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FUND PARTICIPATION AGREEMENT
THIS FUND PARTICIPATION AGREEMENT is made and entered into as of July 31,
1996 by and among AMERICAN CENTURION LIFE ASSURANCE COMPANY (the "Company") TCI
PORTFOLIOS, INC. (the "Issuer") and the investment adviser of the Issuer,
INVESTORS RESEARCH CORPORATION ("Investors Research").
WHEREAS, the Company offers to the public certain qualified and
nonqualified variable annuity contracts (collectively, the "Contracts"), which
the Company has registered under the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, the Company wishes to offer as investment options under the
Contracts, TCI Growth and TCI Value (collectively the "Fund"), each a series of
mutual fund shares registered under the Investment Company act of 1940, as
amended (the "1940 Act"), and issued by the Issuer; and
WHEREAS, on the terms and conditions hereinafter set forth, Investors
Research and the Issuer desire to make shares of the Funds available as
investment options under the Contracts;
NOW, THEREFORE, the Company, the Issuer and Investors Research agree as
follows:
1. Transactions in the Funds. Subject to the terms and conditions of this
Agreement, The Issuer will make shares of the Funds available to be purchased,
exchanged, or redeemed, by the Company on behalf of the Account (defined in
Section 6(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 shall be solely responsible for
providing all administrative services for the Contracts owners. The Company
agrees that it will maintain and preserve all records as required by law to be
maintained and preserved, and will otherwise comply with all laws, rules and
regulations applicable to the marketing of the Contracts and the provision of
administrative services to the Contract owners.
3. Processing and Timing of Transactions
(a) The Issuer hereby appoints the Company as its agent 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
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prior to the close of regular trading on the Exchange (the "Close of Trading")
on any given Business Day (currently, 3:00 p.m. Central time) and transmitted to
the Issuer by 9:00am Central time on the next following Business Day will be
executed by the Issuer at the net asset value determined as of the Close of
Trading on the previous Business Day ("Day 1"). Any Orders received by the
Company after the Close of Trading, and all Orders that are transmitted to the
Issuer after 9:00 a.m. Central time on the next following Business Day, will be
executed by the Issuer at the net asset value determined following receipt by
the Issuer of such Order. The day as of which an Order is executed by the Issuer
pursuant to the provisions set forth above is referred to herein as the
"Effective Trade Date".
(b) By 5:30 p.m. Central time on each Business Day, Investors Research
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.
(c) By 9:00 a.m. Central time on each Business Day, the Company will
provide to Investors Research via facsimile or other electronic transmission
acceptable to Investors Research a report (referred to in subsection (a) above)
stating whether the Orders received by the Company from Contract owners by the
Close of Trading on the preceding Business Day resulted in the Account being a
net purchaser or net seller of shares of the Funds. As used in this Agreement,
the phrase "other electronic transmission acceptable to Investors Research"
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 Investors Research, its agents or affiliates
(hereinafter, "Remote Computer Terminals").
(d) Upon the timely receipt from the Company of the report described in
subsection (c) above, Investors Research will execute the purchase or redemption
transactions (as the case may be) at the net asset value computed as at the
Close of Trading on Day 1. Payment for net purchase transactions shall be made
by wire transfer by the Company to the custodial account designated by the Fund
on the Business Day next following the Effective Trade Date. Such wire transfers
shall be initiated by the Company's bank prior to 3:00 p.m. Central time and
received by the Funds prior to 5:00 p.m. Central time on the Business Day next
following the Effective Trade Date. If payment for a purchase Order is not
timely received, such Order will be executed at the net asset value next
computed following receipt of payment. Payments for net redemption transactions
shall be made by wire transfer by the Issuer to the account designated by the
Company within the time period set forth in the applicable Fund's then-current
prospectus; provided, however, Investors Research will use all reasonable
efforts to settle all redemptions on the Business Day next following the
Effective Trade Date. 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 ▇▇▇▇
▇▇▇▇ 3
be settled on the next Business Day on which the Federal Reserve Wire Transfer
System is open and the Effective Trade Date will apply.
