Exhibit (8)(i)
SHAREHOLDER SERVICES AGREEMENT
THIS SHAREHOLDER SERVICES AGREEMENT is made and entered into as of February
1, 2000 by and between AMERICAN GENERAL LIFE INSURANCE COMPANY (the "Company"),
and AMERICAN CENTURY INVESTMENT MANAGEMENT, INC. ("ACIM").
WHEREAS, the Company offers to the public certain group and individual
variable annuity and variable life insurance contracts (the "Contracts"); and
WHEREAS, the Company wishes to make available as investment options under
the Contracts VP Balanced, VP Income & Growth, VP International and VP Value
(the "Funds"), each of which is a series of mutual fund shares registered under
the Investment Company Act of 1940, as amended, and issued by American Century
Variable Portfolios, Inc. (the "Issuer"); and
WHEREAS, on the terms and conditions hereinafter set forth, ACIM desires to
make shares of the Funds available as investment options under the Contracts and
to retain the Company to perform certain administrative services on behalf of
the Funds, and the Company is willing and able to furnish such services;
NOW, THEREFORE, the Company and ACIM agree as follows:
1. Transactions in the Funds. Subject to the terms and conditions of this
Agreement, ACIM will cause the Issuer to make shares of the Funds available to
be purchased, exchanged, or redeemed, by or on behalf of the Accounts (defined
in Section 7(a) below) through a single account per Fund at the net asset value
applicable to each order. The Funds' shares shall be purchased and redeemed on a
net basis in such quantity and at such time as determined by the Company to
satisfy the requirements of the Contracts for which the Funds serve as
underlying investment media. Dividends and capital gains distributions will be
automatically reinvested in full and fractional shares of the Funds.
2. Administrative Services. The Company agrees to provide all
administrative services for the Contract owners, including but not limited to
those services specified in EXHIBIT A (the "Administrative Services"). Neither
ACIM nor the Issuer shall be required to provide Administrative Services for the
benefit of Contract owners. The Company agrees that it will maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the Administrative Services, and will otherwise comply
with all laws, rules and regulations applicable to the marketing of the
Contracts and the provision of the Administrative Services. Upon written
request, the Company will provide ACIM or its representatives reasonable
information regarding the quality of the Administrative Services being provided
and its compliance with the terms of this Agreement.
1
3. Timing of Transactions. ACIM hereby appoints the Company as agent for
the Funds for the limited purpose of accepting purchase and redemption orders
for Fund shares from the Contract owners. On each day the New York Stock
Exchange (the "Exchange") is open for business (each, a "Business Day"), the
Company may receive instructions from the Contract owners for the purchase or
redemption of shares of the Funds ("Orders"). Orders received and accepted by
the Company prior to the close of regular trading on the Exchange (the "Close of
Trading") on any given Business Day (currently, 4:00 p.m. Eastern time) and
transmitted to the Funds' transfer agent by 10:00 a.m. Eastern time on the next
following Business Day will be executed at the net asset value determined as of
the Close of Trading on the Business Day on which the Orders are received and
accepted by the Company. The day as of which an Order is executed by the Funds'
transfer agent pursuant to the provisions set forth above is referred to herein
as the "Trade Date". All orders are subject to acceptance or rejection by ACIM
or the Funds in the sole discretion of either of them.
4. Processing of Transactions.
(a) If transactions in Fund shares are to be settled through the National
Securities Clearing Corporation's Mutual Fund Settlement, Entry, and
Registration Verification (Fund/SERV) system, the terms of the FUND/SERV
AGREEMENT, between Company and American Century Services Corporation, shall
apply.
(b) If transactions in Fund shares are to be settled directly with the
Funds' transfer agent, the following provisions shall apply:
(1) By 6:30 p.m. Eastern time on each Business Day, ACIM (or one of
its affiliates) will provide to the Company via facsimile or other electronic
transmission acceptable to the Company the Funds' net asset value, dividend and
capital gain information and, in the case of income funds, the daily accrual for
interest rate factor (mil rate), determined at the Close of Trading.
