EXHIBIT (h)(1)
PARTICIPATION AGREEMENT
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Among
EQ ADVISORS TRUST,
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AMERICAN GENERAL LIFE INSURANCE COMPANY
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AXA DISTRIBUTORS, LLC,
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and
AXA ADVISORS, LLC.
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THIS AGREEMENT, made and entered into as of the __th day of December,
2002 by and among AMERICAN GENERAL LIFE INSURANCE COMPANY, a Texas insurance
company ("American General"), on its own behalf and on behalf of Separate
Account VUL American General ("Account"), EQ ADVISORS TRUST, a business trust
organized under the laws of the State of Delaware ("Trust"), and AXA
DISTRIBUTORS, LLC, a Delaware limited liability company, and AXA ADVISORS, LLC,
a Delaware limited liability company (the latter two, collectively, the
"Distributors").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for the
separate accounts ("Separate Accounts") of both affiliated and unaffiliated life
insurance companies ("Participating Insurance Companies") in connection with the
sale of variable life insurance policies, variable annuity contracts and
certificates relating to such policies or contracts ("Variable Contracts") and
for tax qualified retirement plans ("Qualified Plans") each of whom has entered
into a participation agreement with the Trust and its Distributors; and
WHEREAS, the beneficial interests in the Trust are divided into series of
shares (each a "Portfolio"), each representing the interest in a particular
managed portfolio of securities and other assets, and each Portfolio is divided
or may be divided into one or more classes of shares, i.e., currently the Class
IA shares and the Class IB shares, and such other classes of shares as may be
created in the future (the "Classes"); and
WHEREAS, one or more Portfolios or Classes thereof may be made available
by the Trust to serve as funding vehicles for Participating Insurance Companies
and their Separate Accounts funding Variable Contracts; and
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended ("1940 Act"), and
shares of its Portfolios are registered under the Securities Act of 1933, as
amended ("1933 Act"); and
WHEREAS, the Securities and Exchange Commission ("SEC") has granted
exemptions from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of 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 Trust and each of its Portfolios and Classes
to be sold to and held by Separate Accounts funding Variable Contracts of
Participating Insurance Companies and to Qualified Plans ("Shared Funding
Exemptive Order"); and
WHEREAS, the Manager is the investment manager to the Trust and is duly
registered with the SEC as an investment adviser under the Investment Advisers
Act of 1940, as amended and is registered or exempt from registration under all
applicable state securities laws; and
WHEREAS, American General has registered the Account as a unit investment
trust under the 1940 Act, and has registered interests in the Account under the
1933 Act; and
WHEREAS, in reliance on the relief provided in Great-West Life Insurance
Company (pub. avail. Oct. 23, 1990) ("Great-West"), American General provides
certain information to owners of Variable Contracts issued by American General
through the Account (the "American General Contracts") about their American
General Contracts, American General, and the Account's underlying fund in lieu
of filing post-effective amendments to the registration statements relating to
the American General Contracts or delivering updated prospectuses to those
owners of American General Contracts ("Contractowners"); and
WHEREAS, the Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of American
General or through properly delegated authority, and divided into subaccounts,
to set aside and invest assets attributable to the American General Contracts;
and
WHEREAS, each of the Distributors is registered as a broker-dealer with
the SEC under the Securities Exchange Act of 1934, as amended ("1934 Act"), and
is a member in good standing of the National Association of Securities Dealers,
Inc. ("NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, American General intends to purchase Class IA shares in the
Portfolios listed on Schedule A hereto as amended from time to time (the
"Designated Portfolios") on behalf of the Account, in order to fund certain
American General Contracts currently outstanding and each Distributor is
authorized to sell such shares to the Account at the net asset value applicable
to such Portfolios and Class IA thereof.
NOW, THEREFORE, in consideration of their mutual promises, American
General, the Trust, the Manager and each of the Distributors agree as follows:
ARTICLE I. Sale of Trust Shares
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1. 1. Each of the Distributors agrees to sell to the Account those shares
of the Designated Portfolios and Class IA thereof for which it serves as the
Trust's principal underwriter and which the Account orders, executing such
orders on a daily basis at the net asset value per share next computed after
receipt by the Trust or its designee of the order for the shares of the
Designated Portfolios and Class IA thereof. For purposes of this Section 1.1,
American General or its designee (but not the Account) shall be considered to be
the designee of the Trust for receipt of such purchase orders and, in this
regard only, receipt of such orders by American General or its designee shall
constitute receipt by the Trust for purposes of calculating each Portfolio's net
asset value per share, provided that: (i) American General notifies the Trust of
such purchase orders by no later than 10:00 a.m. Eastern time on the next
Business Day, as defined in this Section 1. 1, following the receipt by American
General of the purchase orders; and (ii) the purchase orders received by
AmericanGeneral are in good order prior to the time the net asset value of each
Portfolio is calculated. "Business Day" shall mean any day on which the New York
Stock Exchange is open for trading and on which the Trust calculates its net
asset value pursuant to the rules of the SEC.
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1.2. The Trust agrees to make its shares of the Designated Portfolios and
Class IA thereof available for purchase by the Account at the applicable net
asset value per share on those days on which the Trust calculates the net asset
value per share of the Designated Portfolios and Class IA thereof pursuant to
rules of the SEC. The Trust shall calculate the net asset value per share of the
Designated Portfolios and Class IA thereof on each day on which the New York
Stock Exchange is open for trading. Notwithstanding the foregoing, the Board of
Trustees of the Trust ("Board") may refuse to sell shares of any Designated
Portfolio or Class IA thereof to any person, or suspend or terminate the
offering of shares of any Portfolio or Class IA thereof, if such action is
required by law or by regulatory authorities having jurisdiction or is, 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, necessary in the best
interests of the shareholders of such Portfolio or Class IA thereof.