4. Prospectus and Proxy Materials.
(a) Investors Research shall provide to the shareholder of record copies of
the Issuer's proxy materials, periodic reports to shareholders and other
materials that are required by law to be sent to the Issuer's shareholders. In
addition, Investors Research shall provide the Company copies of the Fund's
prospectuses and periodic reports to shareholders in sufficient quantity to
distribute to each Contract owner, together with such additional copies of the
Fund's prospectuses as may be reasonably requested by Company. If the Company
provides for pass-through voting by the Contract owners, Investors Research will
provide the Company with a sufficient quantity of proxy materials for each
Contract owner.
(b) The cost of preparing, typesetting, printing and shipping to the
Company the Fund's separate prospectuses, proxy materials, periodic reports to
shareholders and other materials shall be paid by Investors Research or its
agents or affiliates. If the Company elects to print a prospectus that combines
the separate prospectuses of the Fund with the prospectuses of other investment
options under the Contracts, Investors Research shall provide the Company a copy
of the Fund's prospectus in electronic format. The cost of preparing,
typesetting and printing the combined prospectus shall be borne by the Company.
(c) The cost of mailing prospectuses, proxy materials, periodic fund
reports and other materials of the Issuer to the Contract owners and prospective
Contract owners shall be paid by the Company and shall not be the responsibility
of Investors Research or the Issuer.
5. Compensation and Expenses.
(a) Investors Research will pay no fee or other compensation
to the Company under this Agreement.
(b) All expenses incident to performance by the Issuer of its duties under
this Agreement, including, but not limited to, the cost of registration and
qualification of the Fund's shares, will be paid by Investors Research to the
extent permitted by law. All expenses incident to performance by the Company of
its duties under this Agreement, including, but not limited to, the cost of
providing the administrative services to Contract owners, shall be paid by the
Company.
6. Representations and Warranties.
(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 the
ACL Variable
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Annuity Account 1 (the "Account"), which is a separate account under New York
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 insurance, securities, and tax laws
applicable to such activities.
(b) Investors Research 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 Investors Research
and Issuer, enforceable in accordance with its terms; and (ii) the investments
of the Funds will at all times be adequately diversified within the Section
817(h) of the Internal Revenue Service Code of 1986, as amended (the "Code"),
and the regulations thereunder, and that at all times while this Agreement is in
effect, all beneficial interests in each of the Funds will be owned by one or
more insurance companies or by any other party permitted under Section
1.817-5(f)(3) of the Regulations promulgated under the Code. In the event of a
breach, Investors Research will take reasonable steps to notify the Company of
such breach and to adequately diversify the Fund so as to achieve compliance
within the grace period afforded by Regulation 1.817-5.
(c) Investors Research represents that the Fund's investment objectives,
policies, and restrictions comply in all material respects with applicable state
investment laws as they may apply to the Fund. Neither the Issuer nor Investors
Research makes any representation as to whether any aspect of the Fund's
operations (including, but not limited to, fees and expenses and investment
policies, objections and restrictions) complies with the insurance laws and
regulations of any state. Investors Research agrees that it will use reasonable
effort to furnish such information regarding the Funds as may be reasonably
required by state insurance laws so that the Company may obtain the authority
needed to issue the Contracts in any applicable state.
7. 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.
(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.
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(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 the previous
Business Day.
(d) The Company covenants and agrees that all Orders transmitted to the
Issuer, whether by telephone, telecopy, or other electronic transmission
acceptable to Investors Research, 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 Account. Absent actual knowledge to the contrary,
Investors Research 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 8-308 and 8-404 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 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
solely responsible for the accuracy, propriety, and consequences of all data
transmitted to Investors Research by the Company by telephone, telecopy, or
other electronic transmission acceptable to Investors Research.
(e) The Company agrees to make every reasonable effort to market its
Contracts. 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 Account.
