RETA IL FUND PARTICIPATION AGREEMENT
XXXX IL FUND PARTICIPATION AGREEMENT
THIS AGR EEMENT, made and entered into this 1st of September, 2001, by and among HARTFORD LIFE INSU RA NCE COMPANY, a stock life insurance company organized under the laws of Connecticut (hereinafter the “Company”), on its own behalf and on behalf of each separate account of the Company set forth in Schedule A hereto, as may be amended from time to time (each such account hereinafter referred to as a “Separate Account “), Xxxxxxx Xxxxx Trust, a management investment company organized under the laws of Delaware (hereinafter the ‘‘Fund”), and Xxxxxxx, Sachs & Co., New York limited partnership (hereinafter the “GS&Co.” “Underwriter”).
WITNESSETH:
WHEREAS, beneficial interests in the Fund are di vided into several series of shares, each representing the interest in a particular managed portfolio of securities and other assets (the “Portfolios”); and
WHEREAS, the Fund is registered as an open-end management investment company under the Investment Company Act of 1940, as amended (hereinafter the “1940 Act”) and its shares are registered under the Securities Act of 1933, as amended (hereinafter the “1933 Act”); and
WHEREAS, the Company issues certain group variable annuit y contracts and group funding agreements (the “Contracts”) in connection with retirement plans intended to meet the qualification requirements of Section s 401, 403(b) or 457 of the Internal Revenue Code of 1986, as amended (the “Code”) and the Company has determined that the Fund and each Portfolio are legally permissible investment vehicles for the Separate Accounts and the Contracts; and
WHEREAS, each Separate Account is a duly organized, validly existing segregated asset account, established by resolution of the Board of Directors of the Company under the insurance laws of the State of Connecticut to set aside and invest assets attributable to the Contracts; and
WHER EAS, GS&Co. is the investment adviser of the Portfolios of the Fund and is duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”); and
WHEREAS, GS&Co. is also the principal underwriter for the Fund and is registered as a broker dealer with the Securities and Exchange Commission (hereinafter the “SEC”) under the Securities Exchange Act of 1934, as amended (hereinafter the “1934 Act”), and is a member in good standing of the Nation al Association of Securities Dealers, Inc. (hereinafter “NASD”); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations, the Company intends to purchase shares in the Funds set forth in Schedule A on behalf of each corresponding Separate Account set forth on such Schedule A to fund the Contracts and GS&Co. is authorized to sell such shares to unit investment trust s such as the Separate Account s at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund and GS&Co. agree as follows:
Description of Services. The Company hereby agrees to perform some or all of the following services:
(a) Act directly or through an agent, as recordholder and nominee of all shares of such Class beneficially owned by customers;
(b) Provide assistance in connection with recordkeeping and administrative services to its customers in connection with their investments in Class A Shares including the maintenance of separate records for each customer, which records will reflect the shares purchased, exchanged and redeemed, including the date and price for transactions, dividend information and share balances, and the maintenance of records of the proceeds of redemption s of shares and other dividend s, capital gains or other distributions authorized by the Funds in accordance with the instructions provided by the customers, including, without limitation, changes to accounts and reinvestment into the Funds;
(c) Prepare and transmit to customers periodic (at least quarterly) account statements showing the total number of units owned by customers as of the statement closing date, the accumulation unit value of such units on such date, and purchases and redemptions of units by customers during the period covered by the statement;
(d) Transmit to the customers’ plan administrators proxy material, reports and other information provided by the Fund and/or required to be sent to customers;
(e) If applicable, transmit to the Fund or its designated agents such periodic reports as may be necessary or appropriate to enable the Trust to comply with state “Blue Sky” requirements;
(f) Maintain contract balance information for customers and daily and/or monthly purchase summaries relating to the contracts as required by law or regulation;
(g) Provide to customers such reports and information with respect to their investments in the Contract(s) as may be required by then prevailing laws and regulations under the Internal Revenue Code for qualified employee benefit plan accounts, and prepare and file or transmit federal, state and local government report s and returns as required by law with respect to such investments for accounts maintained on behalf of customers;
(h) Transmit or assist in the transmission of purchase orders, exchange requests and redemption requests placed by customers in accordance with the Fund’s then current prospectuses;
(i) Prepare and transmit, or assist in the preparation and transmission of, written confirmations to customers of purchase orders, exchange requests and redemption requests placed by customers to the extent such confirmation s are required;
(j) Provide or arrange for the provision of materials and other information describing the Contracts and underlying investment options (including portfolios of the Funds) to Company’s clients;
(k) Provide facilities to answer inquiries and respond to correspondence from customers about the status of their accounts or about Funds;
(l) Respond to customer requests for prospectuses and statements of addition al information;
(m) Convey to its customers other information about the Funds as may be required by federal or state securities laws or regulations; and
(n) Provide such statistical and other information as may be reasonably requested by the Fund or necessary for the Fund to comply with applicable federal and state laws.
ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 The Fun d and GS&Co. agree to sell to the Company those shares of the Portfolios which the Company orders on behalf of any Separate Account, executing such orders on a daily basis at the net asset value next computed after receipt and acceptance by the Fund or its designee of such order. For purposes of this Section, the Company is appointed an agent of the Fund for the limited purpose of receiving such orders from each Separate Account. Receipt by such designee shall constitute receipt by the Fund; provided that the Fund or GS&Co. receives notice of such order via the National Securities Clearing Corporation (the “NSCC “) by 10:00 a.m. Eastern Time on the next following business day. The Fund will receive all orders to purchase Portfolio shares using the NSCC’s Defined Contribution Clearance & Settlement (“DCC&S”) platform. The Fund will also provide the Company with account position s and activity data using the NSCC’s Networking platform. The Company shall pay for Portfolio shares by the scheduled close of federal funds transmissions on the same Business Day it Pl aces an order to purchase Portfolio shares in accordance with this section using the NSCC’s Fund/SERV E System. Such payment shall be in federal funds transmitted by wire from the Company’s designated custodian to the NSCC and shall be processed in accordance with the NSCC’s Rules and Procedures insofar as they relate to the same day funds settlement. Except as otherwise specifically provided in this Agreement, orders will be handled and processed in accordance with the standard practices of GS&Co. and the Fund and consistent with the registration statement of each Fund. “Networking” shall mean the NSCC’s product that allows Fund’s and Companies to exchange account level information electronically.
If the Company is somehow prohibited from submitting purchase and settlement instructions to the Fund for Portfolio shares via the NSCC’s DCC&S platform the following shall appl y to this Section:
The Fund and GS&Co. agree to sell the Company those shares of the Portfolios which the Company orders on behalf of any Separate Account, executing such orders on a daily basis at the net asset value next computed after receipt and acceptance by the Fund or its designee of such order. For purposes of this Section, the Company shall be the designee of the Fund for the receipt of such orders from the Separate Account and receipt by such designee shall constitute receipt by the Fund ; provided that the Fund or GS&Co. receives notice of such order by 10:00 a.m. Eastern Time on the next following Business Day. The Company shall pay for Portfolio shares by the scheduled close of federal funds transmissions on the same Business Day it places an order to purchase Portfolio shares in accordance with this section. Payment shall be in federal funds transmitted by wire from the
Company’s designated custodian to the Fund. “Business Day” shall mean any day on which the New York Stock Exchange is open for trading and on which the Fund calculates it net asset value pursuant to the rules of the SEC.
1.2 The Fund and GS&Co. agree to make shares of the Portfolios available indefinitely for purchase at the applicable net asset value per share by the Company on Business Days as set forth in the Fund ‘s Prospectus and is permitted by law; provided, however, that GS&Co. and/or the Board of Trustees or Directors, as applicable, of the Fund (hereinafter the “Trustees/Directors”), may suspend the sale or Portfolio shares or withdraw the sale of such shares if such suspension or withdrawal applies to substantially all of the Fund’s customers and is done in the best interest of the Fund. GS&Co. shall provide the Company at least sixty (60) days prior written notice of any decision that has been made to suspend or withdraw the sale of fund shares.
1.3 Consistent with and subject to the Fund’s registration statement and applicable law, the Fund and GS&Co. agree to redeem for cash, upon the Company’s request, any full or fractional shares of the Fund held by the Company on behalf of a Separate Account, executing such requests on a daily basis at the net asset value next computed after receipt and acceptance by the Fund or its designee of the request for redemption. For purposes of this Section, the Company shall be the designee of the Fund for the limited purpose of receiving requests for redemption from each Separate Account and receipt by such designee shall constitute receipt by the Fund; provided the Fund or GS&Co. receives notice of such request for redemption via the NSCC by 10:00 a.m. Eastern Time on the next following Business Day. The Fund will receive all orders to redeem Portfolio shares using the NSCC’s DCC&S platform. The Fund will also provide the Company with account position s and activity data u sing the N SCC’s Networking platform. Redemption orders and payment for Fund shares redeemed shall be made in accordance with this section (and, to the extent not specifically addressed herein, the Fund’s registration statement) and the NSCC’s Fund/SERV E System. Payment shall be in federal funds transmitted by wire to the Separate Account as designated by the Company, on the same Business Day the Fund or GS&Co. receives notice of the redemption order from the Company, provided that the Fund or GS&Co. receives notice by 10:00 a.m. Eastern Time on such Business Day .
If the Company is somehow prohibited from submitting redemption and settlement instructions to the Fund for Portfolio shares via the NSCC’s DCC&S platform the following shall appl y to this Section:
The Fund and GS&Co. agree to redeem for cash, upon the Company’s request, any full or fractional shares of the Fund held by the Company on behalf of a Separate Account, executing such requests on a daily basis at the net asset value next computed after receipt and acceptance by the Fund or its designee of the request for redemption. For purposes of this Section, the Company shall be the designee of the Fund for the limited purpose of receiving requests for redemption from each Separate Account and receipt by such designee shall constitute receipt by the Fund; provided the fund or GS&Co. receives notice of such request for redemption by 10:00 a.m. East ern Time on the next following Business Day. Payment shall be in federal funds transmitted by wire to the Separate Account as designated by the Company, on the same Business Day the Fund or GS&Co receives notice of the redemption order from the Company, provided that the Fund or GS&Co. receives notice
by 10:00 a.m. Eastern Time on such Business Day. Except as otherwise specifically provided for herein, redemption orders and payments shall be made in accordance with the Fund’s registration statement.
1.4 The Company agrees to purchase and redeem the shares of the Portfolios named in Schedule A offered by the then current prospectus of the Fund in accordance with the provisions of the applicable prospectus.
