Exhibit 1.A(9)(b)(iii)
PARTICIPATION AGREEMENT
THIS AGREEMENT is hereby entered into this 1st day of May 1995 by
and among THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC. ("GIAC"), a Delaware
life insurance company, for itself and on behalf of certain of its separate
accounts set forth on Schedule A hereto, as such Schedule may be amended from
time to time (the "Separate Accounts"); GUARDIAN INVESTOR SERVICES CORPORATION
("GISC"), a New York corporation; GABELLI CAPITAL SERIES FUNDS, INC. ("GCSF"), a
Maryland corporation, for itself and on behalf of its series fund, GABELLI
CAPITAL ASSET FUND (the "Fund"); GABELLI FUNDS, INC. ("GFI"), a New York
corporation; and GABELLI & COMPANY, INC. ("G&C") a New York corporation.
WITNESSETH:
WHEREAS, GIAC has established the Separate Accounts under the
Delaware Insurance Code in connection with certain variable annuity and variable
life insurance contracts (the "Contracts") offered to the public by GIAC and, if
required, has registered the Separate Accounts as unit investment trusts under
the Investment Company Act of 1940 (the "1940 Act") to serve as investment
vehicles for the Contracts; and
WHEREAS, GIAC has, if required, registered the Contracts under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Contracts generally provide for the allocation of net
amounts received by GIAC, at the election of the owners of the Contracts, to
separate subaccounts of the Separate
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Accounts for investment in various allocation options that are available through
the Separate Accounts; and
WHEREAS, the parties hereto desire that GCSF be registered as an
open-end diversified, management investment company under the 1940 Act and that
the shares of the Fund be registered under the 1933 Act and be made available as
an allocation option offered to GIAC on behalf of the Separate Accounts in
connection with the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, GIAC intends to purchase Fund shares on behalf of the Separate
Accounts to fund the Contracts; and
WHEREAS, the parties desire that GISC serve as the manager of the
Fund and that GFI serve as the investment adviser of the Fund; and
WHEREAS, the parties desire that G&C serve as underwriter of Fund
shares with the authority to sell Fund shares to the Separate Accounts at net
asset value;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
representations, covenants and conditions set forth herein, the parties hereto
hereby agree as follows:
Section 1. The Fund
1(a). GCSF is registered as an open-end diversified management investment
company under the 1940 Act. GCSF has been
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organized as a series fund and has designated the Fund as the initial series of
GCSF.
1(b). G&C will organize the Fund with investment objectives,
diversification policies, investment philosophies and policies and significant
investment techniques substantially similar to the existing fund known as "The
Gabelli Asset Fund" or as otherwise agreed upon by the parties hereto. G&C will
use commercially reasonable efforts to register the shares of the Fund under the
1933 Act. The parties hereto agree that additional series of GCSF may be
established and their shares registered from time to time in the future with the
consent of all the parties hereto.
1(c). Subject to the approval of the Board of Directors of GCSF (the
"Board") and the shareholders of the Fund as required under the 1940 Act, GISC
shall act as manager of the Fund pursuant to a Management Agreement which will
provide for the payment to GISC of a management fee at an annual rate of 1.0% of
the average daily net assets of the Fund and will further provide for the
retention of an investment adviser. Subject to the approval of the Board and the
shareholders of the Fund as required under the 1940 Act, GFI shall act as
investment adviser of the Fund pursuant to an Investment Advisory Agreement
among GCSF, GISC and GFI which will provide for the payment to GFI by GISC of an
investment advisory fee at an annual rate of .75% of the average daily net
assets of the Fund.
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1(d). GFI shall designate Xxxxx X. Xxxxxxx to be primarily responsible for
the day-to-day portfolio management of the Fund. GFI shall make Xx. Xxxxxxx
available to participate in a "roll-out" promotional meeting for broker-dealer
sellers of the Contracts to be held in New York City on or around the time Fund
shares are first made available under the Contracts. GFI shall use commercially
reasonable efforts to make Xx. Xxxxxxx available, either in person or by
conference call, for such additional "rollout" meetings to be held in other
parts of the United States as GIAC shall reasonably request.
1(e). GIAC agrees to make a seed money investment into the Fund in the
amount of at least $100,000 before GCSF's registration statement under the 1933
Act and 1940 Act becomes effective. Aside from this seed money investment, Fund
shares shall be offered and sold exclusively to GIAC on behalf of the Separate
Accounts. No shares of the Fund will be offered or sold to the general public.
In addition, for a two year period (the "Restricted Period") beginning with the
date Fund shares are first offered to the owners of the Contracts, neither G&C,
GFI nor any of their affiliates shall organize or negotiate to organize, own
more than a 5% interest in or provide investment advice (whether as investment
manager, sub-investment manager or as a consultant) to any investment company or
other pooled entity which is (i) substantially similar to the Fund with respect
to investment objectives, diversification policies, investment philosophies and
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policies and significant investment techniques and (ii) offered as an investment
option under a variable life or variable annuity contract issued by a company
that is not affiliated with GIAC. Subject to the written consent of the parties
hereto, the Restricted Period shall be renewed for additional periods of two
years each. The failure by any party to consent to a renewal of the Restricted
Period will not, in and of itself, cause the termination of either this
Agreement or the activities of the parties pursuant hereto.
1(f). GIAC shall have the right to nominate for election one member of the
Board of the Fund.
