PARTICIPATION AGREEMENT Among ANNUITY INVESTORS LIFE INSURANCE COMPANY, PIMCO VARIABLE INSURANCE TRUST, and PIMCO FUNDS DISTRIBUTORS LLC
Ex-8(l)
Among
ANNUITY INVESTORS LIFE INSURANCE COMPANY,
PIMCO VARIABLE INSURANCE TRUST,
and
PIMCO FUNDS DISTRIBUTORS LLC
THIS AGREEMENT, made to be effective as of the 1st day of July, 2002, by and among Annuity
Investors Life Insurance Company, (the “Company”), an Ohio life insurance company, on its own
behalf and on behalf of each segregated asset account of the Company set forth on Schedule A hereto
as may be amended from time to time (each account hereinafter referred to as the “Account”), PIMCO
Variable Insurance Trust (the “Fund”), a Delaware business trust, and PIMCO Funds Distributors LLC
(the “Underwriter”), a Delaware limited liability company.
WHEREAS, the Fund engages in business as an open-end management investment company and is
available to act as the investment vehicle for separate accounts established for variable life
insurance and variable annuity contracts (the “Variable Insurance Products”) to be offered by
insurance companies which have entered into participation agreements with the Fund and Underwriter
(“Participating Insurance Companies”);
WHEREAS, the shares of beneficial interest of the Fund are divided into several series of
shares, each designated a “Portfolio” and representing the interest in a particular managed
portfolio of securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and Exchange Commission (the
“SEC”) granting Participating Insurance Companies and variable annuity and variable life insurance
separate accounts exemptions from the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the
Investment Company Act of 1940, as amended, (the “1940 Act”) and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, if and to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies (the “Mixed and Shared Funding Exemptive Order”);
WHEREAS, the Fund is registered as an open-end management investment company under the 1940
Act and shares of the Portfolios are registered under the Securities Act of 1933, as amended (the
“1933 Act”);
WHEREAS, Pacific Investment Management Company (the “Adviser”), which serves as investment
adviser to the Fund, is duly registered as an investment adviser under the federal Investment
Advisers Act of 1940, as amended;
WHEREAS, the Company has issued or will issue certain variable life insurance and/or variable
annuity contracts supported wholly or partially by the Account (the “Contracts”), and said
Contracts are listed in Schedule A hereto, as it may be amended from time to time by mutual written
agreement;
WHEREAS, the Account is duly established and maintained as a segregated asset account, duly
established by the Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to the aforesaid Contracts;
WHEREAS, the Underwriter, which serves as distributor to the Fund, is registered as a broker
dealer with the SEC under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and is
a member in good standing of the National Association of Securities Dealers, Inc. (the “NASD”); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations, the Company
intends to purchase Administrative Class shares in the Portfolios listed in Schedule A hereto, as
it may be amended from time to time by mutual written agreement (the “Designated Portfolios”) on
behalf of the Account to fund the aforesaid Contracts, and the Underwriter is authorized to sell
such shares to 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 Fund has granted to the Underwriter exclusive authority to distribute the Fund’s
shares, and has agreed to instruct, and has so instructed, the Underwriter to make available to the
Company for purchase, on behalf of the Account, Fund shares of those Designated Portfolios selected
by the Underwriter. Pursuant to such authority and instructions, and subject to Article X hereof,
the Underwriter agrees to make available to the Company for purchase on behalf of the Account,
shares of those Designated Portfolios listed on Schedule A to this Agreement, such purchases to be
effected at net asset value in accordance with Section 1.3 of this Agreement. Notwithstanding the
foregoing, (i) Fund series (other than those listed on Schedule A) in existence now or that may be
established in the future will be made available to the Company only as the Underwriter may so
provide, and (ii) the Board of Trustees of the Fund (the “Board”) may suspend or terminate the
offering of Fund shares of any Designated Portfolio or class thereof, if such action is required by
law or by regulatory authorities having jurisdiction or if, in the sole discretion of the Board
acting in good faith and in light of its fiduciary duties under federal and any applicable state
laws, suspension or termination is necessary in the best interests of the shareholders of such
Designated Portfolio.
1.2. The Fund shall redeem, at the Company’s request, any full or fractional Designated
Portfolio shares held by the Company on behalf of the Account, such redemptions to be effected at
net asset value in accordance with Section 1.3 of this Agreement. Notwithstanding the foregoing,
(i) the Company shall not redeem Fund shares attributable to Contract owners except in the
circumstances permitted in Section 10.3 of this Agreement, and (ii) the Fund may delay redemption
of Fund shares of any Designated Portfolio to the extent permitted by the 1940 Act, and any rules,
regulations or orders thereunder.
1.3. Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as an agent of the Fund for the limited purpose of
receiving purchase and redemption requests on behalf of the Account (but not with respect to any
Fund shares that may be held in the general account of the Company) for shares of those Designated
Portfolios made available hereunder, based on allocations of amounts to the Account or subaccounts
thereof under the Contracts and other transactions relating to the Contracts or the Account.
