non-terminating parties, with said termination to be
effective upon receipt of such notice, by the non-terminating parties.
(c) In the event that any termination of this Agreement is
based upon the provisions of Sections 10.1(j) or 10.1(k), prior written notice
of the election to terminate this Agreement for cause shall be furnished by
the party terminating this Agreement to the non-terminating parties. Such
prior written notice shall be given by the party terminating this Agreement to
the non-terminating parties at least 30 days before the effective date of
termination.
10.3 It is understood and agreed that the right to terminate this
Agreement pursuant to Section 10.1(a) may be exercised for any reason or for
no reason.
10.4 Effect of Termination
---------------------
(a) Notwithstanding any termination of this Agreement,
subject to Section 1.3 of this Agreement, the Company may require the Fund and
the Underwriter to continue to make available additional shares of the Fund
for so long after the termination of this Agreement as the Company desires
pursuant to the terms and conditions of this Agreement as provided in
paragraph (b) below, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to reallocate investments in the Fund, redeem
investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 10.4 shall not apply to any terminations under Article VII
and the effect of such Article VII terminations shall be governed by Article
VII of this Agreement.
32
(b) If shares of the Fund continue to be made available
after termination of this Agreement pursuant to this Section 10.4, the
provisions of this Agreement shall remain in effect except for Section 10.1
(a) and thereafter the Fund, the Underwriter, or the Company may terminate the
Agreement, as so continued pursuant to this Section 10.4, upon written notice
to the other party, such notice to be for a period that is reasonable under
the circumstances but, if given by the Fund or Underwriter, need not be for
more than 90 days.
10.5 Except as necessary to implement contractowner initiated or
approved transactions, or as required by state insurance laws or regulations,
the Company shall not redeem Fund shares attributable to the Contracts (as
opposed to Fund shares attributable to the Company's assets held in the
Account), and the Company shall not prevent contractowners from allocating
payments to a Portfolio that was otherwise available under the Contracts,
until 90 days after the Company shall have notified the Fund or Underwriter of
its intention to do so.
ARTICLE XI. NOTICES
-------
Any notice shall be deemed duly given only if sent by hand, evidenced by
written receipt or by certified mail, return receipt requested, 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. All
notices shall be deemed given three business days after the date received or
rejected by the addressee.
If to the Fund:
Premier VIT
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Secretary
33
If to the Company:
American Centurion Life Assurance Company
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Vice President
If to the Underwriter:
Allianz Global Investors Distributors LLC
0000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Legal Officer
ARTICLE XII. MISCELLANEOUS
-------------
12.1 All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Directors, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
12.2 Notwithstanding anything to the contrary contained in this
Agreement, in addition to and not in lieu of other provisions in this
Agreement:
(a) "Confidential Information" includes but is not limited
to all proprietary and confidential information of the Company and its
subsidiaries, affiliates and licensees (collectively the "Protected Parties"
for purposes of this Section 12.2), including without limitation all
information regarding the customers of the Protected Parties; or the accounts,
account numbers, names, addresses, social security numbers or any other
personal identifier of such customers; or any information derived therefrom.
(b) The Underwriter and the Fund may not use or disclose
Confidential Information for any purpose other than to carry out the purpose
for which Confidential Information was provided to the Underwriter and/or the
Fund as set forth in the Agreement; and
34
the Underwriter and the Fund agree to cause all their employees, agents and
representatives, or any other party to whom the Underwriter and/or the Fund
may provide access to or disclose Confidential Information to limit the use
and disclosure of Confidential Information to that purpose.
(c) The Underwriter and the Fund acknowledge that all
computer programs and procedures or other information developed or used by the
Protected Parties or any of their employees or agents in connection with the
Company's performance of its duties under this Agreement are the valuable
property of the Protected Parties.