(2) By 10:00 a.m. Eastern time on each Business Day, the Company
will provide to ACIM via facsimile or other electronic transmission acceptable
to ACIM a report stating whether the instructions received by the Company from
Contract owners by the Close of Trading on the prior Business Day resulted in
the Accounts being a net purchaser or net seller of shares of the Funds. As used
in this Agreement, the phrase "other electronic transmission acceptable to ACIM"
includes the use of remote computer terminals located at the premises of the
Company, its agents or affiliates, which terminals may be linked electronically
to the computer system of ACIM, its agents or affiliates (hereinafter, "Remote
Computer Terminals").
(3) Upon the timely receipt from the Company of the report described
in (2) above, the Funds' transfer agent will execute the purchase or redemption
transactions (as the case may be) at the net asset value computed as of the
Close of Trading on the Trade Date. Payment for net purchase transactions shall
be made by wire transfer to the applicable Fund custodial account designated by
the Funds on the Business Day next following the Trade Date. Such wire transfers
shall be initiated by the Company's bank prior to 4:00 p.m. Eastern time and
received by the Funds prior to 6:00 p.m. Eastern time on the Business Day next
following the Trade Date ("T+1"). If payment for a purchase Order is not timely
received, such Order will be, at ACIM's option, either (i)
2
executed at the net asset value determined on the Trade Date, and the Company
shall be responsible for all costs to ACIM or the Funds resulting from such
delay, or (ii) executed at the net asset value next computed following receipt
of payment. Payments for net redemption transaction s shall be made by wire
transfer by the Issuer to the account(s) designated by the Company on T+2;
provided, however, the Issuer reserves the right to settle redemption
-------- -------
transactions within the time period set forth in the applicable Fund's then-
current prospectus. On any Business Day when the Federal Reserve Wire Transfer
System is closed, all communication and processing rules will be suspended for
the settlement of Orders. Orders will be settled on the next Business Day on
which the Federal Reserve Wire Transfer System is open and the original Trade
Date will apply.
(4) ACIM shall provide written confirmation to the Company of the
amount of shares traded and the associated cost per share (net asset value)
total trade amount and the outstanding share balances held by the Account
as of the end of each Business Day. Such information will be furnished by
1:00 p.m. Eastern time on the next Business Day.
(5) ACIM shall use its best efforts to furnish same day notice by
6:30 p.m. Eastern time (by wire or telephone, followed by written confirmation)
to the Company of any dividends or capital gain distributions payable on the
Fund's shares. The Company hereby elects to receive all such dividends and
capital gain distributions as are payable on the Fund shares in additional
shares of the Fund. The Company reserves the right to revoke this election and
to receive all such dividends and capital gain distributions in cash. ACIM shall
notify the Company of the number of shares so issued as payment of such
dividends and distributions. ACIM shall use its best efforts to furnish the
Company with at least ten (10) business days' advance notice of the day such
dividend(s) and distribution(s) are expected to be paid.
(c) In the event adjustments are required to correct any error in
the computation of the net asset value of any Fund's shares at the
shareholder level as a result of a pricing error that is deemed to be
material under the pricing policy of the Fund's Board of Directors or which
ACIM otherwise deems necessary to correct at the shareholder level, ACIM
shall notify the Company as soon as practicable after discovering the need
for those adjustments which result in a reimbursement to the Accounts.
Notification shall be made by facsimile or by direct or indirect systems
access acceptable to the Company.
(1) If one or more of the Accounts received amounts from any Fund in
excess of the amounts to which it otherwise would have been entitled prior to an
adjustment for an error, the Company will use its best efforts to collect such
excess amounts from the applicable Accounts.
(2) If an adjustment is to be made in accordance with subsection (a)
above to correct an error which has caused an Account to receive an amount less
than that to which it is entitled, the Fund shall use its best efforts to make
all necessary adjustments to the number of shares owned in the account and/or
distribute to the Company the amount of such underpayment for credit to the
Accounts.
(3) For purposes of making adjustments as provided above, the Funds
will apply the same standards to all shareholders.
3
5. Prospectus and Proxy Materials.
(a) ACIM shall provide the Company with copies of the Issuer's
prospectuses, proxy materials, periodic fund reports to shareholders and other
materials that are required by law to be sent to the Issuer's shareholders. In
addition, ACIM shall provide the Company with a sufficient quantity of
prospectuses of the Funds to be used in conjunction with the transactions
contemplated by this Agreement, together with such additional copies of the
Issuer's prospectuses as may be reasonably requested by Company. If the Company
provides for pass-through voting by the Contract owners, or if the Company
determines that pass-through voting is required by law, ACIM will provide the
Company with a sufficient quantity of proxy materials for each, as directed by
the Company.
