FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 15th day of July, 2001 (the
"Agreement") by and among Golden American Life Insurance Company, organized
under the laws of the State of Minnesota and currently domiciled in Delaware
(the "Company"), on behalf of itself and each separate account of the Company
named in Schedule A to this Agreement, as may be amended from time to time (each
account referred to as the "Account" and collectively as the "Accounts");
INVESCO Variable Investment Funds, Inc., an open-end management investment
company organized under the laws of the State of Maryland (the "Fund"); INVESCO
Funds Group, Inc., a corporation organized under the laws of the State of
Delaware and investment adviser to the Fund (the "Adviser"); and INVESCO
Distributors, Inc., a corporation organized under the laws of the State of
Delaware and principal underwriter/distributor of the Fund (the "Distributor")..
WHEREAS, the Fund engages in business as an open-end management investment
company and was established for the purpose of serving as the investment vehicle
for separate accounts established for variable life insurance contracts and
variable annuity contracts to be offered by insurance companies which have
entered into participation agreements substantially similar to this Agreement
(the "Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Company, as depositor, has established the Accounts to serve as
investment vehicles for certain variable annuity contracts and variable life
insurance policies and funding agreements offered by the Company set forth on
Schedule A (the "Contracts"); and
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolutions of the Board of Directors of the Company
under the insurance laws of the State of Minnesota, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule B, as
such schedule may be amended from time to time (the "Designated Portfolios") on
behalf of the Accounts to fund the Contracts;
1
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Adviser and the Distributor agree as follows:
ARTICLE I - SALE OF FUND SHARES
1.1 The Fund agrees to sell to the Company those shares of the Designated
Portfolios which each Account orders, executing such orders on a daily
basis at the net asset value (and with no sales charges) next computed
after receipt and acceptance by the Fund or its designee of the order for
the shares of the Fund. For purposes of this Section 1.1, the Company
will be the designee of the Fund for receipt of such orders from each
Account and receipt by such designee will constitute receipt by the Fund;
provided that the Fund receives notice of such order by 11:00 a.m.
Eastern Time on the next following business day. "Business Day" will mean
any day on which the New York Stock Exchange is open for trading and on
which the Fund calculates its net asset value pursuant to the rules of
the Securities and Exchange Commission (the "Commission"). The Fund may
net the notice of redemptions it receives from the Company under Section
1.3 of this Agreement against the notice of purchases it receives from
the Company under this Section 1.1.
1.2 The Company will pay for Fund shares on the next Business Day after an
order to purchase Fund shares is made in accordance with Section 1.1.
Payment will be made in federal funds transmitted by wire. Upon receipt
by the Fund of the payment, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the
Fund.
1.3 The Fund agrees to redeem for cash, upon the Company's request, any full
or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after
receipt and acceptance by the Fund or its agent of the request for
redemption. For purposes of this Section 1.3, the Company will be the
designee of the Fund for receipt of requests for redemption from each
Account and receipt by such designee will constitute receipt by the Fund;
provided the Fund receives notice of such requests for redemption by
11:00 a.m. Eastern Time on the next following Business Day. Payment will
be made in federal funds transmitted by wire to the Company's account as
designated by the Company in writing from time to time, on the same
Business Day the Fund receives notice of the redemption order from the
Company. After consulting with the Company, the Fund reserves the right
to delay payment of redemption proceeds, but in no event may such payment
be delayed longer than the period permitted under Section 22(e) of the
Investment Company Act of 1940 (the "1940 Act"). The Fund will not bear
any responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds; the Company alone will be responsible for such
action. If notification of redemption is received after 11:00 Eastern
Time, payment for redeemed
2
shares will be made on the next following Business Day. The Fund may net
the notice of purchases it receives from the Company under Section 1.1 of
this Agreement against the notice of redemptions it receives from the
Company under this Section 1.3.
1.4 The Fund agrees to make shares of the Designated Portfolios available
continuously for purchase at the applicable net asset value per share by
the Company and its separate accounts on those days on which the Fund
calculates its Designated Portfolio net asset value pursuant to rules of
the Commission; provided, however, that the Board of Directors of the
Fund (the "Fund Board") may refuse 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 Fund Board, acting in
good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the
shareholders of such Portfolio.
1.5 The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts, qualified
pension and retirement plans or such other persons as are permitted under
Section 817(h)(4) of the Internal Revenue Code of 1986, as amended, (the
"Code"), and regulations promulgated thereunder, the sale to which will
not impair the tax treatment currently afforded the Contracts. No shares
of any Portfolio will be sold directly to the general public.
1.6 The Fund will not sell Fund shares to any insurance company or separate
account unless an agreement containing provisions substantially the same
as Articles I, III, V, and VI of this Agreement are in effect to govern
such sales.
1.7 The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund in
accordance with the provisions of such prospectus.
1.8 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or to any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate sub-account of each
Account.
1.9 The Fund will furnish same day notice (by facsimile) to the Company of
the declaration of any income, dividends or capital gain distributions
payable on each Designated Portfolio's shares. The Company hereby elects
to receive all such dividends and distributions as are payable on the
Portfolio shares in the form of additional shares of that Portfolio at
the ex-dividend date net asset values. The Company reserves the right to
revoke this election and to receive all such dividends and distributions
in cash. The Fund will notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.10 The Fund will make the net asset value per share for each Designated
Portfolio available to the Company via electronic means on a daily basis
as soon as reasonably practical after the net asset value
3
per share is calculated and will use its best efforts to make such net
asset value per share available by 7:00 p.m., Eastern Time, each business
day. If the Fund provides the Company materially incorrect net asset
value per share information (as determined under SEC guidelines), the
Company shall be entitled to an adjustment to the number of shares
purchased or redeemed to reflect the correct net asset value per share.
Any material error in the calculation or reporting of net asset value per
share, dividend or capital gain information shall be reported to the
Company upon discovery by the Fund.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that the Contracts are or will be
registered under the Securities Act of 1933 (the "1933 Act"), or are
exempt from registration thereunder, and that the Contracts will be
issued and sold in compliance with all applicable federal and state laws.
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 as a separate account
under the General Statutes of Minnesota and that each Account is or will
be registered as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account
for the Contracts, or is exempt from registration thereunder, and that it
will maintain such registration for so long as any Contracts are
outstanding, as applicable. The Company will amend the registration
statement under the 1933 Act for the Contracts and the registration
statement under the 1940 Act for the Account from time to time as
required in order to effect the continuous offering of the Contracts or
as may otherwise be required by applicable law. The Company will register
and qualify the Contracts for sale in accordance with the securities laws
of the various states only if and to the extent deemed necessary by the
Company.
