Exhibit (8)(s)
Participation Agreement
THIS AGREEMENT is made as of May 1, 1998, by and among Annuity Investors Life
Insurance Company ("Company"), on its own behalf and on behalf of each separate
account of the Company set forth on Exhibit A-1 to this Agreement as it may be
amended from time to time (collectively, "Account"), The Xxxxxxx Plan Variable
Series ("Fund") on its own behalf and on behalf of the portfolios listed on
Exhibit A to this Agreement as it may be amended from time to time
("Portfolios"), and Xxxxxxx Partners, Ltd. (the "Advisor" and "Distributor"),
who serves as both advisor and distributor for The Xxxxxxx Plan Variable Series
(each, a "Party" and collectively, the "Parties").
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Fund, on behalf of the Account to
fund the variable annuity contracts that use the Fund as an underlying
investment medium (the "Contracts");
WHEREAS, the Company, Adviser and Distributor desires to facilitate the purchase
and redemption of shares of the Fund by the Company for the Account through one
account in the Fund (an "Omnibus Account") to be maintained of record by the
Company, subject to the terms and conditions of this Agreement;
WHEREAS, the Company desires to provide administrative services and functions
(the "Services") for purchasers of Contracts ("Owners") on the terms and
conditions set forth herein;
WHEREAS, the Company has registered or will register certain variable life
insurance policies and/or variable annuity contracts under the Securities Act of
1933, as amended (the "1933 Act");
WHEREAS, the Company has registered or will register the Account as a unit
investment trust under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Company desires to utilize the Fund and/or one or more Portfolios
as an investment vehicle of the Account.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
Company, Fund, Adviser and Distributor agree as follows:
1. PERFORMANCE OF SERVICES. Company agrees to perform the administrative
functions and services specified in Exhibit B attached hereto with respect
to the shares of the Fund included in the Account.
2. THE OMNIBUS ACCOUNTS.
2:1 TheOmnibus Account will be opened based upon the information
contained in Exhibit C hereto: In connection with the Omnibus
Account, Company represents and warrants that it is authorized to
act on behalf of each Owner effecting transactions in the Omnibus
Account and that the information specified on Exhibit C hereto is
correct.
2:2 The Fund shall designate the Omnibus Account with an account number.
This account number will be the means of identification when the
Parties are transacting in the Omnibus Account. The assets in the
Account are segregated from the Company's own assets. The Adviser
agrees to cause the Omnibus Account to be kept open on the Fund's
books, as applicable, regardless of a lack of activity or small
position size except to the extent the Company takes specific action
to close an Omnibus Account or to the extent the Fund's prospectus
reserves the right to close accounts which are inactive or of a
small position size. In the latter two cases, the Adviser will give
prior notice to the Company before closing an Omnibus Account.
2.3 The Company agrees to provide Adviser such information as Adviser or
Distributor may reasonably request concerning Owners as may be
necessary or advisable to enable Company and Distributor to comply
with applicable laws, including state "Blue Sky" laws relating to
the sales of shares of the Fund to the Accounts.
3. FUND SHARES TRANSACTIONS.
3:1 IN GENERAL. Shares of the Fund shall be sold on behalf of the Fund
by Distributor and purchased by Company for the Account and'
indirectly for the appropriate subaccount thereof at the net asset
value next computed after receipt by Distributor of each order of
the Company or its designee, in accordance with the provisions of
this Agreement, the then current prospectus of the Fund, and the
Contracts. The Board of Directors of the Fund ("Directors") may
refuse to sell shares of the applicable Fund to any person, or
suspend or terminate the offering of shares of the Fund if such
action is required by law or by regulatory authorities having
jurisdiction. Company agrees to purchase and redeem the shares of
the Fund in accordance with the provisions of this Agreement, of the
Contract and of the then current prospectus for the Contract and
Fund. Except as necessary to implement transactions as specified in
the Contracts or as initiated by the Owners, or as otherwise
permitted by state or federal laws or regulations, Company shall not
redeem shares of Fund attributable to the contract.
3.2 PURCHASE AND REDEMPTION ORDERS. On each day that the Fund is open
for business (a "Business Day"), the Company shall aggregate and
calculate the net purchase or redemption order resulting from
investment in and redemptions under the Contracts for shares of the
Fund that it received prior to the close of trading on the New York
Stock Exchange (the "NYSE") (i.e. 4:00 p.m., Eastern time, unless
the NYSE closes at an earlier time in which case such earlier time
shall apply) and communicate to Distributor, by telephone or
facsimile (or by such other means as the Parties hereto may agree to
in writing), the net aggregate purchase or redemption order (if any)
for the Omnibus Account for such Business Day (such Business Day is
sometimes referred to herein as the "Trade Date"). The Company will
communicate such orders to Distributor prior to 9:00 a.m., Eastern
Time, on the next Business Day following the Trade Date. All trades
communicated to Distributor by the foregoing deadline shall be
treated by Distributor as if they were received by Distributor prior
to the close of trading on the Trade Date.
2
3.3 SETTLEMENT OF TRANSACTIONS.
(a) PURCHASES. Company will wire, or arrange for the wire of the
purchase price of each purchase order to the custodian for the
Fund in accordance with written instructions provided by
Distributor to the Company so that either (1) such funds are
received by the custodian for the Fund prior to 1:00 p.m.,
Eastern time, on the next Business Day following the Trade
Date, or (2) Distributor is provided with a Federal Funds wire
system reference number prior to such 1:00 p.m. deadline
evidencing the entry of the wire transfer of the purchase
price to the applicable custodian into the Federal Funds wire
system prior to such time. Company agrees that if it fails to
provide funds to the Fund's custodian by the close of business
on the next Business Day following the Trade Date, then, at
the option of Distributor, (i) the transaction may be
canceled, or (ii) the transaction may be processed at the
next-determined net asset value for the applicable Fund after
purchase order funds are received. In such event, the Company
shall indemnity and hold harmless Distributor, Adviser, and
the Fund from any liabilities, costs and damages either may
suffer as a result of such failure.