(b) The cost of preparing, printing and shipping of the prospectuses,
proxy materials, periodic fund reports, statements of additional information and
other materials of the Issuer to the Company shall be paid by ACIM or its agents
or affiliates; provided, however, that if at any time ACIM or its agent
-------- -------
reasonably deems the usage by the Company of such items to be excessive, it may,
prior to the delivery of any quantity of materials in excess of what is deemed
reasonable, request in writing, no later than 15 business days prior to the date
that the Company and ACIM have agreed on for delivering such material to the
Company, that the Company demonstrate the reasonableness of such usage. If ACIM
believes, in good faith, that the reasonableness of such usage has not been
adequately demonstrated, it may request that the party responsible for such
excess usage pay the cost of printing (including press time) and delivery of any
excess copies of such materials. Unless the Company agrees to make such
payments, ACIM may refuse to supply such additional materials and ACIM shall be
deemed in compliance with this Section 5 if it delivers to the Company at least
the number of prospectuses and other materials as may be required by the Issuer
under applicable law.
(c) If requested by the Company, in lieu of providing printed copies of
the Fund prospectus and/or Fund reports, ACIM shall provide camera-ready film or
computer diskettes containing the Fund prospectus and/or Fund reports and such
other assistance as is reasonably necessary in order for the Company to have the
prospectus for the Contracts and the Fund prospectus printed together in one
document or separately or have the Fund prospectus printed in combination with
other fund companies' prospectuses and/or for the Company to have the reports
for the Contracts and the Fund reports printed together in one document or
separately or have the Fund reports printed in combination with other fund
companies' reports.
(d) The cost of any distribution of prospectuses, proxy materials,
periodic fund reports and other materials of the Issuer to the Contract owners
shall be paid by the Company and shall not be the responsibility of ACIM or the
Issuer.
6. Compensation and Expenses.
(a) The Accounts shall be the sole shareholder of Fund shares purchased
for the Contract owners pursuant to this Agreement (the "Record Owner"). The
Record Owner shall properly
4
complete any applications or other forms required by ACIM or the Issuer from
time to time.
(b) ACIM acknowledges that it will derive a substantial savings in
administrative expenses, such as a reduction in expenses related to postage,
shareholder communications and recordkeeping, by virtue of having a single
shareholder account per Fund for the Accounts rather than having each Contract
owner as a shareholder. In consideration of the Administrative Services and
performance of all other obligations under this Agreement by the Company, ACIM
will pay the Company a fee (the "Administrative Services Fee") equal to 25 basis
points (0.25%) per annum of the average aggregate amount invested by the Company
under this Agreement.
(c) The payments received by the Company under this Agreement are for
administrative and shareholder services only and do not constitute payment in
any manner for investment advisory services or for costs of distribution.
(d) For the purposes of computing the payment to the Company contemplated
by this Section 6, the average aggregate amount invested by the Company on
behalf of the Accounts in the Funds over a one month period shall be computed by
totaling the Company's aggregate investment (share net asset value multiplied by
total number of shares of the Funds held by the Company) on each Business Day
during the month and dividing by the total number of Business Days during such
month.
(e) ACIM will calculate the amount of the payment to be made pursuant to
this Section 6 at the end of each calendar quarter and will make such payment to
the Company within 30 days thereafter. The check for such payment will be
accompanied by a statement showing the calculation of the amounts being paid by
ACIM for the relevant months and such other supporting data as may be reasonably
requested by the Company and shall be mailed to:
American General Life Insurance Company
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Variable Products Accounting
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
5
7. Representations.
(a) The Company represents and warrants that (i) this Agreement has been
duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; (ii) it has established
Separate Account VL-R (the "Accounts"), each of which is a duly authorized and
established separate account under Texas Insurance law, and has registered each
Account as a unit investment trust under the Investment Company Act of 1940 (the
"1940 Act") to serve as an investment vehicle for the Contracts; (iii) each
Contract provides for the allocation of net amounts received by the Company to
an Account for investment in the shares of one or more specified investment
companies selected among those companies available through the Account to act as
underlying investment media; (iv) selection of a particular investment company
is made by the Contract owner under a particular Contract, who may change such
selection from time to time in accordance with the terms of the applicable
Contract; and (v) the activities of the Company contemplated by this Agreement
comply in all material respects with all provisions of federal and state
securities laws applicable to such activities.