2.2 The Company represents that the Contracts are currently and at the time
of issuance will be treated as annuity contracts and/or life insurance
policies (as applicable) under applicable provisions of the Code, and
further represents that it will make every effort to maintain such
treatment and that it will notify the Fund and the Adviser 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.
2.3 The Company represents and warrants that it will not purchase shares of
the Designated Portfolio(s) with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in
connection with such plans.
2.4 The Fund represents and warrants that shares of the Designated
Portfolio(s) sold pursuant to this Agreement will be registered under the
1933 Act and duly authorized for issuance in accordance with applicable
law and that the Fund is and will remain registered as an open-end
management investment
4
company under the 1940 Act for as long as such shares of the Designated
Portfolio(s) are sold. The Fund will amend the registration statement for
its shares under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of its shares. The
Fund will register and qualify the shares of the Designated Portfolio(s)
for sale in accordance with the laws of the various states only if and to
the extent deemed advisable by the Fund.
2.5 The Fund represents that it will use its best efforts to comply with any
applicable state insurance laws or regulations as they may apply to the
investment objectives, policies and restrictions of the Portfolios, as
they may apply to the Fund, to the extent specifically requested in
writing by the Company. If the Fund cannot comply with such state
insurance laws or regulations, it will so notify the Company in writing.
The Fund makes no other representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses, and
investment policies) complies with the insurance laws or regulations of
any state. The Company represents that it will use its best efforts to
notify the Fund of any restrictions imposed by state insurance laws that
may become applicable to the Fund as a result of the Accounts'
investments therein. The Fund and the Adviser agree that they will
furnish the information required by state insurance laws to assist the
Company in obtaining the authority needed to issue the Contracts in
various states.
2.6 The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it reserves the right to make such payments in the
future. To the extent that it decides to finance distribution expenses
pursuant to Rule 12b-1, the Fund undertakes to have the directors of its
Fund Board, a majority of whom are not "interested" persons of the Fund,
formulate and approve any plan under Rule 12b-1 to finance distribution
expenses.
2.7 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Maryland and that it does and will comply
in all material respects with applicable provisions of the 0000 Xxx.
2.8 The Fund represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Fund are and continue to be
at all times covered by a blanket fidelity bond or similar coverage for
the benefit of the Fund in an amount not less than the minimal coverage
as required currently by Rule 17g-(1) of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is issued by a
reputable bonding company.
2.9 The Adviser represents and warrants that it is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as amended,
and will remain duly registered under all applicable federal and state
securities laws and that it will perform its obligations for the Fund in
accordance in all
5
material respects with the laws of the State of Delaware and any
applicable state and federal securities laws.
2.10 The Distributor represents and warrants that it is registered as a
broker-dealer under the Securities and Exchange Act of 1934, as amended
(the "1934 Act") and will remain duly registered under all applicable
federal and state securities laws, and is a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD") and serves
as principal underwriter/distributor of the Funds and that it will
perform its obligations for the Fund in accordance in all material
respects with the laws of the State of Delaware and any applicable state
and federal securities laws.
ARTICLE III - FUND COMPLIANCE
3.1 The Fund and the Adviser acknowledge that any failure (whether
intentional or in good faith or otherwise) to comply with the
requirements of Subchapter M of the Code or the diversification
requirements of Section 817(h) of the Code may result in the Contracts
not being treated as variable contracts for federal income tax purposes,
which would have adverse tax consequences for Contract owners and could
also adversely affect the Company's corporate tax liability. The Fund and
the Adviser further acknowledge that any such failure may result in costs
and expenses being incurred by the Company in obtaining whatever
regulatory authorizations are required to substitute shares of another
investment company for those of the failed Fund, as well as fees and
expenses of legal counsel and other advisors to the Company and any
federal income taxes, interest or tax penalties incurred by the Company
in connection with any such failure.
3.2 The Fund represents and warrants that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Code, and that it
will maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify the Company immediately upon
having a reasonable basis for believing that it has ceased to so qualify
or that it might not so qualify in the future.
3.3 The Fund represents that it will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be
treated as variable contracts under the Code and the regulations issued
thereunder; including, but not limited to, that the Fund will at all
times comply with Section 817(h) of the Code and Treasury Regulation
1.817-5, as amended from time to time, relating to the diversification
requirements for variable annuity, endowment, or life insurance
contracts, and with Section 817(d) of the Code, relating to the
definition of a variable contract, and any amendments or other
modifications to such Section or Regulation. The Fund will notify the
Company immediately upon having a reasonable basis for believing that the
Fund or a Portfolio thereunder has ceased to comply with the
diversification requirements or that the Fund or Portfolio might not
comply with the diversification requirements in the future. In the event
of a breach of this representation by the Fund, it will take all
reasonable steps to
6
adequately diversify the Fund so as to achieve compliance within the
grace period afforded by Treasury Regulation 1.817-5.
3.4 The Adviser agrees to provide the Company with a certificate or statement
indicating compliance by each Portfolio of the Fund with Section 817(h)
of the Code, such certificate or statement to be sent to the Company no
later than thirty (30) days following the end of each calendar quarter.
ARTICLE IV - PROSPECTUS AND PROXY STATEMENTS/VOTING
4.1 The Fund will provide the Company with as many copies of the current Fund
prospectus and any supplements thereto for the Designated Portfolio(s) as
the Company may reasonably request for distribution, at the Fund's
expense, to Contract owners at the time of Contract fulfillment and
confirmation. To the extent that the Designated Portfolio(s) are one or
more of several Portfolios of the Fund, the Fund shall bear the cost of
providing the Company only with disclosure related to the Designated
Portfolio(s). The Fund will provide, at the Fund's expense, as many
copies of said prospectus as necessary for distribution, at the Fund's
expense, to existing Contract owners. The Fund will provide the copies of
said prospectus to the Company or to its mailing agent. The Company will
distribute the prospectus to existing Contract owners and will xxxx the
Fund for the reasonable cost of such distribution. If requested by the
Company, in lieu thereof, the Fund will provide such documentation,
including a final copy of a current prospectus set in type at the Fund's
expense, and other assistance as is reasonably necessary in order for the
Company at least annually (or more frequently if the Fund prospectus is
amended more frequently) to have the new prospectus for the Contracts and
the Fund's new prospectus printed together, in which case the Fund agrees
to pay its proportionate share of reasonable expenses directly related to
the required disclosure of information concerning the Fund. The Fund
will, upon request, provide the Company with a copy of the Fund's
prospectus through electronic means to facilitate the Company's efforts
to provide Fund prospectuses via electronic delivery, in which case the
Fund agrees to pay its proportionate share of reasonable expenses related
to the required disclosure of information concerning the Fund.