Receipt of any such request (or relevant transactional information
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therefor) on any day 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 (a “Business Day”) by the Company
as such limited agent of the Fund prior to the time that the Fund ordinarily calculates its net
asset value as described from time to time in the Fund Prospectus (which as of the date of
execution of this Agreement is 4:00 p.m. Eastern Time) shall constitute receipt by the Fund on that
same Business Day, provided that the Fund receives notice of such request by 9:30 a.m. Eastern Time
on the next following Business Day.
(b) The Company shall pay for shares of each Designated Portfolio on the same day that it
notifies the Fund of a purchase request for such shares. Payment for Designated Portfolio shares
shall be made in federal funds transmitted to the Fund by wire to be received by the Fund by 4:00
p.m. Eastern Time on the next Business Day after the Fund is notified of the purchase request for
Designated Portfolio shares (unless the Fund determines and so advises the Company that sufficient
proceeds are available from redemption of shares of other Designated Portfolios effected pursuant
to redemption requests tendered by the Company on behalf of the Account). If federal funds are not
received on time, such funds will be invested, and Designated Portfolio shares purchased thereby
will be issued, as soon as practicable and the Company shall promptly, upon the Fund’s request,
reimburse the Fund for any charges, costs, fees, interest or other expenses incurred by the Fund in
connection with any advances to, or borrowing or overdrafts by, the Fund, or any similar expenses
incurred by the Fund, as a result of portfolio transactions effected by the Fund based upon such
purchase request. Upon receipt of federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the Fund.
(c) Payment for Designated Portfolio shares redeemed by the Account or the Company shall be
made in federal funds transmitted by wire to the Company or any other designated person on the next
Business Day after the Fund is properly notified of the redemption order of such shares (unless
redemption proceeds are to be applied to the purchase of shares of other Designated Portfolios in
accordance with Section 1.3(b) of this Agreement), except that the Fund reserves the right to
redeem Designated Portfolio shares in assets other than cash and to delay payment of redemption
proceeds to the extent permitted under Section 22(e) of the 1940 Act and any Rules thereunder, and
in accordance with the procedures and policies of the Fund as described in the then current
prospectus. The Fund shall apply any such delay in redemptions uniformly to all holders of shares
of the affected Designated Portfolio. The Fund shall not bear any responsibility whatsoever for the
proper disbursement or crediting of redemption proceeds by the Company; the Company alone shall be
responsible for such action.
(d) Any purchase or redemption request for Designated Portfolio shares held or to be held in
the Company’s general account shall be effected at the net asset value per share next determined
after the Fund’s receipt of such request, provided that, in the case of a purchase request, payment
for Fund shares so requested is received by the Fund in federal funds prior to close of business
for determination of such value, as defined from time to time in the Fund Prospectus.
1.4. The Fund shall use its best efforts to make the net asset value per share for each
Designated Portfolio available to the Company by 7:00 p.m. Eastern Time each Business Day, and in
any event, as soon as reasonably practicable after the net asset value per share for such
Designated Portfolio is calculated, and shall calculate such net asset value in accordance with the
Fund’s Prospectus. Neither the Fund, any Designated 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
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incorrect information supplied by the Company or any other Participating Insurance Company to the
Fund or the Underwriter.
1.5 If the Fund provides the Company with materially incorrect share net asset value
information through no fault of Company, Company (on behalf of the Account), shall be entitled to
an adjustment to the number of shares purchased or redeemed to reflect the correct share net asset
value. Any material error (determined in accordance with SEC guidelines) in the calculation of net
asset value per share, dividend or capital gain information shall be reported promptly upon
discovery to Company. In the event that such material error is the result of the Fund’s (or its
designated agents’) gross negligence, or that such material error is not reported to Company
promptly upon discovery, the Fund shall also be responsible for any of the Company’s reasonable
administrative or other costs or losses incurred in correcting Contract owner accounts.
1.6 The Fund shall furnish notice (by wire or telephone followed by written confirmation) to
the Company as soon as reasonably practicable of any income dividends or capital gain distributions
payable on any Designated Portfolio shares. The Company, on its behalf and on behalf of the
Account, hereby elects to receive all such dividends and distributions as are payable on any
Designated Portfolio shares in the form of additional shares of that Designated Portfolio. The
Company reserves the right, on its behalf and on behalf of the Account, to revoke this election and
to receive all such dividends and capital gain distributions in cash. The Fund shall notify the
Company promptly of the number of Designated Portfolio shares so issued as payment of such
dividends and distributions.
1.7 Issuance and transfer of Fund shares shall be by book entry only. Stock certificates will
not be issued to the Company or the Account. Purchase and redemption orders for Fund shares shall
be recorded in an appropriate ledger for the Account or the appropriate subaccount of the Account.
