PAGE 1
PARTICIPATION AGREEMENT
By and Among
AMERICAN PARTNERS LIFE INSURANCE COMPANY
And
WARBURG PINCUS TRUST
And
WARBURG, XXXXXX COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
THIS AGREEMENT, made and entered into this 1st day of March, 1996 by and among
American Partners Life Insurance Company, organized under the laws of the State
of Arizona (the "Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule 1 to this Agreement, as may be amended
from time to time (each account referred to as the "Account"), Warburg Pincus
Trust, an open-end management investment company and business trust organized
under the laws of the Commonwealth of Massachusetts (the "Fund"; Warburg, Xxxxxx
Counsellors. Inc. a corporation organized under the laws of the State of
Delaware (the "Adviser"); and Counsellors Securities Inc., a corporation
organized under the laws of the State of New York ("CSI").
WHEREAS, the Fund engages in business as an open-end management investment
company and was established for the purpose of serving as the investment vehicle
for separate accounts established for variable life insurance contracts and
variable annuity contracts to be offered by insurance companies that have
entered into participation agreements similar to this Agreement (the
"Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Fund has received an order from the Securities & Exchange
Commission (the "SEC") granting Participating Insurance Companies and variable
annuity separate accounts and variable life insurance separate accounts relief
from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund
to be sold to and held by variable annuity separate accounts and variable life
insurance separate accounts of both affiliated and unaffiliated Participating
Insurance Companies and qualified pension and retirement plans outside of the
separate account context (the "Mixed and Shared Funding Exemptive Order"). The
parties to this Agreement agree that the conditions or undertakings specified in
the Mixed and Shared Funding Exemptive Order and that may be imposed on the
Company, the Fund, the Adviser and/or CSI by virtue of the receipt of such order
by the SEC will be incorporated herein by reference and such parties agree to
comply with such conditions and undertakings to the extent applicable to each
such party; and
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WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and its shares are registered under the Securities Act of
1933 as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable annuity
contracts (the "Contracts") under the 1933 Act; and
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company
under the insurance laws of the State of Arizona, to set aside and invest assets
attributable to the Contracts; and
WHEREAS, the Company has registered the Account as a unit
investment trust under the 1940 Act; and
WHEREAS, CSI, the Fund's distributor, 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 shares of the Portfolios named in Schedule 2, as
such schedule may be amended from time to time (the "Designated Portfolios") on
behalf of the Account to fund the Contracts, and the Fund is authorized to sell
such shares to unit investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Adviser and CSI agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company those shares of
the Designated Portfolios that each Account orders,
executing such orders on a daily basis at the net asset
value next computed after receipt and acceptance by the
Fund or its designee of the order for the shares of the
Fund. For purposes of this Section 1.1, the Company will
be the designee of the Fund for receipt of such orders
from each Account and receipt by such designee will
constitute receipt by the Fund; provided that the Fund
receives notice of such order by 10:00 a.m. Eastern Time
on the next following business day ("T+1"). "Business
Day" will mean any day on which the New York Stock
Exchange is open for trading and on which the Fund
calculates its net asset value pursuant to the rules of
the SEC.
1.2. The Company will pay for Fund shares on T+1 that an order
to purchase Fund shares is made in accordance with
Section 1.1 above. Payment will be in federal funds
transmitted by wire. This wire transfer will be initiated
by 12:00 p.m. Eastern Time.
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1.3. The Fund agrees to make shares of the Designated
Portfolios available for purchase at the applicable net
asset value per share by Participating Insurance
Companies and their separate accounts on those days on
which the Fund calculates its Designated Portfolio net
asset value pursuant to rules of the SEC; provided,
however, that the Board of Trustees of the Fund (the
"Fund Board") may refuse to sell shares of any Portfolio
to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law
or by regulatory authorities having jurisdiction or is,
in the sole discretion of the Fund 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.
1.4. On each Business Day on which the Fund calculates its net
asset value, the Company will aggregate and calculate the
net purchase or redemption orders for each Account
maintained by the Fund in which contractowner assets are
invested. Net orders will only reflect orders that the
Company has received prior to the close of regular
trading on the New York Stock Exchange, Inc. (the "NYSE")
(currently 4:00 p.m., Eastern Time) on that Business Day.
Orders that the Company has received after the close of
regular trading on the NYSE will be treated as though
received on the next Business Day. Each communication of
orders by the Company will constitute a representation
that such orders were received by it prior to the close
of regular trading on the NYSE on the Business Day on
which the purchase or redemption order is priced in
accordance with Rule 22c-1 under the 1940 Act. Other
procedures relating to the handling of orders will be in
accordance with the prospectus and statement of
information of the relevant Designated Portfolio or with
oral or written instructions that CSI or the Fund will
forward to the Company from time to time.
1.5. The Fund agrees that shares of the Fund will be sold only
to Participating Insurance Companies and their separate
accounts, qualified pension and retirement plans or such
other persons as are permitted under applicable
provisions of the Internal Revenue Code of 1986, as
amended, (the "Internal Revenue Code"), and regulations
promulgated thereunder, the sale to which will not impair
the tax treatment currently afforded the Contracts. No
shares of any Portfolio will be sold to the general
public except as set forth in this Section 1.5.