(b) REDEMPTIONS. The Adviser will use its best efforts to cause to
be transmitted to such custodial account as Company shall
direct in writing, the proceeds of all redemption orders
placed by Company by 9:00 a.m., Eastern time, on the Business
Day immediately following the Trade Date, by wire transfer on
that Business Day. Should Company need to extend the
settlement on a trade, it will contact Adviser to discuss the
extension. For purposes of determining the length of
settlement, Adviser agrees to treat the Account no less
favorably than other shareholders of the Fund. Each wire
transfer of redemption proceeds shall indicate, on the Federal
Funds wire system, the amount thereof attributable to the
Fund; provided, however, that if the number of entries would
be too great to be transmitted through the Federal Funds wire
system, the Adviser shall, on the day the wire is sent, fax
such entries to Company or, if possible, send via direct or
indirect systems access until otherwise directed by the
Company in writing.
(c) AUTHORIZED PERSONS. The following persons are each duly
authorized to act on behalf of the Company and the Account
under this Agreement. The Fund, Adviser and Distributor are
entitled to conclusively rely on verbal or written
instructions that Adviser or Distributor reasonably believes
were originated by any one of said persons. The Company shall
inform Adviser and Distributor of additions to or subtractions
from this list of authorized persons pursuant to Section 13,
hereof:
Xxxx Xxxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
3.4 BOOK ENTRY ONLY. Issuance and transfer of shares of the Fund will be
by book entry only. Stock certificates will not be issued to the
Company or the Account. Shares of the Fund ordered from Distributor
3
will he recorded in the appropriate book entry title for the
Account.
3.5 DISTRIBUTION INFORMATION. The Adviser or Distributor shall provide
the Company with all distribution announcement information as soon
as it is announced by the Fund. The distribution information shall
set forth, as applicable, ex-date, record date, payable date,
distribution rate per share, record date share balances, cash and
reinvested payment amounts and all other information reasonably
requested by the Company. Where possible, the Adviser or Distributor
shall provide the Company with direct or indirect systems access to
the Adviser's systems for obtaining such distribution information
3.6 REINVESTMENT. All dividends and capital gains distributions will be
automatically reinvested on the payable date in additional shares of
the Fund at net asset value in accordance with the Fund's then
current prospectus.
3.7 PRICING INFORMATION. Distributor shall use its best efforts to
furnish to the Company prior to 7:00 p.m., Eastern time, on each
Business Day the Fund's closing net asset value for that day, and if
appropriate, the daily accrual for interest rate factor, (mil rate).
Such information shall be communicated via fax, or indirect or
direct systems access acceptable to the Company.
3.8 PRICE ERRORS.
(a) In the event adjustments are required to correct any error in
the computation of the net asset value of shares of the Fund,
the Fund or Adviser shall promptly notify Company after
discovering the need for those adjustments which result in a
reimbursement to an Account in accordance with such Fund's
then current policies on reimbursement. Notification may be
made orally or via direct or indirect systems access. Any such
notification shall be promptly followed by a letter written on
Fund or Adviser letterhead and shall state for each day for
which an error occurred the incorrect price, the correct
price, and, to the extent communicated to the Fund's
shareholder, the reason for the price change. Fund and Adviser
agree that Company may send this writing, or derivation
thereof (so long as such derivation is approved in advance by
Fund or Adviser, which approval shall not be unreasonably
withheld) to Owners that are affected by the price change.
(b) If the Account received amounts in excess of the amounts to
which it otherwise would have been entitled prior to an
adjustment for an error, Company, when requested by Fund or
Adviser, will use its best efforts to collect such excess
amounts from the Account. In no event, however, shall Company
be liable to Fund or Adviser for any such amounts.
(c) If an adjustment is to be made in accordance with subsection
(a) above to correct an error which has caused the Account to
receive an amount less than that to which it is entitled, Fund
or Adviser shall make all necessary adjustments (within the
parameters specified in subsection (a)) to the number of
shares owned in the Account and distribute to the Company the
amount of such underpayment for credit to the Account.
4
3.9 AGENCY. Distributor hereby appoints the Company as its agent for the
limited purpose of accepting purchase and redemption instructions
pursuant to Sections 3.1,3.2 and 3.3..
3.10 QUARTERLY REPORTS. Adviser agrees to provide Company a statement of
Fund assets as soon as practicable and in any event within 30 days
after the end of each fiscal year quarter, and a statement
certifying the compliance by the Fund during that fiscal quarter
with the diversification requirements and qualification as a
regulated investment company. In the event of a breach of Section
6.4(a), Adviser will take all reasonable steps (a) to notify Company
of such breach and (b) to adequately diversify the Fund so as to
achieve compliance within the grace period afforded by Treasury
Regulation 1.8 i 7-5.
4. PROXY SOLICITATIONS AND VOTING. The Company shall, at its expense,
distribute or arrange for the distribution of all proxy materials
furnished by the Fund to the Account and shall: (i) solicit voting
instructions from Owners; (ii) vote the Fund shares in accordance with
instructions received from Owners; and (iii) vote the Fund shares for
which no instructions have been received, as well as shares attributable
to it, in the same proportion as Fund shares for which instructions have
been received from Owners, so long as and to the extent that the
Securities and Exchange Commission (the "SEC") continues to interpret the
1940 Act, to require pass-through voting privileges for various contract
owners. The Company and its agents will not recommend action in connection
with, or oppose or interfere with, the solicitation of proxies for the
Fund shares held for Owners.
