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EXHIBIT (h)(14)
FUND PARTICIPATION AGREEMENT EFFECTIVE AS OF FEBRUARY 1, 2000 AMONG AMERICAN
GENERAL LIFE INSURANCE COMPANY, ONE GROUP INVESTMENT TRUST, BANC ONE
INVESTMENT ADVISORS CORPORATION, AND ONE GROUP ADMINISTRATIVE
SERVICES, INC.
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FUND PARTICIPATION AGREEMENT
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This Fund Participation Agreement (the "Agreement"), effective as of
February 1, 2000, is made by and among American General Life Insurance Company
("Company"), One Group(R) Investment Trust (the "Trust"), the Trust's investment
advisor, Banc One Investment Advisors Corporation (the "Adviser"), and the
Trust's administrator, One Group Administrative Services, Inc. (the
"Administrator").
WHEREAS, the Trust engages in business as an open-end
management investment company and is available to act as the investment
vehicle for separate accounts established by insurance companies for
individual and group life insurance policies and annuity contracts with
variable accumulation and/or pay-out provisions (hereinafter referred
to individually and/or collectively as "Variable Insurance Products");
WHEREAS, insurance companies desiring to utilize the Trust as
an investment vehicle under their Variable Insurance Products are
required to enter into participation agreements with the Trust and the
Administrator (the "Participating Insurance Companies");
WHEREAS, shares of the Trust are divided into several series
of shares, each representing the interest in a particular managed
portfolio of securities and other assets, any one or more of which may
be made available for Variable Insurance Products of Participating
Insurance Companies;
WHEREAS, the Trust intends to offer shares of the series set
forth on Schedule B (each such series hereinafter referred to as a
"Portfolio") as may be amended from time to time by mutual agreement of
the parties hereto under this Agreement to the accounts of the Company
specified on Schedule A (hereinafter referred to individually as an
"Account," collectively, the "Accounts");
WHEREAS, the Trust has obtained an order from the Securities
and Exchange Commission, granting the Trust exemptions from the
provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended (hereinafter the "1940 Act") and Rules
6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Trust to be sold to and held by Variable Insurance
Product separate accounts of both affiliated and unaffiliated insurance
companies (hereinafter the "Shared Funding Exemptive Order");
WHEREAS, the Trust is registered as an open-end management
investment company under the 1940 Act and its shares are registered
under the Securities Act of 1933, as amended (hereinafter the "1933
Act");
WHEREAS, the Adviser is duly registered as an investment
adviser under the Investment Advisers Act of 1940, as amended, and any
applicable state securities laws;
WHEREAS, the Adviser is the investment adviser of the
Portfolios of the Trust;
WHEREAS, the Company has registered certain Variable Insurance
Products under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, each Account intends to purchase shares of the
Portfolios to fund certain of the aforesaid Variable Insurance Products
and the Trust is authorized to sell such shares to each such Account at
net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Trust, the Adviser, and the Administrator agree as
follows:
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ARTICLE 1
THE CONTRACTS
1. The Company represents that it has established each of the
Accounts specified on Schedule A as a separate account under Texas law,
and has registered each such Account as a unit investment trust under
the 1940 Act to serve as an investment vehicle for variable annuity
contracts and/ or variable life contracts offered by the Company (the
"Contracts"). The Contracts provide for the allocation of net amounts
received by the Company to separate divisions of the Account for
investment in the shares of the Portfolios. Selection of a particular
division is made by the Contract owner who may change such selection
from time to time in accordance with the terms of the applicable
Contract. The Company agrees to make every reasonable effort to market
its Contracts. In marketing its Contracts, the Company will comply with
all applicable state or Federal laws.
ARTICLE 2
TRUST SHARES
2.1. The Trust agrees to make available for purchase by the
Company shares of the Portfolios and shall execute orders placed for
each Account on a daily basis at the net asset value next computed
after receipt by the Trust or its designee of such order. For purposes
of this Section 2.1, the Company shall be the designee of the Trust for
receipt of such orders from the Account and receipt by such designee
shall constitute receipt by the Trust; provided that the Trust's
designated transfer agent receives notice of such order by 10:00 a.m.
Eastern Time on the next following Business Day ("Trade Date plus 1").
Notwithstanding the foregoing, the Company shall use its best efforts
to provide the Trust's designated transfer agent with notice of such
orders by 9:30 a.m. Eastern Time on Trade Date plus 1. "Business Day"
shall mean any day on which the New York Stock Exchange is open for
trading and on which the Trust calculates its net asset value pursuant
to the rules of the Securities and Exchange Commission, as set forth in
the Trust's prospectus and statement of additional information.
Notwithstanding the foregoing, the Board of Trustees of the Trust
(hereinafter the "Board") may refuse to permit the Trust to sell shares
of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole
discretion of the Board acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, necessary
in the best interests of the shareholders of such Portfolio.
2.2. The Trust agrees that shares of the Trust will be sold
only to Participating Insurance Companies for their Variable Insurance
Products and, in the Trust's discretion, to qualified pension and
retirement plans. No shares of any Portfolio will be sold to the
general public.
2.3. The Trust agrees to redeem for cash, on the Company's
request, any full or fractional shares of the Trust held by an Account,
executing such requests on a daily basis at the net asset value next
computed after receipt by the Trust or its designee of the request for
redemption. For purposes of this Section 2.3, the Company shall be the
designee of the Trust for receipt of requests for redemption from each
Account and receipt by such designee shall constitute receipt by the
Trust; provided that the Trust's designated transfer agent receives
notice of such request for redemption on Trade Date plus 1 in
accordance with the timing rules described in Section 2.1.