1.8 (a) The parties hereto acknowledge that the arrangement contemplated by this Agreement is
not exclusive; the Fund’s shares may be sold to other insurance companies (subject to Section 1.8
hereof) and the cash value of the Contracts may be invested in other investment companies,
provided, however, that until this Agreement is terminated pursuant to Article X, the Company shall
promote the Designated Portfolios on a substantially similar basis as other funding vehicles
available under the Contracts. Funding vehicles other than those listed on Schedule A to this
Agreement may be available for the investment of the cash value of the Contracts, provided,
however, (i) any such vehicle or series thereof, has investment objectives or policies that are
substantially different from the investment objectives and policies of the Designated Portfolios
available hereunder; (ii) the Company gives the Fund and the Underwriter 45 days written notice of
its intention to make such other investment vehicle available as a funding vehicle for the
Contracts; and (iii) unless such other investment company was available as a Funding vehicle for
the Contracts prior to the date of this Agreement and the Company has so informed the Fund and the
Underwriter prior to their signing this Agreement, the Fund or Underwriter consents in writing to
the use of such other vehicle, such consent not to be unreasonably withheld.
(b) The Company shall not, without prior notice to the Underwriter (unless otherwise required
by applicable law), take any action to operate the Account as a management investment company under
the 1940 Act.
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(c) The Company shall not, without prior notice to the Underwriter (unless otherwise required
by applicable law), induce Contract owners to change or modify the Fund or change the Fund’s
distributor or investment adviser.
(d) The Company shall not, without prior notice to the Fund, induce Contract owners to vote on
any matter submitted for consideration by the shareholders of the
Fund in a manner other than as recommended by the Board.
1.9 The Underwriter and the Fund shall sell Fund shares only to Participating Insurance
Companies and their separate accounts and to persons or plans (“Qualified Persons”) that
communicate to the Underwriter and the Fund that they qualify to purchase shares of the Fund under
Section 817(h) of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations
thereunder without impairing the ability of the Account to consider the portfolio investments of
the Fund as constituting investments of the Account for the purpose of satisfying the
diversification requirements of Section 817(h). The Underwriter and the Fund shall not sell Fund
shares to any insurance company or separate account unless an agreement complying with Article VI
of this Agreement is in effect to govern such sales, to the extent required. The Company hereby
represents and warrants that it and the Account are Qualified Persons. The Fund reserves the right
to cease offering shares of any Designated Portfolio upon 90 days prior written notice, in the
discretion of the Fund.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts (a) are, or prior to issuance will
be, registered under the 1933 Act, or (b) are not registered because they are properly exempt from
registration under the 1933 Act or will be offered exclusively in transactions that are properly
exempt from registration under the 1933 Act. The Company further represents and warrants that the
Contracts will be issued and sold in compliance in all material respects with all applicable
federal securities and state securities and insurance laws and that the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements. The Company further
represents and warrants that it is an insurance company duly organized and in good standing under
applicable law, that it has legally and validly established the Account prior to any issuance or
sale thereof as a segregated asset account under Ohio insurance laws, and that it (a) has
registered or, prior to any issuance or sale of the Contracts, will register the Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts, or alternatively (b) has not registered the Account in proper
reliance upon an exclusion from registration under the 1940 Act. The Company shall register and
qualify the Contracts or interests therein as securities in accordance with the laws of the various
states only if and to the extent deemed advisable by the Company.
2.2. The Fund represents and warrants that Fund shares sold pursuant to this Agreement shall
be registered under the 1933 Act, duly authorized for issuance and sold in compliance with
applicable state and federal securities laws and that the Fund is and shall remain registered under
the 0000 Xxx. 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.
2.3. The Fund may make payments to finance distribution expenses pursuant to Rule 12b-1 under
the 1940 Act. Prior to financing distribution expenses pursuant to Rule 12b-1, the Fund will have
the Board, a majority of whom are not interested persons of the Fund, formulate and approve a plan
pursuant to Rule 12b-1 under the 1940 Act to finance distribution expenses.
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2.4. The Fund represents and warrants that its operations, including, but not limited to,
investment policies, fees and expenses, comply in all material respects with the insurance and
other applicable laws of the State of Delaware.
2.5. The Fund represents that it is lawfully organized and validly existing under the laws of
the State of Delaware and that it does and will comply in all material respects with the 1940 Act.
2.6. The Underwriter represents and warrants that it is a member in good standing of the NASD
and is registered as a broker-dealer with the SEC. The Underwriter further represents that it will
sell and distribute the Fund shares in accordance with any applicable state and federal securities
laws.
2.7. The Fund and the Underwriter represent and warrant that all of their trustees/directors,
officers, employees, investment advisers, and other individuals or entities dealing with the money
and/or securities of the Fund are and shall 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
minimum coverage as required currently by Rule 17g-l of the 1940 Act or related provisions as may
be promulgated from time to time. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.8. The Company represents and warrants that all of its directors, officers, employees, and
other individuals/entities employed or controlled by the Company dealing with the money and/or
securities of the Account are covered by a blanket fidelity bond or similar coverage for the
benefit of the Account, in an amount not less than $5 million. The aforesaid bond includes coverage
for larceny and embezzlement and is issued by a reputable bonding company. The Company agrees to
hold for the benefit of the Fund and to pay to the Fund any amounts lost from larceny, embezzlement
or other events covered by the aforesaid bond to the extent such amounts properly belong to the
Fund pursuant to the terms of this Agreement. 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.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company with as many copies of the Fund’s current
prospectus (describing only the Designated Portfolios listed on Schedule A) or, to the extent
permitted, the Fund’s profiles as the Company may reasonably request. The Company shall bear the
expense of printing copies of the current prospectus and profiles for the Contracts that will be
distributed to existing Contract owners, and the Company shall bear the expense of printing copies
of the Fund’s prospectus and profiles that are used in connection with offering the Contracts
issued by the Company. If requested by the Company in lieu thereof, the Fund shall provide such
documentation (including a final copy of the new prospectus, in such electronic form as is mutually
agreed, at the Fund’s expense) and other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the prospectus for the Fund is amended) to have the
prospectus for the Contracts and the Fund’s prospectus or profile printed together in one document
(such printing to be at the Company’s expense).