1.6. The Fund agrees to redeem for cash, upon the Company's
request, any full or fractional shares of the Fund held
by the Company, executing such requests on a daily basis
at the net asset value next computed after receipt and
acceptance by the Fund or its agent of the request for
redemption. For purposes of this Section 1.6, the
Company will be the designee of the Fund for receipt of
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requests for redemption from each Account and receipt by such
designee will constitute receipt by the Fund, provided the Fund
receives notice of request for redemption by 10:00 a.m. Eastern
Time on the next following Business Day. Payment will be in
federal funds transmitted by wire to the Company's account as
designated by the Company in writing from time to time, on the
same Business Day the Fund receives notice of the redemption
order from the Company. The Fund reserves the right to delay
payment of redemption proceeds, but in no event may such payment
be delayed longer than the period permitted by the 0000 Xxx. The
Fund will not bear any responsibility whatsoever for the proper
disbursement or crediting of redemption proceeds; the Company
alone will be responsible for such action. If notification of
redemption is received after 10:00 a.m. Eastern Time, payment for
redeemed shares will be made on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the
Designated Portfolios offered by the then current prospectus of
the Fund in accordance with the provisions of such prospectus.
1.8. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any
Account. Purchase and redemption orders for Fund shares will be
recorded in an appropriate title for each Account or the
appropriate subaccount of each Account.
1.9. The Fund will furnish same day notice (by telecopier,
followed by written confirmation) to the Company of the
declaration of any income, dividends or capital gain
distributions payable on each Designated Portfolio's
shares. The Company hereby elects to receive all such
dividends and distributions as are payable on the
Designated Portfolio shares in the form of additional
shares of that Designated Portfolio. The Fund will
notify the Company of the number of shares so issued as
payment of such dividends and distributions. The Company
reserves the right to revoke this election upon
reasonable prior notice to the Fund and to receive all
such dividends and distributions in cash.
1.10. The Fund will make the net asset value per share for each
Designated Portfolio available to the Company on a daily
basis as soon as reasonably practical after the net asset
value per share is calculated and will use its best
efforts to make such net asset value per share available
by 6:00 p.m., Eastern Time, but in no event later than
7:00 p.m., Eastern Time, each business day.
1.11. In the event adjustments are required to correct any
error in the computation of the net asset value of the
Fund's shares, the Fund or CSI will notify the Company as
soon as practicable after discovering the need for those
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adjustments that result in an aggregate reimbursement of $150 or
more to any one Account maintained by a Designated Portfolio (or,
if greater, result in an adjustment of $10 or more to each
contractowner's account). Any such notice will state for each day
for which an error occurred the incorrect price, the correct
price and, to the extent communicated to the Fund's shareholders,
the reason for the price change. The Company may send this notice
or a derivation thereof (so long as such derivation is approved
in advance by CSI or the Adviser) to contractowners whose
accounts are affected by the price change. The parties will
negotiate in good faith to develop a reasonable method for
effecting such adjustments.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts
are or will be registered under the 1933 Act and that the
Contracts will be issued and sold in compliance with all
applicable federal and state laws, including 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
and that it has legally and validly established each
Account as a separate account under applicable state law
and has registered 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, and that it will maintain such registration
for so long as any Contracts are outstanding. The
Company will amend the registration statement under the
1933 Act for the Contracts and the registration statement
under the 1940 Act for the Account from time to time as
required in order to effect the continuous offering of
the Contracts or as may otherwise be required by
applicable law. The Company will register and qualify
the Contracts for sale in accordance with the securities
laws of the various states only if and to the extent
deemed necessary by the Company.
2.2. The Company represents that the Contracts are currently
and at the time of issuance will be treated as annuity
contracts under applicable provisions of the Internal
Revenue Code, and that it will make every effort to
maintain such treatment and that it will notify the Fund
and the Adviser immediately upon having a reasonable
basis for believing that the Contracts have ceased to be
so treated or that they might not be so treated in the
future.
2.3. The Company represents and warrants that it will not purchase
shares of the Designated Portfolios with assets derived from
tax-qualified retirement plans except, indirectly, through
Contracts purchased in connection with such plans.
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2.4. The Fund represents and warrants that Fund shares of the
Designated Portfolios sold pursuant to this Agreement
will registered under the 1933 Act and duly authorized
for issuance in accordance with applicable law and that
the Fund is and will remain registered under the 1940 Act
for as long as such shares of the Designated Portfolios
are sold. The Fund will 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 will
register and qualify the shares of the Designated
Portfolios for sale in accordance with the laws of the
various states only if and to the extent deemed advisable
by the Fund.
2.5. The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the
Internal Revenue Code, and that it will make every effort
to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify
the Company immediately upon having a reasonable basis
for believing that it has ceased to so qualify or that it
might not so qualify in the future.
2.6. The Fund represents and warrants that in performing the
services described in this Agreement. The Fund will
comply with all applicable laws, rules and regulations.
The Fund makes no representation as to whether any aspect
of its operations (including, but not limited to, fees
and expenses and investment policies, objectives and
restrictions) complies with the insurance laws and
regulations of any state. The Fund and CSI agree that
upon request they will use their best efforts to furnish
the information required by state insurance laws so that
the Company can obtain the authority needed to issue the
Contracts in the various states.
