Exhibit 1.A.(9)(b)(viii)
SHAREHOLDER SERVICES AGREEMENT
THIS SHAREHOLDER SERVICES AGREEMENT is made and entered into as of
February 2, 1998 by and between THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.
(the "Company"), AMERICAN CENTURY INVESTMENT MANAGEMENT, INC., ("ACIM"), and
AMERICAN CENTURY VARIABLE PORTFOLIOS, INC. (the "Issuer").
WHEREAS, the Company offers to the public certain group and individual
variable annuity and variable life insurance contracts (the "Contracts"); and
WHEREAS, the Company wishes to make available as investment options under
the Contracts, VP Value and VP International (the "Funds"), each of which is a
series of mutual fund shares registered under the Investment Company Act of
1940, as amended, and issued by the Issuer; and
WHEREAS, on the terms and conditions hereinafter set forth, ACIM and the
Issuers desire to make shares of the Funds available as investment options under
the Contracts and to retain the Company to perform certain administrative
services on behalf of the Funds, and the Company is willing and able to furnish
such services;
NOW, THEREFORE, the Company, ACIM and the Issuer 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 or on behalf of the Accounts (defined in Section 7(a)
below) through a single account per Fund at the net asset value applicable to
each order. The Fund's shares shall be purchased and redeemed on a net basis in
such quantity and at such time as determined by the Company to satisfy the
requirements of the Contracts for which the Funds serve as underlying investment
media. Dividends and capital gains distributions will be automatically
reinvested in full and fractional shares of the Funds.
2. Administrative Services. The Company agrees to provide all
administrative services for the Contract owners, including but not limited to
those services specified in EXHIBIT A (the "Administrative Services"). Neither
ACIM nor the Issuer shall be required to provide Administrative Services for the
benefit of Contract owners. The Company agrees that it will maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the Administrative Services, and will otherwise comply
with all laws, rules and regulations applicable to the marketing of the
Contracts and the provision of the Administrative Services. Upon request, the
Company will provide ACIM or its representatives reasonable information
regarding the quality of the Administrative Services being provided and its
compliance with the terms of this Agreement.
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3. Timing of Transactions. 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
prior to the close of regular trading on the Exchange (the "Close of Trading")
on any given Business Day (currently, 4:00 p.m. Eastern time) and transmitted to
the Funds' transfer agent by 9:00 a.m. Eastern time on the next Business Day
will be executed at the net asset value determined as of the Close of Trading on
such Business Day. Any Orders received by the Company on such day but after the
Close of Trading, and all orders that are transmitted to the Funds' transfer
agent after 9:00 a.m. Eastern time on the next Business Day, will be executed at
the net asset value next determined following receipt of such Order. The day as
of which an Order is executed by the Funds' transfer agent pursuant to the
provisions set forth above is referred to herein as the "Trade Date."
4. Processing of Transactions.
(a) If transactions in Fund shares are to be settled through the National
Securities Clearing Corporation's Mutual Fund Settlement, Entry, and
Registration Verification (FUND/SERV) system, the terms of the FUND/SERV
AGREEMENT, between Company and American Century Services Corporation, shall
apply.
(b) If transactions in Fund shares are to be settled directly with the
Funds' transfer agent, the following provisions shall apply:
(1) By 6:30 p.m. Eastern time on each Business Day, ACIM (or one of
its affiliates) will provide to the Company via facsimile or other electronic
transmission acceptable to the Company the Funds' net asset value, dividend and
capital gain information and, in the case of income funds, the daily accrual for
interest rate factor (mil rate), determined at the Close of Trading.
(2) By 9:00 a.m. Eastern time on the Business Day following receipt
of the Order, the Company will provide to ACIM via facsimile or other electronic
transmission acceptable to ACIM a report stating whether the instructions
received by the Company from Contract owners by the Close of Trading on such
Business Day resulted in the Accounts being a net purchaser or net seller of
shares of the Funds. As used in the Agreement, the phase "other electronic
transmission acceptable to ACIM" includes the use of remote computer terminals
located at the premises of the Company, its agents or affiliates, which
terminals may be linked electronically to the computer system of ACIM, its
agents or affiliates (hereinafter, "Remote Computer Terminals").