1(g). GCSF agrees to make Fund shares indefinitely available to be
purchased by GIAC on behalf of the Separate Accounts at the net asset value
applicable to each order on those days on which the Fund calculates its net
asset value pursuant to the rules of the Securities and Exchange Commission
("SEC"). Fund shares shall be purchased and redeemed in such quantities and at
such times determined by GIAC on behalf of its Separate Accounts as necessary to
meet the requirements of the Contracts. GIAC agrees that purchases and
redemptions of Fund shares offered by the then current prospectus of the Fund
shall be made in accordance with the provisions of such prospectus. The Fund
shall use reasonable efforts to calculate such net asset value on each day on
which the New York Stock Exchange is open for trading and the Fund is offering
for sale and/or redeeming its shares.
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Notwithstanding the foregoing, the Board may refuse to sell shares of the Fund
to any person, or suspend or terminate the offering of shares of the Fund if
such action is required by law or by regulatory authorities having jurisdiction
or is, in the sole discretion of the Board acting in good faith and in light of
their fiduciary duties under federal and any applicable state laws, necessary in
the best interests of the shareholders of the Fund, or may suspend the
redemption of shares under the circumstances described in the Fund's prospectus.
1(h). GCSF agrees on behalf of the Fund to redeem for cash, on GIAC's
request, any full or fractional shares of the Fund held by GIAC on behalf of the
Separate Accounts, executing such requests at the net asset value next computed
after receipt by the Fund or its designee of the request for redemption.
1(i). GCSF hereby appoints GIAC as agent of the Fund for the limited
purpose of accepting purchase and redemption orders for Fund shares from the
Separate Accounts, based on allocations of net amounts to subaccounts of the
Separate Accounts relating to the Fund and other transactions relating to the
Contracts or the Separate Accounts. Subject to the last sentence of Section
1(g), all such orders for Fund shares and requests for other Contract
transactions which are received in complete and satisfactory form by GIAC from
Contractowners prior to the close of trading each day that the New York Stock
Exchange (the "Exchange") is open and on which the Fund has calculated its net
asset value (each such day,
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a "business day") will be executed by the Fund at the net asset value for such
shares determined as of the earlier of the close of business of the Exchange or
4:00 p.m., Eastern time, on such business day. Subject to the last sentence of
Section l(g), any orders for Fund shares for the Separate Accounts, based on
premium payments or Contractowner transaction requests which are received on
such day but after the close of the Exchange, will be executed by the Fund at
the net asset value determined as of the earlier of the close of business of the
Exchange or 4:00 p.m., Eastern time, on the next business day following the day
of receipt of such order.
1(j). GCSF will use commercially reasonable efforts to provide GIAC with
the closing net asset value and income, dividend and capital gain distribution
information for the Fund, as of the close of the Exchange each business day, by
6:00 p.m. Eastern time on such day. GIAC will send directly to the Fund or its
specified agent orders to purchase and/or redeem Fund shares on the basis of
such closing net asset value by 10:00 a.m. Eastern time the following business
day. Payment for purchases of Fund shares (net of proceeds payable on
contemporaneous redemptions of Fund shares) will be wired by GIAC by 11:00 a.m.
Eastern time on such business day to a custodial account designated by the Fund
for such purpose. Issuance and transfer of the Fund's shares will be by book
entry only and Fund shares will be recorded in an appropriate title for each
Separate Account or appropriate subaccount of each
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Separate Account. GIAC hereby elects to receive all income, dividends and
capital gain distributions as are payable on the Fund shares in the form of
additional shares of the Fund.
1(k). Payment for net redemptions of shares of the Fund will be wired by
GCSF, from the Fund's custodial account to an account designated by GIAC in
writing, on the next business day after GIAC transmits the redemption order to
the Fund.
Section 2. Expenses and Administration
2(a). GIAC shall advance all costs in connection with the organization of
the Fund including legal and auditing fees, registration fees and printing costs
of the registration statement and other documents necessary for the registration
process. The Fund shall reimburse GIAC for such costs when the Fund's total
assets exceed $50,000,000 or when the Fund has completed one year of operations,
whichever is sooner.
2(b). All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal and state law prior to their sale. The Fund shall bear the expenses for
the cost of registration and qualification of the Fund's shares, preparation and
filing of the Fund's prospectus, registration statement, proxy materials and
reports, setting in type the Fund prospectus, setting in type and printing the
Fund's registration statement, proxy materials and reports to shareholders, the
preparation of
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all statements and notices required by any federal or state law, all taxes on
the issuance or transfer of the Fund's shares and 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. The Fund, at its expense, shall provide GIAC with copies of its
proxy statements, reports to shareholders and other communications to
shareholders in such quantity as GIAC shall reasonably require for distributing
to Contractowners. GIAC shall bear the expense of any copies of such statements,
reports or communications which the Fund provides to GIAC at GIAC's request in
excess of such requirements. GIAC shall bear the expenses of distributing the
printed copies of the Fund's proxy materials and reports to Contractowners.
2(c). Except as set forth below, GIAC shall bear the expenses of (i)
printing such copies of the Fund's prospectus as it shall require for existing
and prospective Contractowners and (ii) distributing the printed copies of the
Fund's prospectus to existing and prospective Contractowners. Notwithstanding
the previous sentence, G&C shall bear the expenses, at cost, of printing and
distributing all sales kits for the Contracts (consisting, among other items, of
prospectuses for the Contracts and the variable investment options offered under
the Contracts) which are used by G&C or its affiliates in their activities,
related to selling the Contracts.
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2(d). Except as set forth in Sections 2(b) and 2(c) above, GIAC shall bear
all expenses related to the design, development, production and printing of all
marketing materials related to the Contracts and the Fund, including the design
and development of all marketing materials relating to the Contracts
specifically for use by G&C, and shall make all such materials available to G&C
and its affiliates for their marketing activities relating to the Contracts.