1.5 The Company will place separate orders to purchase or redeem shares of each Portfolio.
1.6 Issuance and transfer of the Fund’s shares will be by book entry only. Share certificates will not be issued to the Company or any Separate Account. Purchase and redemption orders for Fund shares will be recorded on the Fund’s book s and records in the name or the omnibus account established by the Company.
1.7 GS&Co. shall use commercially reasonable efforts to furnish same day notice to the Company of any income, dividends or capital gain distributions payable on the fund’s shares. The Company hereby elects to receive all such dividend s and distribution s as are payable on a Portfolio’s shares in the form of additional shares of that Portfolio. The Fund shall use its commercially reason able efforts to notify the Company of the number of shares so issued as payment of such dividends and distributions no later than one Business Day after issuance. The Company reserves the right to revoke this election and to receive in cash all such dividend s and distributions declared after receipt of notice of revocation by the Fund; any such revocation to be handled in a manner consistent with the Fund’s registration statement.
1.8 GS&Co. shall make the net asset value per share for each Portfolio available to the Company on a daily basis as soon as reasonably practical after the close of trading each Business Day, but in no event later than 7:00 p.m. Eastern Time on such Business Day, unless circumstances beyond GS&Co.’s, the Fund or their affiliate’s control prevent GS&Co. from meeting this deadline.
1.9 (a) The process and determination of the materiality of any net asset value pricing error and its correction shall be based on GS&Co.’s then -effective pol icy on the correction of such errors, which shall at all times meet the SEC’s recommended guidelines regarding these errors. Any material error in the calculation or reporting of net asset value per share, dividend or capital gain information shall be reported promptly to the Company upon discovery.
1.10 If the Company provides incorrect information to the Fund, GS&Co., the Fund shall be entitled to an adjustment with respect to the Fund shares purchased or redeemed to reflect the correct information. Any error in the information provided by the Company shall be reported to the Fund, and GS&Co. promptly upon discovery.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be registered
unless exempt and that it shall maintain such registration under the 1933 Act to the extent required by the 1933 Act; that the Contracts are intended to be issued and sold in compliance in all material respects with all applicable federal and state laws. The Company further represent s 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 prior to any issuance or sale of Contracts, shares or other interest s therein, as a segregated asset account under the insurance laws of the State of Connecticut and has registered or, prior to any issuance or sale of the Contracts, will register and will maintain the registration of each Separate Account as a unit investment trust in accordance with and to the extent required by the pro visions of the 1940 Act, unless exempt therefrom, to serve as a segregated investment account for the Contracts. Unless exempt, the Company shall amend its registration statement for its Contracts under the 1933 Act and the 1940 Act from time to time as required in order to effect the continuous offering of its Contracts. The Company shall register and qualify the Contracts for sale in accordance with securities laws of the various states only if and to the extent deemed necessary by the Company. The Company’s entering into and performing its obligations under this Agreement does not and will not violate its charter document, or by-laws, rules or regulations, or any agreement to which it is a party. The Company acknowledges that the Funds are retail Funds and are not insurance dedicated assets; the Company represents that the Contracts and Separate Accounts are permitted to invest in the Fund; the Company acknowledges that Underwriter, Adviser, and Fund are not assuming any responsibility to ensure that the Fund is managed in a manner that satisfies any legal or regulatory requirements (including tax and insurance requirements) that are applicable to the Company, the Contract, and/or the Separate Accounts. The Company will notify GS&Co. promptly if for any reason it is unable to perform its obligations under this Agreement.
2.2 The Fund and GS&Co. represent and warrant that (i) Fund shares sold pursuant to this Agreement shall be registered under the 1933 Act and duly authorized for issuance in accordance with applicable federal securities law and that the Fund is and shall remain registered as a management investment company under the 1940 Act for as long as the Fund shares are sold; and (ii) the Fund shall amend the registration statement for its shares under the 1933 Act and the 1940 Act from time to time as required in order to effect the continuous offering of its shares.
2.3 The Fund represents that each Portfolio (a) is currently qualified as a Regulated Investment Company under Subchapter M of the Code; (b) will make every effort to maintain such qualification (under Subchapter M or any successor or similar provision); and (c) will notify the Company immediately upon having a reasonable basis for believing that such Portfolio has ceased to so qualify or might not so qualify in the future.
2.4 To the extent that the Fund finances distribution expenses pursuant to Rule 12b-l under the 1940 Act, the Fund represents that its Board of Trustees or Directors, as applicable, including a majority of its Trustees/Directors who are not interested persons of the Fund, have approved a plan under Rule 12b-l to finance distribution expenses.
2.5 The Fund, GS&Co. and Adviser make no representations as to whether any aspect of their respective operations (including, but not limited to, fees and expenses and investment policies) complies with the insurance laws or insurance regulation s of the various states.
2.6 GS&Co. represents and warrants that it is a member in good standing of the NASD and is registered as a broker-dealer with the SEC. GS&Co. further represents that it will sell and distribute the Fund shares in accordance in all material respects with all applicable federal securities laws, including without limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.7 The Fund represents that it is lawfully organized and validly existing under the laws of the State of Delaware and that it does and will comply in all material respects with applicable provisions of the 0000 Xxx.
2.8 The Fund represents and warrants that all of its Trustees/Directors, officers, employees, investment advisers, and other individuals/entities having access to the funds and/or securities of the Fund arc and continue to be at all times covered by a fidelity bond or similar coverage for the benefit of the Fund in an amount not less than the minimal coverage as required by Rule 17g-l under the 1940 Act.