4.2 The Fund's prospectus will state that the Statement of Additional
Information (the "SAI") for the Fund is available from the Company. The
Fund will provide the Company, at the Fund's expense, with as many copies
of the SAI and any supplements thereto as the Company may reasonably
request for distribution, at the Fund's expense, to prospective Contract
owners and applicants. To the extent that the Designated Portfolio(s) are
one or more of several Portfolios of the Fund, the Fund shall bear the
cost of providing the Company only with disclosure related to the
Designated Portfolio(s). The Fund will provide, at the Fund's expense, as
many copies of said SAI as necessary for distribution, at the
7
Fund's expense, to any existing Contract owner who requests such
statement or whenever state or federal law requires that such statement
be provided. The Fund will provide the copies of said SAI to the Company
or to its mailing agent. The Company will distribute the SAI as requested
or required and will xxxx the Fund for the reasonable cost of such
distribution.
4.3 The Fund, at its expense, will provide the Company or its mailing agent
with copies of its proxy material, if any, reports to
shareholders/Contract owners and other permissible communications to
shareholders/Contract owners in such quantity as the Company will
reasonably require. The Company will distribute this proxy material,
reports and other communications to existing Contract owners and will
xxxx the Fund for the reasonable cost of such distribution.
4.4 If and to the extent required by law, the Company will:
(a) solicit voting instructions from Contract owners;
(b) vote the shares of the Designated Portfolios held in the Account
in accordance with instructions received from Contract owners;
and
(c) vote shares of the Designated Portfolios held in the Account for
which no timely instructions have been received, in the same
proportion as shares of such Designated Portfolio for which
instructions have been received from the Company's Contract
owners,
so long as and to the extent that the Commission continues to interpret
the 1940 Act to require pass-through voting privileges for variable
Contract owners. The Company reserves the right to vote Fund shares held
in any segregated asset account in its own right, to the extent permitted
by law. The Company will be responsible for assuring that the Accounts
participating in the Fund calculate voting privileges in a manner
consistent with all legal requirements, including the Proxy Voting
Procedures set forth in Schedule C and the Mixed and Shared Funding
Exemptive Order, as described in Section 7.1.
4.5 The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Fund either will provide for
annual meetings (except insofar as the Commission may interpret Section
16 of the 1940 Act not to require such meetings) or, as the Fund
currently intends, to comply with Section 16(c) of the 1940 Act (although
the Fund is not one of the trusts described in Section 16(c) of the 0000
Xxx) as well as with Section 16(a) and, if and when applicable, Section
16(b). Further, the Fund will act in accordance with the Commission's
interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors and with whatever rules the Commission
may promulgate with respect thereto.
8
ARTICLE V - SALES MATERIAL AND INFORMATION
5.1 The Company will furnish, or will cause to be furnished, to the Fund or
the Adviser, each piece of sales literature or other promotional material
in which the Fund or the Adviser is named, at least ten (10) Business
Days prior to its use. No such material will be used if the Fund or the
Adviser reasonably objects to such use within five (5) Business Days
after receipt of such material.
5.2 The Company will not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund in connection
with the sale of the Contracts other than the information or
representations contained in the registration statement, prospectus or
SAI for Fund shares, as such registration statement, prospectus and SAI
may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in published reports for the Fund which are
in the public domain or approved by the Fund or the Adviser for
distribution, or in sales literature or other material provided by the
Fund or by the Adviser, except with permission of the Fund or the
Adviser. The Fund and the Adviser agree to respond to any request for
approval on a prompt and timely basis.
5.3 The Fund or the Adviser will furnish, or will cause to be furnished, to
the Company or its designee, each piece of sales literature or other
promotional material in which the Company or its separate account is
named, at least ten (10) Business Days prior to its use. No such material
will be used if the Company reasonably objects to such use within five
(5) Business Days after receipt of such material.
5.4 The Fund and the Adviser will not give any information or make any
representations or statements 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, prospectus or SAI
for the Contracts, as such registration statement, prospectus and SAI may
be amended or supplemented from time to time, or in published reports for
each Account or the Contracts which are in the public domain or approved
by the Company for distribution to Contract owners, or in sales
literature or other material provided by the Company, except with
permission of the Company. The Company agrees to respond to any request
for approval on a prompt and timely basis.
5.5 The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, SAIs, reports, proxy statements,
sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of
the above, that relate to the Fund or its shares, within a reasonable
time after the filing of each such document with the Commission or the
NASD.
5.6 The Company will provide to the Fund at least one complete copy of all
definitive prospectuses, definitive SAI, reports, solicitations for
voting instructions, sales literature and other promotional
9
materials, applications for exemptions, requests for no action letters,
and all amendments to any of the above, that relate to the Contracts or
each Account, contemporaneously with the filing of each such document
with the Commission or the NASD (except that with respect to
post-effective amendments to such prospectuses and SAIs and sales
literature and promotional material, only those prospectuses and SAIs and
sales literature and promotional material that relate to or refer to the
Fund will be provided). In addition, the Company will provide to the Fund
at least one complete copy of (i) a registration statement that relates
to the Contracts or each Account, containing representative and relevant
disclosure concerning the Fund; and (ii) any post-effective amendments to
any registration statements relating to the Contracts or such Account
that refer to or relate to the Fund.
5.7 For purposes of this Article V, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper,
magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, or
other public media, (i.e., on-line networks such as the Internet or other
electronic messages)), sales literature (i.e., any written communication
distributed or made generally available to customers or the public,
including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training
materials or other communications distributed or made generally available
to some or all agents or employees, registration statements,
prospectuses, SAIs, shareholder reports, and proxy materials and any
other material constituting sales literature or advertising under the
NASD rules, the 1933 Act or the 0000 Xxx.