(f) The Company or its employees or agents will not give any information or
advice, or make any representations or statements on behalf of or concerning the
Issuer or the Fund, in connection with the sale of the Contracts unless based
upon information or representations contained in the registration statement for
the Fund's shares, as such registration statement may be amended or supplemented
from time to time, or in reports or proxy statements of the Fund, or in
published reports for the Fund that are published in reputable financial
publications or approved by Investors Research for distribution, or in sales
literature or other material provided by Investors Research. Investors Research
agrees to use reasonable efforts to respond to any request for approval on a
prompt and timely basis.
(g) Notwithstanding anything in Section 7(f) above, the Company will
furnish, or will cause to be furnished, to the Issuer or Investors Research,
each piece of sales literature or other promotional material in which the Fund
or the Issuer or Investors Research is named, at least ten (10) business days
prior to its use. No such material will be used if Investors Research reasonably
objects to such use. Investors Research agrees to use reasonable efforts to
respond to any request for approval on a prompt and timely basis.
PAGE 6
(h) Investors Research will furnish or will cause to be furnished to the
Company or its designee, each piece of sales literature or other promotional
material in which the Company or its Account is named, at least ten (10)
business days prior to its use. No such material will be used if the Company
reasonably objects to such use. The Company agrees to use reasonable efforts to
respond to any request for approval on a prompt and timely basis.
(i) Investors Research will not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, the Account, or the Contracts unless based upon information or
representations contained in the registration statement for the Contracts, as
such registration statement may be amended or supplemented from time to time, or
in reports for the Contracts, or in published reports for the Account or the
Contracts that are published in reputable financial publications or are approved
by the Company for distribution, or in sales literature or other material
provided by the Company. The Company agrees to use reasonable efforts to respond
to any request for approval on a prompt and timely basis.
(j) The Company will provide to Investors Research at least on complete
copy of all registration statements, annual and semi-annual reports, proxy
statements, and all amendments or supplements to any of the above that include a
description of or information regarding the Funds promptly after the filing of
such document with the SEC or other regulatory authority.
(k) For purposes of this Section 7, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media (e.g., online
networks such as the Internet or other electronic messages), sales literature
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, registration statements, shareholder reports,
and proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the 1940 Act.
8. Use of Names. Except as otherwise expressly provided for in this
Agreement, neither Investors Research nor 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 or Investors
Research, or any variation of any such trademarks, trade
PAGE 7
names, service marks, or logos, without the prior written consent of either the
Issuer or Investors Research, as appropriate, the granting of which shall be at
the sole option of Investors Research and/or the Issuer.
9. 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. It shall be the responsibility of the Company to
assure that it and the separate accounts of the other Participating Companies
(as defined in Section 11(a) below) participating in any Fund calculate voting
privileges in a consistent manner.
(b) The Company will distribute to Contract owners all proxy material
furnished by Investors Research and will vote shares in accordance with
instructions received from such Contract owners. The Company shall vote Fund
shares for which no instructions have been 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 prozies for Fund
shares held for such Contract owners.
10. Indemnity.
(a) Investors Research agrees to indemnify and hold harmless the Company
and each person, if any, who controls the Company within the meaning of the
Securities Act of 1933, and any officers, directors, employees, agents, and
affiliates of the foregoing (collectively, the "Indemnified Parties" for
purposes of this Section 10(a)) against any losses, claims, expenses, damages or
liabilities (including amounts paid in settlement thereof) or litigation
expenses (including reasonable legal and other expenses) (collectively,
"Losses"), to which the Indemnified Parties may become subject, insofar as such
Losses (i) result from a breach by Investors Research of a material provision of
this Agreement, including the incorrect calculation or reporting of the daily
net asset value per share or dividend or capital gain distribution rate, or (ii)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement or any prospectus
of the Fund or arise out of or are based upon 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. Investors Research will reimburse
any legal or other expenses reasonably incurred by the Indemnified Parties in
connection with investigating or defending any such Losses. Investors Research
shall not be liable for indemnification hereunder if such Losses are
attributable to the negligence or misconduct of the Company performing its
obligations under this Agreement or as a result of a breach of Section 21.