3.2. The Fund’s prospectus shall state that the current Statement of Additional Information
(“SAI”) for the Fund is available, and the Underwriter (or the Fund), at its expense, shall provide
a reasonable number of copies of such SAI free of charge to the Company for itself and for any
owner of a Contract who requests such SAI.
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3.3. The Fund shall provide the Company with information regarding the Fund’s expenses, which
information may include a table of fees and related narrative disclosure for use in any prospectus
or other descriptive document relating to a Contract. The Company agrees that it will use such
information in the form provided. The Company shall provide prior written notice of any proposed
modification of such information, which notice will describe in detail the manner in which the
Company proposes to modify the information, and agrees that it may not modify such information in
any way without the prior consent of the Fund, which consent shall not be unreasonably withheld.
3.4. The Fund, at its expense, shall provide the Company with copies of its proxy material,
reports to shareholders, and other communications to shareholders in such quantity as the Company
shall reasonably require for distributing to Contract owners.
3.5. The Company shall:
| (i) | solicit voting instructions from Contract owners; | ||
| (ii) | vote the Fund shares in accordance with instructions received from Contract owners; and | ||
| (iii) | vote Fund shares for which no instructions have been received in the same proportion as Fund shares of such portfolio for which instructions have been received, |
so long as and to the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners or to the extent otherwise required by
law. The Company will vote Fund shares held in any segregated asset account in the same proportion
as Fund shares of such portfolio for which voting instructions have been received from Contract
owners, to the extent permitted by law.
3.6. Participating Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in a Designated Portfolio calculates voting privileges as required
by the Mixed and Shared Funding Exemptive Order and consistent with any reasonable standards that
the Fund may adopt and provide in writing.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund or its designee,
each piece of sales literature or other promotional material that the Company develops and in which
the Fund (or a Designated Portfolio thereof) or the Adviser or the Underwriter is named. No such
material shall be used until approved by the Fund or its designee, and the Fund will use its best
efforts for it or its designee to review such sales literature or promotional material within five
Business Days after receipt of such material. The Fund or its designee reserves the right to
reasonably object to the continued use of any such sales literature or other promotional material
in which the Fund (or a Designated Portfolio thereof) or the Adviser or the Underwriter is named,
and no such material shall be used if the Fund or its designee so object.
4.2. The Company shall not give any information or make any representations or statements on
behalf of the Fund or concerning the Fund or the Adviser or the Underwriter in connection with the
sale of the Contracts other than the information or representations contained in the registration
statement or prospectus or SAI for the Fund shares, as such registration statement and prospectus
or SAI
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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 its designee or by the
Underwriter, except with the permission of the Fund or the Underwriter or the designee of either.
4.3. The Fund and the Underwriter, or their designee, shall furnish, or cause to be furnished,
to the Company, each piece of sales literature or other promotional material that it develops and
in which the Company, and/or its Account, is named. No such material shall be used until approved
by the Company, and the Company will use its best efforts to review such sales literature or
promotional material within five Business Days after receipt of such material. The Company reserves
the right to reasonably object to the continued use of any such sales literature or other
promotional material in which the Company and/or its Account is named, and no such material shall
be used if the Company so objects.
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, the Account, or the Contracts other than the
information or representations contained in a registration statement, prospectus (which shall
include an offering memorandum, if any, if the Contracts issued by the Company or interests therein
are not registered under the 1933 Act), or SAI for the Contracts, as such registration statement,
prospectus, or SAI may be amended or supplemented from time to time, or in published reports for
the Account which are in the public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of all registration
statements, prospectuses, SAIs, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Fund or its shares, promptly after the filing of such document(s)
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 (which shall include an offering memorandum, if any, if the Contracts
issued by the Company or interests therein are not registered under the 1933 Act), SAIs, 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 the Account, promptly after the filing of such document(s)
with the SEC or other regulatory authorities. The Company shall provide to the Fund and the
Underwriter any complaints received from the Contract owners pertaining to the Fund or a Designated
Portfolio.
4.7. The Fund will provide the Company with as much notice as is reasonably practicable of any
proxy solicitation for any Designated Portfolio, and of any material change in the Fund’s
registration statement, particularly any change resulting in a change to the registration statement
or prospectus for any Account. The Fund will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or registration
statement, in an orderly manner. The Fund will make reasonable efforts to attempt to have changes
affecting Contract prospectuses become effective simultaneously with the annual updates for such
prospectuses.
4.8.
