FUND PARTICIPATION AGREEMENT
Golden American Life Insurance Company (the "Company"), and Aetna
Variable Fund, Aetna Variable Encore Fund, Aetna Income Shares, Aetna Balanced
VP, Inc., Aetna GET Fund, on behalf of each of its series, and Aetna Variable
Portfolios, Inc., on behalf of each of its series (each a "Fund" or in the
aggregate "Funds"), and Aeltus Investment Management, Inc. ("Aeltus" or
"Adviser") hereby agree to an arrangement whereby the Funds shall be made
available to serve as underlying investment media for Variable Annuity Contracts
("Contracts") to be issued by the Company.
1. Establishment of Account.
------------------------
The Company represents that it has established Variable Annuity Account B
and may establish such other accounts as may be set forth in Schedule A
attached hereto (as may be amended from time to time with the mutual
consent of the parties hereto) (the "Accounts"), each of which is a
separate account registered under the Investment Company Act of 1940
(except for such accounts for which no registration is required), to
serve as investment vehicles for the Contracts. Each Contract provides
for the allocation of net amounts received by the Company to an Account
for investment in the shares of one of more specified open-end management
investment companies available through that Account as underlying
investment media. Selection of a particular investment management company
and changes therein from time to time are made by the participant or
Contract owner, as applicable under a particular Contract.
2. Pricing Information; Orders; Settlement.
---------------------------------------
(a) Each Fund will make shares available to be purchased by the
Company, and will accept redemption orders from the Company, on
behalf of each Account at the net asset value applicable to each
order on those days on which the Fund calculates its net asset
value (a "Business Day"). Fund shares shall be purchased and
redeemed in such quantity and at such times as determined by the
Company to be necessary to meet the requirements of those
Contracts for which the Fund serves as underlying investment
media, provided, however, that the Board of Directors of the Fund
(hereinafter the "Directors") may, upon reasonable notice to the
Company, refuse to sell shares of any Fund to any person, or
suspend or terminate the offering of shares of any Fund if such
action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Directors
acting in good faith and in light of their fiduciary duties under
federal and/or any applicable state laws, necessary in the best
interests of the shareholders of such Fund.
(b) Each Fund will provide to the Company closing net asset value,
dividend and capital gain information at the close of trading
each day that the New York Stock Exchange (the "Exchange") is
open (each such day a "Business Day"), and in no event later than
6:30 p.m. eastern time on such Business Day. The Company will
send via facsimile or electronic transmission to each Fund or its
specified agent orders to purchase and/or redeem Fund shares by
9:30 a.m. eastern time the following business day. Payment for
net purchases will be wired by the Company to an account
designated by the Fund.
(c) Each Fund hereby appoints the Company as its agent for the
limited purpose of accepting purchase and redemption orders for
Fund shares relating to the Contracts from Contract owners.
Orders from Contract owners received by the Company, acting as
agent for the Fund, from any distributor of the Contracts
(including affiliates of the Company), prior to the close of the
Exchange on any given business day will be executed by the Fund
at the net asset value determined as of the close of the Exchange
on such Business Day, provided that the Fund receives written (or
facsimile) notice of such order by 9:30 a.m. eastern time on the
next following Business Day. Any orders received by the Company
acting as agent 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 close of the Exchange on the next business day following
the day of receipt of such order, provided that the Fund receives
written (or facsimile) notice of such order by 9:30 a.m. eastern
time within two days following the day of receipt of such order.
(d) Payments for net redemptions of shares of a Fund will be wired by
the Fund to an account designated by the Company. Payments for
net purchases of the Fund will be wired by the Company to an
account designated by the Fund on the same Business Day the
Company places an order to purchase Fund shares. Payments shall
be in federal funds transmitted by wire.