5.8 The Fund, the Adviser and the Distributor hereby consent to the Company's
use of the names of the INVESCO, AMVESCAP and INVESCO Funds Group, Inc.
as well as the names of the Designated Portfolios set forth in Schedule B
of this Agreement, in connection with marketing the Contracts, subject to
the terms of Sections 5.1 of this Agreement. The Company acknowledges and
agrees that Adviser and Distributor and/or their affiliates own all
right, title and interest in and to the name INVESCO and the INVESCO open
circle design, and covenants not, at any time, to challenge the rights of
Adviser and Distributor and/or their affiliates to such name or design,
or the validity or distinctiveness thereof. The Fund, the Adviser and the
Distributor hereby consent to the use of any trademark, trade name,
service xxxx or logo used by the Fund, the Adviser and the Distributor,
subject to the Fund's, the Adviser's and/or the Distributor's approval of
such use and in accordance with reasonable requirements of the Investment
Company, the Adviser or the Distributor. Such consent will terminate with
the termination of this Agreement. Adviser or Distributor may withdraw
this consent as to any particular use of any such name or identifying
marks at any time (i) upon Adviser's or
10
Distributor's reasonable determination that such use would have a
material adverse effect on the reputation or marketing efforts of the
Adviser, the Distributor or the Fund or (ii) if no investment company, or
series or class of shares of any investment company advised by Adviser or
distributed by Distributor continues to be offered through variable
insurance contracts issued by the Company; provided however, that Adviser
or Distributor may, in either's individual discretion, continue to use
materials prepared or printed prior to the withdrawal of such
authorization. The Company agrees and acknowledges that all use of any
designation comprised in whole or in part of the name, trademark, trade
name, service xxxx and logo under this Agreement shall inure to the
benefit of the Fund, Adviser and/or the Distributor.
5.9 The Fund, the Adviser, the Distributor and the Company agree to adopt and
implement procedures reasonably designed to ensure that information
concerning the Company, the Fund, the Adviser or the Distributor,
respectively, and their respective affiliated companies, that is intended
for use only by brokers or agents selling the Contracts is properly
marked as "Not For Use With The Public" and that such information is only
so used.
ARTICLES VI - FEES, COSTS AND EXPENSES
6.1 The Fund will pay no fee or other compensation to the Company under this
Agreement, except: (a) if the Fund or any Designated Portfolio adopts and
implements a plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution expenses, then, subject to obtaining any required exemptive
orders or other regulatory approvals, THE Fund may make payments to the
Company or to the underwriter for the Contracts if and in such amounts
agreed to by the Fund in writing; and (b) the Fund may pay fees to the
Company for administrative services provided to Contract owners that are
not primarily intended to result in the sale of shares of the Designated
Portfolio or of underlying Contracts.
6.2 All expenses incident to performance by the Fund of this Agreement will
be paid by the Fund to the extent permitted by law. All shares of the
Designated Portfolios will be duly authorized for issuance and registered
in accordance with applicable federal law and, to the extent deemed
advisable by the Fund, in accordance with applicable state law, prior to
sale. The Fund will bear the expenses for the cost of registration and
qualification of the Fund's shares, including without limitation, the
preparation of and filing with the SEC of Forms N-SAR and Rule 24f-2
Notices and payment of all applicable registration or filing fees with
respect to shares of the Fund; preparation and filing of the Fund's
prospectus, SAI and registration statement, proxy materials and reports;
typesetting the Fund's prospectus; typesetting and printing proxy
materials and reports to Contract owners (including the costs of printing
a Fund prospectus that constitutes an annual report); the preparation of
all statements and
11
notices required by any federal or state law; all taxes on the issuance
or transfer of the Fund's shares; any expenses permitted to be paid or
assumed by the Fund pursuant to a plan, if any, under Rule 12b-1 under
the 1940 Act; and other costs associated with preparation of prospectuses
and SAIs for the Designated Portfolios in electronic or typeset format,
as well as any distribution expenses as set forth in Article IV of this
Agreement.
ARTICLE VII - MIXED & SHARED FUNDING RELIEF
7.1 The Fund represents and warrants that it has received an order from the
Commission granting Participating Insurance Companies and variable
annuity separate accounts and variable life insurance separate accounts
relief from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of
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 Fund to be sold to and held by
variable annuity separate accounts and variable life insurance separate
accounts of both affiliated and unaffiliated Participating Insurance
Companies and qualified pension and retirement plans outside of the
separate account context (the "Mixed and Shared Funding Exemptive
Order"). The parties to this Agreement agree that the conditions or
undertakings specified in the Mixed and Shared Funding Exemptive Order
and that may be imposed on the Company, the Fund and/or the Adviser by
virtue of the receipt of such order by the Commission, will be
incorporated herein by reference, and such parties agree to comply with
such conditions and undertakings to the extent applicable to each such
party.
7.2 The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the Contract
owners of all separate accounts investing in the Fund. An irreconcilable
material conflict may arise for a variety of reasons, including, but not
limited to: (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 Participating Insurance Companies or by
variable annuity and variable life insurance Contract owners; or (f) a
decision by an insurer to disregard the voting instructions of Contract
owners. The Fund Board will promptly inform the Company if it determines
that an irreconcilable material conflict exists and the implications
thereof. A majority of the Fund Board will consist of persons who are not
"interested" persons of the Fund.
7.3 The Company will report any potential or existing conflicts of which it
is aware to the Fund Board. The Company agrees to assist the Fund Board
in carrying out its responsibilities, as delineated in the
12
Mixed and Shared Funding Exemptive Order, by providing the Fund Board
with all information reasonably necessary for the Fund Board to consider
any issues raised. This includes, but is not limited to, an obligation by
the Company to inform the Fund Board whenever Contract owner voting
instructions are to be disregarded. The Fund Board will record in its
minutes, or other appropriate records, all reports received by it and all
action with regard to a conflict.
7.4 If it is determined by a majority of the Fund Board, or a majority of its
disinterested directors, that an irreconcilable material conflict exists,
the Company and other Participating Insurance Companies will, at their
expense and to the extent reasonably practicable (as determined by a
majority of the disinterested directors), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, up
to and including: (a) withdrawing the assets allocable to some or all of
the Accounts from the Fund or any Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such
segregation should be submitted to a vote of all affected Contract owners
and, as appropriate, segregating the assets of any appropriate group
(i.e., variable annuity Contract owners or variable life insurance
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 (b) establishing a new
registered management investment company or managed separate account.