For purposes of this Article IV, the phrase “sales literature and other promotional
materials” includes, but is not limited to, any of the following that refer to the Fund or any
affiliate of the Fund: 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
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made generally available to customers or the public, including brochures, circulars, reports,
market letters, form letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other communications
distributed or made generally available to some or all agents or employees, and registration
statements, prospectuses, SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Fund.
ARTICLE V. Fees and Expenses
5.1. The Fund and the 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 to finance distribution expenses, then the Fund or Underwriter may make payments to the
Company or to the underwriter for the Contracts if and in amounts agreed to by the Underwriter in
writing, and such payments will be made out of existing fees otherwise payable to the Underwriter,
past profits of the Underwriter, or other resources available to the Underwriter. Currently, no
such payments are contemplated.
5.2. All expenses incident to performance by the Fund under this Agreement shall be paid by
the Fund. The Fund shall see to it that all its shares are registered and authorized for issuance
in accordance with applicable federal law and, if and to the extent deemed advisable by the Fund,
in accordance with applicable state laws prior to their sale. The Fund shall bear the expenses for
the cost of registration and qualification of the Fund’s shares, preparation and filing of the
Fund’s prospectus and registration statement, proxy materials and reports, setting the prospectus
in type, setting in type and printing the proxy materials and reports to shareholders (including
the costs of printing a prospectus that constitutes an annual report), the preparation of all
statements and notices required by any federal or state law, and all taxes on the issuance or
transfer of the Fund’s shares.
5.3. The Company shall bear the expenses of distributing the Fund’s prospectus to owners of
Contracts issued by the Company and of distributing the Fund’s proxy materials and reports to such
Contract owners.
ARTICLE VI. Diversification and Qualification
6.1. The Fund will invest its assets in such a manner as to ensure that the Contracts will be
treated as annuity or life insurance contracts, whichever is appropriate, under the Code and the
regulations issued thereunder (or any successor provisions). Without limiting the scope of the
foregoing, each Designated Portfolio has complied and will continue to comply with Section 817(h)
of the Code and Treasury Regulation § 1.817-5, and any Treasury interpretations thereof, relating
to the diversification requirements for variable annuity, endowment, or life insurance contracts,
and any amendments or other modifications or successor provisions to such Section or Regulations.
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 within the grace period afforded by Regulation 1.817-5.
6.2. The Fund represents and warrants that it is or will be qualified as a Regulated
Investment Company under Subchapter M of the Code, and that it will make every effort to maintain
such qualification (under Subchapter M or any successor or similar provisions) 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.
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6.3. The Company represents that the Contracts are currently, and at the time of issuance
shall be, treated as life insurance or annuity insurance contracts, under applicable provisions of
the 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 the Contracts
have ceased to be so treated or that they might not be so treated in the future. The Company agrees
that any prospectus offering a contract that is a “modified endowment contract” as that term is
defined in Section 7702A of the Code (or any successor or similar provision), shall identify such
contract as a modified endowment contract.
ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Fund for the existence of any material irreconcilable conflict
between the interests of the Contract owners 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 variable annuity contract and variable life insurance contract owners; or (f) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall
promptly inform the Company if it determines that an irreconcilable material conflict exists and
the implications thereof.
7.2. The Company will report any potential or existing conflicts of which it is aware to the
Board. The Company will assist the Board in carrying out its responsibilities under the Mixed and
Shared Funding Exemptive Order, by providing the Board with all information reasonably necessary
for the Board to consider any issues raised. This includes, but is not limited to, an obligation by
the Company to inform the Board whenever Contract owner voting instructions are disregarded.
7.3. If it is determined by a majority of the Board, or a majority of its disinterested
members, that a material irreconcilable 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 Board members), 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 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 contract owners and, as appropriate, segregating the assets of any appropriate group
(i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one
or more Participating Insurance Companies) that votes in favor of such segregation, or offering to
the affected contract owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a decision by the Company to
disregard Contract owner voting instructions and that decision represents a minority position or
would preclude a majority vote, the Company may be required, at the Fund’s election, to withdraw
the Account’s investment in the Fund and terminate this Agreement with respect to each Account;
provided, however, that such withdrawal and termination shall be limited to the extent required by
the foregoing material irreconcilable conflict as determined by a majority of the disinterested
members of the Board. Any such withdrawal and termination must take place within six (6) months
after the Fund gives written notice that
- 10 -
this provision is being implemented, and until the end of that six month period the 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 material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to the Company conflicts with the majority of other state
regulators, then the Company will withdraw the affected Account’s investment in the Fund and
terminate this Agreement with respect to such Account within six months after the Board informs the
Company in writing that it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six month period, the 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 Section 7.3 through 7.6 of this Agreement, a majority of the
disinterested members of the 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 Contract owners materially adversely affected by the irreconcilable material conflict. In the
event that the Board determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will withdraw the Account’s investment in the
Fund and terminate this Agreement within six (6) months after the Board informs the Company in
writing of the foregoing determination; provided, however, that such withdrawal and termination
shall be limited to the extent required by any such material irreconcilable conflict as determined
by a majority of the disinterested members of the Board.