2.4. The Company agrees that purchases and redemptions of
Portfolio shares offered by the then current prospectus of the Trust
shall be made in accordance with the provisions of such prospectus. The
Accounts of the Company, under which amounts may be invested in the
Trust are listed on Schedule A attached hereto and incorporated herein
by reference, as such Schedule A may be amended from time to time by
mutual written agreement of all of the parties hereto. The Company will
give the Trust and the Adviser concurrent written notice of its
intention to make available in the future, as a funding vehicle under
the Contracts, any other investment company.
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2.5. The Company will place separate orders to purchase or
redeem shares of each Portfolio. Each order shall describe the net
amount of shares and dollar amount of each Portfolio to be purchased or
redeemed. In the event of net purchases, the Company shall pay for
Portfolio shares on Trade Date plus 1. Payment shall be in federal
funds transmitted by wire. In the event of net redemptions, the
Portfolio shall pay the redemption proceeds in federal funds
transmitted by wire by 2:00 p.m. Eastern Time on Trade Date plus 1.
Notwithstanding the foregoing, if the payment of redemption proceeds on
the next Business Day would require the Portfolio to dispose of
Portfolio securities or otherwise incur substantial additional costs,
and if the Portfolio has determined to settle redemption transactions
for all shareholders on a delayed basis, proceeds shall be wired to the
Company within seven (7) days and the Portfolio shall notify in writing
the person designated by the Company as the recipient for such notice
of such delay by 3:00 p.m. Eastern Time on Trade Date plus 1.
2.6. Issuance and transfer of the Trust's shares will be by
book entry only. Share certificates will not be issued to the Company
or any Account. Shares ordered from the Trust will be recorded in an
appropriate title for each Account or the appropriate subaccount of
each Account.
2.7. On each record date, the Administrator shall use its best
efforts to furnish same day notice by 6:30 p.m. Eastern Time (by wire,
telephone, electronic media or by fax) to the Company of any dividends
or capital gain distributions payable on the Trust's shares. The
Company hereby elects to receive all such dividends and capital gain
distributions as are payable on the Portfolio shares in additional
shares of that Portfolio. The Company reserves the right to revoke this
election and to receive all such dividends and capital gain
distributions in cash. The Trust shall notify the Company of the number
of shares so issued as payment of such dividends and distributions.
2.8. The Administrator shall make the net asset value per
share of each Portfolio available to the Company on a daily basis as
soon as reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset value
per share available by 6:30 p.m. Eastern Time. In the event that the
Administrator is unable to meet the 6:30 p.m. time stated immediately
above, then the Administrator shall provide the Company with additional
time to notify the Administrator of purchase or redemption orders
pursuant to Sections 2.1 and 2.3, respectively, above. Such additional
time shall be equal to the additional time that the Administrator takes
to make the net asset values available to the Company.
2.9. If the Administrator provides materially incorrect share
net asset value information through no fault of the Company, the
Company shall be entitled to an adjustment with respect to the Trust
shares purchased or redeemed to reflect the correct net asset value per
share as subsequently determined by the Administrator. The
determination of the materiality of any net asset value pricing error
shall be based on the Trust's policy for correction of pricing errors
(the "Pricing Policy"). The Company shall correct such error in its
records and in the records prepared by it for Contract owners in
accordance with information provided by the Administrator. Any material
error in the calculation or reporting of net asset value per share,
dividend or capital gain information shall be reported promptly upon
discovery to the Company.
2.10. The Administrator shall provide information to the
Company of the amount of shares traded and the associated cost per
share (NAV) total trade amount and the outstanding share balances held
by the Account in each Portfolio as of the end of each Business Day.
Such information will be furnished (electronically or by fax) by 1:00
p.m. Eastern time on the next Business Day.
ARTICLE 3
PROSPECTUSES, REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS, VOTING
3.1. The Trust shall provide the Company with as many printed
copies of the Trust's current prospectus as the Company may reasonably
request. The Administrator will provide the Company with a copy of the
statement of additional information suitable for duplication. If
requested by the Company, in lieu of providing printed copies, the
Trust shall provide camera-ready film or computer diskettes containing
the Trust's prospectus and statement of additional information in order
for the Company once each year (or more frequently if the prospectus
and/or statement of additional information for the Trust is amended
during the
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year) to have the prospectus for the Contracts and the Trust's
prospectus printed together in one document or separately. The Company
may elect to print the Trust's prospectus and/or its statement of
additional information in combination with other investment companies'
prospectuses and statements of additional information.
3.2(a). Except as otherwise provided in this Section 3.2, all
expenses of preparing, setting in type and printing and distributing
Trust prospectuses and statements of additional information shall be
the expense of the Company. For prospectuses and statements of
additional information provided by the Company to its existing owners
of Contracts in order to update disclosure as required by the 1933 Act
and/or the 1940 Act, the cost of setting in type, printing and
distributing shall be borne by the Trust. If the Company chooses to
receive camera-ready film or computer diskettes in lieu of receiving
printed copies of the Trust's prospectus and/or statement of additional
information, the Trust shall bear the cost of typesetting to provide
the Trust's prospectus and/or statement of additional information to
the Company in the format in which the Trust is accustomed to
formatting prospectuses and statements of additional information,
respectively, and the Company shall bear the expense of adjusting or
changing the format to conform with any of its prospectuses and/or
statements of additional information. In such event, the Trust will
reimburse the Company in an amount equal to the product of x and y
where x is the number of such prospectuses distributed to owners of the
Contracts, and y is the Trust's per unit cost of printing the Trust's
prospectuses. The same procedures shall be followed with respect to the
Trust's statement of additional information. The Trust shall not pay
any costs of typesetting, printing and distributing the Trust's
prospectus and/or statement of additional information to prospective
Contract owners.