2(e). Administrative services for the Separate Accounts or for
Contractowners are the responsibility of GIAC and shall not be the
responsibility of GCSF, the Fund, G&C, GFI or their affiliates. Administrative
services for the Fund and for purchasers of Fund shares are the responsibility
of GFI and the Fund and their affiliates.
2(f). GCSF, G&C and GFI shall pay no fee or other compensation to GIAC
under this Agreement, except that if the Fund adopts and implements a plan
pursuant to Rule 12b-1 under the 1940 Act to finance distribution expenses, then
the Fund may make payments to GIAC, as permitted under applicable law and
pursuant to such plan.
Section 3. Representations and Warranties
3(a). GIAC represents and warrants that, if required, the Contracts are or
will be registered under the 1933 Act; that the Contracts will be issued and
sold in compliance in all material respects with all applicable federal and
state laws; and
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that the sale of the Contracts shall comply in all material respects with state
insurance law requirements. GIAC 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 Separate Account under the
Delaware Insurance Code and has registered or, prior to any issuance or sale of
the Contracts, will register each Separate Account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts.
3(b). G&C and GCSF represent and warrant that Fund shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with all applicable federal and state securities
laws and that GCSF is and shall remain registered under the 1940 Act so long as
Fund shares are sold. GCSF shall amend the registration statement for Fund
shares under the 1933 Act and the 1940 Act from time to time as required in
order to permit the continuous offering of its shares.
3(c). To the extent feasible and consistent with market conditions, the
Fund will adjust its investment objectives, diversification policies, investment
policies, investment restrictions, fees and expenses and investments to comply
with applicable insurance laws or regulations of the various states, upon
written notice from GISC or GIAC of any such requirements.
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3(d). GFI and GCSF represent and warrant that the Fund will make every
reasonable effort to qualify as a Regulated Investment Company under Subchapter
M of the Internal Revenue Code of 1986, as amended (the "Code"), and to maintain
such qualification (under Subchapter M or any successor or similar provision),
and that GFI or GCSF will notify GIAC and GISC immediately upon having a
reasonable basis for believing that the Fund has ceased to so qualify or that
the Fund might not so qualify in the future.
3(e). The Fund will at all times comply with Section 817(h) of the Code
and all regulations issued thereunder so that the Contracts will be treated as
variable contracts under the Code. GFI or GCSF will notify GIAC immediately upon
having a reasonable basis for believing that the Fund has ceased to so comply or
that the Fund might not so qualify in the future. In the event of a breach of
this subsection by the Fund, GCSF will take all reasonable steps to adequately
diversify the Fund within the grace periods provided by code regulations. To the
extent feasible, the Fund will also adjust its investments to comply with such
other provisions of the Code and regulations issued thereunder as necessary to
ensure that the contracts will be treated as variable contracts under the Code,
upon written notice from GISC or GIAC of any such requirements.
3(f). GISC represents and warrants that it is registered as an investment
adviser with the SEC under the Investment
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Advisers Act of 1940. GISC has supplied GCSF, GFI and G&C with a true, complete
and correct copy of its current Form ADV and verifies the accuracy in all
material respects of all statements made therein. GISC represents and warrants
that it shall remain duly registered in all material respects under all
applicable federal and state securities laws as required to perform its
obligations under this Agreement.
3(g). G&C represents and warrants that it is a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD") and is registered
as a broker-dealer with the SEC. G&C further represents that it will sell and
distribute the Fund shares in accordance with all applicable state and federal
securities laws. G&C has supplied GIAC and GCSF with a true, complete and
correct copy of its current Form BD and verifies the accuracy in all material
respects of all statements made therein. G&C represents and warrants that it
shall remain duly registered in all material respects under all applicable
federal and state securities laws as required to perform its obligations under
this Agreement.
3(h). GFI represents and warrants that it is registered with the SEC as an
investment adviser under the Investment Advisers Act of 1940. GFI has supplied
the GIAC and GCSF with a true, complete and correct copy of its current Form ADV
and verifies the accuracy in all material respects of all statements made
therein. GFI represents and warrants that it shall remain
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duly registered in all material respects under all applicable federal and state
securities laws as required to perform its obligations under this Agreement.
3(i). Each party to this Agreement represents and warrants that it is not
aware of any pending or threatened litigation matter or claim or regulatory
proceeding, investigation or inquiry, involving such party or any of its
affiliates, the outcome of which could have a material adverse effect on this
Agreement or the transactions contemplated hereunder.
Section 4. Sales Materials; Filed Documents
4(a). GIAC shall furnish GCSF and G&C with a copy of each piece of sales
literature or other promotional material in which the Fund is named, including
"broker use only" pieces, for review at least five (5) business days before any
such piece is either submitted to the SEC or NASD for review or used. GCSF and
G&C agree to review any pieces submitted by GIAC on a prompt and timely basis.
4(b). GIAC shall not give any information or make any representations or
statements concerning the Fund in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement or prospectus for the Fund shares or in shareholder reports or proxy
statements for the Fund, or in sales literature or other promotional materials
which have been approved by GCSF or G&C or submitted for review without
objection pursuant to Section 4(a).
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4(c). GCSF or G&C shall furnish to GIAC and GISC each piece of sales
literature or other promotional material in which GIAC, GISC, the Contracts, the
Separate Accounts or the Fund are named, including "broker use only" pieces, for
review by such parties at least five (5) business days before any such piece is
either submitted to the SEC or NASD for review or used. GIAC and GISC agree to
review any pieces submitted pursuant to this section on a prompt and timely
basis.
4(d). GCSF and G&C shall not give any information or make any
representations concerning GIAC, GISC, the Contracts, the Separate Accounts or
the Fund, other than the information or representations contained in the
registration statement or prospectuses for the applicable Contract or the Fund,
any proxy statement or reports to shareholders of the Fund or in reports for the
Separate Accounts which are approved by GIAC for distribution to Contractowners
or in sales literature or other promotional material which have been approved by
GIAC or GISC or submitted for review without objection pursuant to Section 4(c).