5. CUSTOMER COMMUNICATIONS.
5.1 PROSPECTUSES. "The Adviser or Distributor, at its expense, will
provide the Company with as many printed copies of the current
prospectus(es) for the Fund and/or Portfolios as the Company may
reasonably request for distribution to existing or prospective
Owners, and/or, at the Company's request, a single camera ready copy
of each such prospectus, which the Company will print at its
expense, and/or, at the Company's request, a single digital copy of
each such prospectus, which the Company will reproduce in digital
format at its expense. The Company will distribute the Fund and/or
Portfolio prospectus(es) to existing and prospective Owners at its
expense."
5.2 SHAREHOLDER MATERIALS. The Adviser and Distributor shall, as
applicable, provide in bulk to the Company or its authorized
representative, at a single address and at no expense to the
Company, the following shareholder communications materials prepared
for circulation to Owners in quantities requested by the Company
which are sufficient to allow mailing thereof by the Company and, to
the extent required by applicable law, to all Owners: proxy or
information statements, annual reports, semi-annual reports, and all
updated prospectuses, supplements and amendments thereof. Neither
the Fund, the Advisor nor Distributor shall be responsible for the
cost of distributing such materials to Owners.
5
6. REPRESENTATIONS AND WARRANTIES.
6.1 THE COMPANY REPRESENTS AND WARRANTS THAT:
(a) It is an insurance company duly organized and in good standing
under the laws of the State of Ohio and that it has legally
and validly established the Account prior to any issuance or
sale thereof as a segregated asset account and that the
Company has and will maintain the capacity to issue all
Contracts that may be sold; and that it is and will remain
duly registered, licensed, qualified and in good standing to
sell the Contracts in all the jurisdictions in which such
Contracts are to be offered or sold;
(b) It is and will remain duly registered and licensed in all
material respects under all applicable federal and state
securities and insurance laws and shall perform its
obligations hereunder in compliance in all material respects
with any applicable state and federal laws;
(c) The Contracts are and will be registered under the 1933 Act,
and are and will be registered and qualified for sale in the
states where so required; and the Account is and will be
registered as a unit investment trust in accordance with the
1940 Act and shall be a segregated investment account for the
Contracts; (d)The Contracts are currently treated as annuity
contracts, under applicable provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Company will
maintain such treatment and will notify Adviser, Distributor
and Fund promptly 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;
(e) It is registered as a transfer agent pursuant to Section 17A
of the Securities Exchange Act of 1934, as amended (the "1934
Act") unless it is not required to be registered as such.
(f) The arrangements provided for in this Agreement will be
disclosed to the Owners; and
(g) It or its subsidiary is registered as a broker-dealer under
the 1934 Act and any applicable state securities laws,
including as a result of entering into and performing the
Services set forth in this Agreement, unless it is not
required to be registered as such.
6.2 The Fund represents and warrants that Fund shares sold pursuant to
this Agreement are and will be registered under the 1933 Act and the
Fund is and will be registered as a registered investment company
under the Investment Company Act of 1940, in each case, except to
the extent the Company is so notified in writing.
6.3 DISTRIBUTOR REPRESENTS AND WARRANTS THAT:
(a) It is and will be a member in good standing of the NASD and is
and will be registered as a broker-dealer with the SEC; and
(b) It will sell and distribute Fund shares in accordance with all
applicable state and federal laws and regulations.
6
6.4 ADVISER REPRESENTS AND WARRANTS THAT:
(a) It will cause each Fund to invest money from the Contracts in
such a manner as to ensure that the Contracts will be treated
as variable annuity contracts under the Code and the
regulations issued thereunder, and that each Fund will comply
with Section 817(h) of the Code as amended from time to time
and with all applicable regulations promulgated thereunder;
(b) It is and will remain duly registered and licensed in all
material respects under all applicable federal and state
securities and insurance laws and shall perform its
obligations hereunder in compliance in all material respects
with any applicable state and federal laws; and
6.5 EACH OF THE PARTIES HERETO REPRESENTS AND WARRANTS TO THE OTHERS
THAT:
(a) It has full power and authority under applicable law and has
taken all action necessary, to enter into and perform this
Agreement and the person executing this Agreement on its
behalf is duly authorized and empowered to execute and deliver
this Agreement;
(b) This Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its
terms and it shall comply in all material respects with all
laws, rules and regulations applicable to it by virtue of
entering into this Agreement;
(c) Except for the effectiveness of the Registration Statement
filed by the Fund under the 1933 Act and 1940 Act, no consent
or authorization of, filing with, or other act by or in
respect of any governmental authority, is required in
connection with the execution, delivery, performance, validity
or enforceability of this Agreement.
(d) The execution, performance and delivery of this Agreement will
not result in it violating any applicable law or breaching or
otherwise impairing any of its contractual obligations;
(e) Each Party hereto is entitled to rely on any written records
or instructions provided to it by another Party; and
(f) Its directors, officers, employees. and investment advisers,
and other individuals/entities dealing with the money or
securities of the Fund are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage
for the benefit of the Fund in an amount not less than the
amount required by the applicable rules of the National
Association of Securities Dealers, Inc. ("NASD") and the
federal securities laws, which bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable
bonding company.
7. SALES MATERIAL AND INFORMATION.
7.1 NASD FILINGS. The Company shall promptly inform Distributor as to
the status of all sales literature filings pertaining to the Fund
and shall promptly notify Distributor of all approvals or
disapprovals of sales literature filings with the NASD. For purposes
7
of this Section 7, the phrase "sales literature or other promotional
material" shall be construed in accordance with all applicable
securities laws and regulations.
7.2 COMPANY REPRESENTATIONS. The Company shall not make any material
representations concerning the Adviser, the Distributor or the Fund
other than the information or representations contained in: (a) a
registration statement of the Fund or prospectus of the Fund, as
amended or supplemented from time to time; (b) published reports or
statements of the Fund which are in the public domain or approved by
Distributor or the Fund; or (c) sales literature or, other
promotional material of the Fund.