1.3. The Trust and each of the Distributors agree that shares of the
Designated Portfolios and Class IA thereof will be sold only to Participating
Insurance Companies and/or their separate accounts funding Variable Contracts or
to other persons or entities permitted under Section 817 of the Internal Revenue
Code of 1986, as amended ("Code"), or regulations promulgated thereunder. No
shares of any Portfolio will be sold to the general public, except to the extent
permitted under the Code and regulations promulgated thereunder.
1.4. The Trust and each of the Distributors will not sell Trust shares to
any Participating Insurance Company or Separate Account funding Variable
Contracts unless a Participation Agreement containing provisions substantially
the same as Articles I, III, V, and VII and Section 2.5 of Article II of this
Agreement is in effect to govern such sales. The Trust and each of the
Distributors will not sell Trust shares in excess of 10% of the assets of the
Trust to a Qualified Plan unless a Participation Agreement containing provisions
substantially the same as Articles I, III, V and VII of this agreement are in
effect to govern such sales.
1.5. The Trust agrees to redeem for cash, at the request of the Account
or American General or its designee, any full or fractional shares of the Trust
held by the Account or American General. The Trust will execute such requests on
a daily basis at the net asset value per share of the Designated Portfolios and
Class IA thereof next computed after receipt by the Trust or its designee of the
request for redemption, without charge. For purposes of this Section 1.5,
American General or its designee (but not the Account) shall be considered the
designee of the Trust for receipt of requests for redemption, and, in this
regard only, receipt of such requests by American General or its designee shall
constitute receipt by the Trust for purposes of calculating each Portfolio's net
asset value per share, provided that: (i) American General notifies the Trust of
such redemption requests by no later than 10:00 a.m. Eastern time on the next
Business Day, as defined in Section 1.1, following the receipt by American
General of the redemption requests; and (ii) such redemption requests received
by American General are in good order prior to the time the net asset value of
each Portfolio is calculated.
1.6. American General agrees that purchases and redemptions of shares of
the Designated Portfolios and Class IA thereof offered by a then-current
prospectus of the Trust shall be made in accordance with the provisions of such
prospectus.
1.7. American General shall pay for shares of Designated Portfolios and
Class IA thereof that are purchased for the Account in accordance with Section
1.1 hereof by no later than 1:00 p.m. Eastern time on the same Business Day on
which notice of the purchase order for Trust shares is given to the Trust in
accordance with the provisions of Section 1.1 hereof. The Trust shall pay
redemption proceeds for shares that are redeemed in accordance with Section 1.5
hereof by no later than 1:00 p.m. Eastern time on the same Business Day on which
notice of the redemption request is given to the Trust in accordance with the
provisions of Section 1.5 hereof. Payment shall be in federal funds transmitted
by wire. For purposes of
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Sections 2.10 and 2.11, upon receipt by the Trust of the federal funds so wired,
such funds shall cease to be the responsibility of American General and shall
become the responsibility of the Trust; and upon receipt by American General of
federal funds so wired such funds shall cease to be the responsibility of the
Trust and shall become the responsibility of American General.
1.8. Issuance and transfer of the shares of the Designated Portfolios
thereof will be by book entry only. Stock certificates will not be issued to
American General or the Account. Shares ordered from the Trust will be recorded
in an appropriate title for the Account or the appropriate subaccount of the
Account.
1.9. The Trust shall furnish same day notice to American General or its
designee (by wire or telephone, followed by written confirmation) of any income,
dividends or capital gain distributions payable on the shares of the Designated
Portfolios and Class IA thereof. American General and the Account hereby elect
to receive all such income, dividends and capital gain distributions as are
payable on the shares of the Designated Portfolios and Class IA thereof in
additional shares of the relevant Designated Portfolios and Class IA thereof.
(American General and the Account reserve the right to revoke this election and
to receive all such income, dividends and capital gain distributions in cash.)
The Trust shall provide notification by the end of the next Business Day of the
number of shares so issued as payment of such dividends and distributions. The
Trust shall provide advance notice to American General and the Account or their
designee of any date on which the Trust reasonably expects to make a dividend
distribution; normally this notice will be given at least ten (10) days in
advance of the ex-dividend date.
1.10. The Trust shall make the net asset value per share for each
Designated Portfolio and Class IA thereof available to American General and the
Account or their designee on each Business Day as soon as reasonably practicable
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 7:00 p.m. Eastern time each
Business Day. In the event that the Trust is unable to meet the 7:00 p.m. time
stated herein, it shall provide additional time for American General to place
orders for the purchase and redemption of shares. Such additional time shall be
equal to the additional time which the Trust takes to make the net asset value
available to American General. If the Trust provides materially incorrect share
net asset value information, the Trust shall make an adjustment to the number of
shares purchased or redeemed for the Account to reflect the correct net asset
value per share. Any material error in the calculation or reporting of net asset
value per share, dividend or capital gains information shall be reported
promptly upon discovery to American General or its designee.
1.11. The Trust shall furnish written confirmation to American General or
its designee of the amount of shares traded and the associated cost per share
(NAV), total trade amount and the outstanding share balances held by the Account
in each Designated Portfolio as of the end of each Business Day. Such
confirmation will be furnished by 1:00 p.m. eastern time on the next Business
Day.