(b) The Company agrees to indemnify and hold harmless Investors Research
and the Issuer and each person, if any, who controls the Issuer or Investors
Research within the meaning of the
PAGE 8
Securities Act of 1933, and their respective officers, directors, employees,
agents, and affiliates of the foregoing (collectively, the "Indemnified Parties"
for purposes of this Section 10(b)) against any Losses to which the Indemnified
Parties may become subject, insofar as such Losses (i) result from a breach by
the Company of a material provision of this Agreement, or (ii) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the sales literature of the Company or in a registration
statement or any prospectus of the Company regarding the Contracts or the
Account, if any, or arise out of or are based upon 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, or arise out of or as a
result of conduct, statements or representations of the Company or its agents
(other than statements or representations contained in the prospectuses or sales
literature of the Fund), with respect to the sale and distribution of Contracts
for which the Fund's shares serve as the underlying investment, or (iii) result
from the use by any person of a Remote Computer Terminal. 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 negligence or misconduct of Investors Research or the Issuer
in performing their obligations under this Agreement.
(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 10. 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 10 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 judgement 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.
PAGE 9
11. Potential Conflicts.
(a) The Company has received a copy of an application for exemptive relief,
as amended, filed by Investors Research 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.
(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 Account 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,
PAGE 10
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 11, 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 the Issuer be
required to establish a new funding medium for any Contract. The Company shall
not be required by this Section 11 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.
12. Termination. This agreement shall terminate as to the
sale and issuance of new Contracts:
(a) at the option of either the Company, Investors Research or the Issuer
upon six months' advance written notice, except that if exemptive relief or an
exemptive order from the SEC is required in connection with such termination, at
such later date as may be necessary to obtain such exemptive relief;
(b) at the option of the Company if the Funds' shares are not
available for any reason to meet the requirement of Contracts as
determined by the Company. Reasonable advance notice of election to
terminate shall be furnished by Company;
(c) at the option of either the Company, Investors Research or the Issuer,
upon institution of formal proceedings against the broker-dealer or
broker-dealers marketing the Contracts, the Account, the Company, or the Issuer
by the National Association of Securities Dealers, Inc. (the "NASD"), the SEC or
any other regulatory body;
PAGE 11
(d) upon termination of the Management Agreement between the Issuer and
Investors Research. Notice of such termination shall be promptly furnished to
the Company. This Section 12(d) shall not be deemed to apply if
contemporaneously with such termination a new contract of substantially similar
terms is entered into between the Issuer and Investors Research;
(e) upon the requisite vote of Contract owners having an interest in the
Issuer to substitute for the Issuer's shares the shares of another investment
company in accordance with the terms of Contracts for which the Issuer's shares
had been selected to serve as the underlying investment medium. The Company will
give 60 days' written notice to the Issuer and Investors Research of any
proposed vote to replace the Funds' shares;
(f) upon assignment of this Agreement unless made with the
written consent of all other parties hereto;
(g) if the Issuer's shares are not registered, issued or sold in
conformance with Federal law or such law precludes the use of Fund shares as an
underlying investment medium of Contracts issued or to be issued by the Company.
Prompt notice shall be given by either party should such situation occur; or
(h) at the option of the Issuer, if the Issuer reasonably determines in
good faith that the Company is not offering shares of the Fund in conformity
with the terms of this Agreement or applicable law.
(i) at the option of any party hereto 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.
(j) at the option of the Company, if the Company determines, in its sole
judgement exercised in good faith, that Investors Research has suffered a
material adverse change in its business, operations or financial condition since
the date of this Agreement or is the subject of material adverse publicity that
is likely to have a material adverse impact upon the business and operations of
the Company, such termination to be effective sixty (60) days' after receipt by
Investors Research of written notice of the Company's election to terminate this
Agreement.