7.3 THE ADVISOR. DISTRIBUTOR AND FUND REPRESENTATIONS. None of Adviser,
Distributor or the Fund shall make any material representations
concerning the Company other than the information or representations
contained in: (a) a registration statement or prospectus for the
Contracts, as amended or supplemented from time to time; (b)
published reports or statements of the Contracts or the Account
which are in the public domain or are approved by the Company; or
(c) sales literature or other promotional material of the Company.
7.4 TRADEMARKS ETC. Except to the extent required by applicable law, no
Party shall use any other Party's names, logos, trademarks or
service marks, whether registered or unregistered, without the prior
consent of such Party.
7.5 INFORMATION FROM DISTRIBUTOR AND ADVISER. Upon request, Distributor
or Adviser will provide to Company at least one complete copy of all
registration statements, prospectuses, Statements of Additional
Information, reports, proxy statements, solicitations for voting
instructions, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate to the
Fund, in final form as filed with the SEC, NASD and other regulatory
authorities.
7.6 INFORMATION FROM COMPANY. Company will provide to Distributor 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 Fund and the Contracts, in final form as filed with the SEC,
NASD and other regulatory authorities.
7.7 REVIEW OF MARKETING MATERIALS. If so requested by Company, the
Adviser or Distributor will use its best efforts to review sales
literature and other marketing materials prepared by Company which
relate to the Fund, the Adviser or Distributor for factual accuracy
as to such entities, provided that the Adviser or Distributor is
provided at least five (5) Business Days to review such materials.
Neither the Adviser nor Distributor will review such materials for
compliance with applicable laws. Company shall provide the Adviser
with copies of all sales literature and other marketing materials
which refer to the Fund, the Company or Distributor within five (5)
Business Days after their first use, regardless of whether the
Adviser or Distributor has previously reviewed such materials. If so
requested by the Adviser or Distributor, Company shall cease to use
any sales literature or marketing materials which refer to the Fund,
the Adviser or Distributor that the Adviser or Distributor
determines to be inaccurate, misleading or otherwise unacceptable.
8
8. FEES AND EXPENSES.
8.1 FUND REGISTRATION EXPENSES. Fund or Distributor shall bear the cost
of registration and qualification of Fund shares; preparation and
filing of Fund prospectuses and registration statements, proxy
materials and reports; preparation of all other statements and
notices relating to the Fund or Distributor required by any federal
or state law; payment of all applicable fees, including, without
limitation, any fees due under Rule 24f-2 of the 1940 Act, relating
to the Fund; and all taxes on the issuance or transfer of Fund
shares on the Fund's records.
8.2 CONTRACT REGISTRATION EXPENSES. The Company shall bear the expenses
for the costs of preparation and filing of the Company's prospectus
and registration statement with respect to the Contracts;
preparation of all other statements and notices relating to the
Account or the Contracts required by any federal or state law;
expenses for the solicitation and sale of the Contracts including
all costs of printing and distributing all copies of advertisements,
prospectuses, Statements of Additional Information, proxy materials,
and reports to Owners or potential purchasers of the Contracts as
required by applicable state and federal law; payment of all
applicable fees relating to the Contracts; all costs of drafting,
filing and obtaining approvals of the Contracts in the various
states under applicable insurance laws; filing of annual reports on
form N-SAR, and all other costs associated with ongoing compliance
with all such laws and its obligations hereunder.
9. INDEMNIFICATION.
9.1 INDEMNIFICATION BY COMPANY.
(a) Company agrees to indemnify and hold harmless the Fund,
Adviser and Distributor and each of their directors, officers,
employees and agents, and each person, if any, who controls
any of them within the meaning of Section 15 of the 1933 Act
(each, an "Indemnified Party" and collectively, the
"Indemnified Parties" for purposes of this Section 9.1) from
and against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent
of Company), and expenses (including reasonable legal fees and
expenses), to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise
(collectively, hereinafter "Losses"), insofar as such Losses:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained
in the registration statement, prospectus or sales
literature for the Contracts or contained in the
Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or necessary
to make the statements therein not misleading, provided
that this paragraph 9.1(a) 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
9
Company by or on behalf of the Fund, Distributor or
Adviser for use in the registration statement or
prospectus for the Contracts or in the Contracts (or any
amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund
shares; or
(ii) arise out of, or as a result of, statements or
representations or wrongful conduct of Company or its
agents, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Fund or any amendment thereof or supplement thereto, or
the omission or alleged omission to State therein a
material fact required to be stated therein, or
necessary to make the statements therein not misleading,
if such a statement or omission was made in reliance
upon written information furnished to the Fund, Adviser
or Distributor or on behalf of Company; or
(iv) arise out of, or as a result of, any failure by Company
or persons under its control to provide the Services and
furnish the materials contemplated under the terms of
this Agreement; or
(v) arise out of, or result from, any material breach of any
representation or warranty made by Company or persons
under its control in this Agreement or arise out of or
result from any other material breach of this Agreement
by Company or persons under its control: as limited by
and in accordance with the provisions of Sections 9.1(b)
and 9.1(c) hereof; or
(vi) arise out of, or as a result of, adherence by Adviser or
Distributor to instructions that it reasonably believes
were originated by persons specified in Section 32(c),
hereof
This indemnification provision is in addition to any
liability, which the Company may otherwise have.
(b) Company shall not be liable under this indemnification
provision with respect to any Losses to which an Indemnified
Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in
the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of
obligations or duties under this Agreement.
(c) Company shall not be liable under this indemnification
provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have
notified Company 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 Company of any such claim shall not relieve
10
Company from any liability which it may have to the
Indemnified Party otherwise than on account of this
indemnification provision. In case any such action is brought
against any Indemnified Party, and it notified the
Indemnifying Party of the commencement thereof, the
Indemnifying Party will be entitled to participate therein
and, to the extent that it may wish, assume the defense
thereof, with counsel satisfactory to such Indemnified Party.