2.7. The Fund currently does not intend to make any payments
to finance distribution expenses pursuant to Rule 12b-1
under the 1940 Act, although it reserves the right to
make such payments in the future. To the extent that it
decides to finance distribution expenses pursuant to Rule
12b-1, the Fund undertakes to have its Fund Board,
formulate and approve any plan under Rule 12b-1 to
finance distribution expenses in accordance with the 1940
Act.
2.8. CSI represents and warrants that it will distribute the Fund
shares of the Designated Portfolios in accordance with all
applicable federal and state securities laws including, without
limitation, the 1933 Act, the 1934 Act and the 0000 Xxx.
2.9. The Fund represents that it is lawfully organized and validly
existing under the laws of the Commonwealth of Massachusetts and
that it does and will comply in all material respects with
applicable provisions of the 1940 Act.
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2.10. CSI represents and warrants that it is and will remain duly
registered under all applicable federal and state securities laws
and that it will perform its obligations for the Fund in
accordance in all material respects with any applicable state and
federal securities laws.
2.11. The Fund and CSI represent and warrant that all of their
trustees, officers, employees, investment advisers, and
individuals/entities having access to the funds and/or
securities of the Fund are and continue to be at all
times covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund in an amount not
less than the minimal coverage as required currently by
Rule 17g-(1) of the 1940 Act or related provisions as may
be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is
issued by a reputable bonding company.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Fund or CSI will provide the Company, at the Fund's
or its affiliate's expense, with as many copies of the
current Fund prospectus for the Designated Portfolios as
the Company may reasonably request for distribution, at
the Company's expense, to prospective contractowners and
applicants. The Fund or CSI will provide, at the Fund's
or its affiliate's expense, as many copies of said
prospectus as necessary for distribution, at the
Company's expense, to existing contractowners. The Fund
or CSI will provide the copies of said prospectus to the
Company or to its mailing agent. If requested by the
Company in lieu thereof, the Fund or CSI will provide
such documentation, including a computer diskette or a
final copy of a current prospectus set in type at the
Fund's or its affiliate's expense, and such other
assistance as is reasonably necessary in order for the
Company at least annually (or more frequently if the Fund
prospectus is amended more frequently) to have the Fund's
prospectus and the prospectuses of other mutual funds in
which assets attributable to the Contracts may be
invested printed together in one document, in which case
the Fund or its affiliate will bear its reasonable share
of expenses as described above, allocated based on the
proportionate number of pages of the Fund's and other
funds' respective portions of the document.
3.2. The Fund or CSI will provide the Company, at the Fund's
or its affiliate's expense, with as many copies of the
statement of additional information as the Company may
reasonably request for distribution, at the Company's
expense, to prospective contractowners and applicants.
The Fund or CSI will provide, at the Fund's or its
affiliate's expense, as many copies of said statement of
additional information as necessary for distribution, at
the Company's expense, to any existing contractowner who
requests such statement or whenever state or federal law
PAGE 8
otherwise requires that such statement be provided. The Fund or
CSI will provide the copies of said statement of additional
information to the Company or to its mailing agent.
3.3. The Fund or CSI, at the Fund's or its affiliate's
expense, will provide the Company or its mailing agent
with copies of its proxy material, if any, reports to
shareholders and other communications to shareholders in
such quantity as the Company will reasonably require.
The Company will distribute this proxy material, reports
and other communications to existing contractowners and
tabulate the votes.
3.4. If and to the extent required by law the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios
held in the Account in accordance with
instructions received from contractowners; and
(c) vote shares of the Designated Portfolios held in the Account
for which no timely instructions have been received, as well
as shares it owns, in the same proportion as shares of such
Designated Portfolio for which instructions have been
received from the Company's contractowners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contractowners. Except as set forth above, the Company reserves the
right to vote Fund shares held in any segregated asset account in its
own right, to the extent permitted by law. The Company will be
responsible for assuring that each of its separate accounts
participating in the Fund calculates voting privileges in a manner
consistent with all legal requirements, including the Mixed and Shared
Funding Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the
Fund either will provide for annual meetings (except
insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund
currently intends, to comply with Section 16(c) of the
1940 Act (although the Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with
Sections 16(a) and, if and when applicable, 16(b).
Further, the Fund will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) with
respect to periodic elections of trustees and with
whatever rules the SEC may promulgate with respect
thereto.
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ARTICLE IV. Sales Material and Information
4.1. CSI will provide the Company on a timely basis with
investment performance information for each Designated
Portfolio in which the Company maintains an Account,
including total return for the preceding calendar month
and calendar quarter, the calendar year to date, and the
prior one-year, five-year, and ten-year (or life of the
Fund) periods. The Company may, based on the
SEC-mandated information supplied by CSI, prepare
communications for contractowners ("Contractowner
Materials"). The Company will provide copies of all
Contractowner Materials concurrently with their first use
for CSI's internal recordkeeping purposes. It is
understood that neither CSI nor any Designated Portfolio
will be responsible for errors or omissions in, or the
content of, Contractowner Materials except to the extent
that the error or omission resulted from information
provided by or on behalf of CSI or the Designated
Portfolio. Any printed information that is furnished to
the Company other than each Designated Portfolio's
prospectus or statement of additional information (or
information supplemental thereto), periodic reports and
proxy solicitation materials is CSI's sole responsibility
and not the responsibility of any Designated Portfolio or
the Fund. The Company agrees that the Portfolios, the
shareholders of the Portfolios and the officers and
governing Board of the Fund will have no liability or
responsibility to the Company in these respects.