(3) Upon the timely receipt from the Company of the report described
in (2) above, the Funds' transfer agent will execute the purchase or redemption
transactions (as the case
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may be) at the net asset value computed as of the Close of Trading on the Trade
Date. Payment for net purchase transactions shall be made by wire transfer to
the applicable Fund custodial account designated by the Funds on the Business
Day next following the Trade Date. Such wire transfers shall be initiated by the
Company's bank prior to 4:00 p.m. Eastern time and received by the Funds prior
to 6:00 p.m. Eastern time on the Business Day next following the Trade Date
("T+1"). If payment for a purchase Order is not timely received, such Order will
be 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(s) designated by the Company on T+1; provided, however,
the Issuer reserves the right to settle redemption transactions within the time
period set forth in the applicable Fund's then-current prospectus. On any
Business Day when the Federal Reserve Wire Transfer System is closed, all
communication and processing rules will be suspended for the settlement of
Orders. Orders will be settled on the next Business Day on which the Federal
Reserve Wire Transfer System is open and the original Trade Date will apply.
5. Prospectus and Proxy Materials.
(a) ACIM shall provide the Company with copies of the Issuer's proxy
materials, periodic fund reports to shareholders and other materials that are
required by law to be sent to the Issuer's shareholders. In addition, ACIM shall
provide the Company with a sufficient quality of prospectuses of the Funds to be
used in conjunction with the transactions contemplated by this Agreement,
together with such additional copies of the Issuer's prospectuses as may be
reasonably requested by Company. If the Company provides for pass-through voting
by the Contract owners, or if the Company determines that pass-through voting is
required by law, ACIM will provide the Company with a sufficient quality of
proxy materials for each, as directed by the Company.
(b) The cost of preparing, printing and shipping of the prospectuses,
proxy materials, periodic fund reports and other materials of the Issuer to the
Company shall be paid by ACIM or its agents or affiliates; provided, however,
that if at any time ACIM or its agent reasonably deems the usage by the Company
of such items to be excessive, it may, prior to the delivery of any quantity of
materials in excess of what is deemed reasonable, request that the Company
demonstrate the reasonableness of such usage. If ACIM believes the
reasonableness of such usage has not been adequately demonstrated, it may
request that the party responsible for such excess usage pay the cost of
printing (including press time) and delivery of any excess copies of such
materials. Unless the Company agrees to make such payments, ACIM may refuse to
supply such additional materials and ACIM shall be deemed in compliance with
this Section 5 if it delivers to the Company at least the number of prospectuses
and other materials as may be required by the Issuer under applicable law.
(c) The cost of any distribution of prospectuses, proxy materials,
periodic fund reports and other materials of the Issuer to the Contract owners
shall be paid by the Company and shall not be responsibility of ACIM of the
Issuer.
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6. Compensation and Expenses.
(a) The Accounts shall be the sole shareholder of Fund shares purchased
for the Contract owners pursuant to this Agreement (the "Record Owner"). The
Record Owner shall properly complete any applications or other forms required by
ACIM or the Issuer from time to time.
(b) ACIM acknowledge that it will derive a substantial savings in
administrative expenses, such as a reduction in expenses related to postage,
shareholder communications and recordkeeping, by virtue of having a single
shareholder account per Fund for the Accounts rather than having each Contract
owner as a shareholder. In consideration of the Administrative Services and
performance of all other obligations under this Agreement by the Company, ACIM
will pay the Company a fee (the "Administrative Services Fee") equal to
[information omitted as confidential] per annum of the average aggregate amount
invested by the Company under this Agreement.
(c) The payments received by the Company under this Agreement are for
administrative and shareholder services only and do not constitute payment in
any manner for investment advisory services or for costs of distribution.
