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