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Exhibit 1.(8)(d)
FUND PARTICIPATION AGREEMENT
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General American Life Insurance Company ("Insurance Company"), Xxx Xxx
Investment Trust ("Trust") and the Trust's investment adviser, Xxx Xxx
Associates Corporation ("Adviser") hereby agree that shares of the series of
the Trust as listed on Exhibit A, as it may, from time to time, be amended
("Portfolios"), shall be made available to serve as an underlying investment
medium for certain variable life insurance contracts ("Contracts") to be
offered by Insurance Company subject to the following provisions:
1. The Trust represents that it engages in business as an open-end
management investment company organized as a "business trust" under the
laws of the Commonwealth of Massachusetts and is available to act as
the investment vehicle for separate accounts established for variable
life insurance policies and variable annuity contracts to be offered by
insurance companies which have entered into participation agreements
with the Trust.
2. The Trust represents that it has obtained an order from the Securities
and Exchange Commission ("SEC"), dated September 19, 1990 (File No
811-5083), granting Participating Insurance Companies and variable
annuity and variable life insurance separate accounts exemptions from
the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the
Investment Company Act of 1940, as amended (the "1940 Act") and Rules
6e-2(b)(15) of the Investment Company Act of 1940, as amended (the
"1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder to be
sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance
companies.
3. The Trust agrees that shares of the Trust will be sold only to
Participating Insurance Companies and their separate accounts. No
shares of any Portfolio will be sold to the general public.
4. Insurance Company represents that it has established Separate Account
Eleven (the "Variable Account"), a separate account under Missouri law,
and has registered it as a unit investment trust under the 1940 Act to
set aside and invest assets attributed to one or more of the Contracts.
The Contracts provide for the allocation of net amounts received by
Insurance Company to separate series of the Variable Account for
investment in the shares of specified investment companies selected
among those companies available through the Variable Account to fund
certain of the Contracts. Selection of a particular investment company
is made by the Contract owner who may change such selection from time
to time in accordance with the terms of the applicable Contract.
5. The Trust or the Adviser will provide closing net asset value, dividend
and capital gain information at the close of trading each business day
to Insurance
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Company. Insurance Company will use this data to calculate unit values
on a daily basis as soon as reasonably practical after the net asset
value per share is calculated. Orders will be executed on a daily basis
at the net asset value next computed after receipt by the Trust or its
designee of the order for the shares of the Trust. For purposes of this
paragraph, Insurance Company shall be the designee of the Trust receipt
of such orders. Payment for purchases will be wired to a custodial
account designated by the Trust or the Adviser on the next business day
after an order to purchase is made in accordance with this paragraph.
Income, dividends and capital gains distributions shall be reinvested in
additional shares at the ex-date net asset value. Insurance Company
reserves the right to require that all such income, dividends and capital
gains distributions be received in cash.
6. All expenses incident to the performance by the Trust under this
Agreement shall be paid by the Trust. The Trust shall pay the cost of
registration of Trust shares with the SEC. The Trust shall distribute,
to the Variable Account, proxy material, periodic Trust reports to
shareholders and other material the Trust may require to be sent to
Contract owners. The Trust shall pay the cost of qualifying Trust
shares in states where required. The Trust will provide Insurance
Company with a reasonable quantity of the Trust's Prospectus and the
reports to be used in contemplation of this Agreement. The Trust will
provide Insurance Company with a copy of the Statement of Additional
Information suitable for duplication.
7. Insurance Company and its agents shall make no representations
concerning the Trust or Trust shares except those contained in the
registration statement and the then current prospectus of the Trust and
in reports or proxy statements for the Trust and in current printed
sales literature and promotional material approved by the Trust or its
designee, except with the permission of the Trust or its designee.
8. Insurance Company shall bear the expenses of printing and distributing
the Trust's prospectus to owners of Contracts issued by Insurance
Company and of distributing the Trust's proxy materials and reports to
such Contract owners.