(b) ACIM represents that (i) this Agreement has been duly authorized by
all necessary corporate action and, when executed and delivered, shall
constitute the legal, valid and binding obligation of ACIM, enforceable in
accordance with its terms; (ii) the prospectus of each Fund complies in all
material respects with federal and state securities laws, and (iii) shares of
the Issuer are registered and authorized for sale in accordance with all federal
and state securities laws.
(c) The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act; that the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state laws
and that the sale of the Contracts shall comply in all material respects with
state insurance suitability requirements. The Company further represents and
warrants that it is an insurance company duly organized and in good standing
under applicable law.
(d) ACIM represents that the Funds are currently qualified as Regulated
Investment Companies under Subchapter M of the Internal Revenue Code of 1986, as
amended, (the "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.
(e) Subject to the Fund's compliance with applicable diversification
requirements, the Company represents that the Contracts are currently treated as
endowment, annuity or life insurance contracts, under applicable provisions of
the Code and that it will make every effort to maintain such treatment and that
it will notify the Fund and ACIM 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.
(f) ACIM represents and warrants that all of its directors, officers,
employees,
6
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 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 shall include coverage for larceny and embezzlement and shall
be issued by a reputable bonding company.
(g) The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other 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 five million dollars ($5 million). The
aforesaid Bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
(h) ACIM represents and warrants that the Fund will at all times invest
money from the Contracts in such a manner as to ensure that the Contracts will
be treated as variable contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, ACIM represents and
warrants that the Fund will at all times comply with Section 817(h) of the Code
of Treasury Regulation 1.817-5, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any amendments or
other modifications to such Section or Regulations.
8. Additional Covenants and Agreements.
(a) Each party shall comply with all provisions of federal and state laws
applicable to its respective activities under this Agreement. All obligations of
each party under this Agreement are subject to compliance with applicable
federal and state laws.
(b) Each party shall promptly notify the other parties in the event that
it is, for any reason, unable to perform any of its obligations under this
Agreement.
(c) The Company covenants and agrees that all Orders accepted and
transmitted by it hereunder with respect to each Account on any Business Day
will be based upon instructions that it received from the Contract owners, in
proper form prior to the Close of Trading of the Exchange on that Business Day.
The Company shall time stamp all Orders or otherwise maintain records that will
enable the Company to demonstrate compliance with Section 8(c) hereof.
(d) The Company covenants and agrees that all Orders transmitted to the
Issuer, whether by telephone, telecopy, or other electronic transmission
acceptable to ACIM, shall be sent by or under the authority and direction of a
person designated by the Company as being duly authorized to act on behalf of
the owner of the Accounts. ACIM shall be entitled to rely on the existence of
such authority and to assume that any person transmitting Orders for the
purchase, redemption or transfer of Fund shares on behalf of the Company is "an
appropriate person" as used in Sections 8-107 and 8-401 of the Uniform
Commercial Code with respect to the transmission of instructions regarding Fund
shares on behalf of the owner of such Fund shares. The Company shall maintain
the
7
confidentiality of all passwords and security procedures issued, installed
or otherwise put in place with respect to the use of Remote Computer Terminals
and assumes full responsibility for the security therefor. The Company further
agrees to be responsible for the accuracy, propriety and consequences of all
data transmitted to ACIM by the Company by telephone, telecopy or other
electronic transmission acceptable to ACIM.
(e) The Company agrees that, to the extent it is able to do so, it will
use its best efforts to give equal emphasis and promotion to shares of the Funds
as is given to other underlying investments of the Accounts, subject to
applicable Securities and Exchange Commission rules. In addition, the Company
shall not impose any fee, condition, or requirement for the use of the Funds as
investment options for the Contracts that operates to the specific prejudice of
the Funds vis-a-vis the other investment media made available for the Contracts
---------
by the Company.