7.7. If and to the extent the Mixed and Shared Funding Exemption Order or any amendment
thereto contains terms and conditions different from Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4,
and 7.5 of this Agreement, then the Fund and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with the Mixed and Shared Funding
Exemptive Order, and Sections 3.4, 3.5, 3.6, 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 the Mixed and Shared Funding Exemptive Order or any amendment thereto. 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 1940 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 3.5, 3.6, 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
8.1(a). The Company agrees to indemnify and hold harmless the Fund and the Underwriter
and each of its trustees/directors, officers, employees and agents, and each person, if
any, who controls the Fund or Underwriter within the meaning of Section 15 of the 1933 Act
or who is under
- 11 -
common control with the Underwriter (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 or
regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged untrue statements of any
material fact contained in the registration statement, prospectus (which shall include a written
description of a Contract that is not registered under the 1933 Act), or SAI for the Contracts or
contained in the Contracts or sales literature for the Contracts (or any amendment or supplement to
any of the foregoing), or arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall not apply as to any
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 XXx 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 (other than statements or
representations contained in the registration statement, prospectus, SAI, or sales literature of the
Fund not supplied by the Company or persons under its control) or wrongful conduct of the Company
or its agents or persons under the Company’s authorization or 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 a registration statement, prospectus, SAI, or sales literature 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 if such a statement or omission was made in reliance upon information furnished to the
Fund by or on behalf of the Company; or
(iv) arise as a result of any material failure by the Company 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 qualification requirements specified in Article
VI of this Agreement); or
(v) arise out of or result from 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 of this
Agreement by the Company; or
(vi) as limited by and in accordance with the provisions of Sections 8.1(b) and 8.1(c) hereof.
- 12 -
8.1(b). The Company shall not be liable under this indemnification provision with respect to
any losses, claims, damages, liabilities or litigation to which an Indemnified Party would
otherwise be subject by reason of such Indemnified Party’s willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party’s duties or by reason of such Indemnified
Party’s reckless disregard of its obligations or duties under this Agreement.
8.1(c). The Company shall not be liable under this indemnification provision with respect to
any claim made against an Indemnified Party unless such Indemnified Party shall have notified the
Company in writing promptly after the summons or other first legal process giving information of
the nature of the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated agent), but failure
to notify the Company of any such claim shall not relieve the Company from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise than on account of
this indemnification provision. In case any such action is brought against an Indemnified Party,
the Company shall be entitled to participate, at its own expense, in the defense of such action.
The Company also shall be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Company to such party of the Company’s election to
assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Company will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of investigation.
8.1(d). 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
8.2(a). The Underwriter agrees to indemnify and hold harmless the Company and each of its
directors, officers, employees and agents, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the “Indemnified Parties” for purposes of
this Section 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 or
regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or prospectus or SAI or sales literature 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, 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 SAI for the Fund or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or Fund shares; or
- 13 -
(ii) arise out of or as a result of statements or representations (other than statements or
representations contained in the registration statement, prospectus, SAI or sales literature for the
Contracts not supplied by the Underwriter or persons under its control) or wrongful conduct of the
Fund or Underwriter or persons under their 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
a registration statement, prospectus, SAI or sales literature covering the Contracts, or any
amendment thereof or supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Fund or the Underwriter; or
(iv) arise as a result of any failure by the Fund or the Underwriter to provide the services and
furnish the materials under the terms of this Agreement (including a failure of the Fund, whether
unintentional or in good faith or otherwise, to comply with the diversification and other
qualification requirements specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach of any representation and/or warranty made by
the Underwriter in this Agreement or arise out of or result from any other material breach of this
Agreement by the Underwriter;
as limited by and in accordance with the provisions of Sections 8.2(b) and 8.2(c) hereof.
8.2(b). The Underwriter shall not be liable under this indemnification provision with respect
to any losses, claims, damages, liabilities or litigation to which an Indemnified Party would
otherwise be subject by reason of such Indemnified Party’s willful misfeasance, bad faith, or gross
negligence in the performance or such Indemnified Party’s duties or by reason of such Indemnified
Party’s reckless disregard of obligations and duties under this Agreement or to the Company or the
Account, whichever is applicable.
8.2(c). The Underwriter shall not be liable under this indemnification provision with respect
to any claim made against an Indemnified Party unless such Indemnified Party shall have notified
the Underwriter in writing promptly after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any designated agent), but
failure to notify the Underwriter of any such claim shall not relieve the Underwriter from any
liability which it may have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is brought against the
indemnified Party, the Underwriter will be entitled to participate, at its own expense, in the
defense thereof. The Underwriter also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Underwriter to such party of
the Underwriter’s election to assume the defense thereof, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the Underwriter will not be liable to
such party under this Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs of investigation.
- 14 -
The Company agrees promptly to notify the Underwriter of the commencement of any litigation or
proceedings against it or any of its officers or directors in connection with the issuance or sale
of the Contracts or the operation of the Account.