1.12. Each party to this Agreement shall have the right to rely on
information or confirmations provided by any other party and shall not be liable
in the event that an error results from incorrect information or confirmations
supplied by any other party.
ARTICLE II. Representations and Warranties
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2.1. American General represents and warrants that: (a) it is an
insurance company duly organized and in good standing under applicable law; (b)
it has legally and validly established the Account, prior to any issuance or
sale of interests therein, as a segregated asset account under applicable
insurance laws; (c) it has registered the Account as a unit investment trust in
accordance with the
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provisions of the 1940 Act to serve as a segregated investment account for the
American General Contracts; and (d) it has registered interests in the Account
under the 1933 Act.
2.2. The Trust represents and warrants that Trust shares sold pursuant
to this Agreement shall be: (a) registered under the 1933 Act; and (b) duly
authorized for issuance; and (c) sold in compliance, in all material respects,
with all applicable federal securities laws. The Trust further represents and
warrants that it is and shall remain registered under the 1940 Act. The Trust
shall amend its registration statement under the 1933 Act and the 1940 Act (the
"Registration Statement") from time to time as required in order to effect the
continuous offering of shares of the Designated Portfolios and Class IA thereof.
This requirement shall not, however, in any manner limit the Trust's ability to
cease offering shares in one or more of the Designated Portfolios or Class IA
thereof, provided such action complies with applicable laws and regulations.
2.3 American General represents and warrants that it is in compliance,
in all material respects, with the terms and conditions of Great-West, and that
it will notify the Trust and the Distributors immediately upon having a
reasonable basis for believing that it or the Account has ceased to comply with
the terms and conditions of Great-West.
2.4. Subject to Article VI hereof, American General represents that the
American General Contracts are currently treated as life 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 Trust and each of the
Distributors immediately upon having a reasonable basis for believing that the
American General Contracts have ceased to be so treated or that they might not
be so treated in the future.
2.5. The Trust currently intends for one or more Classes, particularly
Class IB, to make payments to finance its distribution expenses pursuant to a
Plan adopted under Rule 12b-1 under the 1940 Act, although it may determine to
discontinue such practice in the future. To the extent that any Class of the
Trust finances its distribution expenses pursuant to a Plan adopted under Rule
12b-1, the Trust undertakes to have a Board, a majority of whose members are not
interested persons of the Trust or each of the Distributors (or the then-current
principal underwriters) or the Manager, and to otherwise comply with any then
current SEC and SEC staff interpretations concerning Rule 12b-1 or any successor
provision.
2.6. The Trust 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 or regulations of the various states,
except that the Trust represents that the investment objectives, policies, fees
and expenses of each of the Designated Portfolios and Class IA thereof are and
shall at all times remain in compliance with the insurance laws of the State of
New York, and the Trust and each of the Distributors severally represent that
their respective operations are and shall at all times remain in compliance, in
all material respects, with the insurance laws of the State of New York to the
extent required to perform their respective obligations under this Agreement.
2.7. Each of the Distributors represents and warrants that: (a) it is a
member in good standing of the NASD and (b) it is registered as a broker-dealer
with the SEC and all necessary states. Each Distributor further represents that
it will sell and distribute the Trust's shares in accordance with the laws of
the State of New York and all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, the 1940 Act, and all
applicable Rules of the NASD.
2.8. The Trust 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.
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2.9. The Manager represents that it is and shall remain duly registered
under all applicable state and federal securities laws and that it shall perform
its obligations for the Trust in compliance, in all material respects, with any
and all applicable federal and state securities laws.
2.10. The Trust and each of the Distributors severally represent and
warrant that all of their trustees, directors, officers, employees, investment
managers and investment advisers, and other individuals/entities dealing with
the money and/or securities of the Trust are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Trust in an amount not less than the minimal coverage required by Rule 17g-1
under the 1940 Act or such related provisions as may be promulgated from time to
time. The aforesaid fidelity bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11. American General represents and warrants that all of its
directors, officers, employees, and other individuals/entities dealing with the
money and/or securities of the Trust are covered by a blanket fidelity bond or
similar coverage. American General further represents and warrants that said
fidelity bond is issued by a reputable bonding company, includes coverage for
larceny and embezzlement, and is in an amount not less than $5 million. American
General agrees to make all reasonable efforts to see that this fidelity bond or
another bond containing these provisions is continuously in effect and agrees to
notify the Trust and each of the Distributors in the event that such coverage no
longer applies.
ARTICLE III. Prospectuses and Proxy Statements' Voting
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3.1. The Trust or the Distributors shall provide American General with
as many printed copies of the Trust's current prospectus and Statement of
Additional Information and any supplements thereto for the Designated Portfolios
and Class IA thereof as American General may reasonably request. In addition,
with respect to prospectuses, supplements and Statements of Additional
Information for the Designated Portfolios thereof provided by American General
to existing Contractowners in order to update information provided to existing
Contractowners as required under the terms and conditions of Great-West, the
cost of preparing, printing, mailing and otherwise distributing such
prospectuses and Statements of Additional Information and any supplements
thereto to American General for its distribution to existing Contractowners
shall be borne by the Trust. If requested by American General, in lieu of
providing American General with printed copies of the Trust's prospectus and
Statement of Additional Information and any supplement thereto, the Trust shall
provide American General with a final copy of the Trust's current prospectus or
Statement of Additional Information or supplement in a form suitable for
duplication either in paper form (a camera ready copy) or on diskette. The Trust
and the Distributors shall also provide such other assistance as is reasonably
necessary in order for American General to have the Trust's prospectus and
Statement of Additional Information or supplement printed for distribution to
existing Contractowners.