(e) Each party has the right to rely on information or confirmations
provided by the other party (or by any affiliate of the other
party), and shall not be liable in the event that an error is a
result of any misinformation supplied by the other party. The
Company shall assume responsibility as herein described for any
loss to a Fund caused by a cancellation or correction made to an
Instruction by a Contract owner or person authorized to act on
his or her behalf subsequent to the date as of which such
Instruction has been received by the Company and originally
relayed to Aeltus, and the Company will immediately pay such loss
to such Fund upon the Company's receipt of written notification,
with supporting data. Aeltus shall indemnify and hold the Company
harmless, from the effective date of this Agreement, against any
amount the Company is required to pay to a Contract owner due to:
(i) an incorrect calculation of a Fund's daily net asset value,
dividend rate, or capital gains distribution rate or (ii)
incorrect or unreasonably late reporting of the daily net asset
value deemed material in accordance with the Fund's error
correction policy, dividend rate, or capital gain distribution
rate, upon written notification by the Company, with supporting
data, to Aeltus.
(f) The Company agrees to purchase and redeem the shares of the Funds
named in this Agreement or in Schedule B hereof in accordance
with the provisions of each Fund's
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then-current prospectus and statement of additional
information. The Company shall not permit any person other than a
Contract owner or person authorized to act on his or her behalf
to give instructions to the Company which would require the
Company to redeem or exchange shares of a Fund. This provision
shall not be construed to prohibit the Company from substituting
shares of another fund, as permitted by law.
3. Expenses.
--------
(a) Except as otherwise provided in this Agreement, all expenses
incident to the performance by each respective Fund under this
Agreement shall be paid by that Fund, including the cost of
registration of its shares with the Securities and Exchange
Commission (the "SEC") and in states where required. All expenses
incident to performance by each party of its respective duties
under this Agreement shall be paid by that party, unless
otherwise specified in this Agreement.
(b) The Funds or the Adviser shall provide to the Company periodic
fund reports to shareholders and other materials that are
required by law to be sent to Contract owners. In addition, the
Funds or the Adviser shall provide the Company with a sufficient
quantity of prospectuses, statements of additional information
and any supplements to any of these materials, to be used in
connection with the offerings and transactions contemplated by
this Agreement. In addition, the Funds shall provide the Company
with a sufficient quantity of proxy material that is required to
be sent to Contract owners. The Adviser shall be permitted to
review and approve the typeset form of such material prior to
such printing provided such material has been provided by the
Adviser to the Company within a reasonable period of time prior
to typesetting.
(c) In lieu of the Funds' or Adviser's providing printed copies of
prospectuses, statements of additional information and any
supplements to any of these materials, and periodic fund reports
to shareholders, the Company shall have the right to request that
the Funds transmit a copy of such materials in an electronic
format, which the Company may use to have such materials printed
together with similar materials of other Account funding media
that the Company or any distributor will distribute to existing
or prospective Contract owners.
4. Representations.
---------------
The Company agrees that it and its agents shall not, without the written
consent of a Fund or the Adviser, make representations concerning the
Fund, or its shares except those contained in the then current
prospectuses and in current printed sales literature approved by or
deemed approved by the Fund or the Adviser.
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5. Termination.
-----------
This agreement shall terminate as to the sale and issuance of new
Contracts:
(a) at the option of either the Company, the Adviser or with respect
to any Fund, upon sixty days advance written notice to the other
parties;
(b) at the option of the Company, upon one week advance written
notice to the Adviser and to any Fund, if Fund shares are not
available for any reason to meet the requirement of Contracts as
determined by the Company. Reasonable advance notice of election
to terminate shall be furnished by the Company;
(c) at the option of either the Company, the Adviser or any Fund,
immediately upon institution of formal proceedings against the
broker-dealer or broker-dealers marketing the Contracts, the
Account, the Company, the Fund or the Adviser by the National
Association of Securities Dealers, Inc. (the "NASD"), the SEC or
any other regulatory body;
(d) upon the determination of the Accounts to substitute for the
shares of a Fund the shares of another investment company in
accordance with the terms of the applicable Contracts. The
Company will give sixty days written notice to the Fund and the
Adviser of any decision to replace the shares of that Fund;
(e) upon assignment of this Agreement, unless made with the written
consent of all other parties hereto;
(f) if shares of a Fund are not registered, issued or sold in
conformance with Federal law or such law precludes the use of
such shares as an underlying investment medium for Contracts
issued or to be issued by the Company. Prompt notice shall be
given by the appropriate party should such situation occur.