4.2. The Company will not give any information or make any
representations or statements on behalf of the Fund or
concerning the Fund in connection with the sale of the
Contracts other than the information or representations
contained in the registration statement, prospectus or
statement of additional information for Fund shares, as
such registration statement, prospectus and statement of
additional information may be amended or supplemented
from time to time, or in reports or proxy statements for
the Fund, or in published reports for the Fund which are
in the public domain or approved by the Fund or CSI for
distribution, or in sales literature or other material
provided by the Fund or by CSI, except with permission of
the Fund or CSI. The Fund and CSI agree to respond to
any request for approval on a prompt and timely basis.
Nothing in this Section 4.2 will be construed as
preventing the Company or its employees or agents from
giving advice on investment in the Fund.
4.3. The Fund, the Adviser or CSI will furnish, or will cause
to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material
in which the Company or its Account is named, at least
ten (10) business days prior to its use. No such
material will be used if the Company reasonably objects
to such use within five (5) business days after receipt
of such material.
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4.4. The Fund, the Adviser and CSI will not give any
information or make any representations or statements on
behalf of the Company or concerning the Company, each
Account, or the Contracts other than the information or
representations contained in a registration statement,
prospectus or statement of additional information for the
Contracts, as such registration statement, prospectus and
statement of additional information may be amended or
supplemented from time to time, or in published reports
for each Account or the Contracts which are in the public
domain or approved by the Company for distribution to
contractowners, or in sales literature or other material
provided by the Company, except with permission of the
Company. The Company agrees to respond to any request
for approval on a prompt and timely basis.
4.5. The Fund will provide to the Company at least one
complete copy of all registration statements,
prospectuses, statements of additional information,
reports, proxy statements, sales literature and other
promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any
of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with
the SEC, the NASD or other regulatory authority.
4.6. The Company will provide to the Fund at least one
complete copy of all registration statements,
prospectuses, statements of additional information,
reports, solicitations for voting instructions, sales
literature and other promotional materials, applications
for exemptions, requests for no action letters, and all
amendments to any of the above, that relate to the
Contracts or each Account, contemporaneously with the
filing of such document with the SEC, the NASD or other
regulatory authority.
4.7. For purposes of this Article IV, the phrase "sales
literature or other promotional material" includes, but
is not limited to, advertisements (such as material
published, or designed for use in, a newspaper, magazine,
or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion
pictures, or other public media, (e.g., on-line networks
----
such as the Internet or other electronic messages) sales
literature (i.e., any written communication distributed
----
or made generally available to customers or the public,
including brochures, circulars, research reports, market
letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature, or
published article), educational or training materials or
other communications distributed or made generally
available to some or all agents or employees,
registration statements, prospectuses, statements of
additional information, shareholder reports, and proxy
materials and any other material constituting sales
literature or advertising under the NASD rules, the 1933
Act or the 1940 Act.
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4.8. The Fund and CSI hereby consent to the Company's use of
the names Warburg Pincus Trust - Small Company Growth
Portfolio and Warburg, Xxxxxx Counsellors, Inc. in
connection with the marketing of the Contracts, subject
to the terms of Sections 4.1 and 4.2 of this Agreement.
Such consent will terminate with the termination of this
Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund, the Adviser and CSI will pay no fee or other
compensation to the Company under this Agreement except
if the Fund or any Designated Portfolio adopts and
implements a plan pursuant to Rule 12b-1 under the 1940
Act to finance distribution expenses, then, subject to
obtaining any required exemptive orders or other
regulatory approvals, the Fund may make payments to the
Company or to the underwriter for the Contracts if and in
such amounts agreed to by the Fund in writing.
5.2. All expenses incident to performance by the Fund of this
Agreement will be paid by the Fund to the extent
permitted by law. The Fund will bear the expenses for
the cost of registration and qualification of the Fund's
shares; preparation and filing of the Fund's prospectus,
statement of additional information and registration
statement, proxy materials and reports; setting in type
and printing the Fund's prospectus; setting in type and
printing proxy materials and reports by it to
contractowners (including the costs of printing a Fund
prospectus that constitutes an annual report); the
preparation of all statements and notices required by any
federal or state law; all taxes on the issuance or
transfer of the Fund's shares; any expenses permitted to
be paid or assumed by the Fund pursuant to a plan, if
any, under Rule 12b-1 under the 1940 Act; and all other
expenses set forth in Article III of this Agreement.
ARTICLE VI. Diversification
6.1. The Fund will at all times invest money from the
Contracts in such a manner as to ensure that the
Contracts will be treated as variable annuity contracts
under the Internal Revenue Code and the regulations
issued thereunder. Without limiting the scope of the
foregoing, the Fund will comply with Section 817(h) of
the Internal Revenue Code and Treasury Regulation
1.817-5, as amended from time to time, relating to the
diversification requirements for variable annuity,
endowment, or life insurance contracts and any amendments
or other modifications to such Section or Regulation. 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 Treasury Regulation 1.817-5.