(d) The Underwriter and the Fund agree to implement
appropriate measures, if any, designed to ensure the security and
confidentiality of Confidential Information, to protect such information
against any anticipated threats or hazards to the security or integrity of
such information, and to protect against unauthorized access to, or use of,
Confidential Information that could result in substantial harm or
inconvenience to any customer of the Protected Parties; the Underwriter and
the Fund further agree to cause all their agents, representatives or
subcontractors of, or any other party to whom the Underwriter and/or the Fund
may provide access to or disclose Confidential Information to implement
appropriate measures designed to meet the objectives set forth in this Section
12.2.
(e) The Underwriter and the Fund acknowledge that any breach
of the agreements in this Section 12.2 would result in immediate and
irreparable harm to the Protected Parties for which there would be no adequate
remedy at law and agree that in the event of such a breach, the Protected
Parties 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.
35
(f) This Section 12.2 shall survive termination of this
Agreement. Subject to law and regulatory authority, each party hereto shall
treat as confidential all information reasonably identified as such in writing
by any other party hereto (including without limitation the names and
addresses of the owners of the Contracts) and, except as contemplated by this
Agreement, shall not disclose, disseminate or utilize such confidential
information until such time as it may come into the public domain without the
express prior written consent of the affected party.
12.3 Subject to law and regulatory authority, each party hereto
shall treat as confidential all information reasonably identified as such in
writing by any other party hereto (including without limitation the names and
addresses of the owners of the Contracts) and, except as contemplated by this
Agreement, shall not disclose, disseminate or utilize such confidential
information until such time as it may come into the public domain without the
express prior written consent of the affected party.
12.4 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.
12.5 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.6 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.
12.7 This Agreement shall not be assigned by any party hereto
without the prior written consent of all the parties. The parties by their
signature below give their written consent to the future assignment of this
Agreement by American Centurion Life Assurance Company to
36
its affiliated company, IDS Life Insurance Company of New York, a New York
Corporation, and to the simultaneous renaming of IDS Life Insurance Company of
New York as RiverSource Life Insurance Co. of New York, upon the completion of
the merger of American Centurion Life Assurance Company with and into IDS Life
Insurance Company of New York on December 31, 2006 at 10:59:59 p.m. Central
Time ("Effective Time"), and on the Effective Time, RiverSource Life Insurance
Co. of New York shall undertake all of American Centurion Life Assurance
Company's duties and obligations under this Agreement. On and after the
Effective Time, all references in this Agreement and its Schedules to American
Centurion Life Assurance Company shall mean and refer to RiverSource Life
Insurance Co. of New York.
12.8 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 each other and
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.
12.9 The parties to this Agreement may amend the Schedules to this
Agreement from time to time to reflect changes in or relating to the
Contracts, the Accounts or the Portfolios of the Fund.
37
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and behalf by its duly authorized representative as
of the date specified above.
AMERICAN CENTURION LIFE Attest:
ASSURANCE COMPANY
By: /s/ Xxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- -------------------------------
Xxx X. Xxxxx Xxxxx Xxxxxx
Its: Vice President Its: Assistant Secretary
PREMIER VIT
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Its: President
ALLIANZ GLOBAL INVESTORS
DISTRIBUTORS LLC
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Its: Managing Director
38
SCHEDULE 1
Participation Agreement
Among
Premier VIT, American Centurion Life Assurance Company
and
Allianz Global Investors Distributors LLC
The following separate accounts of American Centurion Life Assurance Company
are permitted in accordance with the provisions of this Agreement to invest in
Portfolios of the Fund shown in Schedule 2:
ACL Variable Annuity Account 2, established October 12, 1995 as used to
fund the flexible premium variable annuity contracts known as ACL
Personal Portfolio(SM) and ACL Personal Portfolio Plus(2).
SCHEDULE 2
Participation Agreement
Among
Premier VIT, American Centurion Life Assurance Company
and
Allianz Global Investors Distributors LLC
The Separate Account(s) shown on Schedule 1 may invest in the following
Portfolios of the Premier VIT:
OpCap Equity Portfolio
OpCap Managed Portfolio
OpCap Small Cap Portfolio