9. The Trust 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 Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations issued thereunder. Without limiting the
scope of the foregoing, the Trust shall comply with Sections 817(h) and
851 of the Code and the regulations thereunder, and the applicable
provisions of the 1940 Act relating to the diversification requirements
for variable annuity, endowment, and life insurance contracts. Upon
request, the Trust shall provide Insurance Company with a letter from
the appropriate Trust officer certifying the Trust's compliance with
the diversification requirements and qualification as a regulated
investment company.
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10. Insurance Company agrees to inform the Board of Trustees of the Trust
of the existence of, or any potential for, any material irreconcilable
conflict of interest between the interests of the Contract owners of
the Variable Account investing in the Trust and/or any other separate
account of any other insurance company investing in the Trust.
A material irreconcilable conflict may arise for a variety of reasons,
including:
(a) an action by any state insurance or other regulatory authority;
(b) a change in applicable federal or state insurance, tax or
securities laws or regulations, or a public ruling, private
letter ruling, or any similar action by insurance, tax or
securities regulatory authorities;
(c ) an administrative or judicial decision in any relevant
proceeding;
(d) the manner in which the investments of any Portfolio are being
managed;
(e) a difference in voting instructions given by variable annuity
contract and variable life insurance contract owners; or
(f) a decision by an insurer to disregard the voting instructions
of contract owners.
Insurance Company will be responsible for assisting the Board of Trustees of
the Trust in carrying out its responsibilities by providing the Board with
all information reasonably necessary for the Board to consider any issue
raised, including information as to a decision by Insurance Company to
disregard voting instructions of Contract owners.
It is agreed that if it is determined by a majority of the members of the
Board of Trustees of the Trust or a majority of its disinterested Trustees
that a material irreconcilable conflict exists affecting Insurance Company,
Insurance Company shall, at its own expense, take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, which
steps may include, but are not limited to,
(a) withdrawing the assets allocable to some or all of the separate
accounts from the Trust or any Portfolio and reinvesting such assets in
a different investment medium, including another Portfolio of the Trust
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 particular group (i.e.,
annuity contract owners, life insurance contract owners or variable
contract owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and
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(b) establishing a new registered management investment company or managed
separate account.
If a material irreconcilable conflict arises because of Insurance Company's
decision to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, Insurance
Company may be required, at the Trust's election, to withdraw the Variable
Account's investment in the Trust. No charge or penalty will be imposed
against the Variable Account as a result of such withdrawal. Insurance
Company agrees that any remedial action taken by it in resolving any material
conflicts of interest will be carried out with a view only to the interests
of Contract owners.
For purposes hereof, a majority of the disinterested members of the Board of
Trustees of the Trust shall determine whether any proposed action adequately
remedies any material irreconcilable conflict. In no event will the Trust be
required by the terms hereof to establish a new funding medium for any
Contracts if an offer to do so has been declined by vote of a majority of
affected Contract owners.
The Trust will undertake to promptly make known to Insurance Company the
Board of Trustees' determination of the existence of a material
irreconcilable conflict and its implications.
11. This Agreement shall terminate as to the sale and issuance of new
Contracts:
(a) at the option of Insurance Company, the Adviser or the Trust
upon six months' advance written notice to the other parties;
(b) at the option of Insurance Company, by written notice to the
Trust, if Trust shares are not available for any reason to meet the
requirements of Contracts as determined by Insurance Company;
(c) at the option of Insurance Company, the Adviser or the Trust,
upon institution of formal proceedings against the broker-dealer or
broker-dealers marketing the Contracts, the Variable Account, Insurance
Company or the Trust by the National Association of Securities Dealers
("NASD"), the SEC or any other regulatory body;
(d) upon a decision by Insurance Company, in accordance with
regulations of the SEC, to substitute such Trust shares with the shares
of another investment company for Contracts for which the Trust shares
have been selected to serve as the underlying investment medium.