PAGE 12
ARTICLE VII. Potential Conflicts
7.1. The Fund Board will monitor the Fund for the existence of
any irreconcilable material conflict among the interests
of the contractowners of all separate accounts investing
in the Fund. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action
by any state insurance regulatory authority; (b) a change
in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling,
private letter ruling, no action or interpretative
letter, or any similar action by insurance, tax, or
securities regulatory authorities; (c) an administrative
or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are
being managed; (e) a difference in voting instructions
given by Participating Insurance Companies or by variable
annuity and variable life insurance contractowners; or
(f) a decision by an insurer to disregard the voting
instructions of contractowners. The Fund Board will
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 Fund Board. The
Company agrees to assist the Fund Board in carrying out
its responsibilities, as delineated in the Mixed and
Shared Funding Exemptive Order, by providing the Fund
Board with all information reasonably necessary for the
Fund Board to consider any issues raised. This includes,
but is not limited to, an obligation by the Company to
inform the Fund Board whenever contractowner voting
instructions are to be disregarded. The Company's
responsibilities hereunder will be carried out with a
view only to the interest of contractowners.
7.3. If it is determined by a majority of the Fund Board, or a
majority of its disinterested directors, that an
irreconcilable material conflict exists, the Company
will, at its expense and to the extent reasonably
practicable (as determined by a majority of the
disinterested directors), take whatever steps are
necessary to remedy or eliminate the irreconcilable
material conflict, up to and including: (a) withdrawing
the assets allocable to some or all of the Accounts from
the Fund or any Portfolio and reinvesting such assets in
a different investment medium, including (but not limited
to) another Portfolio of the Fund, or submitting the
question whether such segregation should be implemented
to a vote of all affected contractowners and, as
appropriate, segregating the assets of any appropriate
group (i.e., variable annuity contractowners or variable
----
life insurance contractowners of one or more
Participating Insurance Companies) that votes in favor of
such segregation, or offering to the affected
PAGE 13
contractowners the option of making such a change; and (b)
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 contractowner voting
instructions, and the Company's judgment represents a
minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to
withdraw the affected subaccount of the Account's
investment in the Fund and terminate this Agreement with
respect to such subaccount; provided, however, that such
withdrawal and termination will be limited to the extent
required by the foregoing irreconcilable material
conflict as determined by a majority of the disinterested
directors of the Fund Board. No charge or penalty will be
imposed as a result of such withdrawal.
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 insurance regulators, then the Company will
withdraw the affected subaccount of the Account's
investment in the Fund and terminate this Agreement with
respect to such subaccount; provided, however, that such
withdrawal and termination will be limited to the extent
required by the foregoing irreconcilable material
conflict as determined by a majority of the disinterested
directors of the Fund Board. No charge or penalty will
be imposed as a result of such withdrawal.
7.6. For purposes of Sections 7.3 through 7.6 of this
Agreement, a majority of the disinterested members of the
Fund Board will determine whether any proposed action
adequately remedies any irreconcilable material conflict,
but in no event will the Fund or the Adviser (or any
other investment adviser to the Fund) be required to
establish a new funding medium for the Contracts. The
Company will not be required by Section 7.3 to establish
a new funding medium for the Contracts if an offer to do
so has been declined by vote of a majority of
contractowners materially affected by the irreconcilable
material conflict.
7.7. The Company will at least annually submit to the Fund
Board such reports, materials or data as the Fund Board
may reasonably request so that the Fund Board may fully
carry out the duties imposed upon it as delineated in the
Mixed and Shared Funding Exemptive Order, and said
reports, materials and data will be submitted more
frequently if deemed appropriate by the Fund Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder
with respect to mixed or shared funding (as defined in the Mixed
and Shared Funding
PAGE 14
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, will take such steps as may be
necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and
Rule 6e-3, as adopted, to the extent such rules are applicable;
and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this
Agreement will continue in effect only to the extent that terms
and conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the
Fund, the Adviser, CSI, and each person, if any, who
controls or is associated with the Fund, the Adviser or
CSI within the meaning of such terms under the federal
securities laws and any director, trustee, officer,
partner, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of
this Section 8.1) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or
litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become
subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof)
or settlements:
(1) arise out of or are based upon any untrue statements
or alleged untrue statements of any material fact
contained in the registration statement, prospectus
or statement of additional information for the
Contracts or contained in the Contracts or sales
literature or other promotional material for the
Contracts (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon
the omission or the alleged omission to state
therein a material fact required to be stated or
necessary to make such statements not misleading in
light of the circumstances in which they were made;
provided that this agreement to indemnify will 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 Company by the
Fund, the Adviser or CSI for use in the registration
statement, prospectus or statement of additional
information for the Contracts or in the Contracts or
sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the
Contracts or Fund shares; or
PAGE 15
(2) arise out of or as a result of statements or
representations by or on behalf of the Company or wrongful
conduct of the Company or persons under its control, with
respect to the sale or distribution of the Contracts or
Fund shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Fund
registration statement, prospectus, statement of
additional information or sales literature or other
promotional material of the Fund (or amendment or
supplement) or the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make such statements not
misleading in light of the circumstances in which
they were made, if such a statement or omission was
made in reliance upon and in conformity with
information furbished to the Fund by or on behalf of
the Company or persons under its control; or
(4) arise as a result of any failure by the Company to
provide the services and furnish the materials under
the terms of this Agreement; or
(5) arise out of any material breach of any representation
and/or warranty made by the Company in this Agreement or
arise out of or result from any other material breach by
the Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof.