After notice from the Indemnifying Party of its intention to
assume the defense of an action, the Indemnified Party shall
bear the expenses of any additional counsel obtained by it,
and the Indemnifying Party shall not be liable to such
Indemnified Party under this Section for any legal or other
expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable
costs of investigation. The Indemnified Party may not settle
any action without the written consent of the Indemnifying
Party. The Indemnifying Party may not settle any action
without the written consent of the Indemnified Party unless
such settlement completely and finally releases the
Indemnified Party from any and all liability. In either event,
consent shall not be unreasonably withheld
(d) The Indemnified Parties will promptly notify Company of the
commencement of any litigation or proceedings against the
Indemnified Parties in connection with the issuance or sale of
Fund shares or the Contracts or the operation of the Fund.
9.2 INDEMNIFICATION BY ADVISER AND DISTRIBUTOR.
(a) Adviser and Distributor agrees to indemnify and hold harmless
Company and each of its directors, officers, employees and
agents and each person, if any, who controls Company within
the meaning of Section 15 of the 1933 Act ("Indemnified Party"
and collectively, the "Indemnified Parties" for purposes of
this Section 9.2) against any and all Losses to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such
Losses:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement or prospectus or sales
literature of the Fund (or any amendment or supplement
to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
provided that this Section 9.2(a) 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 Fund, Adviser or Distributor by or on
behalf of Company for use in the registration statement
or prospectus for the Fund or in sales literature (or
any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund
shares; or
11
(ii) arise out of, or as a result of, statements or
representations or wrongful conduct of Adviser or
Distributor or persons under its control, with respect
to the sale or distribution of Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein,
or necessary to make the statements therein not
misleading, if such statement or omission was made in
reliance upon written information furnished to Company
by or on behalf of Adviser or Distributor; or
(iv) arise out of, or as a result of, any failure by Adviser
or Distributor or persons under its control to provide
the services and furnish the materials contemplated
under the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation or warranty made by Adviser or
Distributor or persons under its control in this
Agreement or arise out of or result from any other
material breach of this Agreement by Adviser or
Distributor or persons under its control; as limited by
and in accordance with the provisions of Sections 9.2(b)
and 9.2(c) hereof.
This indemnification provision is in addition to any liability
which Adviser and Distributor may otherwise have.
(b) Adviser and Distributor shall not be liable under this
indemnification provision with respect to any Losses to which
an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this
Agreement or to Company.
(c) Adviser and Distributor 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 Adviser and Distribution 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 Adviser and
Distributor of any such claim shall not relieve Adviser and
Distributor from any liability which it may have to the
Indemnified Party otherwise than on account of this
indemnification provision. In case any such action is brought
against any Indemnified Party, and it notified the
Indemnifying Party of the commencement thereof, the
Indemnifying Party will be entitled to participate therein
and, to the extent that it may wish, assume the defense
thereof, with counsel satisfactory to such Indemnified Party.
After notice from the Indemnifying Party of its intention to
assume the defense of an action, the Indemnified Party shall
bear the expenses of any additional counsel obtained by it,
12
and the Indemnifying Party shall not be liable to such
Indemnified Party under this Section for any legal or other
expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable
costs of investigation. The Indemnified Party may not settle
any action without the written consent of the Indemnifying
Party. The Indemnifying Party may not settle any action
without the written consent of the Indemnified Party unless
such settlement completely and finally releases the
Indemnified Party from any and all liability. In either event,
consent shall not be unreasonably withheld.
(d) The Indemnified Parties will promptly notify Adviser and
Distributor of the commencement of any litigation or
proceedings against the Indemnified Parties in connection with
the issuance or sale of the Contracts or the operation of the
Account.
10. POTENTIAL CONFLICTS.
10.1 MONITORING BY DIRECTORS FOR CONFLICTS OF INTEREST. The Directors of
each Fund will monitor the Fund for any potential or existing
material irreconcilable conflict of interest between the interests
of the contract owners of all separate accounts investing in the
Fund. An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretive 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 the Fund are being
managed; (e) a difference in voting instructions given by variable
annuity contract owners; or (f) a decision by Company to disregard
the voting instructions of Owners. The Directors shall promptly
inform the company, in writing, if they determine that an
irreconcilable material conflict exists and the implications
thereof.
10.2 MONITORING BY THE COMPANY FOR CONFLICTS OF INTEREST. The Company
will promptly notify the Directors, in writing, of any potential or
existing material irreconcilable conflicts of interest, as described
in Section 10.1 above, of which it is aware. The Company will assist
the Directors in carrying out their responsibilities under any
applicable provisions of the federal securities laws and any
exemptive orders granted by the SEC ("Exemptive Order") by providing
the Directors, in a timely manner, with all information reasonably
necessary for the Directors to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to
inform the Directors whenever Owner voting instructions are
disregarded.
10.3 REMEDIES. If it is determined by a majority of the Directors, or a
majority of disinterested Directors, that a material irreconcilable
conflict exists, as described in Section 10.1 above, the Company
shall, at its own expense take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, up to and
including, but not limited to: (a) withdrawing the assets allocable
to some or all of the separate accounts from the applicable Fund and
reinvesting such assets in a different investment medium, including
(but not limited to) another fund managed by the Adviser, or
13
submitting the question whether such segregation should be
implemented to a vote of all affected owners and, as appropriate,
the assets of any particular group that votes in favor of such
segregation, or offering to the affected owners the option of making
such a change; and (b) establishing a new registered management
investment company or managed separate account.