American General agrees to provide the Trust or its designee with such
information as may be reasonably requested by the Trust to assure that the
Trust's expenses or the expenses of its Class IA shares do not include the cost
of printing, mailing and otherwise distributing any prospectuses, Statements of
Additional Information or supplements thereto for the Designated Portfolios
thereof other than those actually distributed to American General for its
distribution to existing Contractowners.
3.2. The Trust's prospectus for the Designated Portfolios and Class IA
thereof shall state that the Statement of Additional Information for the
Designated Portfolios and Class IA thereof is available from the Distributors
(or in the Trust's discretion, the prospectus shall state that such Statement of
Additional Information is available from the Trust).
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3.3. The Trust, at its expense, shall provide American General with
copies of its proxy statements, Annual and Semi-Annual Reports to shareholders,
and other communications to shareholders in such quantities as American General
shall reasonably require for its mailing or otherwise distributing such
materials to existing Contractowners and the Trust shall assume all expenses
associated with mailing or otherwise distributing those materials.
3.4. If and to the extent required by law, American General shall:
(a) solicit voting instructions from Contractowners;
(b) vote the Trust shares for the Designated Portfolios and
Class IA thereof in accordance with instructions received from
Contractowners; and
(c) vote Trust shares for the Designated Portfolios and Class
IA thereof for which no instructions have been received in the Account
in the same proportion as Trust shares for the Designated Portfolios
and Class IA thereof 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 Contractowners. American
General reserves the right to vote Trust shares held in the 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 Trust calculates voting privileges in a
manner consistent with the standards adopted by the Board, which
standards will be provided to all other Participating Insurance
Companies.
3.5. The Trust will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Trust will comply with
Section 16(c) of the 1940 Act as well as with Sections 16(a) and, if and when
applicable, Section 16(b). Further, the Trust will act in accordance with the
SEC or SEC staff's written interpretation concerning the requirements of Section
16(a) with respect to periodic elections of Trustees and with whatever rules the
SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
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4.1. American General shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with its receipt of net premiums in connection with the American
General Contracts other than the information or representations contained in or
accurately derived from the Registration Statement, prospectus or Statement of
Additional Information for the Trust, as such Registration Statement, prospectus
or Statement of Additional Information may be amended or supplemented from time
to time, or in reports or proxy statements for the Trust, or in sales literature
or other promotional material approved by the Trust or its designee, except with
the permission of the Trust or its designees.
4.2. The Trust or the Distributors, or their respective designees,
shall furnish, or shall cause to be furnished, to American General or its
designees, the form of each piece of sales literature or other promotional
material in which American General is named prior to its use. No such material
shall be used if American General or its designees reasonably object to its use
after receipt of such material.
4.3. The Trust and the Distributors shall not give any information or
make any representations on behalf of American General or concerning American
General, the Account, or the American General Contracts other than the
information or representations contained in or accurately derived from published
reports for the Account which are in the public domain or approved by American
General for distribution to Contractowners, except with the permission of
American General.
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4.4. The Trust shall provide to American General 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 Trust or its shares,
contemporaneously with the filing of such document with the SEC, the NASD, or
other regulatory authorities.
4.5. American General shall provide to the Trust at least one complete
copy of all 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 American
General Contracts or the Account if such document also relates to the Trust,
contemporaneously with the filing of such document with the SEC, the NASD, or
other regulatory authorities.
4.6. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Trust or any affiliate of the Trust: advertisements
(including materials published or designed for use in a newspaper, magazine, or
other periodical, radio, television, telephone or tape or electronic recording,
videotape display, signs or billboards, motion pictures, electronic messages or
communications or other public media, including a publicly available internet
address or website), 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 or internet site or website), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
Statements of Additional Information, shareholder reports, and proxy materials.
However, it is anticipated that materials provided solely: (a) internally to
American General's or a Distributor's own employees or counsel; or (b) to
certain designated third parties and that are not designed to be provided or
communicated in any manner to the general public (e.g., training materials
provided to distributors or agents) will not be filed with the SEC, the NASD, or
any state securities or insurance regulatory authorities, although such
materials will be prepared in accordance with applicable laws.
ARTICLE V. Fees and Expenses
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5.1. The Trust and each of the Distributors shall pay no fee or other
compensation to American General under this Agreement except for items covered
in Article III. Nevertheless, a Distributor may make payments to American
General or to any principal underwriter for the American General Contracts in
amounts agreed to by that Distributor in any writing, and such payments by that
Distributor may be made out of existing fees otherwise payable to that
Distributor, past profits of that Distributor, or other resources available to
that Distributor.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. Without limiting the foregoing, the Trust
shall see to it that all shares are registered and authorized for issuance prior
to their sale in accordance with applicable federal law, and shall bear all
expenses with respect to: registration and qualification of the Trust's shares;
preparation and filing of the Trust's Registration Statement, prospectus,
Statement of Additional Information, proxy materials, and reports; setting the
prospectus and Statement of Additional Information in type; setting in type,
printing, mailing or otherwise distributing prospectuses, proxy materials and
Semi-Annual and Annual Reports sent by American General to Contractowners
(including the costs of setting in type, printing, mailing or otherwise
distributing 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 Trust's shares.