6. Continuation of Agreement.
-------------------------
Termination as the result of any cause listed in Section 5 shall not
affect the Funds' obligation to furnish shares to Contracts then in force
for which such shares serve or may serve as the underlying medium unless
such further sale of Fund shares is prohibited by law or the SEC or other
regulatory body.
7. Advertising Materials; Filed Documents.
--------------------------------------
(a) Advertising and sales literature with respect to any Fund
prepared by the Company or its agents for use in marketing its
Contracts will be submitted to that Fund or its designee for
review before such material is submitted to any regulatory body
for review. No such material shall be used if the Fund or its
designee reasonably objects
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to such use in writing, transmitted by facsimile within two
business days after receipt of such material.
(b) Each Fund will provide additional copies of its financials as
soon as available to the Company and at least one complete copy
of all registration statements, prospectuses, statements of
additional information, annual and semi-annual reports, proxy
statements 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. At the
Adviser's request, the Company will provide to the Adviser at
least one complete copy of all registration statements,
prospectuses, statements of additional information, annual and
semi-annual reports, proxy statements, and all amendments or
supplements to any of the above that relate to the Accounts
promptly after the filing of such document with the SEC or other
regulatory authority.
(c) Each Fund or the Adviser will provide via Excel spreadsheet
diskette format or in electronic transmission to the Company at
least quarterly portfolio information necessary to update Fund
profiles within seven business days following the end of each
quarter.
8. Proxy Voting.
------------
(a) The Company shall provide pass-through voting privileges on
shares of a Fund held by the separate accounts to all Contract
owners.
(b) The Company will distribute to Contract owners all proxy material
furnished by any Fund and will vote shares of the Fund in
accordance with instructions received from such Contract owners.
The Company and its agents shall not oppose or interfere with the
solicitation of proxies for shares of a Fund held for such
Contract owners.
9. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each Fund and
the Adviser, and their directors, officers, employees, agents and
each person, if any, who controls any Fund or its Adviser within
the meaning of the Securities Act of 1933 (the "1933 Act")
against any losses, claims, damages or liabilities to which the
Fund or any such director, officer, employee, agent, or
controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) 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 sales literature of the Company 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 statements or representations contained in the
prospectuses or sales literature of the Fund) of the Company or
its agents, with respect to the sale and distribution of
Contracts for which
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shares of the Fund are the underlying
investment. The Company will reimburse any legal or other
expenses reasonably incurred by a Fund or any such director,
officer, employee, agent, investment adviser, or controlling
person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that
the Company 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 (i) an untrue statement or
omission or alleged omission made in such Registration Statement
or prospectus in conformity with written materials furnished to
the Company by the Fund specifically for use therein or (ii) the
willful misfeasance, bad faith, or gross negligence by the Fund
or Adviser in the performance of their duties or the Fund's or
Adviser's reckless disregard of obligations or duties under this
Agreement or to the Company, whichever is applicable. This
indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Fund and the Adviser agree to indemnify and hold harmless
the Company and its directors, officers, employees, agents and
each person, if any, who controls the Company within the meaning
of the 1933 Act against any losses, claims, damages or
liabilities to which the Company or any such director, officer,
employee, agent or controlling person may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement, prospectuses or sales literature of the Fund 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
material fact required to be stated therein or necessary to make
the statements therein not misleading. Each Fund, as appropriate,
will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, employee, agent, or
controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the Fund 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 prospectuses which are in conformity with written materials
furnished to the Fund by the Company specifically for use
therein.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of action, such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish to,
assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party
to such indemnified party of its election to assume the defense
thereof, the indemnifying party will not be liable to
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such indemnified party under this Section 9 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs
of investigation.