2.9 Legal Authority. Each party represent s and warrants that the execution and delivery of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate, partnership or trust 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.
2. 10 The Company represents and warrants that all of its directors, officers, employees, investment advisers, and other individuals/entities dealing with the money and/or securities of the Fund are covered by a blanket fidelity bond or similar coverage in an amount not less than $5 million. The aforesaid includes coverage for larceny and embezzlement and is issued by a reputable bonding company.
2.11 GS&Co. represents and warrants that it is and shall remain duly registered in all material respects under all applicable federal securities laws.
2. 12 The foregoing representations and warranties shall be made, by the party hereto that makes the representation or warranty as of the date first written above and at the time of each purchase and each sale of the Fund’s shares pursuant to this Agreement.
2. 13 State Insurance Restrictions. The Company acknowledges and agrees that it is the responsibility of the Company to determine the appropriateness of offering the Funds through its contracts and that neither GS&Co. nor the Fund shall bear any responsibility to the Company, the Contracts or the Separate Accounts for any such determination or the correctness of such determination.
2. 15. Compliance. Except as specifically set forth in this Agreement, under no circumstance; will any party (or any of such party’s affiliates) be held responsible or liable in any respect for any statements or representations made by them or their legal advisers to another party concerning the applicability of any federal or state laws, regulations or other authorities to the activities contemplated by this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 If requested by the Company, the Fund shall provide the Company at no charge with printed copies of the Fund’s current prospectus and statement of additional information as the Company may reasonably
request. In addition, if requested by the Company, in lieu of providing printed copies of the Fund’s current prospectus and statement of additional information, the Fund shall provide e-mail transmissions or PDF files containing the Fund ‘s prospectus and statement of additional information, and such other assistance as is reasonably necessary in order for the Company once each year (or more frequently if the prospectus and/or statement of additional information for the Fund are amended during the year) to have the prospectus for the Contracts (if applicable) and the Fund’s prospectus printed together in one document or separately. The Company may elect to print the Fund’s prospectus and/or its statement of additional information in combination with other fund companies’ prospectuses and statements of additional information.
3. 1 (a). The Fund shall pay for the cost of typesetting, printing and distributing all Fund prospectuses, statements of additional information, Fund reports to shareholders and other Fund communications to the Company. The Fund shall pay for all costs for typesetting, printing and distributing proxy materials to the Company, but not to any of Company’s customers.
3.2 The Fund’s statement of additional information shall be obtainable from the Fund and/or the Underwriter or such other person as the Fund may designate.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund, GS&Co. or their designee, each piece of sales literature or other promotional material prepared by the Company or any person contracting with the Company in which the Fund or GS&Co. is described, at least ten business days prior to its use. No such literature or material shall be u sed without prior approval from the Fund, GS&Co. or t heir designee, which approval shall not be unreasonably withheld. The Fund and GS&Co. hereby represent that they will respond to Company’s requests for approval within such ten (10) day time period. Such approval process shall not apply to subsequent usage of materials that are substantially similar to prior approved materials.
4.2 Neither the Company nor any person contracting with the Company shall give any information or make any representations or statements on behalf of the Fund or concerning the Fund in connect ion with the sale of the Contracts other than the information or representations contained in the registration statement or prospectus for the Fund shares, as such registration statement and prospectus may be amended or supplemented from time to time, or in reports to shareholders or proxy statements for the Fund, or in sales literature or other promotional material approved by the Fund or its designee, except with the permission of the Fund or its designee.
4.3 The Fund shall furnish, or shall cause to be furnished, to the Company or its designee, each piece of sales literature or other promotional material in which the Company or any Separate Account is named, at least five calendar days prior to its u se. No such literature or material shall be used without prior approval from the Company or its designee. Such approval process shall not apply to subsequent usage of materials that are substantially similar to prior approved materials.
4.4 Neither the Fund nor GS&Co. shall give any information or make any representations on behalf of the Company or concerning the Company, each Separate Account, or the Contracts other than the information or representations contained in the Contracts, a disclosure document, registration statement or prospectus for the Contracts (if applicable), as such registration statement and prospectus may be amended or supplemented from time to time, or in published reports for each Separate Account which are in the public domain or approved by the Company for distribution to Contract owners or participants, or in sales literature or other promotional material approved by the Company, except with the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy or all prospectuses, statements of additional information, reports to shareholders, proxy statements, and all amendments to any of the above, that relate to the Fund or its shares, promptly after the filing of such document with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all prospectuses, statements of additional information, reports, solicitation s for voting instructions, and all amendments to any of the above, if applicable to the investment in a Separate Account or Contract, promptly after the filing or such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, the phrase “sales literature or other promotional material” includes, but is not limited to, advertisement (such as material published, or designed for use in, a newspaper, magazine, or other periodical, radio, television, telephone or tape recording, videotape display, sign s or billboards, mot ion pictures, Internet, or other public media), sales literature (i.e., any written communication distributed or made generally available to customer or the public, including brochures. circulars, research reports, market letters, form letters, electronic mail, seminar texts, reprints or excerpts of an y other advertisement, sale literature, or published article), educational or training materials or other communications distributed or made generally available to some or all agents or employees, registration statements, disclosure documents, prospectuses, statements of additional information, shareholder reports, and proxy materials.