3.2(b). The Trust, at the Company's expense, shall provide the
Company with copies of Annual and Semi-Annual Reports (the "Reports")
in such quantity as the Company shall reasonably require for
distributing to Contract owners. The Trust, at its expense, shall
provide the Contract owners designated by the Company with copies of
its proxy statements and other communications to shareholders (except
for prospectuses and statements of additional information, which are
covered in Section 3.2(a) above, and Reports). The Trust shall not pay
any costs of distributing Reports and other communications to
prospective Contract owners.
3.2(c). The Company agrees to provide the Trust or its
designee with such information as may be reasonably requested by the
Trust to assure that the Trust's expenses do not include the cost of
typesetting, printing or distributing any of the foregoing documents
other than those actually distributed to existing Contract owners.
3.2(d). The Trust shall pay no fee or other compensation to
the Company under this Agreement, except that if the Trust or any
Portfolio adopts and implements a plan pursuant to Rule 12b-1 to
finance distribution expenses, then the Trust may make payments to the
Company or to the underwriter for the Contracts if and in amounts
agreed to by the Trust in writing.
3.2(e). All expenses, including expenses to be borne by the
Trust pursuant to Section 3.2 hereof, incident to performance by the
Trust under this Agreement shall be paid by the Trust. The Trust shall
see to it that all its shares are registered and authorized for
issuance in accordance with applicable federal law and, if and to the
extent deemed advisable by the Trust, in accordance with applicable
state laws prior to their sale. The Trust shall bear the expenses for
the cost of registration and qualification of the Trust's shares.
3.3. If and to the extent required by law, the Company shall
with respect to proxy material distributed by the Trust to Contract
owners designated by the Company to whom voting privileges are required
to be extended:
(i) solicit voting instructions from Contract owners;
(ii) vote the Trust shares in accordance with instructions
received from Contract owners; and
(iii) vote Trust shares for which no instructions have been
received in the same proportion
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as Trust shares of such Portfolio for which
instructions have been received, so long as and
to the extent that the Securities and Exchange
Commission continues to interpret the 1940 Act
to require pass-through voting privileges for
variable contract owners.
The Company reserves the right to vote Trust shares held in any
segregated asset account in its own right, to the extent permitted by
law.
ARTICLE 4
SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be
furnished, to the Trust, the Adviser or their designee, drafts of the
separate accounts prospectuses and statements of additional information
and each piece of sales literature or other promotional material
prepared by the Company or any person contracting with the Company to
prepare such material in which the Trust, the Adviser or the
Administrator is described, at least ten Business Days prior to its
use. No such material shall be used if the Trust, the Adviser, the
Administrator or their designee reasonably objects to such use within
ten Business Days after receipt of such material.
4.2. Neither the Company nor any person contracting with the
Company to prepare sales literature or other promotional material shall
give any information or make any representations or statements on
behalf of the Trust or concerning the Trust in connection with the sale
of the Contracts other than the information or representations
contained in the registration statement or Trust prospectus, as such
registration statement or Trust prospectus may be amended or
supplemented from time to time, or in reports to shareholders or proxy
statements for the Trust, or in sales literature or other promotional
material approved by the Trust or its designee, except with the
permission of the Trust or its designee.
4.3. The Administrator shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales
literature or other promotional material prepared by the Trust in which
the Company or its Accounts, are described at least ten Business Days
prior to its use. No such material shall be used if the Company or its
designee reasonably objects to such use within ten Business Days after
receipt of such material.
4.4. Neither the Trust, the Administrator, nor the Adviser
shall give any information or make any representations on behalf of the
Company or concerning the Company, each Account, or the Contracts,
other than the information or representations contained in a
registration statement or prospectus for the Contracts, as such
registration statement or prospectus may be amended or supplemented
from time to time, or in published reports or solicitations for voting
instruction for each Account which are in the public domain or approved
by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. The Trust will provide to the Company at least one
complete copy of all registration statements, prospectuses, statements
of additional information, reports, proxy statements, applications for
exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Trust or its shares, promptly after
the filing of such document with the Securities and Exchange Commission
or other regulatory authorities.
4.6. The Company will provide to the Trust, upon the Trust's
request, 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 investment in an Account or Contract, contemporaneously with the
filing of such documents with the Securities and Exchange Commission or
other regulatory authorities.
4.7. For purposes of this Article 4, the phrase "sales
literature or other promotional material" includes, but is not limited
to, any of the following: advertisements (such as material published,
or designed for use in, a newspaper, magazine, or other periodical,
radio, television, internet, telephone or tape recording, videotape,
display, signs or billboards, motion pictures, or other public media),
sales literature (i.e., any
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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), and educational or training materials or other communications
distributed or made generally available to some or all agents or
employees.
4.8. The Company and its agents shall make no representations
concerning the Trust except those contained in the then-current
prospectus and Statement of Additional Information of the Trust and in
current printed sales literature of the Trust.