8.3. Indemnification By the Fund
8.3(a). The Fund agrees to indemnify and hold harmless the Company and each of its directors,
officers, employees and agents, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act (collectively, the “Indemnified Parties” for purposes of this
Section 8.3) against any and all losses, claims, expenses, damages, liabilities (including amounts
paid in settlement with the written consent of the Fund) or litigation (including reasonable legal
and other expenses) to which the Indemnified Parties may be required to pay or may become subject
under any statute or regulation, at common law or otherwise, insofar as such losses, claims,
expenses, damages, liabilities or expenses (or actions in respect thereof) or settlements, are
related to the operations of the Fund and:
(i) 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 and other qualification requirements specified in
Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any representation and/or warranty made by
the Fund in this Agreement or arise out of or result from any other material breach of this
Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(b). The Fund shall not be liable under this indemnification provision with respect to any
losses, claims, damages, liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party’s willful misfeasance, bad faith, or gross negligence
in the performance of such Indemnified Party’s duties or by reason of such Indemnified Party’s
reckless disregard of obligations and duties under this Agreement or to the Company, the Fund, the
Underwriter or the Account, whichever is applicable.
8.3(c). The Fund shall not be liable under this indemnification provision with respect to any
claim made against an Indemnified Party unless such Indemnified Party shall have notified the Fund
in writing promptly after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but failure to notify the Fund
of any such claim shall not relieve the Fund from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the Indemnified Parties, the
Fund will be entitled to participate, at its own expense, in the defense thereof. The Fund also
shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Fund to such party of the Fund’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 Fund 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.
- 15 -
8.3(d). The Company and the Underwriter agree promptly to notify the Fund of the commencement
of any litigation or proceeding against it or any of its respective officers or directors in
connection with the Agreement, the issuance or sale of the Contracts, the operation of the Account,
or the sale or acquisition of shares of the Fund.
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 California.
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 may grant (including, but not limited to, any Mixed and Shared
Funding Exemptive Order) and the terms hereof shall be interpreted and construed in accordance
therewith. If, in the future, the Mixed and Shared Funding Exemptive Order should no longer be
necessary under applicable law, then Article VII shall no longer apply.
ARTICLE X. Termination
| 10.1. | This Agreement shall continue in full force and effect until the first to occur of: | ||
| (a) | termination by any party, for any reason with respect to some or all Designated Portfolios, by ninety (90) days advance written notice delivered to the other parties; or | ||
| (b) | termination by the Company by written notice to the Fund and the Underwriter based upon the Company’s determination that shares of the Fund are not reasonably available to meet the requirements of the Contracts; or | ||
| (c) | termination by the Company by written notice to the Fund and the Underwriter in the event any of the Designated Portfolios’ shares are not registered, issued or sold in accordance with applicable state and/or federal law or such law precludes the use of such shares as the underlying investment media of the Contracts issued or to be issued by the Company; or | ||
| (d) | termination by the Fund or Underwriter, upon written notice to the Company, in the event that formal administrative proceedings are instituted against the Company by the NASD, the SEC, the Insurance Commissioner or like official of any state or any other regulatory body regarding the Company’s duties under this Agreement or related to the sale of the Contracts, the operation of any Account, or the purchase of the Fund’s shares; provided, however, that the Fund or Underwriter determines in its sole judgment exercised in good faith, that any such administrative proceedings will have a material adverse effect upon the ability of the Company to perform its obligations under this Agreement; or | ||
| (e) | termination by the Company, upon written notice to the Fund and/or Underwriter in the event that formal administrative proceedings are instituted against the Fund or Underwriter by the NASD, the SEC, or any state securities or insurance department or any other regulatory body; provided, however, that the Company determines in its sole judgment exercised in good faith, that any such |
- 16 -
| administrative proceedings will have a material adverse effect upon the ability of the Fund or Underwriter to perform its obligations under this Agreement; or | |||
| (f) | termination by the Company by written notice to the Fund and the Underwriter with respect to any Designated Portfolio in the event that such Portfolio ceases to qualify as a Regulated Investment Company under Subchapter M or fails to comply with the Section 817(h) diversification requirements specified in Article VI hereof, or if the Company reasonably believes that such Portfolio may fail to so qualify or comply; or | ||
| (g) | termination by the Fund or Underwriter by written notice to the Company in the event that the Contracts fail to meet the qualifications specified in Article VI hereof; or | ||
| (h) | termination by either the Fund or the Underwriter by written notice to the Company, if either one or both of the Fund or the Underwriter respectively, shall determine, in their sole judgment exercised in good faith, that the Company has suffered a material adverse change in its business, operations, financial condition, or prospects since the date of this Agreement or is the subject of material adverse publicity; or | ||
| (i) | termination by the Company by written notice to the Fund and the Underwriter, if the Company shall determine, in its sole judgment exercised in good faith, that the Fund, Adviser, or the Underwriter has suffered a material adverse change in its business, operations, financial condition or prospects since the date of this Agreement or is the subject of material adverse publicity; or | ||
| (j) | termination by the Fund or the Underwriter by written notice to the Company, if the Company gives the Fund and the Underwriter the written notice specified in Section 1.8(a) hereof and at the time such notice was given there was no notice of termination outstanding under any other provision of this Agreement; provided, however, any termination under this Section 10.1(j) shall be effective forty-five days after the notice specified in Section 1.8(a) was given; or | ||
| (k) | termination by the Company upon any substitution of the shares of another investment company or series thereof for shares of a Designated Portfolio of the Fund in accordance with the terms of the Contracts, provided that the Company has given at least 45 days prior written notice to the Fund and Underwriter of the date of substitution; or | ||
| (l) | termination by any party in the event that the Fund’s Board determines that a material irreconcilable conflict exists as provided in Article VII. |
10.2. Notwithstanding any termination of this Agreement, the Fund and the Underwriter shall, at the
option of the Company, continue to make available additional shares of the Fund pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as “Existing Contracts”), unless the
Underwriter requests that the Company seek an order pursuant to Section 26(b) of the 1940 Act to
permit the substitution of other securities for
the shares of the Designated Portfolios. The Underwriter agrees to split the cost of seeking such
an order, and the Company agrees that it shall reasonably cooperate with
- 17 -
the Underwriter and seek such an order upon request. Specifically, the owners of the Existing
Contracts may 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 (subject to any such election by the Underwriter). The parties agree that this Section
10.2 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. The parties further agree that
this Section 10.2 shall not apply to any terminations under Section 10.1(g) of this Agreement.