(d) For the purposes of computing the payment to the Company contemplated
by this Section 6, the average aggregate amount invested by the Company on
behalf of the Accounts in the Funds over a one month period shall be computed by
totaling the Company's aggregate investment (share net asset value multiplied by
total number of shares of the Funds held by the Company) on each Business Day
during the month and dividing by the total number of Business Days during such
month.
(e) ACIM will calculate the amount of the payment to be made pursuant to
this Section 6 at the end of each calendar quarter and will make such payment to
the Company within 30 days thereafter. The check for such payment will be
accompanied by a statement showing the calculation of the amounts being paid by
ACIM for the relevant months and such other supporting data as may be reasonably
requested by the Company and shall be mailed to:
The Guardian Insurance & Annuity Company, Inc.
Life Profit Center
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Treasurer
Fax No.: (000) 000-0000
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7. Representations.
(a) The Company represents and warrants that (i) this Agreement has been
duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; (ii) it has established the
Separate Account K and the Separate Account M (the "Accounts"), each of which is
duly authorized and established separate account under Delaware 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) subject to the terms and conditions of the Contract, 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) subject to the terms and conditions of the
Contract, selection of a particular investment company is made by the Contract
owner under a under a particular Contract, who may change such selection from
time to time; and (v) the activities of the Company contemplated by this
Agreement comply in all material respects with all provisions of federal and
state securities laws applicable to such activities.
(b) ACIM represents that (i) this Agreement has been duly authorized by
all necessary corporate action and, when executed and delivered, shall
constitute the legal, valid and binding obligation of ACIM and the Issuer,
enforceable in accordance with its terms; (ii) the investments of the Funds will
at all times be adequately diversified within the meaning of 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 1.917-5(f)(3)
of the Regulations promulgated under the Code; (iii) Shares of the Funds sold
pursuant to this Agreement shall be registered under the Securities Act of 1933,
duly authorized for issuance and sold in compliance with all applicable federal
and state securities laws; (iv) the Issuer is and shall remain registered under
the Investment Company Act of 1940 to the extent such registration is required
to be able to make shares of the Funds available as investment options under the
Contracts; (v) ACIM is the investment adviser of each of the Funds, is
registered as an investment adviser with the Securities and Exchange Commission
under the Investment Advisers Act of 1940 and shall remain duly registered under
all applicable federal and state securities laws as required to perform its
obligations under the Agreement; and (vi) the activities of ACIM and the Issuer
contemplated by this Agreement comply with all provisions of federal and state
corporate, securities and tax laws applicable to such activities.
(c) Each party to be Agreement represents and warrants that it is not
aware of any pending or threatened litigation matter or claim or regulatory
proceeding, investigation or inquiry involving such party or any of its
affiliates, the outcome of which could have a material adverse effect on this
Agreement or the transactions contemplated hereunder.
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8. Additional Covenants and Agreements.
(a) Each party shall comply with all provisions of federal and state laws
applicable to its respective activities under this Agreement. All obligations of
each party under this Agreement are subject to compliance with applicable
federal and state laws.
(b) Each party shall promptly notify the other parties in the event that
it is, for any reason, unable to perform any of its obligations under this
Agreement.
(c) The Company covenants and agrees that all Orders accepted and
transmitted by it hereunder with respect to each Account on any Business Day
will be based upon instructions that it received from the Contract owners, in
proper form prior to the Close of Trading of the Exchange on that Business Day.
The Company shall time stamp all Orders or otherwise maintain records that will
enable the Company to demonstrate compliance with Section 8(c) hereof.
(d) The Company covenants and agrees that it shall use its best efforts to
ensure that all Orders transmitted to the Issuer, whether by telephone,
telecopy, or other electronic transmission acceptable to ACIM, shall be sent by
or under the authority and direction of a person designated by the Company as
being duly authorized to act on behalf of the owner of the Accounts. Absent
actual knowledge to the contrary, ACIM shall be entitled to rely on the
existence of such authority and to assume that any person transmitting Orders
for the purchase, redemption or transfer of Fund shares on behalf of the Company
is "an appropriate person" as used in Section 8-107 and 8-401 of the Uniform
Commercial Code with respect to the transmission of instructions regarding Fund
shares on behalf of the owner of such Fund shares. The Company shall use its
best efforts to 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 responsible for the accuracy and
propriety of all data transmitted to ACIM by the Company by telephone, telecopy
or other electronic transmission acceptable to ACIM.