ARTICLE 5
ADMINISTRATIVE SERVICES TO CONTRACT OWNERS
5. Administrative services to Contract owners shall be the
responsibility of the Company and shall not be the responsibility of
the Trust, the Adviser or the Administrator. The Trust and the
Administrator recognize that the Account(s) will be the sole
shareholder(s) of Trust shares issued pursuant to the Contracts.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1. The Trust represents that it believes, in good faith,
that each Portfolio is currently qualified as a regulated investment
company 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 of the Trust and that it will notify the Company
immediately upon having a reasonable basis for believing that a
Portfolio has ceased to so qualify or that it might not so qualify in
the future.
6.2. The Company represents that it believes, in good faith,
that the Contracts will at all times be treated as annuity contracts
under applicable provisions of the Code, and that it will make every
effort to maintain such treatment and that it will notify the Trust
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.
6.3. The Trust represents that it believes, in good faith,
that the Portfolios will at all times comply with the diversification
requirements set forth in Section 817(h) of the Code and Section
1.817-5(b) of the regulations under the Code, and that it will make
every effort to maintain the Trust's compliance with such
diversification requirements, and that it will notify the Company
immediately upon having a reasonable basis for believing that a Fund
has ceased to so qualify or that a Portfolio might not so qualify in
the future.
6.4 . The Company represents and warrants that the interests
of the Contracts are or will be registered unless exempt and that it
will maintain such registration under the 1933 Act and the regulations
thereunder to the extent required by the 1933 Act and that the
Contracts will be issued and sold in compliance with all applicable
federal and state laws and regulations. The Company further represents
and warrants that it is an insurance company duly organized and in good
standing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a
segregated asset account under the Texas Insurance Code and the
regulations thereunder and has registered or, prior to any issuance or
sale of the Contracts, will maintain the registration of each Account
as a unit investment trust in accordance with and to the extent
required by the provisions of the 1940 Act and the regulations
thereunder, unless exempt therefrom, to serve as a segregated
investment account for the Contracts. The Company shall amend its
registration statement for its contracts under the 1933 Act and the
1940 Act from time to time as required in order to effect the
continuous offering of its Contracts.
6.5. The Company represents that it believes, in good faith,
that the Account is a "segregated asset account" and that interests in
the Account are offered exclusively through the purchase of a "variable
contract," within the meaning of such terms under Section 1.817-5(f)(2)
of the regulations under the Code, and that it will make every effort
to continue to meet such definitional requirements, and that it will
notify the Trust immediately upon having a reasonable basis for
believing that such requirements have ceased to be met or that they
might not be met in the future.
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6.6. The Trust represents and warrants that it is and shall
continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Trust in an amount no 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. Such
bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company. The Trust will notify the
Company immediately upon having a reasonable basis for believing that
the Trust no longer has the coverage required by this Section 6.6.
6.7. 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 Trust are and shall
continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Trust, in an amount not less
than five million dollars ($5,000,000). Such bond shall include
coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. The Company agrees to make all reasonable
efforts to see that this bond or another bond containing these
provisions is always in effect and agrees to notify the Trust
immediately upon having a reasonable basis for believing that the
Company no longer has the coverage required by this Section 6.7.
6.8. The Trust represents that to the extent that it decides
to finance distribution expenses pursuant to Rule 12b-1 under the 1940
Act, the Trust undertakes to have a majority of the disinterested
members of the Board formulate and approve any plan under Rule 12b-1 to
finance distribution expenses.
6.9. The Adviser and the Administrator each represents and
warrants that it complies with all applicable federal and state laws
and regulations and that it will perform its obligations for the Trust
and the Company in compliance with the laws and regulations of its
state of domicile and any applicable state and federal laws and
regulations.
ARTICLE 7
STATEMENTS AND REPORTS
7.1. The Administrator or its designee will make available
electronically to the Company within five (5) business days after the
end of each month a monthly statement of account confirming all
transactions made during that month in the Account.
7.2. The Trust and Administrator agree to provide the Company
no later than March 1 of each year with the investment advisory and
other expenses of the Trust incurred during the Trust's most recently
completed fiscal year, to permit the Company to fulfill its prospectus
disclosure obligations under the SEC's variable annuity fee table
requirements.
ARTICLE 8
POTENTIAL CONFLICTS
8.1. The Board will monitor the Trust for the existence of any
material irreconcilable conflict between the interests of the contract
owners of all separate accounts investing in the Trust. An
irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are being managed; (e)
a difference in voting instructions given by variable annuity contract
owners and variable life insurance contract owners; or (f) a decision
by a Participating Insurance Company 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.
8.2. The Company will report in writing any potential or
existing material irreconcilable conflict of which it is aware to the
Administrator. Upon receipt of such report, the Administrator shall
report the
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potential or existing material irreconcilable conflict to the Board.
The Administrator shall also report to the Board on a quarterly basis
whether the Company has reported any potential or existing material
irreconcilable conflicts during the previous calendar quarter. 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.
8.3. If it is determined by a majority of the Board, or a
majority of its disinterested trustees, that a material irreconcilable
conflict exists, the Company and other Participating Insurance
Companies shall, at their expense and to the extent reasonably
practicable (as determined by a majority of the disinterested
trustees), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1) withdrawing
the assets allocable to some or all of the separate accounts from the
Trust or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of
the Trust, or submitting the question 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 policy owners, or variable
contract owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected
Contract owners the option of making such a change; and (2)
establishing a new registered management investment company or managed
separate account. No charge or penalty will be imposed as a result of
such withdrawal. The Company agrees that it bears the responsibility to
take remedial action in the event of a Board determination of an
irreconcilable material conflict and the cost of such remedial action,
and these responsibilities will be carried out with a view only to the
interests of Contract owners.