4(e). GCSF will provide to GIAC at least one complete copy of all
registration statements, prospectuses, statements of additional information,
annual and semi-annual reports, proxy statements, no-action letters, exemptive
applications and all amendments or supplements to any of the above that relate
to the Fund promptly after the filing of such document with the SEC or other
regulatory authorities. GIAC will provide to G&C at least
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one complete copy of all registration statements, prospectuses, statements of
additional information, annual and semi-annual reports, proxy statements,
no-action letters, exemptive applications and all amendments or supplements to
any of the above that relate to the Separate Accounts promptly after the filing
of such document with the SEC or other regulatory authorities.
Section 5. Voting
5(a). If and to the extent required by law and so long as and to the
extent that the SEC continues to interpret the 1940 Act to require pass-through
voting privileges for variable contractowners, GIAC shall, in connection with
any Fund shareholder meeting, (i) solicit voting instructions from
Contractowners; (ii) vote Fund shares in accordance with instructions received
from Contractowners; and (iii) vote Fund shares for which no instructions have
been received in the same proportion as Fund shares for which instructions have
been received. GIAC reserves the right to vote Fund shares held in any Separate
Account in its own right, to the extent permitted by law.
5(b). GCSF agrees that the Fund will comply with all provisions of the
1940 Act requiring voting by shareholders, and in particular that the Fund will
either provide for annual meetings or take steps to comply with Section 16 of
the 1940 Act. Further, GCSF agrees that the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with
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respect to periodic elections of directors and with whatever rules the SEC may
promulgate with respect thereto.
Section 6. Indemnification
6(a). Indemnification By GIAC
GIAC agrees to indemnify and hold harmless GCSF, GFI and G&C and
each of such parties, directors, officers, employees or agents and each person,
if 'any, who controls or is associated with GCSF, GFI or G&C within the meaning
of such terms under the federal securities laws (collectively, the "indemnified
parties" for purposes of this Section 6(a)) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of GIAC) or litigation (including legal and other expenses), to which
the indemnified parties may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares and:
(i) arise out of or are based upon untrue statements or alleged untrue
statements of any material fact contained in the registration
statement or prospectus for the Contracts or contained in the
Contracts or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in
which they were made; provided that this agreement to indemnify
shall not apply as to any indemnified party if such statement or
omission or such alleged statement or omission was made in reliance
upon and in conformity
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with information furnished in writing to GIAC by or on behalf of
G&C, GFI or GCSF expressly for use in the registration statement or
prospectus for the Contracts or in the Contracts or sales literature
(or any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations by or
on behalf of GIAC (other than statements or representations
contained in the Contract or Fund registration. statement, the
Contract or Fund prospectus or sales literature for the Contracts or
the Fund not supplied by GIAC or persons under its control or not
submitted for review without objection or approved for use by GIAC
pursuant to Section 4 hereof) or wrongful conduct of GIAC or persons
under its control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, or
sales literature of the Fund or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in
which they were made, if such a statement or omission was made in
reliance upon and in conformity with information furnished to the
Fund by or on behalf of GIAC; or
(iv) arise as a result of any failure by GIAC to provide the services and
furnish the materials or to make any payments under the terms of
this Agreement; or
(v) arise out of any material breach of any representation or warranty
made by GIAC in this Agreement or arise out of or result from any
other material breach by GIAC of this Agreement;
except to the extent provided in the next paragraph. This indemnification shall
be in addition to any liability which GIAC may otherwise have.
GIAC shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities
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or litigation to which an indemnified party would otherwise be subject by reason
of (i) willful misfeasance, bad faith, or gross negligence by the indemnified
party in the performance of its duties or by reason of its reckless disregard of
obligations or duties under this Agreement; (ii) the use of sales literature or
other promotional materials which have not been approved for use by GIAC or
submitted for review without objection pursuant to Section 4 hereof; or (iii)
wrongful conduct by directors, officers, employees or agents of GCSF, G&C, GFI
or any affiliated seller of the Contracts with respect to the sale or
distribution of the Contracts or Fund shares.
The indemnified parties will promptly notify GIAC of the
commencement of any litigation or proceedings against GIAC in connection with
the issuance or sale of the Fund shares or the Contracts or the operation of the
Fund, or otherwise related to this Agreement.
6(b). Indemnification By GISC
GISC agrees to indemnify and hold harmless GCSF, GFI and G&C and
each of such parties, directors, officers, employees or agents and each person,
if any, who controls or is associated with GCSF, GFI or G&C within the meaning
of such terms under the federal securities laws (collectively, the "indemnified
parties" for purposes of this Section 6(b)) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of GISC) or litigation (including legal
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and other expenses), to which the indemnified parties may become subject under
any statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares and:
(i) arise out of or are based upon untrue statements or alleged untrue
statements of any material fact contained in the registration
statement or prospectus for the Contracts or contained in the
Contracts or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in
which they were made, if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished in writing to GIAC by or on behalf of
GISC expressly for use in the registration statement or prospectus
for the Contracts or in the Contracts or sales literature (or any
amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations by or
on behalf of GISC (other than statements or representations
contained in the Contract or Fund registration statement, the
Contract or Fund prospectus or sales literature for the Contracts or
the Fund not supplied by GISC or persons under its control or not
submitted for review without objection or approved for use by GISC
pursuant to Section 4 hereof) or wrongful conduct of GISC or persons
under its control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, or
sales literature of the Fund or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in
which they
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were made, if such a statement or omission was made in reliance upon
and in conformity with information furnished to the Fund by or on
behalf of GISC; or
(iv) arise as a result of any failure by GISC to provide the services and
furnish the materials or to make any payments under the terms of
this Agreement; or
(v) arise out of any material breach of any representation or warranty
made by GISC in this Agreement or arise out of or result from any
other material breach by GISC of this Agreement;
except to the extent provided in the next paragraph. This indemnification shall
be in addition to any liability which GISC may otherwise have.