(f) The Company shall not, without the written consent of ACIM, make
representations concerning the Issuer or the shares of the Funds except those
contained in the then-current prospectus for the Funds and in current printed
sales literature approved by ACIM or the Issuer.
(g) ACIM shall not, without the written consent of the Company, make
representations concerning the Company or the Contracts except those contained
in the then-current prospectus for the Contracts and any other current printed
sales literature approved by the Company.
(h) Advertising and sales literature with respect to the Issuer or the
Funds prepared by the Company or its agents, if any, for use in marketing shares
of the Funds as underlying investment media to Contract owners shall be
submitted to ACIM for review and approval before such material is used.
9. Use of Names. Except as otherwise expressly provided for in this
Agreement, neither ACIM nor any of its affiliates or the Funds shall use any
trademark, trade name, service ▇▇▇▇ or logo of the Company, or any variation of
any such trademark, trade name, service ▇▇▇▇ or logo, without the Company's
prior written consent, the granting of which shall be at the Company's sole
option. Except as otherwise expressly provided for in this Agreement, the
Company shall not use any trademark, trade name, service ▇▇▇▇ or logo of the
Issuer, ACIM or any of its affiliates or any variation of any such trademarks,
trade names, service marks, or logos, without the prior written consent of
either the Issuer or ACIM, as appropriate, the granting of which shall be at the
sole option of ACIM and/or the Issuer.
8
10. Proxy Voting.
(a) The Company shall provide pass-through voting privileges to all Contract
owners so long as the SEC continues to interpret the 1940 Act as requiring such
privileges. The Company reserves the right to vote Fund shares held in the
Accounts in its own right, to the extent permitted by law. Participating
companies (as defined in Section 12(a) below) shall be responsible for assuring
that each of their respective separate accounts participating in the Funds
calculate voting privileges as set forth herein.
(b) The Company will distribute to Contract owners all proxy material
furnished by ACIM and will vote shares in accordance with instructions received
from such Contract owners. The Company shall vote Fund shares for which no
voting instructions are received in the same proportion as shares for which such
instructions have been received. The Company and its agents shall not oppose or
interfere with the solicitation of proxies for Fund shares held for such
Contract owners.
11. Indemnity.
(a) ACIM agrees to indemnify and hold harmless the Company and its officers,
directors, employees, agents, affiliates and each person, if any, who controls
the Company within the meaning of the Securities Act of 1933 (collectively, the
"Indemnified Parties" for purposes of this Section 11(a)) against any losses,
claims, expenses, damages or liabilities (including amounts paid in settlement
thereof) or litigation expenses (including legal and other expenses)
(collectively, "Losses"), to which the Indemnified Parties may become subject,
insofar as such Losses result from a breach by ACIM of a material provision of
this Agreement. ACIM will reimburse any legal or other expenses reasonably
incurred by the Indemnified Parties in connection with investigating or
defending any such Losses. ACIM shall not be liable for indemnification
hereunder if such Losses are attributable to the gross negligence or misconduct
of the Company in performing its obligations under this Agreement.
(b) The Company agrees to indemnify and hold harmless ACIM and the Issuer,
and their respective officers, directors, employees, agents, affiliates and each
person, if any, who controls Issuer or ACIM within the meaning of the Securities
Act of 1933 (collectively, the "Indemnified Parties" for purposes of this
Section 11(b)) against any Losses to which the Indemnified Parties may become
subject, insofar as such Losses result from a breach by the Company of a
material provision of this Agreement or the use by any person of the Remote
Computer Terminals. The Company will reimburse any legal or other expenses
reasonably incurred by the Indemnified Parties in connection with investigating
or defending any such Losses. The Company shall not be liable for
indemnification hereunder if such Losses are attributable to the gross
negligence or misconduct of ACIM or the Issuer in performing their obligations
under this Agreement.
9
(c) Promptly after receipt by an indemnified party hereunder of notice of the
commencement of action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section 11. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish to, assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnifying party assumes the defense of any such action, the
indemnifying party shall not, without the prior written consent of the
indemnified parties in such action, settle or compromise the liability of the
indemnified parties in such action, or permit a default or consent to the entry
of any judgment in respect thereof, unless in connection with such settlement,
compromise or consent, each indemnified party receives from such claimant an
unconditional release from all liability in respect of such claim.