Insurance Company will give 60 days' written notice to the Trust and
the Adviser of any proposed vote to replace Trust shares;
(e) upon assignment of this Agreement unless made with the written
consent of each other party;
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(f) at the option of Insurance Company, in the event Trust shares
are not registered, issued or sold in conformance with Federal law or
such law precludes the use of Trust shares as an underlying medium of
Contracts issued or to be issued by Insurance Company. Prompt notice
shall be given by either party to the other in the event the conditions
of this provision occur.
12. Termination as the result of any cause listed in the preceding
paragraph shall not affect the Trust's obligation to furnish Trust
shares for Contracts then in force for which the shares of the Trust
serve or may serve as an underlying medium, unless such further sale of
Trust shares is proscribed by law or the SEC or other regulatory body.
13. Each notice required by this Agreement shall be given by wire and
confirmed in writing by registered or certified mail to:
If to Insurance Company:
General American Life Insurance Company
If to the Trust:
Van Eck Investment Trust
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: President
If to the Adviser:
Xxx Xxx Associates Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: President
14. Advertising and sales literature in which the Trust or the Adviser is
named will be submitted to the Trust for review before such material is
submitted to the SEC or NASD for review.
15. Insurance Company will distribute all proxy material furnished by the
Trust. If and to the extent required by law, Insurance Company shall
(a) solicit voting instructions from Contract owners; (b) vote Trust
shares in accordance with instructions received from the Contract
owners of such Trust shares; and (c) vote the Trust shares for which no
instructions have been received from Contract owners so long as and to
the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners. Insurance
Company reserves the right to vote Trust shares held in any segregated
asset account in its own right to the extent permitted by law.
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16. (a) Insurance Company agrees to indemnify and hold harmless the
Trust, the Adviser, and each of its trustees, directors,
officers, employees, agents and each person, if any, who
controls the Trust within the meaning of the Securities Act of
1933 (the "Act") (the Trust and such persons collectively,
"Trust Indemnified Person") against any losses, claims, damages
or liabilities to which a Trust Indemnified Person may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
are related to the sale or acquisition of the Trust's shares or
the Contracts and arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in information furnished by Insurance Company for use
in the Registration Statement or prospectus of the Trust or in
the Registration Statement or prospectus for the Variable
Account, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or arise out of or as a result of conduct,
statements or representations (other than statement or
representations contained in the prospectus and Trust-prepared
sales literature of the Trust) of Insurance Company or its
agents with respect to the sale and distribution of contracts
for which Trust shares are an underlying investment or arise
out of a breach of this Agreement; and Insurance Company will
reimburse any legal or other expenses reasonably incurred by a
Trust Indemnified Person in connection with investigating or
defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability
which Insurance Company may otherwise have.
(b) The Trust agrees to indemnify and hold harmless Insurance
Company and each of its directors, officers, employees, agents
and each person, if any, who controls Insurance Company within
the meaning of the Act (Insurance Company and such persons
collectively, "Insurance Company Indemnified Person") against
any losses, claims, damages or liabilities to which an
Insurance Company Indemnified Person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) are related to
the operations, sale or acquisition of the Trust's shares or
the contracts and arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement or prospectus or
Trust-prepared sales literature of the Trust, or arise out of
or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
arise out of or are based upon the Trust's failure to keep each
of the Trust options fully diversified and qualified as a
regulated investment company as required by the applicable
provisions of the code, the 1940 Act, and any other law or
regulation, or arise out of a breach of this Agreement and the
Trust will reimburse any legal or other expenses
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reasonably incurred by an Insurance Company Indemnified Person in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the
Trust will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or omission or alleged omission
made in such Registration Statement or prospectus in conformity
with written information furnished to the Trust by Insurance
Company specifically for use therein or in Insurance
Company-prepared sales literature. This indemnity agreement
will be in addition to any liability which the Trust may
otherwise have.