7.5 If a material irreconcilable conflict arises because of a decision by the
Company to disregard Contract owner voting instructions, and such
disregard of voting instructions could conflict with the majority of
Contract owner voting instructions, and the Company's judgment represents
a minority position or would preclude a majority vote, the Company may be
required, at the Fund's election, to withdraw the affected sub-account of
the Account's investment in the Fund and terminate this Agreement with
respect to such sub-account; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
disinterested directors of the Fund Board. No charge or penalty will be
imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the Fund gives
written notice to the Company that this provision is being implemented.
Until the end of such six-month period the Adviser and Fund will, to the
extent permitted by law and any exemptive relief previously granted to
the Fund, continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.6 If an irreconcilable conflict arises because a particular state insurance
regulator's decision applicable to the Company conflicts with the
majority of other state insurance regulators, then the Company will
withdraw the affected sub-account of the Account's investment in the Fund
and terminate this
13
Agreement with respect to such sub-account; provided, however, that such
withdrawal and termination will be limited to the extent required by the
foregoing irreconcilable material conflict as determined by a majority of
the disinterested directors of the Fund Board. No charge or penalty will
be imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the Fund gives
written notice to the Company that this provision is being implemented.
Until the end of such six-month period the Advisor and Fund will, to the
extent permitted by law and any exemptive relief previously granted to
the Fund, continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.7 For purposes of Sections 7.4 through 7.7 of this Agreement, a majority of
the disinterested members of the Fund Board will determine whether any
proposed action adequately remedies any irreconcilable material conflict,
but in no event, other than as specified in Section 7.4, will the Fund be
required to establish a new funding medium for the Contracts. The Company
will not be required by Section 7.4 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 affected by the irreconcilable material
conflict.
7.8 The Company will at least annually submit to the Fund Board such reports,
materials or data as the Fund Board may reasonably request so that the
Fund Board may fully carry out the duties imposed upon it as delineated
in the Mixed and Shared Funding Exemptive Order, and said reports,
materials and data will be submitted more frequently if deemed
appropriate by the Fund Board.
7.9 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 Mixed and Shared Funding Exemptive
Order) on terms and conditions materially different from those contained
in the Mixed and Shared Funding Exemptive Order, then: (a) the Fund
and/or the Participating Insurance Companies, as appropriate, will take
such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as
amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) Sections 4.4, 4.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of
this Agreement will continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
ARTICLE VIII - INDEMNIFICATION
8.1 INDEMNIFICATION BY THE COMPANY
(a) The Company agrees to indemnify and hold harmless the Fund, the
Adviser, the Distributor, and each person, if any, who controls
or is associated with the Fund, the Adviser, or the Distributor
within the meaning of such terms under the federal securities
laws and any director,
14
trustee, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with
the written consent of the Company) or actions in respect thereof
(including reasonable 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:
(1) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the registration statement, prospectus or SAI for the
Contracts or contained in the Contracts or sales literature
or other promotional material 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 or necessary to make such statements not misleading
in light of the circumstances in which they were made;
provided that this agreement to indemnify will 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 Fund, the Adviser, or the Distributor
for use in the registration statement, prospectus or SAI for
the Contracts or in the Contracts or sales literature (or
any amendment or supplement to any of the foregoing) or
otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations
by or on behalf of the Company (other than statements or
representations contained in the Fund registration
statement, prospectus, SAI or sales literature or other
promotional material of the Fund, or any amendment or
supplement to the foregoing, not supplied by the Company or
persons under its control) or wrongful conduct of the
Company or persons under its control, with respect to the
sale or distribution of the Contracts or Fund shares; or
(3) arise out of untrue statement or alleged untrue statement of
a material fact contained in the Fund registration
statement, prospectus, SAI or sales literature or other
promotional material of the Fund (or any amendment or
supplement to the foregoing) or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make such statements not
misleading in light of the circumstances in which they were
made, if such a statement or omission was made in
15
reliance upon and in conformity with information furnished
to the Fund by or on behalf of the Company or persons under
its control; or
(4) 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
(5) arise out of 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 by the
Company of this Agreement; except to the extent provided in
Sections 8.1(b) and 8.4 hereof. This indemnification will be
in addition to any liability that the Company otherwise may
have.
(b) No party will be entitled to indemnification under Section 8.1(a)
if such loss, claim, damage, liability or action is due to the
willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by
reason of such party's reckless disregard of its obligations or
duties under this Agreement.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with
the issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
8.2 INDEMNIFICATION BY THE ADVISER & DISTRIBUTOR
(a) The Adviser and Distributor agree to indemnify and hold harmless
the Company and each person, if any, who controls or is
associated with the Company within the meaning of such terms
under the federal securities laws and any director, officer,
employee or agent of the foregoing (collectively, the
"Indemnified Parties" for purposes of this Section 8.2) against
any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of
the Adviser and Distributor) or actions in respect thereof
(including reasonable 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:
(1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement, prospectus or SAI for the Fund
or sales literature or other promotional material of the
Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission
or the alleged omission to state therein a material fact
required to be stated or necessary to make such statements
not misleading in light of the circumstances in which they
were
16
made; provided that this agreement to indemnify will 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 Fund by or on behalf of the Company
for use in the registration statement, prospectus or SAI for
the Fund or in sales literature of the Fund (or any
amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations
by or on behalf of the Adviser, the Distributor, or the Fund
(other than statements or representations contained in the
Contracts or in the Contract or Fund registration
statements, prospectuses or statements of additional
information or sales literature or other promotional
material for the Contracts or of the Fund, or any amendment
or supplement to the foregoing, not supplied by the Adviser,
the Distributor, or the Fund or persons under the control of
the Adviser, the Distributor, or the Fund respectively) or
wrongful conduct of the Adviser, the Distributor, or the
Fund or persons under the control of the Adviser, the
Distributor, or the Fund respectively, with respect to the
sale or distribution of the Contracts or Fund shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, SAI or sales literature or other
promotional material covering the Contracts (or any
amendment or supplement thereto), or the omission or alleged
omission to state therein a material fact required to be
stated or necessary to make such statement or statements not
misleading in light of the circumstances in which they were
made, if such statement or omission was made in reliance
upon and in conformity with information furnished to the
Company by or on behalf of the Adviser, the Distributor, or
the Fund, or persons under any of their control; or
(4) arise as a result of any failure by the Fund, the
Distributor, or the Adviser to provide the services and
furnish the materials under the terms of this Agreement; or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser, the
Distributor, or the Fund in this Agreement, or arise out of
or result from any other material breach of this Agreement
by the Adviser, the Distributor, or the Fund (including a
failure, whether intentional or in good faith or otherwise,
to comply with the requirements of Subchapter M of the Code
specified in Article III,
17
Section 3.2 of this Agreement and the diversification
requirements specified in Article III, Section 3.3 of this
Agreement, as described more fully in Section 8.5 below);
except to the extent provided in Sections 8.2(b) and 8.4
hereof. This indemnification will be in addition to any
liability that the Adviser or Distributor otherwise may
have.