10. Miscellaneous.
-------------
(a) Amendment and Waiver. Neither this Agreement, nor any provision
hereof, may be amended, waived, discharged or terminated orally,
but only by an instrument in writing signed by all parties
hereto.
(b) Notices. All notices and other communications hereunder shall be
given or made in writing and shall be delivered personally, or
sent by telex, facsimile or registered or certified mail, postage
prepaid, return receipt requested, or recognized overnight
courier service to the party or parties to whom they are directed
at the following addresses, or at such other addresses as may be
designated by notice from such party to all other parties.
To the Company: To the Adviser:
Golden American Life Insurance Aeltus Investment Management, Inc.
Company 00 Xxxxx Xxxxx Xxxxxx, XX00
0000 Xxxxxxxx Drive Hartford, Connecticut 06103-3602
Xxxx Xxxxxxx, XX 00000
Attn: Attn: Chief Compliance
Officer
To any Fund:
00 Xxxxx Xxxxx Xxxxxx, XX00
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: President
Any notice, demand or other communication given in a manner prescribed in
this subsection (b) shall be deemed to have been delivered on receipt.
(c) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any party hereto may execute this Agreement by
signing any such counterpart.
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(e) Severability. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby.
(f) Entire Agreement. This Agreement constitutes the entire
agreements and understanding between the parties ----------------
hereto and supersedes all prior agreement and understandings
relating to the subject matter hereof.
(g) Governing Law. This Agreement shall be governed and interpreted
in accordance with the laws of the State of -------------
Connecticut.
(h) Non-Exclusive Agreement. It is understood by the parties that
this Agreement is not an exclusive arrangement
----------------------- in any respect.
(i) Confidentiality. The terms of this Agreement and the Schedules
thereto will be held confidential by each party except to the
extent that either party or its counsel may deem it necessary to
disclose such terms.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers effective as of the day of,2001.
GOLDEN AMERICAN LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxxx
-----------------------------
Name: /s/Xxxxx X. Xxxxxxx
---------------------------
Title: Executive Vice President
--------------------------
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AETNA VARIABLE FUND
AETNA VARIABLE ENCORE FUND
AETNA INCOME SHARES
AETNA BALANCED VP, INC.
AETNA GET FUND
AETNA VARIABLE PORTFOLIOS, INC.
By: Xxxxxxxxx X. XxXxxxx
---------------------------
Name: /s/Xxxxxxxxx X. XxXxxxx
-------------------------
Title: Treasurer
------------------------
AELTUS INVESTMENT MANAGEMENT, INC.
By: J. Xxxxx Xxx
---------------------------
Name: /s/J. Xxxxx Xxx
-------------------------
Title: President
------------------------
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SCHEDULE A
(For any future separate accounts - See Section 1)
SCHEDULE B
AETNA VARIABLE FUND
-------------------
d/b/a Aetna Growth and Income VP
--------------------------------
AETNA VARIABLE ENCORE FUND
--------------------------
d/b/a Aetna Money Market VP
---------------------------
AETNA INCOME SHARES
-------------------
d/b/a/Aetna Bond VP
---------------------------
AETNA BALANCED VP, INC.
-----------------------
AETNA GET FUND
--------------
Series N and all subsequent series
AETNA VARIABLE PORTFOLIOS, INC.
-------------------------------
Aetna Growth VP
Aetna Small Company VP
Aetna Index Plus Large Cap VP
Aetna International VP
Aetna Technology VP
Aetna Value Opportunity VP
Aetna Index Plus Mid Cap VP
Aetna Index Plus Small Cap VP