12. Potential Conflicts
(a) The Company has received a copy of an application for exemptive relief,
as amended, filed by the Issuer on December 21, 1987, with the SEC and the order
issued by the SEC in response thereto (the "Shared Funding Exemptive Order").
The Company has reviewed the conditions to the requested relief set forth in
such application for exemptive relief. As set forth in such application, the
Board of Directors of the Issuer (the "Board") will monitor the Issuer for the
existence of any material irreconcilable conflict between the interests of the
contract owners of all separate accounts ("Participating Companies") investing
in funds of the Issuer. An irreconcilable material conflict may arise for a
variety of reasons, including: (i) an action by any state insurance regulatory
authority; (ii) 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 actions by insurance, tax or
securities regulatory authorities; (iii) an administrative or judicial decision
in any relevant proceeding; (iv) the manner in which the investments of any
portfolio are being managed; (v) a difference in voting instructions given by
variable annuity contract owners and variable life insurance contract owners; or
(vi) a decision by an insurer to disregard the voting instructions of contract
owners. The Board shall promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it
is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order by providing the Board
with all information reasonably necessary for the Board to consider any issues
raised. This includes, but is not limited to, an obligation by the Company to
inform the Board whenever contract owner voting instructions are disregarded.
10
(c) If a majority of the Board, or a majority of its disinterested Board
members, determines that a material irreconcilable conflict exists with regard
to contract owner investments in a Fund, the Board shall give prompt notice to
all Participating Companies. If the Board determines that the Company is
responsible for causing or creating said conflict, the Company shall at its sole
cost and expense, and to the extent reasonably practicable (as determined by a
majority of the disinterested Board members), take such action as is necessary
to remedy or eliminate the irreconcilable material conflict. Such necessary
action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund
and reinvesting such assets in a different investment medium or
submitting the question of whether such segregation should be
implemented to a vote of all affected contract owners and as
appropriate, segregating the assets of any appropriate group
(i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating
Companies) that votes in favor of such segregation, or offering
to the affected contract owners the option of making such a
change; and/or
(ii) establishing a new registered management investment company or
managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by
the Company to disregard its contract owner voting instructions and said
decision represents a minority position or would preclude a majority vote by all
of its contract owners having an interest in the Issuer, the Company at its sole
cost, may be required, at the Board's election, to withdraw an Account's
investment in the Issuer and terminate this Agreement; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
(e) For the purpose of this Section 12, a majority of the disinterested Board
members shall determine whether or not any proposed action adequately remedies
any irreconcilable material conflict, but in no event will the Issuer be
required to establish a new funding medium for any Contract. The Company shall
not be required by this Section 12 to establish a new funding medium for any
Contract if an offer to do so has been declined by vote of a majority of the
Contract owners materially adversely affected by the irreconcilable material
conflict.
13. Termination; Withdrawal of Offering. This Agreement may be terminated by
either party upon 180 days' prior written notice to the other parties.
Notwithstanding the above, the Issuer reserves the right, upon less than 180
days' prior written notice, to suspend sales of shares of any Fund, in whole or
in part, or to make a limited offering of shares of any of the Funds in the
event that (A) any regulatory body commences formal proceedings against the
Company, ACIM, affiliates of ACIM, or the Issuer, which proceedings ACIM
reasonably believes may have a material adverse impact on the ability of ACIM,
the Issuer or the Company to perform its obligations under this Agreement or (B)
in the judgment of ACIM, declining to accept any additional instructions for the
purchase or sale of shares of any such Fund is warranted by market, economic or
political conditions.
11
Notwithstanding the foregoing, this Agreement may be terminated immediately (i)
by any party as a result of any other breach of this Agreement by another party,
which breach is not cured within 30 days after receipt of notice from the other
party, or (ii) by any party upon a determination that continuing to perform
under this Agreement would, in the reasonable opinion of the terminating party's
counsel, violate any applicable federal or state law, rule, regulation or
judicial order.