(b) No party will be entitled to indemnification under Section 8.2(a)
if such loss, claim, damage, liability or action is due to the
willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by
reason of such party's reckless disregard or its obligations or
duties under this Agreement.
(c) The Indemnified Parties will promptly notify the Adviser, the
Fund, and the Distributor of the commencement of any litigation,
proceedings, complaints or actions by regulatory authorities
against them in connection with the issuance or sale of the
Contracts or the operation of the Account.
8.3 INDEMNIFICATION BY THE FUND
(a) The Fund agrees to indemnify and hold harmless the Company and
each person, if any, who controls or is associated with the
Company within the meaning of such terms under the federal
securities laws and any director, officer, employee or agent of
the foregoing (collectively, the "Indemnified Parties" for
purposes of this Section 8.3) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Fund) or action in
respect thereof (including reasonable 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 operations of
the Fund and:
(1) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement; or
(2) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Fund (including a failure,
whether intentional or in good faith or otherwise, to comply
with the requirements of Subchapter M of the Code specified
in Article III, Section 3.2 of this Agreement and the
diversification requirements specified in Article III,
Section 3.3 of this Agreement as described more fully in
Section 8.5 below); or
(3) arise out of or result from the incorrect or untimely
calculation or reporting of daily net asset value per share
or dividend or capital gain distribution rate; except to the
extent
18
provided in Sections 8.3(b) and 8.4 hereof. This
indemnification will be in addition to any liability that
the Fund otherwise may have.
(b) No party will be entitled to indemnification under Section 8.3(a)
if such loss, claim, damage, liability or action is due to the
willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by
reason of such party's reckless disregard of its obligations and
duties under this Agreement.
(c) The Indemnified Parties will promptly notify the Fund of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with
the issuance or sale of the Contracts or the operation of the
Account.
8.4 INDEMNIFICATION PROCEDURE
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.4) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.4) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the
claim upon such Indemnified Party (or after such party will have received
notice of such service on any designated agent), but failure to notify
the Indemnifying Party of any such claim will not relieve the
Indemnifying Party from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of the indemnification provision of this Article VIII, except to
the extent that the failure to notify results in the failure of actual
notice to the Indemnifying Party and such Indemnifying Party is damaged
solely as a result of failure to give such notice. In case any such
action is brought against the Indemnified Party, the Indemnifying Party
will be entitled to participate, at its own expense, in the defense
thereof. The Indemnifying Party also will be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Indemnifying Party to the Indemnified Party
of the Indemnifying Party's election to assume the defense thereof, the
Indemnified Party will bear the fees and expenses of any additional
counsel retained by it, and the Indemnifying Party will not be liable to
such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation, unless: (a)
the Indemnifying Party and the Indemnified Party will have mutually
agreed to the retention of such counsel; or (b) the named parties to any
such proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The
19
Indemnifying Party will not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there is a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment. A
successor by law of the parties to this Agreement will be entitled to the
benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII will survive
any termination of this Agreement.
8.5 INDEMNIFICATION FOR FAILURE TO COMPLY WITH DIVERSIFICATION REQUIREMENTS
The Fund and the Adviser acknowledge that any failure (whether
intentional or in good faith or otherwise) to comply with the
diversification requirements specified in Article III, Section 3.3 of
this Agreement may result in the Contracts not being treated as variable
contracts for federal income tax purposes, which would have adverse tax
consequences for Contract owners and could also adversely affect the
Company's corporate tax liability. Accordingly, without in any way
limiting the effect of Sections 8.2(a) and 8.3(a) hereof and without in
any way limiting or restricting any other remedies available to the
Company, the Fund, the Adviser and the Distributor will pay on a joint
and several basis all costs associated with or arising out of any
failure, or any anticipated or reasonably foreseeable failure, of the
Fund or any Portfolio to comply with Section 3.3 of this Agreement,
including all costs associated with correcting or responding to any such
failure; such costs may include, but are not limited to, the costs
involved in creating, organizing, and registering a new investment
company as a funding medium for the Contracts and/or the costs of
obtaining whatever regulatory authorizations are required to substitute
shares of another investment company for those of the failed Fund or
Portfolio (including but not limited to an order pursuant to Section
26(b) of the 1940 Act); fees and expenses of legal counsel and other
advisors to the Company and any federal income taxes or tax penalties (or
"toll charges" or exactments or amounts paid in settlement) incurred by
the Company in connection with any such failure or anticipated or
reasonably foreseeable failure. Such indemnification and reimbursement
obligation shall be in addition to any other indemnification and
reimbursement obligations of the Fund, the Adviser and/or the Distributor
under this Agreement.
ARTICLE IX - APPLICABLE LAW
9.1 This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware.
9.2 This Agreement will be subject to the provisions of the 1933 Act, the
1934 Act and the 1940 Act, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the Commission may grant (including, but not limited to,
the Mixed and Shared
20
Funding Exemptive Order) and the terms hereof will be interpreted and
construed in accordance therewith.