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ARTICLE VI. Diversification
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6.1. The Trust and the Manager represent that: (a) the Trust currently
has elected to qualify as a regulated investment company under Subchapter M of
the Code; (b) the Trust will maintain such qualification (under Subchapter M or
any successor or similar provision); (c) the Trust or the Manager will notify
American General immediately upon having a reasonable basis for believing that
the Trust has ceased to so qualify or that it might not so qualify in the
future; and (d) the Trust and the Manager will seek to minimize any damages and
to rectify the Trust's failure to so qualify promptly. The Trust and the Manager
acknowledge that any failure by the Trust to qualify as a regulated investment
company will eliminate the ability of the Account to avail itself of the "look
through" provisions of Section 817(h) of the Code and that, as a result, the
American General Contracts will almost certainly fail to qualify as life
insurance contracts under Section 817(h) of the Code.
6.2. The Trust and the Manager further represent that the Trust will at
all times invest money from the Account in such a manner as to assure that the
American General Contracts will be treated as variable life insurance contracts
under the Code and the regulations issued thereunder. Without limiting the scope
of the foregoing, the Trust and the Manager represent that the Trust will at all
times comply with Section 817(h) of the Code and Treasury Regulation 1.817-5,
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 the event of a breach of this Article VI by the
Trust, the Trust and the Manager warrant that they will take all reasonable
steps: (a) to immediately notify American General of such breach; and (b) to
adequately diversify the Trust's assets so as to achieve compliance within the
grace period afforded by Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
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7.1. The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contractowners of all
variable annuity and variable life insurance separate accounts and Qualified
Plan participants investing in the Trust. A material irreconcilable 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 Designated Portfolio are being managed; (e) a difference in voting
instructions given by owners of Variable Contracts; or (f) a decision by an
insurer to disregard the voting instructions of owners of Variable contracts.
The Board shall promptly inform American General if it determines that a
material irreconcilable conflict exists and the implications thereof.
7.2. American General will report any potential or existing conflicts
of which it is aware to the Board. American General will assist the Board in
carrying out its responsibilities under any 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 American General to inform the Board whenever the voting instructions of
owners of Variable Contracts are disregarded. Upon the written request of the
Trust, American General will also provide to the Board, not more frequently than
annually, a written certification in a format to be determined by mutual
agreement of the Trust and American General, as to its best knowledge of any
events that may result in a material irreconcilable conflict. American General's
responsibilities under this Section 7.2 will be carried out with a view only to
the interests of its Contractowners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested Trustees, that a material irreconcilable conflict exists,
American General and other Participating Insurance Companies
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and Qualified Plans shall, at their expense and to the extent reasonably
practicable (as determined by a majority of the disinterested Trustees), take
whatever steps are necessary to remedy or eliminate the material irreconcilable
conflict, up to and including: (a) withdrawing the assets allocable to some or
all of the variable annuity and variable life insurance separate accounts from
the Trust or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Trust, or
submitting the question of whether such withdrawal should be implemented to a
vote of all affected owners of Variable Contracts and, as appropriate,
withdrawing the assets of any appropriate group (i. e., owners of variable
annuity contracts or owners of variable life insurance contracts of one or more
Participating Insurance Companies) that votes in favor of such withdrawal, or
offering to the affected owners of Variable Contracts the option of making such
a change; and (b) establishing a new registered management investment company or
managed separate account. American General's responsibilities under this Section
7.3 will be carried out with a view only to the interests of Contractowners.
7.4. If a material irreconcilable conflict ever were to arise because
of a decision by American General to disregard Contractowner voting instructions
and that decision represents a minority position or would preclude a majority
vote, American General may be required, at the Trust's election, to withdraw the
affected Account's (or subaccount's) investment in the Trust and terminate this
Agreement with respect to such Account (or subaccount); 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. No charge or penalty shall be imposed as a
result of such withdrawal. Any such withdrawal and termination must take place
within six (6) months after the Trust gives written notice that this provision
is being implemented and, until the end of that six (6) month period, the
Distributors and Trust shall continue to accept and implement orders by American
General for the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because a
particular state insurance regulator's decision applicable to American General
conflicts with the majority of other state regulators, then American General
shall withdraw the affected Account's (or subaccount's) investment in the Trust
and terminate this Agreement with respect to such Account (or subaccount) within
six (6) months after the Board informs American General in writing that it has
determined that such decision has created a material irreconcilable 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 (6) month period, the Distributors and Trust shall continue to
accept and implement orders by American General for the purchase (and
redemption) of shares of the Trust.
7.6. For purposes of Sections 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 material irreconcilable conflict, but in
no event will the Trust be required to establish a new funding medium for the
American General Contracts. American General shall not be required by Section
7.3 to establish a new funding medium for the American General Contracts if an
offer to do so has been declined by vote of a majority of Contractowners
materially adversely affected by the material irreconcilable conflict. In the
event that the Board determines that any proposed action does not adequately
remedy any material irreconcilable conflict, then American General will withdraw
the Account's (or subaccount's) investment in the Trust and terminate this
Agreement within six (6) months after the Board informs American General 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.
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7.7. 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 Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then: (a) the Trust 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; (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; and (c) this Agreement shall be otherwise
amended by the Trust, without the need for any consent of the other parties, as
required by such change in law.