(e) The Company agrees that, to the extent it is able to do so, it will
use its best efforts to give equal emphasis and promotion to shares of the Funds
as is given to other underlying investments of the Accounts, subject to
applicable Securities and Exchange Commission rules. In addition, the Company
shall not impose any fee, condition, or requirement for the use of the Funds as
investment options for the Contracts that operates to the specific prejudice of
the Funds vis-a-vis the other investment media made available for the Contracts
by the Company.
(f) The Company shall not, without the written consent of ACIM, make
representations concerning the Issuer or the shares of the Funds except those
contained in the then-current prospectus and in current printed sales literature
approved by ACIM or the Issuer. ACIM and the
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Issuer shall not, without the written consent of the Company, make
representations concerning the Company or the Contracts except those contained
in printed sales literature approved by the Company.
(g) Advertising and sales literature with respect to the Issuer or the
Funds prepared by the Company or its agents, if any, for use in marketing shares
of the Funds as underlying investment media to Contract owners shall be
submitted to ACIM for review and approval before such material is used. ACIM
will review any advertising or sales literature submitted pursuant to this
Section on a prompt and timely basis.
9. Use of Names. Except as otherwise expressly provided for in this
Agreement, neither ACIM nor any of its affiliates or the Funds shall use any
trademark, trade name, service xxxx or logo of the Company, or any variation of
any such trademark, trade name, service xxxx 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 xxxx or logo of the
Issuer, ACIM or any of its affiliates or any variation of any such trademarks,
trade names, service marks, or logos, without the prior written consent of
either the Issuer or ACIM, as appropriate, the granting of which shall be at the
sole option of ACIM and/or the Issuer.
10. Proxy Voting.
(a) The Company shall provide pass-through voting privileges to all
Contract owners so long as the SEC continues to interpret the 1940 Act as
requiring such privileges. 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 12(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 ACIM and will vote shares in accordance with instructions received
from such Contract owners. The Company shall vote Fund shares for which no
voting instructions are received in the same proportion as shares for which such
instructions have been received, The Company and its agents shall not oppose or
interfere with the solicitation of proxies for Fund shares held for such
Contract owners.
11. Indemnity.
(a) ACIM agrees to indemnify and hold harmless the Company and its
officers, directors, employees, agents, affiliates and each person, if any, who
controls the Company within the meaning of the Securities Act of 1933
(collectively, the "Indemnified Parties" for purposes of this Section 11(a))
against any losses, claims, expenses, damages or liabilities (including amounts
paid in settlement thereof) or litigation expenses (including legal and other
expenses) (collectively,
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"Losses"), to which the Indemnified Parties may become subject, insofar as such
Losses (i) result from a breach by ACIM 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 any registration statement or
prospectus prepared by ACIM 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, ACIM will reimburse
any legal or other expenses reasonably incurred by the Indemnified Parties in
connection with investigating or defending any such Losses. ACIM shall not be
liable for indemnification hereunder if such Losses are attributable to (i) the
negligence or misconduct of the Company in performing its obligations under this
Agreement or (ii) a statement made in a Fund registration statement or
prospectus in reliance upon information supplied by the Company for such
purpose.
(b) The Company agrees to indemnify and hold harmless ACIM and the Issuer,
and their respective officers, directors, employees, agents, affiliates and each
person, if any, who controls Issuer or ACIM within the meaning of the Securities
Act of 1933 (collectively, the "Indemnified Parties" for purposes of this
Section 11(b)) against any Losses to which the Indemnified Parties may become
subject, insofar as such Losses (i) result from a breach by the Company of a
material provision of this Agreement or the use by any person of the Remote
Computer Terminals, 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 prospectus prepared by or on behalf of the Company 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. 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 (i) the negligence
or misconduct of ACIM or the Issuer in performing their obligations under this
Agreement or (ii) a statement made in a registration statement or prospectus of
the Separate Accounts in reliance upon information supplied by ACIM or Issuer
for such purpose.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section 11. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish to, assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
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(d) If the indemnifying party assumes the defense of any such action, the
indemnifying party shall not, without the prior written consent of the
indemnified parties in such action, settle or compromise the liability of the
indemnified parties in such action, or permit a default or consent to the entry
of any judgment in respect thereof, unless in connection with such settlement,
compromise or consent, each indemnified party receives from such claimant an
unconditional release from all liability in respect of such claim.