4.8 The Company agrees and acknowledges that the Company has no right, title or interest in the names and marks of the Fund and that all u se of any designation comprised in whole or part or such names or marks under this Agreement shall inure to the benefit of the Fund and GS&Co. The Company shall not use any such names or marks on its own behalf or on behalf of a Separate Account in connection with marketing the Contracts without prior written consent of the Fund and GS&Co. Upon termination of this Agreement for any reason, the Company shall cease all use of any such names or marks.
4.9 The Fund and Underwriter agree and acknowledge that each has no right, title or interest in the names and marks of the Company, and that all use of any designation comprised in whole or part or such names or marks under this Agreement shall inure to the benefit of the Company. The Fund and Underwriter shall not use any such names or marks on its own behalf or on behalf of a Fund in connection with marketing the Fund without prior written consent of the Company. Upon termination of this Agreement for any reason, the Fund and Underwriter shall cease all use of any such names or marks.
4.10 Customer Complaints. The Company shall promptly address all customer complaints and resolve such complaints consistent with high ethical standards and principles of ethical conduct.
4.11 Complaints and Proceedings
(a) The Company shall immediately notify GS&Co. of: (i) any action or circumstances affecting the Fund that may prevent the lawful offer or sale of the Contracts or any class of Contracts in any state or jurisdiction, including, without limitation, any circumstance in which such Contracts are not registered, qualified and approved, and, in all material respects, issued and sold in accordance with applicable state and federal laws. The Company will make every reasonable effort to prevent the issuance of any such stop order, cease and desist order or similar order and, if any such order is issued to obtain the lifting thereof at the earliest possible time.
(b) The Company shall provide to GS&Co. any complaint s it has received from
Contract Owners pertaining to GS&Co. or a Fund, and GS&Co. and Distributor shall each provide to the Company any complaints it has received from Contract Owners relating to the Contracts.
4.12 Cooperation. Each party hereto shall cooperate with the other parties and all appropriate government authorities (including without limitation the SEC, the NASD and state securities and insurance regulators) and shall permit such authorities reasonable access to its books and records in connection with any investigation or inquiry by any such authority relating to this Agreement or the transactions contemplated hereby. However, such access shall not extend to attorney-client privileged information.
ARTICLE V. Fees and Expense
5.1 The Fund shall pay the fees and expenses provided for in the attached Schedule B.
5.2. Company Expenses. Expenses incident to the Company’s performance of its duties and obligation under this Agreement include, but are not limited to, the costs of:
(a) the sale, marketing and distribution or the Contract and compensation for Contract sales;
(b) administration of the Contracts;
(c) preparation, printing and dissemination of all statement s and notices to Contract Owners required by any Federal or state insurance law other than the costs related to the Fund’s prospectuses, proxy statements and other notices to shareholders; and
(d) preparation, printing and dissemination of all marketing material for the Contract except where other arrangements are made in advance.
ARTICLE VI. Indemnification
6.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund, GS&Co. and each of their respective trustees. directors, officers, employees or agents and each person, if any, who controls the Fund or GS&Co. within the meaning of section 15 of the 1933 Act (collectively, the “Indemnified Parties” for purposes of this Section 6.1) against any and all losses, claims, damages, liabilities (including amount s pa id in settlement with the written consent of the Company) or litigation (including reasonable legal and other expenses), to which the indemnified Parties may become subject under any statute, regulation at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlement s are related to the sale or acquisition of the Fund’s shares or the Contracts and:
(i) arise out of or are based upon an y un true statement or alleged untrue statement of any material fact contained in the disclosure statement, registration statement, prospectus or statement of information for the Contracts or contained in the Contracts or sales literature or other promotional material for the Contracts (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that this agreement to indemnify shall not apply as to an Indemnified Part y if such statement or omission or such alleged statement or omission was; made in reliance upon
and in conformity with information furnished by such Indemnified Party or the Fund to the Company on behalf of the Fund for use in the registration statement, prospectus or statement of additional information 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 (a) statements or representations by or on behalf of the Company (other than statements or representations contained in the Fund registration statement, Fund prospectus or sales literature or other promotional material of the Fund not supplied by the Company, or persons under its control and other than statements or representations authorized by the Fund, GS&Co.); or (b) the willful misfeasance, bad faith, gross negligence or reckless disregard of duty of the Company or persons under its control, with respect to the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or alleged untrue statement of a material fact contained in the Fund registration statement, Fund prospectus, statement of additional information or sales literature or other promotional material 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, if such a statement or omission was made in reliance upon and in conformity with information furnished to the Fund or GS&Co. by the Company or persons under its control; or
(iv) arise as a result of any material failure by the Company to provide the services and furnish the materials under the terms of this Agreement;
(v) arise out of or are based upon any violation of federal or state law by, the Company or persons under its control or subject to its authorization, including without limitation, any broker-dealers or agents authorized to sell the Contracts, with respect to the sale, marketing or distribution of the Contracts or Fund shares, including, without limitation, any impermissible use of broker-only material, unsuitable or improper sales of the Contracts or unauthorized representations about the Contracts or GS&Co.;
(vi) arise out of any material breach by the Company or persons under its control (or subject to its authorization) of this Agreement; or
(vii) arise out of any breach of any warranties contained in Article II hereof, any failure to transmit a request for redemption or purchase of Fund shares or payment therefor on a timely basis in accordance with the procedures set forth in Article I, or any unauthorized use of the names, trade names or trademark of GS&Co.;
(b) No party shall be entitled to indemnification to the extent that such loss, claim, damage, liability or litigation is due to the willful misfeasance, bad faith, gross negligence or reckless disregard of duty by the party seeking indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will promptly notify the Company 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.