This indemnification will be in addition to any liability that
the Company otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.1(a) to the extent such loss, claim, damage,
liability or litigation is due to the willful
misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement,
or by reason of such party's reckless disregard of its
obligations or duties under this Agreement by the party
seeking indemnification.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities 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 Adviser, the Fund and CSI
(a) The Adviser, the Fund and CSI, in each case solely to the extent
relating to such party's responsibilities hereunder, agree to
indemnify and hold harmless the Company and each person, if any,
who controls or is associated with the Company within the meaning
of such terms under the federal securities laws and any director,
PAGE 16
trustee, officer, partner, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with
the written consent of the Adviser) or litigation (including
reasonable legal and other expenses) to which the Indemnified
Parties may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or
settlements:
(1) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement, prospectus
or statement of additional information for the Fund
or sales literature or other promotional material of
the Fund (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon
the omission or the alleged omission to state
therein a material fact required to be stated or
necessary to make such statements not misleading in
light of the circumstances in which they were made;
provided that this agreement to indemnify will 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 Adviser, CSI or the
Fund by or on behalf of the Company for use in the
registration statement, prospectus or statement of
additional information for the Fund or in sales
literature of the Fund (or any amendment or
supplement thereto) or otherwise for use in
connection with the sale of the Contracts or Fund
shares; or
(2) arise out of or as a result of statements or
representations or wrongful conduct of the Adviser, the
Fund or CSI or persons under the control of the Adviser,
the Fund or CSI respectively, with respect to the sale of
the Fund shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus, statement of
additional information or sales literature or other
promotional material covering the Contracts (or any
amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact
required to be stated or necessary to make such
statement or statements not misleading in light of
the circumstances in which they were made, if such
statement or omission was made in reliance upon and
in conformity with written information furnished to
the Company by the Adviser, the Fund or CSI or
persons under the control of the Adviser, the Fund
or CSI; or
PAGE 17
(4) arise as a result of any failure by the Fund, the
Adviser or CSI to provide the services and furnish
the materials under the terms of this Agreement
(including a failure, whether unintentional or in
good faith or otherwise, to comply with the
diversification requirements and procedures related
thereto specified in Article VI of this Agreement);
or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser, the
Fund or CSI in this Agreement, or arise out of or result
from any other material breach of this Agreement by the
Adviser, the Fund or CSI;
except to the extent provided in Sections 8.2(b) and 8.4
hereof.
(b) No party will be entitled to indemnification under
Section 8.2(a) to the extent such loss, claim, damage,
liability or litigation is due to the willful
misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement,
or by reason of such party's reckless disregard of its
obligations or duties under this Agreement by the party
seeking indemnification.
(c) The Indemnified Parties will promptly notify the Adviser, the
Fund and CSI of the commencement of any litigation, proceedings,
complaints or actions by regulatory authorities against them in
connection with the issuance or sale of the Contracts or the
operation of the Account.
8.4. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.4) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.4) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the
claim will have been served upon such Indemnified Party (or after such
party will have received notice of such service on any designated
agent), but failure to notify the Indemnifying Party of any such claim
will not relieve the Indemnifying Party from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of the indemnification provision of this
Article VIII, except to the extent that the failure to notify results in
the failure of actual notice to the Indemnifying Party and such
Indemnifying Party is damaged solely as a result of failure to give such
notice. In case any such action is brought against the Indemnified
Party, the Indemnifying Party will be entitled to participate, at its
own
PAGE 18
expense, in the defense thereof. The Indemnifying Party also will be
entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Indemnifying Party to
the Indemnified Party of the Indemnifying Party's election to assume the
defense thereof, the Indemnified Party will bear the fees and expenses
of any additional counsel retained by it, and the Indemnifying Party
will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation, unless: (a) the Indemnifying Party and the Indemnified
Party will have mutually agreed to the retention of such counsel; or (b)
the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The Indemnifying Party will not be liable for any settlement of
any proceeding effected without its written consent but if settled with
such consent or if there is a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement will be entitled to
the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII will survive
any termination of this Agreement.
ARTICLE IX. Applicable Law
9.1. This Agreement will be construed and the provisions
hereof interpreted under and in accordance with the laws
of the State of Minnesota.
9.2. This Agreement will be subject to the provisions of the
1933 Act, the 1934 Act and the 1940 Act, 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, the
Mixed and Shared Funding Exemptive Order) and the terms
hereof will be interpreted and construed in accordance
therewith.