ARTICLE VIII. Indemnification
---------------
8.1. Indemnification By American General
-----------------------------------
8.1(a). American General agrees to indemnify and hold harmless the
Trust, each member of the Board of the Trust, each of the Distributors, and the
directors and officers and each person, if any, who controls any such person
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.1) against any and all losses, claims,
damages, liabilities (including, without limitation thereto, amounts paid in
settlement with the written consent of American General), investigation of
claims or litigation (including, without limitation thereto, 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
are related to the sale or acquisition of the Trust's shares or the American
General Contracts or interests in the Account and:
(i) arise out of or as a result of statements or
representations (other than statements or representations contained in
the Registration Statement, prospectus or Statement of Additional
Information, or sales literature of the Trust not supplied by American
General or persons under its control) or wrongful conduct of American
General or persons under its control, with respect to the sale or
distribution of Trust shares; or
(ii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement,
prospectus, or Statement of Additional Information, or sales literature
of the Trust 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
written information furnished to the Trust by or on behalf of American
General; or
(iii) arise as a result of any failure by American General to
provide the services and furnish the materials required to be provided
or furnished by it under the terms of this Agreement; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by American General in this
Agreement or arise out of or result from any other material breach of
this Agreement by American General;
as limited by and in accordance with the provisions of Sections 8.1 (b) and 8.1
(c) hereof.
8.1(b). American General shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as
11
such may arise from 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 or duties
under this Agreement or to the Trust, whichever is applicable.
8.1(c). American General 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 American General in writing 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 Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify American General of
any such claim shall not relieve American General 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, American General shall be entitled to
participate, at its own expense, in the defense of such action. American General
also shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action and to settle the claim at its own
expense provided that, unless the Indemnified Parties' written consent is
obtained, (1) no such settlement shall include any factual stipulations
referring to the Indemnified Parties or their conduct and (2) any such
settlement must involve a complete and unconditional release of all claims
against such Indemnified Parties. After notice from American General to such
party of American General's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and American General 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 shall promptly notify American General
of the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Trust's shares or the operation of the Trust.
8.2. Indemnification by the Distributors
-----------------------------------
8.2(a). Each of the Distributors agrees to indemnify and hold harmless
American General, the principal underwriter for the American General Contracts
and the Trust and each of their directors and officers and each person, if any,
who controls American General 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, without
limitation thereto, amounts paid in settlement with the written consent of the
Distributors), investigation of claims or litigation (including, without
limitation thereto, 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 are related to the sale or acquisition of the
Trust's shares or the American General Contracts or interests in the Account
and:
(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, or sales literature of the Trust (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 written information furnished to the Distributors or
Trust by or on behalf of American General for use in the Registration
Statement, prospectus, or Statement of Additional Information for the
Trust, or otherwise for use in connection with the sale of the American
General Contracts or Trust shares; or
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(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the Registration Statement, prospectus, or Statement of Additional
Information for the American General Contracts not supplied by the
Trust, the Distributors or persons under their control) or wrongful
conduct of the Trust or the Distributors or persons under their
control, with respect to the sale or distribution of the Trust 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 covering the American
General 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 in writing to American
General by or on behalf of the Trust or the Distributors; or
(iv) arise as a result of any failure by the Distributors or
the Trust to provide the services and furnish the materials required to
be provided or furnished by the Distributors or the Trust under the
terms of this Agreement (including a failure, whether unintentional or
in good faith or otherwise, to comply with the diversification or 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 Distributors in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Distributors;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2(b). Each of the Distributors shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities, or litigation incurred or assessed against an Indemnified Party as
such may arise from 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 American General or the Account, whichever is
applicable.
8.2(c). Each of the Distributors 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 each of the Distributors
in writing 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 Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Distributors of any such claim shall not relieve the Distributors from any
liability which either of them or both 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,
each Distributor will be entitled to participate, at its own expense, in the
defense thereof. Each Distributor also shall be entitled to assume the defense
thereof, with counsel reasonably satisfactory to the party named in the action,
and to settle the claim at its own expense provided that, unless the Indemnified
Parties' written consent is obtained, (1) no such settlement shall include any
factual stipulations referring to the Indemnified Parties or their conduct and
(2) any such settlement must involve a complete and unconditional release of all
claims against such Indemnified Parties. After notice from a Distributor to such
party of that Distributor's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and that Distributor will not be liable to
13
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.
8.2(d). American General agrees promptly to notify each of the
Distributors of the commencement of any material litigation or proceedings
against it or any of its officers or directors in connection with the issuance
or sale of the American General Contracts or the operation of the Account.
8.3. Indemnification By the Trust
----------------------------
8.3(a). The Trust agrees to indemnify and hold harmless American
General, the principal underwriter for the American General Contracts and each
of their directors and officers and each person, if any, who controls American
General 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, damages, liabilities (including, without limitation thereto,
amounts paid in settlement with the written consent of the Trust), investigation
of claims or litigation (including, without limitation thereto, 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 are
related to the operations of the Trust and:
(i) arise as a result of any failure by the Trust to provide
the services and furnish the materials required to be provided or
furnished by it under the terms of this Agreement (including a failure
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 Trust in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Trust;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as such may arise
from 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 American General, the Trust, the Distributors, or the Account,
whichever is applicable.
8.3(c). The Trust 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 Trust in writing 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 Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Trust of any
such claim shall not relieve the Trust 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 Trust will be entitled to participate, at
its own expense, in the defense thereof. The Trust also shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from the Trust to such party of the Trust'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 Trust 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
8.3(d). American General, the Manager and each of the Distributors
agree promptly to notify the Trust of the commencement of any material
litigation or proceedings against it or any of its respective officers or
directors in connection with this Agreement, with respect to the operation of
the Account, or the sale or acquisition of shares of the Trust.