6.2 Indemnification By GS&Co.
(a) GS&Co. agrees, with respect to each Portfolio that it distributes, to indemnify and hold harmless the Company and each of its directors, officers, employees or agents and each person, if any, who controls the Company within the meaning of section 15 of the 1933 Ac t (collectively, the “Indemnified Parties” for purposes of this Section 6.2) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of GS&Co.) or litigation (including reasonable legal and other expenses) to which the indemnified Parties may become subject under any statute, regulation at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements are related to the sale or acquisition of the shares of the Portfolios that it distributes or the Contracts and:
(i) 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 statement of additional information for the Fund or sales literature or other promotional material of the Fund (or any amendment or supplement to any of the foregoing). or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; 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 with information furnished by such Indemnified Party or the Company to the Fund or GS&Co. on behalf of the Company for use in the registration statement, prospectus or statement of additional information for the Fund or in sales literature of the Fund (or any amendment or supplement thereto) or otherwise for use in connect ion with the sale of the Contracts or the Portfolio shares; or
(ii) the willful misfeasance. bad faith, gross negligence or reckless disregard of duty of the Fund or GS&Co. or persons under the control of the Fund or GS&Co., respectively, with respect to the sale or distribution of the Contracts or Portfolio shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, statement of additional information or sales literature or other promotional material with respect to the Contracts (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 statement or statements therein not misleading, if such statement or omission was made in reliance upon and in conformity with information furnished to the Company by the Fund or GS&Co. or persons under the control of the Fund or GS&Co., respectively; or
(iv) arise as a result of any material failure by the Fund or GS&Co. to provide the services and furnish the materials under the terms of this Agreement;
(v) arise out of or result from any material breach of any representation and/or warranty made by GS&Co. or the Fund in this Agreement or arise out of or result from any other material breach of this Agreement by GS&Co. or the Fund except to the extent provided in Sections 6.2(b) and 6.4 hereof;
(vi) arise out of or are based upon any violation of federal or state law by GS&Co. or persons under its control or subject to its authorization;
(vii) arise out of any material breach by GS&Co. or person s under its control (or subject to its authorization) of this Agreement; or
(viii) arise out of any breach of any warranties contained in Article II hereof, any failure to transmit a redemption of shares or payment therefor on a timely basis in accordance with the procedures set forth in Article I, or any unauthorized use of the names, trade names or trademark of Company.
(b) No party shall be entitled to indemnification to the extent that such loss, claim, damage, liability or litigation is due to the willful misfeasance, bad faith, gross negligence or reckless disregard of duty by the party seeking indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will promptly notify GS&Co. 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 Separate Accounts.
6.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the Company and each of its directors, officers, employees or agents and each person, if any, who controls the Company within the meaning of section 15 of the 1933 Act (collectively, the “Indemnified Parties” for purposes of this Section 6.3) against an y and all losses, claims, damages, liabilities (including amounts paid in settlement with the written con sent of the Fund) or litigation (including reasonable legal and other expenses) to which the Indemnified Patties 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 shares of the Portfolios or the Contracts and:
(i) 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 statement of additional information for the Fund or sales literature or other promotional material of the Fund (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated t herein or necessary to make the statements therein not misleading; 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 with information furnished by such Indemnified Party or the Company to the Fund or GS&Co. on behalf of the Company for use in the registration statement, prospectus or statement of additional information for the Fund or in sales literature of the Fund (or any amendment or supplement thereto) or otherwise for use in connection with the sale of the Contract s or the Portfolio shares; or
(ii) arise out of or as a result of (a) statements or representation s (other than statements or representations contained in the registration statement, prospectus or sales literature for the Contracts not supplied by the Fund or GS&Co. or persons under their respective control and other than statements or representations authorized by the Company); or (b) the willful misfeasance, bad faith, gross negligence or reckless disregard of duty of the Fund or GS&Co. or persons under the
control of the Fund or GS&Co., respectively, with respect to the sale or distribution of the Contracts or Portfolio shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, statement of additional information or sales literature or other promotional material with respect to the Contracts (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 statement or statements therein not misleading, if such statement or omission was made in reliance upon and in conformity with information furnished to the Company by the Fund or GS&Co. or persons under the control of the Fund or GS&Co., respectively; or
(iv) arise as a result of any material failure by the Fund or GS&Co. to provide the services and furnish the material s under the terms of this Agreement; or
(v) arise out of or result from any material breach of any representation and/or warranty made by GS&Co. or the Fund in this Agreement or arise out of or result from any other material breach of this Agreement by GS&Co. or the Fund; except to the extent provided in Sections 6.3(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss, claim, damage, liability or litigation is due to the willful misfeasance, bad faith, gross negligence or reckless disregard of duty by the party seeking indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will promptly notify GS&Co. 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 Separate Accounts.