ARTICLE X. Termination
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, with
respect to some or all of the Designated Portfolios, upon
ninety (90) days' advance written notice to the other
parties or, if later, upon receipt of any required
exemptive relief or orders from the SEC, unless otherwise
agreed in a separate written agreement among the parties;
or
PAGE 19
(b) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with
respect to any Designated Portfolio if shares, of the
Designated Portfolio are not reasonably available to meet
the requirements of the Contracts as determined in good
faith by the Company; or
(c) at the option of the Company, upon receipt of the
Company's written notice by the other parties, 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 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 Company; or
(d) at the option of the Fund, upon receipt of the
Fund's written notice by the other parties, upon
institution of formal proceedings against the
Company by the NASD, the SEC, the insurance
commission of any state or any other regulatory body
regarding the Company's duties under this Agreement
or related to the sale of the Contracts, the
administration of the Contracts, the operation of
the Account, or the purchase of the Fund shares,
provided that the Fund determines in its sole
judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on
the Company's ability to perform its obligations
under this Agreement; or
(e) at the option of the Company, upon receipt of the
Company's written notice by the other parties, upon
institution of formal proceedings against the Fund
or CSI by the NASD, the SEC, or any state securities
or insurance department or any other regulatory
body, provided that the Company determines in its
sole judgment, exercised in good faith, that any
such proceeding would have a material adverse effect
on the Fund's or CSI's ability to perform its
obligations under this Agreement; or
(f) at the option of the Company, upon receipt of the
Company's written notice by the other parties, if the Fund
ceases to qualify as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code, or under any
successor or similar provision, or if the Company
reasonably and in good faith believes that the Fund may
fail to so qualify; or
(g) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with
respect to any Designated Portfolio if the Fund fails to
meet the diversification requirements specified in Article
VI hereof or if the Company reasonably and in good faith
believes the Fund may fail to meet such requirements; or
PAGE 20
(h) at the option of any party to this Agreement, upon written
notice to the other parties, upon another party's material
breach of any provision of this Agreement; or
(i) at the option of the Company, if the Company
determines in its sole judgment exercised in good
faith, that either the Fund, the Adviser or CSI has
suffered a material adverse change in its business,
operations or financial condition since the date of
this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse
impact upon the business and operations of the
Company, such termination to be effective sixty (60)
days' after receipt by the other parties of written
notice of the election to terminate; or
(j) at the option of the Fund or CSI, if the Fund or CSI
respectively, determines in its sole judgment
exercised in good faith, that the Company has
suffered a material adverse change in its business,
operations or financial condition since the date of
this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse
impact upon the business and operations of the Fund
or the Adviser, such termination to be effective
sixty (60) days' after receipt by the other parties
of written notice of the election to terminate; or
(k) at the option of the Company or the Fund upon
receipt of any necessary regulatory approvals and/or
the vote of the contractowners having an interest in
the Account (or any subaccount) to substitute the
shares of another investment company for the
corresponding Designated Portfolio shares of the
Fund in accordance with the terms of the Contracts
for which those Designated Portfolio shares had been
selected to serve as the underlying investment media
The Company will give sixty (60) days' prior written
notice to the Fund of the date of any proposed vote
or other action taken to replace the Fund's shares;
or
(l) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a
majority of the disinterested Fund Board members,
that an irreconcilable material conflict exists
among the interests of: (1) all contractowners of
variable insurance products of all separate
accounts; or (2) the interests of the Participating
Insurance Companies investing in the Fund as set
forth in Article VII of this Agreement; or
(m) at the option of the Fund in the event any of the
Contracts are not issued or sold in accordance with
applicable federal and/or state law. Termination will be
effective immediately upon such occurrence without notice.
PAGE 21
10.2. Notice Requirement
No termination of this Agreement will be effective unless and until the
party terminating this Agreement gives prior written notice to all other
parties of its intent to terminate, which notice will set forth the
basis for the termination.
10.3. Effect of Termination
Notwithstanding any termination of this Agreement, the Fund and CSI
will, 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."). Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in the
Portfolios (as in effect on such date), redeem investments in the
Portfolios and/or invest in the Portfolios upon the making of additional
purchase payments under the Existing Contracts.
10.4 Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive
and not be affected by any termination of this Agreement. In addition,
each party's obligations under Section 12.7 will survive and not be
affected by any termination of this Agreement. Finally, with respect to
Existing Contracts, all provisions of this Agreement also will survive
and not be affected by any termination of this Agreement.
ARTICLE XI. Notices
11.1 Any notice will be deemed duly 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 parties.
If to the Company:
American Partners Life Insurance Company
c/o American Express Financial Advisors Inc.
IDS Tower 10
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxxx
Manager-Product Development
With a simultaneous copy to:
American Partners Life Insurance Company
c/o American Express Financial Advisors Inc.
IDS Tower 10
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxx Xxxxxxx
Counsel
PAGE 22
If to the Fund, the Adviser and/or CSI:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Senior Vice President
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims
against the Fund as neither the directors, trustees,
officers, partners, employees, agents or shareholders
assume any personal liability for obligations entered
into on behalf of the Fund. No Portfolio or series of
the Fund will be liable for the obligations or
liabilities of any other Portfolio or series.