10.3. 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) except (i) as necessary to
implement Contract owner initiated or approved transactions, (ii) as required by state and/or
federal laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a “Legally Required Redemption”), (iii) upon 45 days prior written
notice to the Fund and Underwriter, as permitted by an order of the SEC pursuant to Section 26(b)
of the 1940 Act, but only if a substitution of other securities for the shares of the Designated
Portfolios is consistent with the terms of the Contracts, or (iv) as permitted under the terms of
the Contract. Upon request, the Company will promptly furnish to the Fund and the Underwriter
reasonable assurance that any redemption pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the terms of the Contacts, the
Company shall not prevent Contract owners from allocating payments to a Portfolio that was
otherwise available under the Contracts without first giving the Fund or the Underwriter 45 days
notice of its intention to do so.
10.4. Notwithstanding any termination of this Agreement, each party’s obligation under Article VIII
to indemnify the other parties shall survive.
- 18 -
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or certified mail, or by overnight
express mail, to the other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the other party.
| If to the Fund: | PIMCO Variable Insurance Trust | |||
| 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000 | ||||
| Xxxxxxx Xxxxx, XX 00000 | ||||
| If to the Company: | Annuity Investors Life Insurance Company | |||
| 000 Xxxx Xxxxxx | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| Attn: Xxxxx X. Xxxxxxxxx, Vice President | ||||
| If to Underwriter: | PIMCO Funds Distributors LLC | |||
| 0000 Xxxxxxxx Xxxxxx | ||||
| Xxxxxxxx, XX 00000 |
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Fund must look solely to the property of the Fund, and in the
case of a series company, the respective Designated Portfolios listed on Schedule A hereto as
though each such Designated Portfolio had separately contracted with the Company and the
Underwriter for the enforcement of any claims against the Fund. The parties agree that neither the
Board, officers, agents or shareholders of the Fund assume any personal liability or responsibility
for obligations entered into by or on behalf of the Fund.
12.2. Subject to the requirements of legal process and regulatory authority, each party hereto
shall treat as confidential the names and addresses of the owners of the Contracts and all
information reasonably identified as confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate or utilize such names and addresses
and other confidential information without the express written consent of the affected party until
such time as such information has come into the public domain.
12.3. 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.
12.4. This Agreement may be executed simultaneously in two or more counterparts, each of which taken
together shall constitute one and the same instrument.
12.5. 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. The
parties agree to negotiate in good faith to modify this Agreement as necessary following any such
invalidation in order to effectuate, to the greatest extent possible, the intent of the parties
under this Agreement.
- 19 -
12.6. Each party hereto shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the SEC, the NASD, and state insurance regulators) and
shall permit such authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further agrees to furnish the
Ohio Insurance Commissioner with any information or reports in connection with services provided
under this Agreement which such Commissioner may request in order to ascertain whether the variable
annuity operations of the Company are being conducted in a manner consistent with the Ohio variable
annuity laws and regulations and any other applicable law or regulations.
12.7. The rights, remedies and obligations contained in this Agreement are cumulative and are in
addition to any and all rights, remedies, and obligations, at law or in equity, to which the
parties hereto are entitled under state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder may not be assigned by any
party without the prior written consent of all parties hereto.
12.9 The Company shall furnish, or shall cause to be furnished, to the Fund or its designee, copies
of any registration statement (without exhibits) and financial reports of the Company filed with
the Securities and Exchange Commission or any state insurance regulatory, as soon as practicable
after the filing thereof.
12.10 This Agreement (including its schedules and attachments) constitutes the entire agreement
among the parties and supersedes all prior and contemporaneous communications, agreements and
understandings, oral or written, among the parties regarding the
subject matter hereof.
- 20 -
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in its name
and on its behalf by its duly authorized representative to be effective as of the date first above
written.
| ANNUITY INVESTORS LIFE INSURANCE COMPANY |
By its authorized officer |
|||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
| PIMCO VARIABLE INSURANCE TRUST |
By its authorized officer |
|||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
| PIMCO FUNDS DISTRIBUTORS LLC |
By its authorized officer | |||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
- 21 -