Notwithstanding the foregoing, the Company may terminate this Agreement
immediately: (1) upon written notice to ACIM based upon the Company's good
faith determination that shares of the Fund are not reasonably available to meet
the requirements of the Contracts; (ii) upon written notice to ACIM in the event
that 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 do so qualify; (iii) upon
written notice to ACIM in the event that the Fund fails to meet the
diversification requirements set forth in the Code; or (iv) upon 60 days'
written notice to ACIM that the Company will substitute Fund shares with the
shares of another investment company for the Contracts for which the Fund shares
have been selected to serve as the underlying investment medium, subject to
compliance with applicable regulations of the SEC.
Termination of this Agreement shall not affect the obligations of the
parties to make payments under Section 4 for Orders received by the Company
prior to such termination and shall not affect the Issuer's obligation to
maintain the Accounts as set forth by this Agreement. Following termination,
ACIM shall not have any Administrative Services payment obligation to the
Company (except for payment obligations accrued but not yet paid as of the
termination date).
14. Non-Exclusivity. Each of the parties acknowledges and agrees that this
Agreement and the arrangement 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.
15. Survival. The provisions of Section 9 (use of names) and Section 11
(indemnity) of this Agreement shall survive termination of this Agreement.
16. Amendment. Neither this Agreement, nor any provision hereof, may be
amended, waived, discharged or terminated orally, but only by an instrument in
writing signed by all of the parties hereto.
17. Notices. All notices and other communications hereunder shall be given
or made in writing and shall be delivered personally, or sent by telex,
telecopier, express delivery or registered
12
or certified mail, postage prepaid, return receipt requested, to the party or
parties to whom they are directed at the following addresses, or at such other
addresses as may be designated by notice from such party to all other parties.
To the Company:
American General Life Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
(▇▇▇) ▇▇▇-▇▇▇▇ (office number)
(▇▇▇) ▇▇▇-▇▇▇▇ (telecopy number)
To the Issuer or ACIM:
American Century Investment Management, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇ (office number)
(▇▇▇) ▇▇▇-▇▇▇▇ (telecopy number)
Any notice, demand or other communication given in a manner prescribed in this
Section 17 shall be deemed to have been delivered on receipt.
18. Successors and Assigns. This Agreement may not be assigned without the
written consent of all parties to the Agreement at the time of such assignment.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
19. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
20. Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
21. Entire Agreement. This Agreement, including the attachments hereto,
constitutes the entire agreement between the parties with respect to the matters
dealt with herein, and supersedes all previous agreements, written or oral, with
respect to such matters.
13
22. Foreign Tax Credits. ACIM agrees to consult with the Company
concerning whether the Fund qualifies to provide a foreign tax credit pursuant
to Section 853 of the Code.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
AMERICAN GENERAL LIFE INSURANCE AMERICAN CENTURY INVESTMENT
COMPANY MANAGEMENT, INC.
By:___________________________ By:___________________________
Name:_________________________ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:________________________ Executive Vice President
14
EXHIBIT A
ADMINISTRATIVE SERVICES
Pursuant to the Agreement to which this is attached, the Company shall perform
all administrative and shareholder services required or requested under the
Contracts with respect to the Contract owners, including, but not limited to,
the following:
1. Maintain separate records for each Contract owner, which records shall
reflect the units purchased and redeemed and unit balances of such Contract
owners. The Company will maintain a single master account with each Fund on
behalf of the Contract owners and such account shall be in the name of the
Company (or its nominee) as the record owner of shares owned by the Contract
owners.
2. Disburse or credit to the Contract owners all proceeds of redemptions
of shares of the Funds and all dividends and other distributions not reinvested
in shares of the Funds.
3. Prepare and transmit to the Contract owners, as required by law or the
Contracts, periodic statements showing the total number of units owned by the
Contract owners as of the statement closing date, purchases and redemptions of
Fund shares by the Contract owners during the period covered by the statement
and the dividends and other distributions paid during the statement period
(whether paid in cash or reinvested in Fund shares), and such other information
as may be required, from time to time, by the Contracts.
4. Transmit purchase and redemption orders to the Funds on behalf of the
Contract owners in accordance with the procedures set forth in Section 4 to the
Agreement.
5. Distribute to the Contract owners copies of the Funds' prospectus,
proxy materials, periodic fund reports to shareholders and other materials that
the Funds are required by law or otherwise to provide to their shareholders or
prospective shareholders.
6. Maintain and preserve all records as required by law to be maintained
and preserved in connection with providing the Administrative Services for the
Contracts.
A-1