8.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting instructions
and that decision represents a minority position or would preclude a
majority vote, the Company may be required, at the Trust's election, to
withdraw the affected Account's investment in the Trust and terminate
this Agreement with respect to such Account (at the Company's expense);
provided, however that such withdrawal and termination shall be limited
to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of
the Board. No charge or penalty will be imposed as a result of such
withdrawal. The Company agrees that it bears the responsibility to take
remedial action in the event of a Board determination of an
irreconcilable material conflict and the cost of such remedial action,
and these responsibilities will be carried out with a view only to the
interests of Contract owners.
8.5. For purposes of Sections 8.3 through 8.4 of this
Agreement, a majority of the disinterested members of the Board shall
determine whether any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the Trust be
required to establish a new funding medium for the Contracts. The
Company shall not be required by Section 8.3 through 8.4 to establish a
new funding medium for the Contracts if an offer to do so has been
declined by vote of a majority of Contract owners materially adversely
affected by the irreconcilable material conflict.
8.6. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with
respect to mixed or shared funding (as defined in the Shared Funding
Exemptive Order) on terms and conditions materially different from
those contained in the Shared Funding Exemptive Order, then the Trust
and/or the Participating Insurance Companies, as appropriate, shall
take such steps as may be necessary to comply with Rules 6e-2 and
6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable.
8.7. Each of the Company and the Adviser shall at least
annually submit to the Board such reports, materials or data as the
Board may reasonably request so that the Board may fully carry out the
obligations imposed upon them by the provisions hereof and in the
Shared Funding Exemptive Order, and said reports, materials and data
shall be submitted more frequently if deemed appropriate by the Board.
Without limiting the generality of the foregoing or the Company's
obligations under Section 8.2, the Company shall provide to the
Administrator a written report to the Board no later than January 15th
of each year indicating whether any material irreconcilable conflicts
have arisen during the prior fiscal year of the Trust. All reports
received by the Board of potential or existing conflicts, and all Board
action with regard to determining the
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existence of a conflict, notifying Participating Insurance Companies of
a conflict, and determining whether any proposed action adequately
remedies a conflict, shall be properly recorded in the minutes of the
Board or other appropriate records, and such minutes or other records
shall be made available to the Securities and Exchange Commission upon
request.
ARTICLE 9
INDEMNIFICATION
9.1. INDEMNIFICATION BY THE COMPANY
9.1 (a). The Company agrees to indemnify and hold harmless the
Trust, the Administrator, the Adviser, and each member of their
respective Boards and officers and each person, if any, who controls
the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section
9.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Company) or litigation (including legal and other expenses), to which
the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Trust's
shares or the Contracts and:
(i) arise out of or are based upon any untrue statements
or alleged untrue statements of any material fact
contained in the registration statement or prospectus
for the Contracts or contained in the Contracts or
sales literature for the Contracts (or any amendment
or supplement to any of the foregoing), or arise out
of or are based upon the omission or the alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon and
in conformity with information furnished to the
Company by or on behalf of the Trust for use in the
registration statement or prospectus for the
Contracts or in the Contracts or sales literature (or
any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Trust
shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature of the
Trust not supplied by the Company, or persons under
its control and other than statements or
representations authorized by the Trust) or unlawful
conduct of the Company or persons under its control,
with respect to the sale or distribution of the
Contracts or Trust shares; or
(iii) arise out of or as a result of any untrue statement
or alleged untrue statement of a material fact
contained in a registration statement, prospectus, or
sales literature of the Trust or any amendment
thereof or supplement thereto or the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading if such a
statement or omission was made in reliance upon and
in conformity with information furnished to the Trust
by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to
provide the services and furnish the materials under
the terms of this Agreement; or
(v) arise out of or result from any material breach of
any representation and/or warranty made by the
Company in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Company; as limited by and in accordance with the
provisions of Section 9.1(b) and 9.1(c) hereof.
9.1(b). The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of
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such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this
Agreement.
9.1(c). The 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 the
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 the Company of any such claim shall not
relieve the Company from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Company shall be entitled
to participate, at as own expense, in the defense of such action. The
Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the Indemnified Party named in the action.
After notice from the Company to such Indemnified Party of the
Company's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by
it, and the Company shall not be liable to such Indemnified Party under
this Agreement for any legal or other expenses subsequently incurred by
such Indemnified Party independently in connection with the defense
thereof other than reasonable costs of investigation.
9.1(d). The Indemnified Parties will promptly notify the
Company of the commencement of any litigation or proceedings against
them in connection with the issuance or sale of the Trust shares or the
Contracts or the operation of the Trust.
9.2. INDEMNIFICATION BY ADMINISTRATOR
9.2(a). The Administrator agrees to indemnify and hold
harmless the Company and each of its directors and officers and each
person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 9.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Administrator) or litigation (including legal
and other expenses) to which the Indemnified Parties may become subject
under any statute, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements:
(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 Trust (or any amendment or
supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon and
in conformity with information furnished to the Trust
or the Administrator by or on behalf of the Company,
the Adviser, Counsel for the Trust, the independent
public accountant to the Trust, or any person or
entity that is not acting as agent for or controlled
by the Administrator for use in the registration
statement or prospectus for the Trust or in sales
literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the
Contracts or Portfolio shares; or
(ii) arise out of or as a result 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 statement or statements therein
not misleading, if such statement or omission was
made in reliance upon information furnished to the
Company by or on behalf of the Administrator; or
(iii) arise as a result of any failure by the Administrator
to provide the services and furnish the materials
under the terms of this Agreement; or
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(iv) arise out of or result from any material breach of
any representation and/or warranty made by the
Administrator in this Agreement or arise out of or
result from any other material breach of this
Agreement by the Administrator; as limited by and in
accordance with the provisions of Section 9.2(b) and
9.2(c) hereof.