GISC shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
indemnified party would otherwise be subject by reason of (i) willful
misfeasance, bad faith, or gross negligence by the indemnified party in the
performance of its duties or by reason of its reckless disregard of obligations
or duties under this Agreement; (ii) the use of sales literature or other
promotional materials which have not been approved for use by GISC or submitted
for review without objection pursuant to Section 4 hereof; or (iii) wrongful
conduct by directors, officers, employees or agents of GCSF, G&C, GFI or any
affiliated seller of the Contracts with respect to the sale or distribution of
the Contracts or Fund shares.
The indemnified parties will promptly notify GISC of the
commencement of any litigation or proceedings against GISC in connection with
the issuance or sale of the Fund shares or the
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Contracts or the operation of the Fund, or otherwise related to this Agreement.
6(c). Indemnification By GCSF
GCSF agrees to indemnify and hold harmless GIAC, GISC and each of
their directors, officers, employees or agents and each person, if any, who
controls or is associated with GIAC or GISC within the meaning of such terms
under the federal Securities laws (collectively, the "indemnified parties" for
the purpose of this Section 6(c)) against any and all losses, claims, damages or
liabilities (including amounts paid in settlement with the written consent of
GCSF) or litigation (including legal and other expenses) to which they are or
any of them may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expense (or
actions in respect thereof) or settlements are related to the sale or
acquisition of the Fund's shares and:
(i) arise out of or are based upon untrue statements or alleged untrue
statements of any material fact contained in the registration
statement or prospectus for the Fund or sales literature of the Fund
(or any amendment or supplement thereto), 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 in light of the circumstances in
which they were made; provided that this agreement to indemnify
shall not apply if such statement or omission or alleged statement
or alleged omission was made in reliance upon and in conformity with
information furnished in writing to GCSF by or on behalf of GIAC,
GISC, GFI or G&C expressly for use in the registration statement or
prospectus for the Fund or sales literature for the Fund (or any
amendment or supplement
-22-
thereto) or otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the Contracts or the
Contract or Fund registration statement, or the Contract or Fund
prospectus or sales literature for the Contract or the Fund not
supplied by GCSF or persons under its control or not submitted for
review without objection or approved for use by GCSF) or wrongful
conduct of GCSF or persons under its control, with respect to the
sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus or
sales literature covering the Contracts (or any amendment thereto),
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they
were made, if such a statement or omission was made in reliance upon
and in conformity with written information furnished by or on behalf
of GCSF or the Fund to GIAC or GISC expressly for use in the
registration statement or sales literature covering the Contract; or
(iv) arise as a result of any failure by GCSF or the Fund to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of any material breach of any representation or warranty
made by GCSF or the Fund in this Agreement or arise out of or result
from any other material breach by GCSF or the Fund of this
Agreement;
except to the extent provided in the next paragraph. This indemnification shall
be in addition to any liability which the Fund may otherwise have.
-23-
GCSF and the Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an indemnified party would otherwise be subject by reason of (i)
willful misfeasance, bad faith, or gross negligence by the indemnified party in
the performance of the indemnified party's duties or by reason of the
indemnified party's reckless disregard of obligations or duties under this
Agreement or to GIAC, GISC or the Separate Accounts; (ii) the use of sales
literature or other promotional materials relating to the Fund which have not
been submitted for review without objection or approved for use by GCSF or the
Fund pursuant to Section 4 hereof; or (iii) wrongful conduct by directors,
officers, employees or agents of GIAC, GISC or any affiliated seller of the
Contracts with respect to the sale or distribution of the Contracts or Fund
shares.
The indemnified parties will promptly notify GCSF and the Fund of
the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Fund shares or the Contracts or the operation
of the Fund.
6(d). Indemnification By GFI
GFI agrees to indemnify and hold harmless GIAC, GISC and each of
their directors, officers, employees or agents and each person, if any, who
controls or is associated with GIAC or GISC within the meaning of such terms
under the federal securities laws (collectively, the "indemnified parties" for
the purpose of
-24-
this Section 6(d)) against any and all losses, claims, damages or liabilities
(including amounts paid in settlement with the written consent of GFI) or
litigation (including legal and other expenses) to which they are or any of them
may become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expense (or actions in
respect thereof) or settlements are related to the sale or acquisition of the
Fund's shares and:
(i) arise out of or are based upon untrue statements or alleged untrue
statements of any material fact contained in the registration
statement or prospectus for the Fund or sales literature of the Fund
(or any amendment or supplement thereto), 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 in light of the circumstances in
which they were made, if such statement or omission or alleged
statement or alleged omission was made in reliance upon and in
conformity with information furnished in writing to GCSF by or on
behalf of GFI expressly for use in the registration statement or
prospectus for the Fund or sales literature for the Fund (or any
amendment or supplement thereto) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the Contracts or the
Contract or Fund registration statement, or the Contract or Fund
prospectus or sales literature for the Contract or the Fund not
supplied by GFI or persons under its control or not submitted for
review without objection or approved for use by GFI) or wrongful
conduct of GFI or persons under its control, with respect to the
sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus or
sales literature covering the Contracts (or any amendment
-25-
thereto), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in
which they were made, if such a statement or omission was made in
reliance upon and in conformity with written information furnished
by or on behalf of GFI to GIAC or GISC expressly for use in the
registration statement or sales literature covering the Contract; or
(iv) arise as a result of any failure by GFI to provide the services and
furnish the materials under the terms of this Agreement; or
(v) arise out of any material breach of any representation or warranty
made by GFI in this Agreement or arise out of or result from any
other material breach by GFI of this Agreement;
except to the extent provided in the next paragraph. This indemnification shall
be in addition to any liability which the Fund may otherwise have.