10.4 CAUSES OF CONFLICTS OF INTEREST.
(a) STATE INSURANCE REGULATORS. If a material irreconcilable
conflict arises because a particular state insurance
regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will
withdraw the affected Account's investment in the applicable
Fund and terminate this Agreement with respect to such Account
within the period of time permitted by such decision, but in
no event later than six months after the Directors inform the
Company in writing that it has determined that such decision
has created an irreconcilable material conflict; provided
however, that such withdrawal and termination shall be limited
to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the
disinterested Directors. Until the end of the foregoing
period, the Distributor and Fund shall continue to accept and
implement orders by the Company for the purchase (and
redemption) of shares of the Fund to the extent such actions
do not violate applicable law.
(b) DISREGARD OF OWNER VOTING. If a material irreconcilable
conflict arises because of Company's decision to disregard
Owner voting instructions and that decision represents a
minority position or would preclude a majority vote, Company
may be required, at the applicable Fund's election, 10
withdraw the Account's investment in said Fund. No charge or
penalty will be imposed against the Account as a result of
such withdrawal.
10.5 LIMITATIONS ON CONSEQUENCES. For purposes of Sections 10.3 through
10.5 of this Agreement, a majority of the disinterested Directors
shall determine whether any proposed action adequately remedies any
irreconcilable material conflict. In no event will the Fund, the
Adviser or the Distributors be required to establish a new funding
medium for any of the Contracts. The Company shall not be required
by Section 10.3 to establish a new funding medium for the Contracts
if an offer to do so has been declined by vote of a majority of
Owners affected by the irreconcilable material conflict. In the
event that the Directors determine that any proposed action does not
adequately remedy any irreconcilable material conflict, then the
Company will withdraw the Account's investment in the applicable
Fund and terminate this Agreement as quickly as may be required to
comply with applicable law, but in no event later than six (6)
months after the Directors inform the Company in writing of the
foregoing determination, provided, however, that such withdrawal and
termination shall be limited to the extent required by any such
material irreconcilable conflict.
10.6 CHANGES IN LAWS. If and to the extent that Rule 6e-2 and Rule
6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive
relief from any provision of the Act or the rules promulgated
thereunder with respect to mixed or shared funding, (as defined in
the Exemptive Order, if any) on terms and conditions materially
14
different from those contained in the Exemptive Order, if any, then
(a) the Funds and/or the Company, as appropriate, shall take such
steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as
amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) Sections 10.1, 10.2, 10.3 and 10.4 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.
11. MAINTENANCE OF RECORDS.
(a) Recordkeeping and other administrative services to Owners shall be
the responsibility of the Company and shall not be the
responsibility of the Fund, Adviser or Distributor. None of the
Fund, the Adviser or Distributor shall maintain separate accounts or
records for Owners. Company shall maintain and preserve all records
as required by law to be maintained and preserved in connection with
providing the Services and in making shares of the Fund available to
the Account.
(b) Upon the request of the Adviser or Distributor, the Company shall
provide copies of all the historical records relating to
transactions between the Fund and the Account, written
communications regarding the Fund to or from the Account and other
materials, in each case (1) as are maintained by the Company in the
ordinary course of its business and in compliance with applicable
law, and (2) as may reasonably be requested to enable the Adviser
and Distributor, or its representatives, including without
limitation its auditors or legal counsel, to (A) monitor and review
the Services, (B) comply with any request of a governmental body or
self-regulatory organization or the Owners, (C) verify compliance by
the Company with the terms of this Agreement, (D) make required
regulatory reports, or (E) perform general customer supervision. The
Company agrees that it will permit the Adviser and Distributor or
such representatives of either to have reasonable access to its
personnel and records in order to facilitate the monitoring of the
quality of the Services.
(c) Upon the request of the Company, the Adviser and Distributor shall
provide copies of all the historical records relating to
transactions between the Fund and the Account, written
communications regarding the Fund to or from the Account and other
materials, in each case (1) as are maintained by the Adviser and
Distributor, as the case may be, in the ordinary course of its
business and in compliance with applicable law, and (2) as may
reasonably be requested to enable the Company, or its
representatives, including without limitation its auditors or legal
counsel, to (A) comply with any request of a governmental body or
self-regulatory organization or the Owners, (B) verify compliance by
the Adviser and Distributor with the terms of this Agreement, (C)
make required regulatory reports, or (D) perform general customer
supervision.
(d) The Parties agree to cooperate in good faith in providing records to
one another pursuant to this Section 11.
12. TERM AND TERMINATION.
12.1 TERM AND TERMINATION WITHOUT CAUSE. The initial term of this
Agreement shall be for a period of one year from the date hereof.
Unless terminated by any Party upon not less than thirty (30) days
15
prior written notice to the other Parties, this Agreement shall
thereafter automatically renew from year to year, subject to
termination at the next applicable renewal date upon not less than
30 days prior written notice. Any Party may terminate this Agreement
following the initial term upon six (6) months advance written
notice to the other Parties.
12.2 TERMINATION BY FUND, DISTRIBUTOR OR ADVISER FOR CAUSE. Adviser, Fund
or Distributor may terminate this Agreement immediately by written
notice to the Company, if any of them shall determine, in its sole
judgment exercised in good faith, that (a) the Company has suffered
a material adverse change in its business, operations, financial
condition or prospectus since the date of this Agreement or is the
subject of material adverse publicity; or (b) any of the Contracts
are not registered, issued or sold in accordance with applicable
state and federal law or such law precludes the use of Fund shares
as the underlying investment media of the Contracts issued or to be
issued by the Company.
12.3 TERMINATION BY COMPANY FOR CAUSE. Company may terminate this
Agreement by written notice to the Adviser, Fund and Distributor in
the event that (a) the Fund shares are not registered, issued or
sold in accordance with applicable state or federal law or such law
precludes the use of such shares as the underlying investment media
of the Contracts issued or to be issued by the Company; (b) the Fund
ceases to qualify as a Regulated Investment Company under Subchapter
M of the Code or under any successor or similar provision, or if the
Company reasonably believes that the Fund may fail to so qualify; or
(c) the Fund fails to meet the diversification requirements
specified in Section 6.4(a).