9.2(b). The Administrator shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement.
9.2(c). The Administrator shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Administrator in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim
shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Administrator of any such
claim shall not relieve the Administrator from any liability which it
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the
Administrator will be entitled to participate, at its own expense, in
the defense thereof. The Administrator also shall be entitled to assume
the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Administrator to such
Indemnified Party of the Administrator's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Administrator will not be
liable to such Indemnified Party under this Agreement for any legal or
other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other than
reasonable costs of investigation.
9.2(d). The Company agrees promptly to notify the
Administrator of the commencement of any litigation or proceedings
against it or any of its officers or directors in connection with the
issuance or sale of the Contracts or the operation of each Account in
which the Portfolios are made available.
9.3. INDEMNIFICATION BY THE ADVISER
9.3(a). The Adviser agrees to indemnify and hold harmless the
Company and its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(hereinafter collectively, the "Indemnified Parties" and individually,
"Indemnified Party," for purposes of this Section 9.3) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Adviser) or litigation
(including legal and other expenses) to which the Indemnified Parties
may become subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements:
(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 Trust (or any amendment or
supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon and
in conformity with information furnished to the
Adviser or the Trust by or on behalf of the Company,
the Administrator, Counsel for the Trust, the
independent public accountant to the Trust, or any
person or entity that is not acting as agent for or
controlled by the Adviser for use in the registration
statement or prospectus for the Trust or in sales
literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the
Contracts or Portfolio shares; or
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(ii) arise out of or as a result 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 statement or statements therein
not misleading, if such statement or omission was
made in reliance upon information furnished to the
Company by or on behalf of the Adviser; or
(iii) arise as a result of any failure by the Adviser to
provide the services and furnish the materials under
the terms of this Agreement; or
(iv) arise out of or result from any material breach of
any representation and/or warranty made by the
Adviser in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Adviser; as limited by and in accordance with the
provisions of Section 9.3(b) and 9.3(c) hereof.
9.3(b). The Adviser shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified
Party as may arise from such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
9.3(c). The Adviser shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Adviser in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified
Party shall have received notice of such service on any designated
agent), but failure to notify the Adviser of any such claim shall not
relieve the Adviser from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Adviser will be entitled
to participate, at its own expense, in the defense thereof. The Adviser
also shall be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnified Party named in the action. After notice
from the Adviser to such Indemnified Party of the Adviser's election to
assume the defense thereof, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the Adviser
will not be liable to such Indemnified Party under this Agreement for
any legal or other expenses subsequently incurred by such Indemnified
Party independently in connection with the defense thereof other then
reasonable costs of investigation.
9.3(d). The Company agrees to promptly notify the Adviser of
the commencement of any litigation or proceedings against it or any of
its respective officers or directors in connection with this Agreement,
the issuance or sale of the Contracts, with respect to the operation of
each Account, or the sale or acquisition of shares of the Trust.
9.4. INDEMNIFICATION BY THE TRUST
9.4(a). The Trust agrees to indemnify and hold harmless the
Company and its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(hereinafter collectively, the "Indemnified Parties" and individually,
"Indemnified Party," for purposes of this Section 9.4) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Trust) or litigation
(including legal and other expenses) to which the Indemnified Parties
may become subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements:
(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 Trust (or any amendment or
supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, provided that this
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agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or
such alleged statement or omission was made in
reliance upon and in conformity with information
furnished the Trust by or on behalf of the Adviser,
the Company, or the Administrator for use in the
registration statement or prospectus for the Trust or
in sales literature (or any amendment or supplement)
or otherwise for use in connection with the sale of
the Contracts or Portfolio shares; or
(ii) arise out of or as a result 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 statement or statements therein
not misleading, if such statement or omission was
made in reliance upon information furnished to the
Company by or on behalf of the Trust; or
(iii) arise as a result of any failure by the Trust to
provide the services and furnish the materials under
the terms of this Agreement; or
(iv) arise out of or result from any material breach of
any representation and/or warranty made by the Trust
in this Agreement or arise out of or result from any
other material breach of this Agreement by the Trust;
as limited by and in accordance with the provisions
of Section 9.4(b) and 9.4(c) hereof.
9.4(b). The Trust shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified
Party as may arise from such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
9.4(c). The Trust shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Trust in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified
Party shall have received notice of such service on any designated
agent), but failure to notify the Trust of any such claim shall not
relieve the Trust from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Trust will be entitled to
participate, at its own expense, in the defense thereof. The Trust also
shall be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnified Party named in the action. After notice
from the Trust to such Indemnified Party of the Trust's election to
assume the defense thereof, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the Trust
will not be liable to such Indemnified Party under this Agreement for
any legal or other expenses subsequently incurred by such Indemnified
Party independently in connection with the defense thereof other then
reasonable costs of investigation.
9.4(d). The Company agrees to promptly notify the Trust of the
commencement of any litigation or proceedings against it or any of its
respective officers or directors in connection with this Agreement, the
issuance or sale of the Contracts, with respect to the operation of
each Account, or the sale or acquisition of shares of the Trust.