6.4. Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article VI (“Indemnifying Party” for the purpose of this Section 6.4) shall not be liable under the indemnification provision s of this Article VI with respect to any claim made against a party entitled to indemnification under this Article VI (“Indemnified Party” for the purpose of this Section 6.4) unless such Indemnified Party shall have notified the Indemnifying Party in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such party shall have received notice of such service on any designated agent), but failure to notify the Indemnifying Party of any such claim shall not relieve the Indemnifying Party from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of the indemnification provision of this Article VI. In case any such action is brought against the Indemnified Party, the Indemnifying Party will be entitled to participate, at its own expense, in the defense thereof. The Indemnifying Part y also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action. After notice from the Indemnifying Party to the Indemnified Party of the Indemnifying Party’s election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by the indemnified Party, and the Indemnifying Party will not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connect ion with the defense thereof other than reasonable costs of investigation, unless:
(i) the Indemnifying Party and the Indemnified Part y shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.
A successor by law of the parties to this Agreement shall be entitled to the benefits of the Indemnification contained in this Article VI. The indemnification provisions contained in this Article VI shall survive any termination of this Agreement.
6.5 Rule of Construction. It is the parties’ intention that in the event of an occurrence for which the Underwriter has agreed to indemnify the Company, the Company shall seek indemnification from the Fund only in circumstances in which the Fund is entitled to seek indemnification from a third party with respect to the same event or cause thereof.
ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted under and in accordance with the laws of the State of New York.
7.2 Th1s Agreement shall be subject to the provisions of the 1933. 1934 and 1940 Acts, and the rules and regulations and rulings thereunder, including such exemptions from those statutes, rules and regulations as the SEC may grant and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1 Termination. This Agreement shall continue in effect until June 30 of the year following the date first set forth above, and shall continue in effect from year to year thereafter unless otherwise terminated as provided for herein. All material amendments to this Agreement must be in writing and must be approved by the Trustees in the manner described above for continuing this Agreement. The term “assignment” shall have the meaning given to it in the 1940 Act. Any notice furnished hereunder shall be in writing and shall be mailed or delivered to the other xxxxx at its address set forth in Article IX below.
8.2 This Agreement shall terminate:
(a) at the option of any party upon ninety (90) days advance written notice to the other parties unless otherwise agreed in a separate written agreement among the parties; or
(b) at the option of the Fund, GS&Co. upon institution of formal proceedings against the Company by the NASD, NASD Regulation, Inc. (‘‘NASDR’’), the SEC. the insurance commission of any state or any other regulatory body regarding the Company’s duties under this Agreement or related to the sale of the Contracts, the administration of the Contracts, the operation of the Separate Accounts, or the purchase of the Fund shares, which in the judgment of the fund, GS&Co. are reasonably likely to have a material adverse effect on the Company’s ability to perform its obligations under this Agreement; or
(c) at the option of the Company upon institution of formal proceedings against the Fund, GS&Co. by the NASD, NASDR, the SEC, or any state securities or insurance department or any other regulatory body, related to the purchase or sale of the Fund shares or the operation of the Fund which in the
judgment of the Company are reasonably likely to have a material adverse effect on GS&Co., or the fund’s ability to perform its obligations under this Agreement; or
(d) at the option of the Company if a Portfolio delineated in Schedule A ceases to qualify as a Regulated Investment Company under Subchapter M of the Code (a “RIC”), or under any successor or similar provision, and the disqualification is not cured within the period permitted for such cure, or if the Company reasonably believes that any such Portfolio may fail to so qualify and be unable to cure such disqualification within the period permitted for such cure; or
(e) at the option of any party to this Agreement, upon another party’s material breach of any provision of this Agreement; provided that the party not in breach shall give the party in breach notice of the breach and the party in breach does not cure such breach within 30 days of receipt of such notice of breach.
8.3 Notice Requirement
(a) In the event that any termination of this Agreement is based upon the provisions of Sections 8.2(b). 8.2(c) or 8.2(d), prompt written notice of the election to terminate this Agreement for cause shall be furnished by the party terminating the Agreement to the non-terminating parties, with said termination to be effective upon receipt of such notice by the non-terminating parties; provided that for any termination of this Agreement based on the provisions of Section 8.2(d), said termination shall be effective upon the Portfolio’s failure to qualify as a RIC and to cure such disqualification within the period permitted for such cure.
8.4 It is understood and agreed that the right to terminate this Agreement pursuant to Section 8.1(a) may be exercised for any reason or for no reason.
8.5 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to Section 8.2(a) through 8.2(e) of this Agreement and subject to Section 1.2 of this Agreement, the Company may require the Fund and the Underwriter to continue to make available additional shares of the Fund for 180 days after the termination of this Agreement pursuant to the terms and conditions of this Agreement and as provided in paragraph (b) below, for all Contracts in effect on the effective date of termination of this Agreement (hereinafter referred to as “Existing Contracts”), unless such further sale of Fund shares is proscribed by law, regulation or an applicable regulatory body. Specifically, without limitation, the owners of the Existing Contracts shall be permitted to direct reallocation of investments in the Fund, redeem investments in the Fund and/or invest in the Fund upon the making of additional purchase payments under the Existing Contracts unless such further sale of Fund shares is proscribed by law, regulation or an applicable regulatory body.
(b) The Fund and/or Underwriter shall remain obligated to pay Company the fee(s) in effect as of the date of termination for so long as shares are held by the Accounts and Company continues to provide services to the Accounts. Such fee shall apply to shares purchased both prior to and subsequent to the date of termination. This Agreement, or any provision thereof, shall survive the termination to the extent necessary for each party to perform its obligations with respect to shares for which a fee continues to be due subsequent to such termination.