GFI shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
indemnified party would otherwise be subject by reason of (i) willful
misfeasance, bad faith, or gross negligence by the indemnified party in the
performance of the indemnified party's duties or by reason of the indemnified
party's reckless disregard of obligations or duties under this Agreement or to
GIAC, GISC or the Separate Accounts; (ii) the use of sales literature or other
promotional materials relating to GFI which have not been submitted for review
without objection or approved for use by GFI pursuant to Section 4 hereof; or
(iii) wrongful conduct by directors, officers, employees or agents of GIAC, GISC
-26-
or any affiliated seller of the Contracts with respect to the sale or
distribution of the Contracts or Fund shares.
The indemnified parties will promptly notify GFI of the commencement
of any litigation or proceedings against GFI in connection with the issuance or
sale of the Fund shares or the Contracts or the operation of the Fund.
6(e). Indemnification By G&C
G&C agrees to indemnify and hold harmless GIAC, GISC and each of
their directors, officers, employees or agents and each person, if any, who
controls or is associated with GIAC or GISC within the meaning of such terms
under the federal securities laws (collectively, the "indemnified parties" for
the purpose of this Section 6(e)) against any and all losses, claims, damages or
liabilities (including amounts paid in settlement with the written consent of
G&C) or litigation (including legal and other expenses) to which they are or any
of them may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expense (or
actions in respect thereof) or settlements are related to the sale or
acquisition of the Fund's shares and:
(i) arise out of or are based upon untrue statements or alleged untrue
statements of any material fact contained in the registration
statement or prospectus for the Fund or sales literature of the Fund
(or any amendment or supplement thereto), 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 in light of the circumstances in
which they were made, if such statement or omission or alleged
-27-
statement or alleged omission was made in reliance upon and in
conformity with information furnished in writing to GCSF by or on
behalf of G&C expressly for use in the registration statement or
prospectus for the Fund or sales literature for the Fund (or any
amendment or supplement thereto) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the Contracts or the
Contract or Fund registration statement, or the Contract or Fund
prospectus or sales literature for the Contract or the Fund not
supplied by G&C or persons under its control or not submitted for
review without objection or approved for use by G&C) or wrongful
conduct of G&C or persons under its control, with respect to the
Bale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus or
sales literature covering the Contracts (or any amendment thereto),
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they
were made, if such a statement or omission was made in reliance upon
and in conformity with written information furnished by or on behalf
of G&C to GIAC or GISC expressly for use in the registration
statement or sales literature covering the Contract; or
(iv) arise as a result of any failure by G&C to provide the services and
furnish the materials under the terms of this Agreement; or
(v) arise out of any material breach of any representation or warranty
made by G&C in this Agreement or arise out of or result from any
other material breach by G&C of this Agreement;
except to the extent provided in the next paragraph. This indemnification shall
be in addition to any liability which the Fund may otherwise have.
-28-
G&C shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
indemnified party would otherwise be subject by reason of (i) willful
misfeasance, bad faith, or gross negligence by the indemnified party in the
performance of the indemnified party's duties or by reason of the indemnified
party's reckless disregard of obligations or duties under this Agreement or to
GIAC, GISC or the Separate Accounts; (ii) the use of sales literature or other
promotional materials relating to G&C which have not been submitted for review
without objection or approved for use by G&C pursuant to Section 4 hereof; or
(iii) wrongful conduct by directors, officers, employees or agents of GIAC, GISC
or any affiliated seller of the Contracts with respect to the sale or
distribution of the Contracts or Fund shares.
The indemnified parties will promptly notify G&C of the commencement
of any litigation or proceedings against it in connection with the issuance or
sale of the Fund shares or the Contracts or the operation of the Fund.
6(f). Promptly after receipt by an indemnified party under this Section 6
of commencement of action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this section, notify
the indemnifying party of the commencement thereof; but the omission to so
notify the indemnifying party will not relieve the indemnifying party from any
liability which it may have to any indemnified party
-29-
otherwise than under this section. 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
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 of its intention to assume the defense of an action, the
indemnified party shall bear the expenses of any additional counsel obtained by
it, and the indemnifying party shall not be liable to such indemnified party
under this section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
6(g). Each of the parties agrees promptly to notify the other parties of
the commencement of any litigation or proceeding against it or any of its
respective officers, directors, trustees, employees or control person (as
defined in the federal securities laws) in connection with the Agreement, the
issuance or sale of the Contracts, the operation of the Separate Accounts, or
the sale or acquisition of Fund shares.
6(h). A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this Section. The
indemnification provisions contained in this Section shall survive any
termination of this Agreement.
-30-
Section 7. Potential Conflicts
7(a). In accordance with the conditions set forth in an exemptive
application pursuant to which the SEC has granted exemptive relief to permit
"mixed" funding for GIAC and the Separate Accounts (the "Order"), GCSF and the
Fund agree that the Board, constituted with a majority of persons who are not
"interested persons" of the Fund as defined in the 1940 Act ("disinterested
directors"), will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the variable annuity
Contractowners and the variable life Contractowners of all Separate Accounts
investing in the Fund. An irreconcilable material conflict may arise for a
variety of reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance, tax or
securities regulatory authorities; (c) an administrative or judicial decision in
any relevant proceeding; (d) the manner in which the investments of the Fund are
being managed; (e) a difference in voting instructions given by the owners of
variable annuity contracts and variable life insurance contracts; or (f) a
decision by an insurer to disregard the voting instructions of Contractowners.