ARTICLE 10
APPLICABLE LAW
10.1. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State
of Massachusetts.
10.2. This Agreement shall be subject to the provisions of the
1933, 1934 and 1940 Acts, and the rules and
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regulations and rulings thereunder, including such exemptions from
those statutes, rules and regulations as the Securities and Exchange
Commission may grant (including, but not limited to, the Shared Funding
Exemptive Order) and the terms hereof shall be interpreted and
construed in accordance therewith.
ARTICLE 11
TERMINATION
11.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason upon ninety
days advance written notice delivered to the other
parties; or
(b) termination by the Company by written notice to the
Trust, the Adviser, and the Administrator with
respect to any Portfolio based upon the Company's
determination that shares of such Portfolio are not
reasonably available to meet the requirements of the
Contracts. Reasonable advance notice of election to
terminate shall be furnished by the Company, said
termination to be effective ten (10) days after
receipt of notice unless the Trust makes available a
sufficient number of shares to reasonably meet the
requirements of the Account within said ten (10) day
period; or
(c) termination by the Company upon written notice to the
Trust, the Adviser, and the Administrator with
respect to any Portfolio in the event any of the
Portfolio's shares are not registered, issued or sold
in accordance with applicable state and/or federal
law or such law precludes the use of such shares as
the underlying investment medium of the Contracts
issued or to be issued by the Company. The
terminating party shall give prompt notice to the
other parties of its decision to terminate; or
(d) termination by the Company upon written notice to the
Trust, the Adviser and the Administrator with respect
to any Portfolio in the event that such portfolio
ceases to qualify as a Regulated Investment Company
under Subchapter M of the Code or under any successor
or similar provision; or
(e) termination by the Company upon written notice to the
Trust, the Adviser, and the Administrator with
respect to any Portfolio in the event that such
Portfolio fails to meet the diversification
requirements specified in Section 6.3 hereof; or
(f) termination by either the Trust, the Adviser, or the
Administrator by written notice to the Company, if
either one or more of the Trust, the Adviser, or the
Administrator, shall determine, in its or their sole
judgment exercised in good faith, that the Company
and/or their affiliated companies has suffered a
material adverse change in its business, operations,
financial condition or prospects since the date of
this Agreement or is the subject of material adverse
publicity, provided that the Trust, the Adviser, or
the Administrator will give the Company sixty (60)
days' advance written notice of such determination of
its intent to terminate this Agreement, and provided
further that after consideration of the actions taken
by the Company and any other changes in circumstances
since the giving of such notice, the determination of
the Trust, the Adviser, or the Administrator shall
continue to apply on the 60th day since giving of
such notice, then such 60th day shall be the
effective date of termination; or
(g) termination by the Company by written notice to the
Trust, the Adviser, and the Administrator, if the
Company shall determine, in its sole judgment
exercised in good faith, that either the Trust, the
Adviser, or the Administrator has suffered a material
adverse change in its business, operations, financial
condition or prospects since the date of this
Agreement or is the subject of material adverse
publicity, provided that the Company will give the
Trust, the Adviser, and the Administrator sixty (60)
days' advance written notice of such determination of
its intent to terminate this Agreement, and provided
further that after consideration of the actions taken
by the Trust, the Adviser, or the Administrator and
any
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other changes in circumstances since the giving of
such notice, the determination of the Company shall
continue to apply on the 60th day since giving of
such notice, then such 60th day shall be the
effective date of termination; or
(h) termination by the Trust, the Adviser, or the
Administrator by written notice to the Company, if
the Company gives the Trust, the Adviser, and the
Administrator the written notice specified in Section
2.4 hereof and at the time such notice was given
there was no notice of termination outstanding under
any other provision of this Agreement; provided,
however any termination under this Section 11.1(h)
shall be effective sixty (60) days after the notice
specified in Section 2.4 was given; or
(i) termination by any party upon the other party's
breach of any representation in Article 6 or any
material provision of this Agreement, which breach
has not been cured to the satisfaction of the
terminating party within ten (10) days after written
notice of such breach is delivered to the Trust or
the Company, as the case may be; or
(j) termination by the Trust, the Adviser, or
Administrator by written notice to the Company in the
event an Account or Contract is not registered
(unless exempt from registration) or sold in
accordance with applicable federal or state law or
regulation, or the Company fails to provide
pass-through voting privileges as specified in
Section 3.3.
11.2. EFFECT OF TERMINATION. Notwithstanding any termination
of this Agreement, the Trust shall at the option of the Company,
continue to make available additional shares of the Trust pursuant to
the terms and conditions of this Agreement, for all Contracts in effect
on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts") unless such further sale of Trust
shares is proscribed by law, regulation or applicable regulatory body,
or unless the Trust determines that liquidation of the Trust following
termination of this Agreement is in the best interests of the Trust and
its shareholders. Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to direct reallocation of
investments in the Trust, redemption of investments in the Trust and/or
investment in the Trust upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 11.2
shall not apply to any terminations under Article 8 and the effect of
such Article 8 terminations shall be governed by Article 8 of this
Agreement.