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
may grant (including, but not limited to, any Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
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, with or without cause, upon six (6)
months' advance written notice delivered to the other parties;
provided, that the Trust, the Manager and the Distributors shall
not give such notice of termination without cause earlier than
one year following the date of this Agreement; or
(b) termination by American General upon thirty (30) days written
notice to the Trust, the Manager and each of the Distributors
with respect to any Designated Portfolio and Class IA based upon
American General's determination that Class IA shares of such
Designated Portfolio are not reasonably available to meet the
requirements of the American General Contracts or are not
consistent with American General's obligations to Contractowners;
or
(c) termination by American General upon thirty (30) days written
notice to the Trust, the Manager and each of the Distributors
with respect to any Designated Portfolio in the event any of the
Designated Portfolio's shares are not registered, issued or sold
in accordance with applicable federal and/or state law or such
law precludes the use of such shares as the underlying investment
media of the American General Contracts issued or to be issued by
American General; or
(d) termination by American General by written notice to the Trust,
the Manager and each of the Distributors with respect to any
Designated Portfolio in the event that such Designated Portfolio
ceases to qualify as a regulated investment company under
Subchapter M of the Code or any other failure under Section 817
of the Code, or under any successor or similar provision of
either, or if American General reasonably believes that the Trust
may fail to so qualify; or
(e) termination by either the Trust or the Distributors by written
notice to American General, if the Trust or the Distributors
shall determine, in their sole judgment, exercised in good faith,
that American General and/or its affiliated companies have
suffered a material adverse change in their business, operations,
financial condition, or prospects since the date of this
Agreement or are the subject of material adverse publicity; but
no
15
termination shall be effective under this subsection (e) until
American General has been afforded a reasonable opportunity to
respond to a statement by the Trust or the Distributors
concerning the reason for notice of termination hereunder; or
(f) termination by American General by written notice to the Trust,
the Manager and each of the Distributors, if American General
shall determine, in its sole judgment exercised in good faith,
that either the Trust, the Manager or the Distributors have
suffered a material adverse change in its or their business,
operations, financial condition, or prospects since the date of
this Agreement or is the subject of material adverse publicity;
but no termination shall be effective under this subsection (f)
until the Trust or the Distributors have been afforded a
reasonable opportunity to respond to a statement by American
General concerning the reason for notice of termination
hereunder; or
(g) termination by American General upon receipt of any necessary
regulatory authority approvals and/or the vote of the
Contractowners having an interest in the Account (or any
subaccounts) to substitute the shares of another investment
company for the corresponding shares of a Designated Portfolio in
accordance with the terms of the American General Contracts for
which those Designated Portfolio shares had been selected to
serve as the underlying investment media. American General shall
give thirty (30) days' prior written notice to the Trust, the
Manager and the Distributors of the date of any proposed vote or
other action taken to replace the Designated Portfolio shares.
10.2. Notwithstanding any termination of this Agreement, the Trust, the
Manager and the Distributors shall, at the option of American General, continue
to make available additional shares of the Trust pursuant to the terms and
conditions of this Agreement, for all American General Contracts in effect on
the effective date of termination of this Agreement (hereinafter referred to as
"Existing American General Contracts"). Specifically, without limitation, the
owners of the Existing American General Contracts shall be permitted to
reallocate investments in the Trust, redeem investments in the Trust, and/or
invest in the Trust upon the making of additional purchase payments under the
Existing American General Contracts. 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.
10.3. American General shall not redeem Trust shares attributable to
the American General Contracts (as opposed to Trust shares attributable to
American General's assets held in the Account) except: (a) as necessary to
implement Contractowner initiated or approved transactions; or (b) as required
by federal and/or state laws or regulations or judicial or other legal precedent
of general application (hereinafter referred to as a "Legally Required
Redemption"); or (c) as permitted pursuant to contractowner vote or Section
26(b) of the 1940 Act or otherwise pursuant to an order of the SEC that permits
American General to redeem Trust shares attributable to American General
Contracts. Upon request, American General shall promptly furnish to the Trust,
the Manager and the Distributors the opinion of counsel for American General
(which counsel shall be reasonably satisfactory to the Trust, the Manager and
the Distributors) to the effect that any redemption pursuant to clause (b) above
is a Legally Required Redemption or any redemption pursuant to clause (b) is
permitted without first obtaining an order of the SEC pursuant to Section 26(b)
or any other provision of the 1940 Act. Furthermore, except in cases where
permitted under the terms of the American General Contracts, and as may be in
the best interests of Contractowners, as determined by American General,
American General shall not prevent Contractowners from allocating payments to a
Designated Portfolio that was otherwise available under the American General
Contracts without first giving the Trust or the Distributors ninety (90) days'
notice of its intention to do so.
16
10.4. Notwithstanding any termination of this Agreement for any reason,
the terms and conditions of the following provisions of this Agreement shall
remain in effect with respect to any Existing American General Contract, for so
long as any assets invested in the Trust are attributable to such Existing
American General Contract: Sections 1.3 to 1.10 of Article I (governing the
pricing and redemption of shares); Article II (Representations and Warranties);
Sections 3.1 through 3.3 and 3.5 of Article III (Prospectuses and Proxy
Statements, and Voting); Articles IV through IX (Sales Material and Information;
Fees and Expenses; Diversification; Potential Conflicts; Indemnification; and
Applicable Law); Article XI (Notices); and Sections 12.1, 12.2, and 12.5 through
12.8 of Article XII (Miscellaneous). Further, notwithstanding any termination of
this Agreement for any reason, the terms and conditions of the following
provisions of this Agreement shall remain in effect with regard to American
General Contracts whose assets were previously invested in the Trust: Article II
(Representations and Warranties), Article VI (Diversification) and Article VII
(Indemnification).