The Board shall promptly inform GIAC if it determines that an irreconcilable
material conflict exists and the implications thereof.
-31-
7(b). GIAC will report any potential or existing conflicts of which it is
aware to the Board. GIAC will assist the Board in carrying out its
responsibilities under the Order, by providing the Board will all information
reasonably necessary for the Board to consider any issues raised. This includes,
but is not limited to, an obligation by GIAC to inform the Board whenever
Contractowner voting instructions are disregarded.
7(c). If it is determined by a majority of the Board, or a majority of its
disinterested directors or by GIAC, on behalf of the Separate Accounts, that a
material irreconcilable conflict exists, GIAC shall, at its 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: (1) establishing a new
registered management investment company or managed separate account; (2)
withdrawing the assets allocable to some or all of the Separate Accounts from
the Fund and reinvesting such assets in a different investment medium, including
(but not limited to) another series of the Fund, or submitting the question
whether such segregation should be implemented to a vote of all affected
Contractowners and, as appropriate, segregating the assets of the appropriate
group (i.e., variable annuity Contractowners or variable life insurance
Contractowners) that votes in favor of such segregation, or
-32-
offering to the affected Contractowners the option of making such a change.
7(d). A majority of the disinterested directors shall determine whether
any proposed action adequately remedies any irreconcilable material conflict,
but in no event will the Fund be required to establish a new funding medium for
the Contracts. GIAC shall not be required by subsection (c) above to establish a
new funding medium for Contracts if any offer to do so has been declined by vote
of a majority of Contractowners materially adversely affected by the
irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy an irreconcilable material
conflict, then GIAC will withdraw from investment in the Fund the interests of
each of the Separate Accounts designated by the disinterested directors
provided, however, that such withdrawal shall be limited to the extent required
to remedy any such material irreconcilable conflict as determined by a majority
of the disinterested members of the Board.
7(e). If and to the extent that Rule 6e-2 and Rule 6e3(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 funding on terms
and conditions materially different from those contained in the Order, then (a)
the Fund and/or GIAC, as appropriate, shall take such steps as may be necessary
to comply with such amended or adopted rules, to
-33-
the extent such rules are applicable and (b) Sections 5 and 7 of the Agreement
shall continue in effect only to the extent that terms and conditions
substantially identical to the provisions of such Sections are contained in such
amended or adopted Rules.
Section 8. Applicable Law
8(a). This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Delaware.
8(b). This Agreement shall be subject to the provisions of the federal
securities laws, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
Section 9. Termination
9(a). This Agreement shall terminate:
(i) after the expiration of the initial Restricted Period described
in Section 1(e), at the option of any party, with or without cause, upon
one-year's advance written notice to the other parties; or
(ii) at the option of GIAC, if GIAC reasonably determines in good
faith that shares of the Fund are not registered, issued or sold in accordance
with applicable federal or state law in such a way as to be reasonably available
to meet the requirements of the Contracts, or if GIAC reasonably
-34-
determines in good faith that it is no longer appropriate, in the best interests
of Contractowners or consistent with the purpose of the Contracts, to continue
to offer the Fund as a funding vehicle or investment option under the Contracts.
Without limiting the generality of the foregoing, shares of the Fund would no
longer be considered an appropriate funding vehicle if, for example, the Fund
did not meet the diversification or other requirements specified to in Section 1
of this Agreement or if any applicable state insurance law prohibits the use of
Fund shares as an underlying allocation option under the Contracts. Modest
performance results shall not be considered as proper cause for GIAC to
terminate this Agreement pursuant to this subsection.
(iii) at the option of G&C, GCSF or the Fund, upon institution of
formal proceedings against GIAC or GISC by the NASD, the SEC, any state
securities or insurance department or any other regulatory body regarding GIAC's
duties under this Agreement or related to the sale of the Contracts, the
operation of the Separate Accounts, or the purchase of Fund shares; or
(iv) at the option of GIAC, upon institution of formal proceedings
against G&C, GCSF, the Fund or any of their affiliates by the NASD, the SEC, or
any state securities or insurance departments or any other regulatory body,
which, if determined adversely to such party, would have a material adverse
effect on its ability to perform this Agreement; or
-35-
(v) at the option of GIAC or GCSF, upon receipt of any necessary
regulatory approvals and/or the vote of the Contractowners to substitute the
shares of another investment company for the corresponding shares of the Fund in
accordance with the terms of the Contracts for which such shares had been
selected to serve as the underlying investment media. GIAC will give 30 days
prior written notice to G&C, GCSF and the Fund of the date of any proposed vote
or other action taken to replace the Fund's shares; or
(vi) at the option of GIAC or GCSF, upon a determination by a
majority of the Board, or a majority of the disinterested directors, that an
irreconcilable material conflict exists among the interests of all
Contractowners of variable insurance products of all Separate Accounts; or
(vii) at the option of (i) GIAC or GISC, upon termination of the
Investment Management Agreement between GCSF (on behalf of the Fund) and GISC or
(ii) GIAC, GISC, G&C or GCSF, upon termination of the Sub-Investment Management
Agreement between GISC and GFI, provided, however, that this subsection shall
not be deemed to apply if contemporaneously with any such termination a new
contract having the same parties and substantially similar terms is entered
into; or
(viii) at the option of GIAC, if Xxxxx X. Xxxxxxx is no longer
performing the duties of day-to-day portfolio management for the Fund; or
-36-
(ix) at the option of GIAC, if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Internal Revenue Code of
1986, or under any successor or similar provision, or if GIAC reasonably
believes that the Fund may fail to so qualify; or
(x) at the option of GIAC, if the Fund fails to meet the
diversification requirements specified in this Agreement; or (xi) at the option
of any party to this Agreement, upon another party's breach of any material
provision of this Agreement.