12.4 TERMINATION BY ANY PARTY. This Agreement may be terminated by any
Party at any time (A) by giving 30 days' written notice to the other
Parties in the event of an material breach of this Agreement by the
other Party or Parties that is not cured during such 30-day period,
and (B) (i) upon institution of formal proceedings relating to the
legality of the terms and conditions of this Agreement against the
Account, Company, Fund, Adviser or Distributor by the NASD, the SEC
or any other regulatory body provided that the terminating Xxxxx has
a reasonable belief that the institution of formal proceedings is
not without foundation and will have a material adverse impact on
the terminating Party, (ii) by the non-assigning Party upon the
assignment of this Agreement in contravention of the terms hereof,
or (iii) as is required by law, order or instruction by a court of
competent jurisdiction or a regulatory body or self-regulatory
organization with jurisdiction over the terminating Party.
12.5 LIMIT ON TERMINATION. Notwithstanding the termination of this
Agreement with respect to the Fund, for so long as any Contracts
remain outstanding and Invested in the Fund each Party hereto shall
continue to perform such of its duties hereunder as are necessary to
ensure the continued tax deferred status thereof and the payment of
benefits thereunder, except to the extent proscribed by law, the SEC
or other regulatory body. Notwithstanding the foregoing, nothing in
this Section 12.5 obligates the Fund to continue in existence. In
the event that the Fund elects to terminate its operations, the
Company shall, as soon as practicable, obtain an exemptive order or
order of substitution from the SEC to remove all Owners from the
Fund.
16
13. NOTICES.
All notices hereunder shall be given in writing (and shall be deemed to
have been duly given upon receipt) by delivery in person, by facsimile, by
registered or certified mail or by overnight delivery (postage prepaid,
return receipt requested) to the respective Parties as follows:
IF TO XXXXXXX VARIABLE:
The Xxxxxxx Plan Variable Series
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
e-mail: xxxx@xxxxxxxxxxx.xxx
IF TO ADVISER:
Xxxxxxx Partners, Ltd.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
e-mail: xxxx@xxxxxxxxxxx.xxx
IF TO DISTRIBUTOR:
Xxxxxxx Partners, Ltd.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
e-mail: xxxx@xxxxxxxxxxx.xxx
IF TO COMPANY:
Annuity Investors Life Insurance Company
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
14. MISCELLANEOUS.
14.1 CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way affect the construction
or effect of any provisions hereof.
14.2 ENFORCEABILITY. If any portion 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.
17
14.3 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which taken together shall constitute
one and the same instrument.
14.4 REMEDIES NOT EXCLUSIVE. 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,
which the Parties hereto are entitled to under state and federal
jaws.
14.5 CONFIDENTIALITY. Subject to the requirements of legal process and
regulatory authority, the Fund and Distributor shall treat as
confidential the names and addresses of the owners of the Contracts
and all information reasonably identified as confidential in writing
by the Company hereto and, except as permitted by this Agreement,
shall not disclose, disseminate or utilize such names and addresses
and other confidential information without the express written
consent of the Company until such time as it may come into the
public domain.
14.6 GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the internal laws of the State of Ohio applicable
to agreements fully executed and to he performed therein; exclusive
of conflicts of laws.
14.7 SURVIVABILITY. Sections 6, 7.2, 7.3, 7.4, 9, 11 and 12.5 hereof
shall survive termination of this Agreement. In addition, all
provisions of this Agreement shall survive termination of this
Agreement in the event that any Contracts are invested in the Fund
at the time the termination becomes effective and shall survive for
so long as such Contracts remain so invested.
14.8 AMENDMENT AND WAIVER. No modification of any provision of this
Agreement will be binding unless in writing and executed by the
Party to be bound thereby. No waiver of any provision of this
Agreement will be binding unless in writing and executed by the
Party granting such waiver. Notwithstanding anything in this
Agreement to the contrary, the Company may unilaterally amend
Exhibit A hereto to add additional series of The Xxxxxxx Plan
Variable Funds ("New Funds") as Funds by sending to the Company a
written notice of the New Funds. Any valid waiver of a provision set
forth herein shall not constitute a waiver of any other provision of
this Agreement. In addition, any such waiver shall constitute a
present waiver of such provision and shall not constitute a
permanent fixture waiver of such provision.
14.9 ASSIGNMENT. This Agreement shall be binding upon and shall inure to
the benefit of the Parties and their respective successors and
assigns; provided however that neither this Agreement nor any
rights, privileges, duties or obligations of the Parties may be
assigned by any Party without the written consent of the other
Parties or as expressly contemplated by this Agreement.
14.10 ENTIRE AGREEMENT. This Agreement contains the full and complete
understanding between the Parties with respect to the transactions
covered and contemplated hereunder, and supersedes all prior
agreements and understandings between the Parties relating to the
subject matter hereof, whether oral or written, express or implied.
18
14.11 RELATIONSHIP OF PARTIES: NO JOINT VENTURE, ETC. Except for the
limited purpose provided in Section 3.8, it is understood and agreed
that the Company shall be acting as an independent contractor and
not as an employee or agent of the Adviser, Distributor or the Fund,
and none of the Parties shall hold itself out as an agent of any
other Party with the authority to bind such Party. Neither the
execution nor performance of this Agreement shall be deemed to
create a partnership or joint venture by and among any of the
Company, Fund, Adviser, or Distributor.
14.12 EXPENSES. All expenses incident to the performance by each Party of
its respective duties under this Agreement shall be paid by that
Party.