12.2. The Fund, the Adviser and CSI acknowledge that the
identities of the customers of the Company or any of its
affiliates (collectively the "Company Protected Parties"
for purposes of this Section 12.2), information
maintained regarding those customers, and all computer
programs and procedures or other information developed or
used by the Company Protected Parties or any of their
employees or agents in connection with the Company's
performance of its duties under this Agreement are the
valuable property of the Company Protected Parties. The
Fund, the Adviser and CSI agree that if they come into
possession of any list or compilation of the identities
of or other information about the Company Protected
Parties' customers, or any other information or property
of the Company Protected Parties, other than such
information as is publicly available or as may be
independently developed or compiled by the Fund, the
Adviser or CSI from information supplied to them by the
Company Protected Parties customers who also maintain
accounts directly with the Fund, the Adviser or CSI, the
Fund, the Adviser and CSI will hold such information or
property in confidence and refrain from using, disclosing
or distributing any of such information or other property
except: (a) with the Company's prior written consent; or
(b) as required by law or judicial process. The Company
acknowledges that the identities of the customers of the
Fund, the Adviser, CSI or any of their affiliates
(collectively the "Adviser Protected Parties" for
purposes of this Section 12.2), information maintained
regarding those customers, and all computer programs and
procedures or other information developed or used by the
Adviser Protected Parties or any of their employees or
agents in connection with the Funds', the Adviser's or
CSI's performance of their respective duties under this
Agreement are the valuable property of the Adviser
Protected Parties. The Company agrees that if it comes
into possession of any list or compilation of the
identities of or other information about the Adviser
Protected Parties' customers, or any other information or
property of the Adviser Protected Parties, other than
PAGE 23
such information as is publicly available or as may be
independently developed or compiled by the Company from
information supplied to them by the Adviser Protected Parties'
customers who also maintain accounts directly with the Company,
the Company will hold such information or property in confidence
and refrain from using, disclosing or distributing any of such
information or other property except: (a) with the Fund's, the
Adviser's or CSI's prior written consent; or (b) as required by
law or judicial process. Each party acknowledges that any breach
of the agreements in this Section 12.2 would result in immediate
and irreparable harm to the other parties for which there would
be no adequate remedy at law and agree that in the event of such
a breach, the other parties will be entitled to equitable relief
by way of temporary and permanent injunctions, as well as such
other relief as any court of competent jurisdiction deems
appropriate.
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 will
constitute one and the same instrument.
12.5. If any provision of this Agreement will be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
the Agreement will not be affected thereby.
12.6. This Agreement will not be assigned by any party hereto
without the prior written consent of all the parties.
12.7. Each party to this Agreement will maintain all records
required by law, including records detailing the services
it provides. Such records will be preserved, maintained
and made available to the extent required by law and in
accordance with the 1940 Act and the rules thereunder.
Each party to this Agreement will cooperate with each
other party and all appropriate governmental authorities
(including without limitation the SEC, the NASD and state
insurance regulators) and will permit each other and such
authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby.
Upon request by the Fund or CSI, the Company agrees to
promptly make copies or, if required, originals of all
records pertaining to the performance of services under
this Agreement available to the Fund or CSI, as the case
may be. The Fund agrees that the Company will have the
right to inspect, audit and copy all records pertaining
to the performance of services under this Agreement
pursuant to the requirements of any state insurance
department. Each party also agrees to promptly notify
PAGE 24
the other parties if it experiences, any difficulty in
maintaining the records in an accurate and complete manner. This
provision will survive termination of this Agreement.
12.8 Each party represents that the execution and delivery of
this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all
necessary corporate or board action, as applicable, by
such party and when so executed and delivered this
Agreement will be the valid and binding obligation of
such party enforceable in accordance with its terms.
12.9 The parties to this Agreement acknowledge and agree that
all liabilities of the Fund arising, directly or
indirectly, under this agreement, will be satisfied
solely out of the assets of the Fund and that no trustee,
officer, agent or holder of shares of beneficial interest
of the Fund will be personally liable for any such
liabilities.
12.10. The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect changes in or relating to
the Contracts, the Accounts or the Designated Portfolios of the
Fund or other applicable terms of this Agreement.
PAGE 25
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the date specified below.
AMERICAN PARTNERS LIFE INSURANCE COMPANY
SEAL By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: VP-Variable Product Development
ATTEST:
By: /s/ Xxxx X. Sand
Name: Xxxx X. Sand
Title: Assistant Secretary
WARBURG PINCUS TRUST
SEAL By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President and Secretary
WARBURG PINCUS COUNSELLORS, INC.
SEAL By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Assistant Secretary
COUNSELLORS SECURITIES INC.
SEAL By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
PAGE 26
Schedule 1
PARTICIPATION AGREEMENT
By and Among
AMERICAN PARTNERS LIFE INSURANCE COMPANY
And
WARBURG PINCUS TRUST
And
WARBURG, XXXXXX COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
The following separate accounts of American Partners Life Insurance Company are
permitted in accordance with the provisions of this Agreement to invest in
Designated Portfolios of the Fund shown in Schedule 2:
APL Variable Annuity Account 1, established February 9, 1995.
March 1 , 1996
PAGE 27
Schedule 2
PARTICIPATION AGREEMENT
By and Among
AMERICAN PARTNERS LIFE INSURANCE COMPANY
And
WARBURG PINCUS TRUST
And
WARBURG, XXXXXX COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
The Separate Account(s) shown on Schedule 1 may invest in the following
Designated Portfolios of the Warburg Pincus Trust:
Small Company Growth Portfolio
March 1, 1996