11.3. The Company shall not redeem Trust shares attributable
to the Contracts (as distinct from Trust shares attributable to the
Company's assets held in the Account) except (i) as necessary to
implement Contract owner initiated or approved transactions, or (ii) as
required by state and/or federal laws or regulations or judicial or
other legal precedent of general application (hereinafter referred to
as a "Legally Required Redemption") or (iii) as permitted by an order
of the SEC pursuant to Section 26(b) of the 1940 Act. Upon request, the
Company will promptly furnish to the Trust, the Adviser and the
Administrator the opinion of counsel for the Company (which counsel
shall be reasonably satisfactory to the Trust and the Adviser) to the
effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under
the terms of the Contracts, the Company shall not prevent Contract
Owners from allocating payments to a Portfolio that was otherwise
available under the Contracts without first giving the Trust or the
Adviser 30 days notice of its intention to do so.
ARTICLE 12
NOTICES
Any notice shall be sufficiently given when sent by registered
or certified mail to the other party at the address of such party set
forth below or at such other address as such party may from time to
time specify in writing to the other party.
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If to the Trust:
One Group Investment Trust
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Fund President
If to the Administrator:
One Group Administrative Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
If to the Adviser:
Banc One Investment Advisors Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
If to the Company:
American General Life Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
ARTICLE 13
MISCELLANEOUS
13.1. All persons dealing with the Trust must look solely to
the property of the Trust for the enforcement of any claims against the
Trust as neither the Board, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Trust.
Each of the Company, the Adviser, and the Administrator acknowledges
and agrees that, as provided by the Trust's Amended and Restated
Declaration of Trust, the shareholders, trustees, officers, employees
and other agents of the Trust and the Portfolios shall not personally
be bound by or liable for matters set forth hereunder, nor shall resort
be had to their private property for the satisfaction of any obligation
or claim hereunder. The Trust's Amended and Restated Declaration of
Trust is on file with the Secretary of State of Massachusetts.
13.2. Subject to the requirements of legal process and
regulatory authority, each party hereto shall treat as confidential the
names and addresses of the owners of the Contracts and all information
reasonably identified as confidential in writing by any other party
hereto and, except as permitted by this Agreement, shall not disclose,
disseminate or utilize such names and addresses and other confidential
information until such time as it may come into the public domain
without the express written consent of the affected party.
13.3. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of
the provisions hereof or otherwise affect their construction or effect.
13.4. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together shall constitute one
and the same instrument.
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13.5. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
13.6. Each party hereto shall cooperate with each other party
and all appropriate governmental authorities (including without
limitation the Securities and Exchange Commission, the National
Association of Securities Dealers and state insurance regulators) and
shall permit such authorities (and other parties hereto) reasonable
access to its books and records in connection with any investigation or
inquiry relating to this Agreement or the transactions contemplated
hereby.
13.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights,
remedies and obligations at law or in equity, which the parties hereto
are entitled to under state and federal laws.
13.8. This Agreement or any of the rights and obligations
hereunder may not be assigned by any party without the prior written
consent of all parties hereto; provided, however, that the Adviser may,
with advance written notice to the other parties hereto, assign this
Agreement or any rights or obligations hereunder to any affiliate of or
company under common control with the Adviser if such assignee is duly
licensed and registered to perform the obligations of the Adviser under
this Agreement.
13.9. The Company shall furnish, or shall cause to be
furnished, to the Trust or its designee upon request, copies of the
following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under generally
accepted accounting principles ("GAAP"), if any), as soon as practical
and in any event within 90 days after the end of each fiscal year;
(b) the Company's June 30th quarterly statements (statutory),
as soon as practical and in any event within 45 days following such
period;
(c) any financial statement, proxy statement, notice or report
of the Company sent to stockholders and/or policyholders, as soon as
practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and
financial reports the Company filed with the Securities and Exchange
Commission or any state insurance regulator, as soon as practical after
the filing thereof; and
(e) any other public report submitted to the Company by
independent accountants in connection with any annual, interim or
special audit made by them of the books of the Company, as soon as
practical after the receipt thereof.
13.10. The names "One Group(R) Investment Trust" and `Trustees
of One Group(R) Investment Trust" refer respectively to the Trust
created and the Trustees, as trustees but not individually or
personally, acting from time to time under a Declaration of Trust dated
June 7, 1993 to which reference is hereby made and a copy of which is
on file at the office of the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all
amendments thereto so filed or hereafter filed. The obligations of `One
Group Investment Trust' entered into in the name or on behalf thereof
by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of
the Trustees, Shareholders or representatives of the Trust personally,
but bind only the assets of the Trust, and all persons dealing with any
series of Shares of the Trust must look solely to the assets of the
Trust belonging to such series for the enforcement of any claims
against the Trust.
13.11. The Trust and the Administrator agree to consult with
the Company concerning whether any Portfolio of the Trust qualifies to
provide a foreign tax credit pursuant to Section 853 of the Code.
[SIGNATURE PAGES FOLLOW]
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AMERICAN GENERAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇ ▇▇▇▇
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Title: SVP
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ONE GROUP INVESTMENT TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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BANC ONE INVESTMENT ADVISORS CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: COO
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ONE GROUP ADMINISTRATIVE SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: V.P.
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SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
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Name of Separate Account and Date Form Number
Established by Board of Directors Funded by Separate Account
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American General Life Insurance Company Contract Form Nos:
Separate Account VL-R, May 6, 1997 99615
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SCHEDULE B
PORTFOLIOS OF THE TRUST
One Group Investment Trust Government Bond Portfolio
One Group Investment Trust Large Cap Growth Portfolio
One Group Investment Trust Equity Index Portfolio
One Group Investment Trust Diversified Equity Portfolio
One Group Investment Trust Mid Cap Growth Portfolio
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