12. Potential Conflicts
(a) The Company has received a copy of an application for exemptive
relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and
the order issued by the SEC in response thereto (the "Shared Funding Exemptive
Order"). The Company has reviewed the conditions to the requested relief set
forth in such application for exemptive relief. As set forth in such
application, the Board of Directors of the Issuer (the "Board") will monitor the
Issuer for the existence of any material irreconcilable conflict between the
interests of the contract owners of all separate accounts ("Participating
Companies") investing in funds of the Issuer. An irreconcilable material
conflict may arise for a variety of reasons, including: (i) an action by any
state insurance regulatory authority; (ii) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar
actions by insurance, tax or securities regulatory authorities; (iii) an
administrative or judicial decision in any relevant proceeding; (iv) the manner
in which the investments of any portfolio are being managed; (v) a difference in
voting instructions given by variable annuity contract owners and variable life
insurance contract owners; or (vi) a decision by an insurer to disregard the
voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
(b) The Company will report any potential or existing conflicts of which
it is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order by providing the Board
with all information reasonably necessary for the Board to consider any issues
raised. This includes, but is not limited to, an obligation by the Company to
inform the Board whenever contract owner voting instructions are disregarded.
(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:
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(i) withdrawing the assets allocable to the Accounts from the Fund
and reinvesting such assets in a different investment medium
or submitting the question of whether such segregation should
be implemented to a vote of all affected contract owners and
as appropriate, segregating the assets of any appropriate
group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more
Participating Companies) that votes in favor of such
segregation, or offering to the affected contract owners the
option of making such a change; and/or
(ii) establishing a new registered management investment company or
managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision
by the Company to disregard its contract owner voting instructions and said
decision represents a minority position or would preclude a majority vote by all
of its contract owners having an interest in the Issuer, the Company at its sole
cost, may be required, at the Board's election, to withdraw an Account's
investment in the Issuer and terminate this Agreement; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
(e) For the purpose of this Section 12, a majority of the disinterested
Board members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the Issuer
be required to establish a new funding medium for any Contract. The Company
shall not be required by this Section 12 to establish a new funding medium for
any Contract if an offer to do so has been declined by vote of a majority of the
Contract owners materially adversely affected by the irreconcilable material
conflict.
13. Termination; Withdrawal of Offering. This Agreement may be terminated
by any party upon 180 days' prior written notice to the other parties.
Notwithstanding the above, the Issuer reserves the right, without prior notice,
to suspend sales or shares of any Fund, in whole or in part, or to make a
limited offering of shares of any of the Funds in the event that (A) any
regulatory body commences formal proceedings against the Company, ACIM,
affiliates of ACIM, or the Issuer, which proceedings ACIM reasonably believes
may have a material adverse impact on the ability of ACIM, the Issuer or the
Company to perform its obligations under this Agreement or (B) in the judgment
of ACIM, declining to accept any additional instructions for the purchase or
sale of shares of any such Fund is warranted by market, economic or political
conditions. Notwithstanding the foregoing, this Agreement may be terminated
immediately (i) by any party as a result of any other breach of this Agreement
by another party, which breach is not cured within 30 days after receipt of
notice from the other party, or (ii) by any party upon a determination that
continuing to perform under this Agreement would, in the reasonable opinion of
the terminating party's counsel, violate any applicable federal or state law,
rule, regulation or judicial order. Termination of this Agreement shall not
affect the Issuer's obligation to furnish its shares for Contract owners who are
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invested in the Funds as of the date of termination (unless such further sale of
Fund shares is proscribed by law, the Securities and Exchange Commission or
other regulatory body) or the obligations of the parties to make payments under
Section 4 for Orders received by the Company prior to such termination and shall
not affect the Issuer's obligation to maintain the Accounts as set forth by this
Agreement. Following termination, the obligation of ACIM to pay the Company the
Administrative Services fee shall continue, as long as the Company continues to
provide the administrative services required hereunder. However, the obligation
of ACIM to pay the Company the Administrative Services fee after termination
shall be suspended for any month if the average aggregate amount invested in the
Funds for such month is less than $10 million.