(c) The Adviser agrees to indemnify and hold harmless each
Insurance Company Indemnified Person against any losses,
claims, damages or liabilities to which an Insurance Company
Indemnified Person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) are related to the
operations, sale or acquisition of the Trust's shares or the
Contracts and arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement or prospectus or
Adviser-prepared sales literature of the Trust, or arise out of
or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
arise out of or are based upon the Adviser's failure to keep
each of the Trust and its Portfolios fully diversified and
qualified as a regulated investment company as required by the
applicable provisions of the Code, the 1940 Act, and any other
law or regulation, or arise out of a breach of this Agreement
and the Adviser will reimburse any legal or other expenses
reasonably incurred by teach Insurance Company Indemnified
Person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however,
that the Adviser will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or omission or
alleged omission made in such Registration Statement or
prospectus in conformity with written information furnished to
the Adviser by Insurance Company specifically for use therein
or Insurance Company-prepared sales literature. This indemnity
agreement will be in addition to any liability which the
Adviser may otherwise have.
(d) The Trust and the Adviser shall indemnify and hold each
Insurance Company Indemnified Person harmless against any and
all liability, loss, damages, costs or expenses which an
Insurance Company Indemnified Person may incur, suffer or be
required to pay directly due to the Trust's or Adviser's (or
their designated agent's) (1) incorrect calculation of the
daily net asset value, dividend rate or capital gain
distribution rate; (2) incorrect reporting of the daily net
asset value, dividend rate or capital gain
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distribution rate; or (3) untimely reporting of the net asset
value, dividend rate or capital gain distribution rate. Any gain
to Insurance Company attributable to the Trust's, or Adviser's
(or their designated agent's) incorrect calculation or reporting
of the daily net asset value shall be immediately returned to the
Trust.
(e) Promptly after receipt by an indemnified party under this
paragraph 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 under this paragraph,
notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not
relive it from any liability which it may have to any
indemnified party otherwise than under this paragraph. In case
any such action is brought against any indemnified party, and
it notified the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate, at its
own expense, therein and, to the extent that it may wish,
assume the defense thereof, with counsel satisfactory to such
indemnified party. After notice from the indemnifying party to
such indemnified party of its election to assume the defense of
such action, the indemnified party shall 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
paragraph for any legal or other expenses subsequently incurred
by such indemnified party independently in connection with the
defense thereof other than reasonable costs of investigation.
(f) Nothing herein shall entitle an indemnified party to special,
consequential or exemplary damages or damages of like kind or
nature and with respect to section 14(d) hereof all liability,
loss and damages shall be limited to the amount required to
correct the value of the account as if there had been no
incorrect calculation or reporting or untimely reporting of net
asset value, dividend rate or capital gain distribution rate.
17. If, in the course of future marketing of the Contracts, Insurance
Company or its agents shall request, in writing assistance from the
Trust's sales personnel which is beyond the scope of the services and
materials to be provided under the terms of this Agreement,
compensation (which will be negotiated by the Trust and Insurance
Company) shall be paid by Insurance Company to the Trust.
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GENERAL AMERICAN LIFE INSURANCE CO.
------------------------ By -------------------------------
Date
XXX XXX INVESTMENT TRUST
------------------------ By -------------------------------
Date
XXX XXX ASSOCIATES CORPORATION
------------------------ By -------------------------------
Date
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EXHIBIT A
TO FUND PARTICIPATION AGREEMENT
AMONG
GENERAL AMERICAN LIFE INSURANCE COMPANY,
XXX XXX INVESTMENT TRUST AND
XXX XXX ASSOCIATES CORPORATION
DATED JULY 27, 1994
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Fund
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Worldwide Hard Assets Fund (Formerly Gold and Natural Resources Fund)
Worldwide Emerging Markets Fund
1998
[FN]
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Now named Xxx Xxx Worldwide Insurance Trust
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