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed duly given only if sent by hand or overnight express deli very, evidenced by written receipt or by certified mail, return receipt requested, 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. All notices shall be deemed given the date received or rejected by the addressee.
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment Products Division
with a copy to:
General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to the Fund:
Xxxxxxx Xxxxx Trust
00 Xxx Xxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Managing Director
If to GS&Co.:
Xxxxxxx Xxxxx Trust 00 Xxx Xxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Managing Director
with a copy to:
Xxxxxxx, Xxxxx & Co. 00 Xxx Xxxx, 00xx Xxxxx Xxx Xxxx, XX 1 0005
Attention: Xxxxx XxXxxxxx
Managing Director
ARTICLE X Miscellaneous
10. 1 Subject to law and regulatory authority, each party hereto shall treat as confidential the names and addresses of the owners of the Contracts and all other information reasonably identified as such in writing by any other party hereto, and, except as contemplated by this Agreement, shall not disclose, disseminate
or utilize such confidential information without the express prior written consent of the affected party until such time as it may come into the public domain. In addition, the parties hereby represent that they will use and disclose Personal Information (as defined below) only to carry out the purposes for which it was disclosed to them and will not use or disclose Personal Information if prohibited by applicable law, including, without limitation, statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106- 102). “Personal Information “ means financial and medical information that identifies an individual personally and is not available to the public, including, but not limited to, credit history, income, financial benefits, policy or claim information and medical records. If either party outsources services to a third party, such third party will agree in writing to maintain the security and confidentiality of any information shared with them.
10.2 The caption s 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.
10.3 This Agreement may be executed simultaneously in two or more counterparts, each of which taken together shall constitute one and the same instrument.
10.4 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.
10.5 This Agreement shall not be assigned by any party hereto without the prior written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all appropriate governmental authorities (including without limitation the SEC, the NASD, NASDR and state insurance regulators) and shall permit each other and such authorities (and the parties hereto) reasonable access to its books and records in connection with any investigation or inquiry relating to this Agreement or the transactions contemplated hereby. Notwithstanding the foregoing, each party hereto further agrees to furnish the California Insurance Commissioner with any information or reports in connection with services provided under this Agreement which such Commissioner may request in order to ascertain whether the insurance operations of the Company are being conducted in a manner consistent with the California laws and regulations.
10.7 Each party represents that (a) the execution and delivery of this Agreement, and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate or trust 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 subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; (b) the party has obtained, and during the term of this Agreement will maintain, all authorizations, licenses, qualifications or registrations required to be maintained in connection with the performance of its duties under this Agreement: and (c) the party will comply in all material respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend by written agreement the Schedules to this Agreement from time to time to reflect changes in or relating to the Contracts, the Separate Accounts or the Portfolios of the Fund.
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 first written above.
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HARTFORD LIFE INSURANCE COMPANY |
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XXXXXXX, SACHS & CO. | ||
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/s/ Xxxxxxx X. Xxxxx |
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By |
Illegible |
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Name: Xxxxxxx X. Xxxxx |
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Name: Xxxxx | ||
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Title: VP Product/Marketing |
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Title: Managing Director | ||
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XXXXXXX SACHS TRUST |
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By |
/s/ Xxxxx Xxxxxxxxxxx |
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Name: Xxxxx Xxxxxxxxxxx |
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Title: Managing Director |
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SCHEDULE A
Separate Accounts
Each Separate Account established by resolution of the Board of Directors of the Company under the insurance laws of the State of Connecticut to set aside and invest assets attributable to the Contracts.
Currently, those Separate Accounts are as follows:
401 Market
K, Kl, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0
403 and 457 Market
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC
Portfolios
Xxxxxxx Xxxxx Capital Growth
Xxxxxxx Sachs Core Small Equity
Xxxxxxx Xxxxx International Equity
Xxxxxxx Sachs Global Income
Xxxxxxx Xxxxx Government Income
*Class A Shares
Schedule B
In consideration of the services provided by the Company, GS&Co. agrees to pay the Company an amount equal to the following basis points per annum on the average aggregate amount invested by the Company’s Separate Account(s) in each Portfolio under the Fund Participation Agreement, such amounts to be paid within 30 days of the end of each calendar quarter.
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Portfolio |
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Sub-Transfer Agent Fees |
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Additional Service Fee |
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Xxxxxxx Xxxxx Capital Growth |
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0.15% of the average daily net asset value of non-money market Class A Shares which are beneficially owned by Company’s customers during such period. |
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0.05%* |
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Xxxxxxx Sachs Core Small Equity |
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0. 15% of the average daily net asset value of non-money market Class A Shares which arc beneficially owned by Company’s customers during such period. |
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0.05%* |
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Goldman Sac s International Equity |
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0. 15% of the average daily net asset value of non-money market Class A Shares which are beneficially owned by Company’s customers during such period. |
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0.05%* |
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Xxxxxxx Sachs Global Income |
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0. 15% of the average daily net asset value of non-money market Class A Shares which are beneficially owned by Company’s customers during such period. |
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0.05%* |
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Xxxxxxx Xxxxx Government Income |
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0. 15% of the average daily net asset value of non -money market Class A Shares which are beneficially owned by Company’s customers during such period. |
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0.05%* |
* A portion of these fees may be paid by GS&Co.’s investment advisory revenue.