14. Non-Exclusivity. Each of the parties acknowledges and agrees that this
Agreement and the arrangement described herein are intended to be non-exclusive
and that each of the parties is free to enter into similar agreements and
arrangements with other entities.
15. Survival. The provisions of Section 9 (use of names) and Section 11
(indemnity) of this Agreement shall survive termination of this Agreement.
16. Amendment. Neither this Agreement, nor any provision hereof, may be
amended, waived, discharged or terminated orally, but only by an instrument in
writing signed by all of the parties hereto.
17 Notices. All notices and other communications hereunder shall be given
or made in writing and shall be delivered personally, or sent by telex,
telecopier, express delivery or registered 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:
The Guardian Insurance & Annuity Company, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Executive Vice President
(000) 000-0000 (office number)
(000) 000-0000 (telecopy number)
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To the Issuer or ACIM.
American Century Investment Management, Inc.
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
(000) 000-0000 (office number)
(000) 000-0000 (telecopy number)
Any notice, demand or other communication given in a manner prescribed in this
Section 17 shall be deemed to have been delivered on receipt.
18. Successors and Assigns. This Agreement may not be assigned without the
written consent of all parties to the Agreement at the time of such assignment.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns,
19. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
20. Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
21. Entire Agreement. This Agreement, including the attachments hereto,
constitutes the entire agreement between the parties with respect to the matters
dealt with herein, and supersedes all previous agreements, written or oral,
with respect to such matters.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
THE GUARDIAN INSURANCE & AMERICAN CENTURY INVESTMENT
ANNUITY COMPANY, INC. MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------- -------------------------------
Name: Xxxx X. Xxxxx Xxxxxxx X. Xxxxx
Title: Executive Vice President Executive Vice President
AMERICAN CENTURY VARIABLE
PORTFOLIOS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
Vice President
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EXHIBIT A
ADMINISTRATIVE SERVICES
Pursuant to the Agreement to which this is attached, the Company shall perform
all administrative and shareholder services required or requested under the
Contracts with respect to the Contract owners, including, but not limited to,
the following,
1. Maintain separate records for each Contract owner, which records shall
reflect the shares purchased and redeemed and share balances of such Contract
owners. The Company will maintain a single master account with each Fund on
behalf of the Contract owners and such account shall be in the name of the
Company (or its nominee) as the record owner of shares owned by the Contract
owners.
2. Disburse or credit to the Contract owners all proceeds of redemptions
of shares of the Funds and all dividends and other distributions not reinvested
in shares of the Funds.
3. Prepare and transmit to the Contract owners, as required by law or the
Contracts, periodic statements showing the total number of shares owned by the
Contract owners as of the statement closing date, purchases and redemptions of
Fund shares by the Contract owners during the period covered by the statement
and the dividends and other distributions paid during the statement period
(whether paid in cash or reinvested in Fund shares), and such other information
as may be required, from time to time, by the Contracts.
4. Transmit purchase and redemption orders to the Funds on behalf of the
Contract owners in accordance with the procedures set forth in Section 4 to the
Agreement.
5. Distribute to the Contract owners copies of the Funds' prospectus,
proxy materials, periodic fund reports to shareholders and other materials that
the Funds are required by law or otherwise to provide to their shareholders or
prospective shareholders.
6. Maintain and preserve all records as required by law to be maintained
and preserved in connection with providing the Administrative Services for the
Contracts.
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