ARTICLE X - TERMINATION
10.1 This Agreement will terminate:
(a) at the option of any party, with or without cause, with respect
to one, some or all of the Portfolios, upon six (6) month's
advance written notice to the other parties or, if later, upon
receipt of any required exemptive relief or orders from the SEC,
unless otherwise agreed in a separate written agreement among the
parties; or
(b) at the option of the Company, upon written notice to the other
parties, with respect to any Portfolio if shares of the Portfolio
are not reasonably available to meet the requirements of the
Contracts as determined in good faith by the Company; or
(c) at the option of the Company, upon written notice to the other
parties, 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
media of the Contracts issued or to be issued by Company; or
(d) at the option of the Fund, upon written notice to the other
parties, upon institution of formal proceedings against the
Company by the NASD, the Commission, the Insurance Commission of
any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the
Contracts, the administration of the Contracts, the operation of
the Account, or the purchase of the Fund shares, provided that
the Fund determines in its sole judgment, exercised in good
faith, that any such proceeding would have a material adverse
effect on the Company's ability to perform its obligations under
this Agreement; or
(e) at the option of the Company, upon written notice to the other
parties, upon institution of formal proceedings against the Fund,
the Distributor, or the Adviser by the NASD, the Commission or
any state securities or insurance department or any other
regulatory body, provided that the Company determines in its sole
judgment, exercised in good faith, that any such proceeding would
have a material adverse effect on the Fund's, the Distributor's,
or the Adviser's ability to perform its obligations under this
Agreement; or
(f) at the option of the Company, upon written notice to the other
parties, if the Fund ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code, or under any
21
successor or similar provision, or if the Company reasonably and
in good faith believes that the Fund may fail to so qualify; or
(g) at the option of the Company, upon written notice to the other
parties, with respect to any Portfolio if the Fund fails to meet
the diversification requirements specified in Section 3.3 hereof
or if the Company reasonably and in good faith believes the Fund
may fail to meet such requirements; or
(h) at the option of any party to this Agreement, upon written notice
to the other parties, upon another party's material breach of any
provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith that either the Fund or the
Adviser has suffered a material adverse change in its business,
operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity which
is likely to have a material adverse impact upon the business and
operations of the Company, such termination to be effective sixty
(60) days' after receipt by the other parties of written notice
of the election to terminate; or
(j) at the option of the Fund or the Adviser, if the Fund or Adviser
respectively, determines in its sole judgment exercised in good
faith that the Company has suffered a material adverse change in
its business, operations or financial condition since the date of
this Agreement or is the subject of material adverse publicity
which is likely to have a material adverse impact upon the
business and operations of the Fund or the Adviser, such
termination to be effective sixty (60) days' after receipt by the
other parties of written notice of the election to terminate; or
(k) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the Contract
owners having an interest in the Account (or any sub-account) to
substitute the shares of another investment company for the
corresponding Portfolio's shares of the Fund in accordance with
the terms of the Contracts for which those Portfolio shares had
been selected to serve as the underlying portfolio. The Company
will give sixty (60) days' prior written notice to the Fund of
the date of any proposed vote or other action taken to replace
the Fund's shares or of the filing of any required regulatory
approval(s); or
(1) at the option of the Company or the Fund upon a determination by
a majority of the Fund Board, or a majority of the disinterested
Fund Board members, that an irreconcilable material conflict
exists among the interests of: (1) all Contract owners of
variable insurance products of all separate accounts; or (2) the
interests of the Participating Insurance Companies investing in
the Fund as set forth in Article VII of this Agreement; or
22
(m) at the option of the Fund in the event any of the Contracts are
not issued or sold in accordance with applicable federal and/or
state law. Termination will be effective immediately upon such
occurrence without notice.
10.2 NOTICE REQUIREMENT
(a) No termination of this Agreement, except a termination under
Section 10.1 (m) of this Agreement, will be effective unless and
until the party terminating this Agreement gives prior written
notice to all other parties of its intent to terminate, which
notice will set forth the basis for the termination.
(b) In the event that any termination of this Agreement is based upon
the provisions of Article VII, such prior written notice will be
given in advance of the effective date of termination as required
by such provisions.
10.3 EFFECT OF TERMINATION
Notwithstanding any termination of this Agreement, the Fund, the Adviser
and the Distributor will, at the option of the Company, continue to make
available additional shares of the Fund 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"). Specifically, without limitation, the owners of
the Existing Contracts will be permitted to reallocate investments in the
Designated Portfolios (as in effect on such date), redeem investments in
the Designated Portfolios and/or invest in the Designated Portfolios upon
the making of additional purchase payments under the Existing Contracts.
The parties agree that this Section 10.3 will not apply to any
terminations under Article VII and the effect of such Article VII
terminations will be governed by Article VII of this Agreement.
10.4 SURVIVING PROVISIONS
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive
and not be affected by any termination of this Agreement. In addition,
with respect to Existing Contracts, all provisions of this Agreement also
will survive and not be affected by any termination of this Agreement.
ARTICLE XI - NOTICES
Any notice will be deemed duly 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
parties.
23
If to the Company:
-----------------
Golden American Life Insurance Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Executive Vice President
If to the Fund:
--------------
INVESCO Variable Investment Funds, Inc.
0000 Xxxxx Xxxxxx Xx.
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Senior Vice President
If to the Adviser:
-----------------
INVESCO Funds Group, Inc.
0000 Xxxxx Xxxxxx Xx.
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Senior Vice President
If to the Distributor:
---------------------
INVESCO Distributors, Inc.
0000 Xxxxx Xxxxxx Xx.
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Senior Vice President
ARTICLE XII - MISCELLANEOUS
12.1 All persons dealing with the Fund must look solely to the property of the
Fund for the enforcement of any claims against the Fund as neither the
directors, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Fund.
12.2 The Fund, the Distributor, and the Adviser acknowledge that the
identities of the customers of the Company or any of its affiliates
(collectively the "Protected Parties" for purposes of this Section 12.2),
information maintained regarding those customers, and all computer
programs and procedures developed by the Protected Parties or any of
their employees or agents in connection with the Company's performance of
its duties under this Agreement are the valuable property of the
Protected Parties. The Fund and the Adviser agree that if they come into
possession of any list or compilation of the identities of or other
information about the Protected Parties' customers, or any other property
of the Protected Parties, other than such information as may be
independently developed or compiled by the Fund or the Adviser from
information supplied to them by the Protected Parties' customers who also
maintain accounts directly with the Fund or the Adviser, the Fund and the
Adviser will hold such information or property in confidence and refrain
from using, disclosing or distributing any of such information or other
property except: (a) with the Company's prior written consent; or (b) as
required by law or judicial process. The Fund and the Adviser acknowledge
that any breach of the agreements
24
in this Section 12.2 would result in immediate and irreparable harm to
the Protected Parties for which there would be no adequate remedy at law
and agree that in the event of such a breach, the Protected Parties will
be entitled to equitable relief by way of temporary and permanent
injunctions, as well as such other relief as any court of competent
jurisdiction deems appropriate. Each party agrees to maintain all
information about other parties that it may acquire pursuant to this
Agreement in confidence, and each party agrees not to use, or permit the
use of, any such information for any purpose except that set forth
herein, or to disclose any such information to any person, without the
prior written consent of the other parties. This provision shall survive
the termination of this Agreement.