10.5. If for any reason the shares of any Designated Portfolio are no
longer to be made available, then, at the request of American General, the
Trust, the Manager and the Distributors shall cooperate with American General so
that the provisions of Section 26(b) of the 1940 Act will be complied with as
soon as reasonably practicable and substitution of an underlying funding medium
accomplished without disruption of sales of securities to the Account or a
division thereof, as the case may be, in connection with the American General
Contracts.
ARTICLE XI. Notices
-------
Any notice shall be sufficiently given when sent by registered or
certified 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 Trust:
EQ Advisors Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
If to American General:
American General Life Insurance Company
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
If to the Distributors:
AXA Distributors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [INSERT]
17
AXA Advisors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
ARTICLE XII. Miscellaneous
-------------
12.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board (or its members), officers, agents, or shareholders shall
assume any personal liability for obligations entered into on behalf of the
Trust.
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 Contractowners 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 until such time as it may come into the public domain
without the express written consent of the affected party. Without limiting the
foregoing, no party hereto shall disclose any information that such party has
been advised is proprietary, except such information that such party is required
to disclose by any appropriate governmental authority (including without
limitation the SEC, the NASD, and state securities or insurance regulators).
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.
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.
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 federal and state 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; provided, however, that:
(a) each Distributor may assign this Agreement or any of its rights
or obligations hereunder to any affiliate of or company under common control
with that Distributor (but in such event that Distributor shall continue to be
liable under Article VIII of this Agreement for any indemnification due to
American General, and the assignee shall also be liable), if such assignee is
duly licensed and registered to perform the obligations of that Distributor
under this Agreement, upon thirty (30) days advance written notice to American
General; and
18
(b) the Manager may assign this Agreement or any of its rights or
obligations hereunder to any affiliate of or company under common control with
the Manager (but in such event the Manager shall continue to be liable under
Article VIII of this Agreement for any indemnification due to American General,
and the assignee shall also be liable), if such assignee is duly licensed and
registered to perform the obligations of the Manager under this Agreement, upon
thirty (30) days advance written notice to American General.
12.9. Upon reasonable request, American General shall furnish, or
shall cause to be furnished, to the Trust or its designee copies of the
following reports:
(a) American General's annual statements (prepared under statutory
accounting principles) and annual reports (prepared under generally accepted
accounting principles, if any), as soon as practicable and in any event within
ninety (90) days after the end of each fiscal year;
(b) any material financial statement, proxy statement, notice, or
report of AmericanGeneral sent to Contractowners, as soon as practicable after
the delivery thereof to stockholders;
(c) any registration statement (without exhibits) and financial
reports of AmericanGeneral filed with the SEC or any state insurance regulator,
as soon as practicable after the filing thereof; and
(d) any other report submitted to American General by independent
accountants in connection with any annual, interim, or special audit made by
them of the books of American General, as soon as practicable after the receipt
thereof; but nothing in this subsection shall require American General to
disclose any information that is privileged or which, if disclosed, would put
American General at a competitive disadvantage or is both: (a) confidential; and
(b) not material to American General's financial condition.
12.10. At the request of any party to this Agreement, each other party
will make available to the requesting party's independent auditors and/or
representatives of the appropriate regulatory agencies, all records, data, and
access to operating procedures that may be reasonably requested in connection
with compliance and regulatory requirements related to this Agreement or any
party's obligations under this Agreement.
12.11. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
12.12. Except as otherwise expressly provided in this Agreement,
neither the Trust, the Distributors or any affiliates thereof shall use any
trademark, trade name, service xxxx or logo of American General or any of its
affiliates, or any variation of any such trademark, trade name, service xxxx or
logo, without American General's prior written consent, the granting of which
shall be at American General's sole option.
12.13. Except as otherwise expressly provided in this Agreement,
neither American General nor any of its affiliates shall use any trademark,
trade name, service xxxx or logo of the Trust or any affiliates thereof, or any
variation of any such trademark, trade name, service xxxx or logo, without the
Trust's prior written consent, the granting of which shall be at the Trust's
sole option.
19
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 as of the date specified below.
EQ ADVISORS TRUST
By:________________________
Name: Xxxxxx X. Xxxxx
Title: President
AMERICAN GENERAL LIFE INSURANCE COMPANY
By:________________________
Name: [INSERT]
Title: [INSERT]
AXA DISTRIBUTORS, LLC
By:________________________
Name: [INSERT]Title: [INSERT]
AXA ADVISORS, LLC
By:________________________
Name: [Xxxx Xxxxxxxx]
Title: President
20
SCHEDULE A
DESIGNATED PORTFOLIOS AND CLASSES
Portfolios of
EQ Advisors Trust
-----------------
Portfolios Classes
---------- -------
EQ/Aggressive Stock Portfolio Class IA
EQ/Balanced Portfolio Class IA
EQ/Alliance Common Stock Portfolio Class IA
EQ/High Yield Portfolio Class IA
(fka EQ/Alliance High Yield Portfolio)
EQ/ Money Market Portfolio Class IA
(fka EQ/Alliance Money Market Portfolio)
21