9(b). Except as necessary to implement Contractowner initiated
transactions, or as required by state insurance laws or regulations, GIAC shall
not redeem the Fund shares attributable to the Contracts and GIAC shall not
prevent Contractowners from allocating payments to the Fund until sixty (60)
days after GIAC shall have notified GCAF of its intention to do so.
9(c). Notwithstanding any termination of this Agreement, GCSF shall, at
the option of GIAC, 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 (the "Existing
Contracts"), except as otherwise provided under Section 5 of this Agreement, for
a reasonable period of time not to exceed one year after the date of notice of
termination, in order to permit GIAC to obtain all regulatory and/or
Contractowner approvals deemed appropriate to transfer Contractowner monies from
the Fund to another
-37-
allocation option available under the applicable Contracts. Specifically,
without limitation, the owners of the Existing Contracts shall be permitted to
transfer or reallocate investments under the Contracts, redeem investments in
the Fund and/or invest in the Fund upon the making of additional purchase
payments under the existing Contracts during such time period.
Section 10. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to GCAF, the Fund or GFI:
Xx. Xxxxx X. Xxxxxx
Gabelli Funds, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
If to GIAC or GISC:
Xx. Xxxx X. Xxxxx
The Guardian Insurance
& Annuity Company, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Section 11. Miscellaneous
11(a). Subject to law and regulatory authority, each party hereto shall
treat as confidential all information reasonably identified as such in writing
by any other party hereto (including without limitation the names and addresses
of the Contractowners) and, except as contemplated by this Agreement, shall not
disclose,
-38-
disseminate or utilize such confidential information until such time as it may
come into the public domain without the express prior written consent of the
affected party.
11(b). 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.
11(c). This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11(d). If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
11(e). This Agreement shall not be assigned by any party hereto without
the prior written consent of all the parties.
11(f). Schedule A attached hereto, as modified from time to time, is
incorporated herein by reference and is part of this Agreement.
11(g). Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit 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.
-39-
11(h). The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
11(i). 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 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.
-40-
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 as of the date specified above.
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
---------------------------------
Title: Executive Vice President
---------------------------------
GUARDIAN INVESTOR SERVICES
CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
---------------------------------
Title: President
---------------------------------
GABELLI & COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: Vice President
---------------------------------
GABELLI FUNDS, INC.
By: /s/ X. Xxxxxxxx Xxxxxxxx
---------------------------------
Name: X. Xxxxxxxx Xxxxxxxx
---------------------------------
Title: Senior Vice President and
General Counsel
---------------------------------
GABELLI CAPITAL SERIES FUNDS, INC.
for itself and on behalf of
GABELLI CAPITAL ASSET FUND
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Vice President & Treasurer
---------------------------------
-41-
Schedule A
The Guardian Separate Account A
The Guardian Separate Account D
The Guardian Separate Account H
-42-
ADDENDUM TO PARTICIPATION AGREEMENT
Addendum effective December 28, 2001, to the Participation Agreement among The
Guardian Insurance & Annuity Company Inc. ("GIAC"), for itself and on behalf of
certain of its Separate Accounts, Guardian Investor Services LLC ("GIS")
(successor to Guardian Investor Services Corporation), Gabelli Capital Series
Funds, Inc. ("GCSF"), for itself and on behalf of its series fund, Gabelli
Capital Asset Fund (the "Fund"), Gabelli Funds, Inc. ("GFI") and Gabelli &
Company, Inc. (G&C") dated May 1, 1995 (the "Participation Agreement").
In consideration of the mutual benefits that the parties anticipate, they hereby
agree to amend the Participation Agreement as follows:
Whereas the Fund is currently available to the public only through the purchase
of certain variable annuity and variable life insurance contracts issued through
Separate Accounts of GIAC; and
Whereas the parties desire to make the Fund available to owners of certain other
variable annuity contracts;
Now, therefore, the parties hereto agree that the Participation Agreement is
deemed amended to permit the purchase of Fund shares by the Fulcrum Variable
Annuity (SEC Registration No. 333-11377) issued by Allmerica Financial Life
Insurance and Annuity Company and First Allmerica Financial Life Insurance
Company, provided that this amendment shall apply only to those Fulcrum Variable
Annuity contractowners who were contractowners as of the effective date hereof.
Further, Schedule A is hereby amended as anticipated by the Participation
Agreement to include additional Separate Accounts all as set forth on the
Amended Schedule A attached hereto.
All other terms of the Participation Agreement remain unchanged.
IN WITNESS WHEREOF, each of the parties hereto has caused This Addendum to
be executed in its name and behalf by its duly authorized representative as of
the date specified above.
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
---------------------------------
Title: Executive Vice President &
Equity Products
---------------------------------
GUARDIAN INVESTOR SERVICES LLC
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
---------------------------------
Title: President
---------------------------------
GABELLI & COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Vice President
---------------------------------
GABELLI FUNDS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Executive Vice President
---------------------------------
GABELLI CAPITAL SERIES FUNDS, INC.
for itself and on behalf of
GABELLI CAPITAL ASSET FUND
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Vice President & Treasurer
---------------------------------
Schedule A
The Guardian Separate Account A
The Guardian Separate Account D
The Guardian Separate Account H
The Guardian Separate Account K
The Guardian Separate Account M
The Guardian Separate Account N