14.13 TIME OF ESSENCE. Time shall be of the essence in this Agreement.
14.14 NON-EXCLUSIVITY. Each of the Parties acknowledges and agrees that
this Agreement and the arrangements described herein are intended to
be non-exclusive and that each of the Parties is free to enter into
similar agreements and arrangements with other entities.
14.15 OPERATIONS OF FUNDS. In no way shall the provisions of this
Agreement limit the authority of the Fund, the Company or
Distributor to take such action as it may deem appropriate or
advisable in connection with all matters relating to the operation
of such Fund and the sale of its shares. In no way shall the
provisions of this Agreement limit the authority of the Company to
take such action as it may deem appropriate or advisable in
connection with all matters relating to the provision of Services or
the shares of fund other than the Fund offered to the Account.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
duly executed as of the date first above written.
Annuity Investor Life Insurance
Company
By:
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
Xxxxxxx Partners, Ltd. - Adviser
By:
---------------------------------
Name: Xxxxxx X. Ally
Title: General Partner
19
Xxxxxxx Partners, Ltd. - Distributor
By:
---------------------------------
Name: Xxxxxx X. Ally
Title: General Partner
The Xxxxxxx Plan Variable Series
on behalf of the Fund
By:
---------------------------------
Name: Xxxxxx X. Ally
Title: President
20
Exhibit A
The Fund:
The Xxxxxxx Plan Variable Series
21
Exhibit A-1
Separate Accounts:
Annuity Investors Variable Account B
22
Exhibit B
The Services
Company shall perform the following services. Such services shall be the
responsibility of the Company and shall not be the responsibility of the Fund,
Adviser or Distributor.
1. Maintain separate records for each Account, which records shall reflect
Fund shares ("Shares") purchased and redeemed, including the date and
price for all transactions, Share balances, and the name and address of
each Owner, including zip codes and tax identification numbers.
2. Credit contributions to individual Owner accounts and invest such
contributions in shares of the Funds to the extent so designated by the
Owner.
3. Disburse or credit to the Owners, and maintain records of, all proceeds of
redemptions of Fund shares and all other distributions not reinvested in
shares.
4. Prepare and transmit to the Owners, periodic account statements showing,
among other things, the total number of Fund shares owned as of the
statement closing date, purchases and redemptions of shares during the
period covered by the statement, the net asset value of the Funds as of a
recent date, and the dividends and other distributions paid during the
Statement period (whether paid in cash or reinvested in shares).
5. Transmit to the Owners, as required by applicable law, prospectuses, proxy
materials, shareholder reports, and other information provided by the
Adviser, Distributor or Fund and required to be sent to shareholders under
the Federal securities laws.
6. Transmit to Distributor purchase orders and redemption requests placed by
the Account and arrange for the transmission of funds to and from the
Fund.
7. Transmit to Distributor such periodic reports as Distributor shall
reasonably conclude is necessary to enable the Fund to comply with
applicable Federal securities and state Blue-Sky requirements.
8. Transmit to the each Account confirmations of purchase orders and
redemption requests placed by each Account.
9. Maintain all account balance information for the Account and daily and
monthly purchase summaries expressed in shares and dollar amounts.
10. Prepare, transmit and file any Federal, state and local government reports
and returns as required by law with respect to each account maintained on
behalf of the Account.
11. Respond to Owners' inquiries regarding, among other things, share prices,
account balances, dividend options, dividend amounts, and dividend payment
dates.
23
Exhibit C
Account Information
1. Entity in whose name each Account will be opened:
Annuity Investors Life Insurance Company
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
2. Employer ID number (For internal use only):
31 - 1021738
3. Authorized contact persons: The following persons are authorized on
behalf of the Company to effect transactions in each Account:
Xxxx Xxxxxxx 000-000-0000 Xxxx Xxxxxxx 000-000-0000
Xxxxx Xxxxxxxxx 000-000-0000 Xxxxxxx Xxxxxx 000-000-0000
Xxxx Xxxxxxx 000-000-0000 Xxxxxx Xxxxxxx 000-000-0000
Xxxxx Xxxxx 000-000-0000
4. Will the Accounts have telephone exchange? [ ] Yes [ X ] No (This option
lets Company redeem shares by telephone and apply the proceeds for purchase
in another identically registered Xxxxxxx Funds account.)
5. Will the Accounts have telephone redemption? [ ] Yes [ X ] No
(This option lets Company sell shares by telephone. The proceeds will be
wired to the bank account specified below.)
6. All dividends and capital gains will be reinvested automatically.
7. Instructions for all outgoing wire transfers:
The Provident Bank
Xxxxxxxxxx, XX 00000
ABA # 000000000
For the Account of Annuity Investors
Life Insurance Company Depository
Account
Account # 0697-394 Amount:
Attn.: Wire Transfer Department
8. If this Account information Form contains changed information, the
undersigned authorized officer has executed this amended Account
Information Form as of the date set forth below and acknowledges the
agreements and representations set forth in the Participation Agreement
between the Company, the Fund, Adviser and Distributor:
24
---------------------------------- -----------------------
(Signature of Authorized Officer) (Date)
9. Company represents under penalty of perjury that:
(i) The employer ID number on this form is correct; and
(ii) Company is not subject to backup withholding because (a) Company is
exempt from backup withholding, (b) Company has not been notified by
the IRS that it is subject to backup withholding as a result of
failure to report all interest or dividends, or (c) the IRS has
notified the Company that it is no longer subject to backup
withholding. (Cross out (ii) if Company has been notified by the IRS
that it is subject to backup withholding because of underreporting
interest or dividends on its tax return.)
Please Note: Distributor employs reasonable procedures to confirm that
instructions communicated by telephone are genuine and may not be
liable for losses due to unauthorized or fraudulent instructions.
Please see the prospectus for the applicable Fund' for more
information on the telephone exchange and redemption privileges.
25