(k) at the option of Investors Research, if Investors Research determines,
in its sole judgment exercised in good faith, that the Company has suffered a
material adverse change in its business, operations or financial condition since
the date of this Agreement or is the subject of material adverse publicity that
is likely to have a material adverse impact upon the business and operations of
the Fund or Investors Research, such termination to be effective sixty (60)
days' after receipt by the Company of written notice of Investors Research's
election to terminate this Agreement
PAGE 12
13. Continuation of Agreement. Termination as the result of any cause
listed in Section 12 shall not affect the Issuer's obligation to furnish, under
the terms of this Agreement, its shares to Contracts then in force for which its
shares serve or may serve as the underlying medium (unless such further sale of
Fund shares is proscribed by law or the SEC or other regulatory body).
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 is free to enter into
similar agreements and arrangements with other entities.
15. Survival. The provisions of Section 8 (use of names) and
Section 10 (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 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 Centurion Life Assurance Company
c/o American Express Financial Advisors Inc.
IDS Tower 10
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager-Product
Development
(▇▇▇) ▇▇▇-▇▇▇▇ (telecopy number)
With a simultaneous copy to:
American Centurion Life Assurance Company
c/o American Express Financial Advisors Inc.
IDS Tower 10
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Counsel
(▇▇▇) ▇▇▇-▇▇▇▇ (telecopy number)
To the Issuer or Investors Research:
Twentieth Century Mutual Funds
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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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. Confidentiality.
(a) Investors Research acknowledges that the identities of the customers of
the Company or any of its affiliates (collectively, the "Protected Parties" for
purposes of this Section 21), information maintained regarding those customers,
and all computer programs and procedures or other confidential information
developed or used by the Protected Parties or any of their employees or agents
in connection with the Company's performance of its duties under this Agreement
are the valuable property of the Protected Parties. Investors Research agrees
that if in connection with the performance of its duties under this Agreement it
comes into possession of any list or compilation of the identities of or other
confidential information about the Protected Parties' customers, or any other
confidential information or property of the Protected Parties, other than such
information as may be independently developed, compiled or obtained by Investors
Research, whether from information supplied by the Protected Parties' customers
who also maintain accounts directly with the Issuer or another affiliate of
Investors Research or otherwise, Investors Research will hold such information
or property in confidence and refrain from using, disclosing or distributing any
of such information or other property except: (a) with the Company's prior
written consent; or (b) as required by law or judicial process. Investors
Research acknowledges that any breach of this Section 21(a) would result in
immediate and irreparable harm to the Protected Parties for which there would be
no adequate or quantifiable remedy at law. As a result, the parties agree that
in the event of a breach, as their sole remedy, the Protected Parties will be
entitled to equitable relief by way of temporary and permanent injunctions, as
well as such other equitable relief as a court of competent jurisdiction deems
appropriate.
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(b) The parties acknowledge that it is not contemplated that any
confidential information of the Protected Parties is necessary for the
performance by Investors Research or the Issuer of their respective duties under
this Agreement. If the parties determine that the communication of such
confidential information is necessary or desirable, the parties agree to
cooperate in the establishment of procedures to identify such information as
confidential in order to ensure its protection.
22. Access to Books and Records. Each party to this Agreement agrees to
cooperate with each other party and all appropriate governments authorities
(including without limitation the SEC, the NASD and state insurance regulators)
and will permit each other and such authorities reasonable access to its books
and records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby. Each party agrees to permit
the other party or the appropriate governmental authority to make copies of
portions of its books and records that relate to the party's performance of its
duties under this Agreement an which are the subject matter of the investigation
or inquiry.
23. 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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
INVESTORS RESEARCH CORPORATION AMERICAN CENTURION LIFE
ASSURANCE COMPANY
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Executive Vice President Chairman and President
TCI PORTFOLIOS, INC. Attest:
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Executive Vice President General Counsel and Secretary