12.3 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.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
12.5 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
12.6 This Agreement will not be assigned by any party hereto without the prior
written consent of all the parties.
12.7 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 law.
12.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
12.9 Each party to this Agreement will cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Commission, the NASD and state insurance regulators) and will permit each
other and such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement
or the transactions contemplated hereby.
12.10 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or board action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
12.11 The parties to this Agreement may amend the schedules to this Agreement
in writing from time to time to reflect changes in or relating to the
Contracts, the Accounts or the Portfolios of the Fund or other applicable
terms of this Agreement.
25
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the date specified below.
GOLDEN AMERICAN LIFE INSURANCE COMPANY
By: /s/Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
INVESCO VARIABLE INVESTMENT FUNDS, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
Treasurer
INVESCO FUNDS GROUP, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
Senior Vice President & Treasurer
INVESCO DISTRIBUTORS, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
Senior Vice President & Treasurer
26
PARTICIPATION AGREEMENT
SCHEDULE A
The following Separate Accounts and Associated Contracts of Golden American Life
Insurance Company are permitted in accordance with the provisions of this
Agreement to invest in Portfolios of the Fund shown in Schedule B:
CONTRACTS FUNDED BY SEPARATE ACCOUNT NAME OF SEPARATE ACCOUNT
------------------------------------ ------------------------
ING SmartDesign Variable Annuity Separate Account B
ING SmartDesign Advantage Separate Account B
GoldenSelect Access Separate Account B
GoldenSelect DVA Plus Separate Account B
GoldenSelect ESII Separate Account B
GoldenSelect Landmark Separate Account B
GoldenSelect Premium Plus Separate Account B
GoldenSelect Galaxy Premium Plus Separate Account B
Page 1 of 1
PARTICIPATION AGREEMENT
SCHEDULE B
The Separate Account(s) shown on Schedule A may invest in the following
Portfolios of the Fund.
INVESCO VIF - Financial Services Fund
INVESCO VIF - Health Sciences Fund
INVESCO VIF - Utilities Fund
Page 1 of 1
PARTICIPATION AGREEMENT
SCHEDULE C
PROXY VOTING PROCEDURES
The following is a list of procedures and corresponding responsibilities for the
handling of proxies and voting instructions relating to the Fund. The defined
terms herein shall have the meanings assigned in the Participation Agreement
except that the term "Company" shall also include the department or third party,
if any, assigned by the Company to perform the steps delineated below.
1. The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting to
enable the Company to consider and prepare for the solicitation of voting
instructions from owners of the Contracts and to facilitate the
establishment of tabulation procedures. At this time the Fund will inform
the Company of the Record, Mailing and Meeting dates. This will be done
verbally approximately two months before the shareholder meeting.
2. Promptly after the Record Date, the Company will perform a "tape run", or
other activity, which will generate the names, addresses and number of
units which are attributed to each contract owner/policyholder (the
"Customer") as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of the
Customers' accounts as of the Record Date.
NOTE: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to call in
the number of Customers to the Fund , as soon as possible, but no later
than two weeks after the Record Date.
3. The Fund's Annual Report must be sent to each Customer by the Company
either before or together with the Customers' receipt of voting,
instruction solicitation material. The Fund will provide the last Annual
Report to the Company pursuant to the terms of Section 6.2 of the Agreement
to which this Schedule relates.
4. The text and format for the Voting Instruction Cards ("Cards" or "Card") is
provided to the Company by the Fund. The Company, at its expense, shall
produce and personalize the Voting Instruction Cards. The Fund or its
affiliate must approve the Card before it is printed. Allow approximately
2-4 business days for printing information on the Cards. Information
commonly found on the Cards includes:
o name (legal name as found on account registration)
o address
o Fund or account number
o coding to state number of units
o individual Card number for use in tracking and verification of
votes (already on Cards as printed by the Fund).
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
5. During this time, the Fund will develop, produce and pay for the Notice of
Proxy and the Proxy Statement (one document). Printed and folded notices
and statements will be sent to Company for insertion into envelopes
(envelopes and return envelopes are provided and paid for by the Company).
Contents of envelope sent to Customers by the Company will include:
Page 1 of 1
o Voting Instruction Card(s)
o one proxy notice and statement (one document)
o return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
o "urge buckslip" - optional, but recommended. (This is a small,
single sheet of paper that requests Customers to vote as quickly
as possible and that their vote is important. One copy will be
supplied by the Fund.)
o cover letter - optional, supplied by Company and reviewed and
approved in advance by the Fund
6. The above contents should be received by the Company approximately 3-5
business days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to the Fund.
7. Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the Company
as the shareowner. (A 5-week period is recommended.) Solicitation time is
calculated as calendar days from (but NOT including,) the meeting, counting
backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry.
NOTE: Postmarks are not generally needed. A need for postmark information
would be due to an insurance company's internal procedure and has not been
required by the Fund in the past.
9. Signatures on Card checked against legal name on account registration which
was printed on the Card.
NOTE: For Example, if the account registration is under "Xxxx X. Xxxxx,
Trustee," then that is the exact legal name to be printed on the Card and
is the signature needed on the Card.
10. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter and a
new Card and return envelope. The mutilated or illegible Card is
disregarded and considered to be NOT RECEIVED for purposes of vote
tabulation. Any Cards that have been "kicked out" (e.g. mutilated,
illegible) of the procedure are "hand verified," i.e., examined as to why
they did not complete the system. Any questions on those Cards are usually
remedied individually.
11. There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
12. The actual tabulation of votes is done in units which is then converted to
shares. (It is very important that the Fund receives the tabulations stated
in terms of a percentage and the number of SHARES.) The Fund must review
and approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to the Fund on
the morning of the meeting not later than 10:00 a.m. Eastern time. The Fund
may request an earlier deadline if reasonable and if required to calculate
the vote in time for the meeting.
14. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
The Fund will provide a standard form for each Certification.
Page 1 of 1
15. The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, the Fund will be
permitted reasonable access to such Cards.
16. All approvals and "signing-off' may be done orally, but must always be
followed up in writing.
Page 1 of 1
