EXHIBIT 10(i)
PARTICIPATION AGREEMENT
-----------------------
AMONG
GOLDEN AMERICAN LIFE INSURANCE COMPANY,
THE GALAXY VIP FUND,
FLEET INVESTMENT ADVISORS INC.
AND
FIRST DATA DISTRIBUTORS, INC.
THIS AGREEMENT, dated as of the 1st day of October, 1999, by and
among Golden American Life Insurance Company (the "Company"), a life
insurance company organized under the laws of the State of Delaware, on
its own behalf and on behalf of each separate account of the Company set
forth on Schedule A hereto as may be amended from time to time (each
such account hereinafter referred to as the "Account"), The Galaxy VIP
Fund (the "Fund"), a management investment company and business trust
organized under the laws of the [State of Delaware/Commonwealth of
Massachusetts], Fleet Investment Advisors Inc.(the "Adviser"), a
corporation organized under the laws of the [State of
Delaware/Commonwealth of Massachusetts],and First Data Distributors,
Inc. (the "Distributor"), a corporation organized under the laws of the
[State of Delaware/Commonwealth of Massachusetts].
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance and variable
annuity contracts (the "Variable Insurance Products") to be offered by
insurance companies which have entered into participation agreements
with the Fund, Adviser and Distributor ("Participating Insurance
Companies");
WHEREAS, the shares of beneficial interest of the Fund are divided
into several series of shares, each designated a "Portfolio" and
representing the interest in a particular managed portfolio of
securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC") 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, if and to the
extent necessary to permit shares of the Fund to be sold to and held by
variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated life insurance companies (the "Mixed and
Shared Funding Exemptive Order"), and the parties to this Agreement
agree to comply with the conditions or undertakings specified in the
Mixed and Shared Funding Exemptive Order to the extent applicable to
each such party;
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and shares of the Portfolios are
registered under the Securities Act of 1933, as amended (the "1933
Act");
WHEREAS, the Adviser, which serves as investment adviser to the
Fund, is duly registered as an investment adviser under the federal
Investment Advisers Act of 1940, as amended;
WHEREAS, the Company has registered or will register certain
variable annuity contracts (the "Contracts") under the 1933 Act;
WHEREAS, the Account is a duly organized, validly existing
segregated asset account, established by the Company under the insurance
laws of the State of Delaware, to set aside and invest assets
attributable to the Contracts;
WHEREAS, the Company has registered the Account as a unit
investment trust under the 1940 Act;
WHEREAS, the Company has issued or will issue certain variable life
insurance and/or variable annuity contracts supported wholly or
partially by the Account (the "Contracts"), and said Contracts are
listed in Schedule A hereto, as it may be amended from time to time by
mutual written agreement;
WHEREAS, the Distributor, which serves as distributor to the Fund,
is registered as a broker dealer with the SEC under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and is a member in
good standing of the National Association of Securities Dealers, Inc.
(the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios
listed in Schedule B hereto, as it may be amended from time to time by
mutual written agreement (the "Designated Portfolios") on behalf of the
Account to fund the aforesaid Contracts, and the Distributor is
authorized to sell such shares to the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Adviser, and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
-------------------
1.1. The Fund agrees to sell to the Company those shares of the
Designated Portfolios that each Account or the appropriate subaccount of
each Account orders, 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 the order for the shares of the Fund. For purposes of
this Section 1.1, the Company will be the designee of the Fund for
receipt of such orders from each Account or the appropriate subaccount
of each Account and receipt by such designee will constitute receipt by
the Fund; provided that the Fund receives notice of such order by 10:00
a.m. Eastern Time on the next following business day ("T+1"). "Business
Day" will mean any day on which the New York Stock Exchange is open for
trading and on which the Fund calculates its net asset value pursuant to
the rules of the SEC.
1.2. The Company will pay for Fund shares on T+1 that an order to
purchase Fund shares is made in accordance with Section 1.1 above.
Payment will be in federal funds transmitted by wire. This wire
transfer will be initiated by 12:00 p.m. Eastern Time.
1.3. The Fund agrees to make shares of the Designated Portfolios
available indefinitely for purchase at the applicable net asset value
per share by Participating Insurance Companies and their separate
accounts on those days on which the Fund calculates its Designated
Portfolio net asset value pursuant to rules of the SEC and the Fund
shall use reasonable efforts to calculate such net asset value on each
day the New York Stock Exchange is open for trading; provided, however,
that the Board of
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Trustees of the Fund (the "Fund Board") may refuse to
sell shares of any Portfolio to any person, or suspend or terminate the
offering of shares of any Portfolio if such action is required by law or
by regulatory authorities having jurisdiction or is, in the sole
discretion of the Fund Board, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, necessary
in the best interests of the shareholders of such Portfolio.
1.4. On each Business Day on which the Fund calculates its net
asset value, the Company will aggregate and calculate the net purchase
or redemption orders for each Account or the appropriate subaccount of
each Account maintained by the Fund in which contract owner assets are
invested. Net orders will only reflect orders that the Company has
received prior to the close of regular trading on the New York Stock
Exchange, Inc. (the "NYSE") (currently 4:00 p.m., Eastern Time) on that
Business Day. Orders that the Company has received after the close of
regular trading on the NYSE will be treated as though received on the
next Business Day. Each communication of orders by the Company will
constitute a representation that such orders were received by it prior
to the close of regular trading on the NYSE on the Business Day on which
the purchase or redemption order is priced in accordance with Rule 22c-1
under the 1940 Act. Other procedures relating to the handling of orders
will be in accordance with the prospectus and statement of information
of the relevant Designated Portfolio or with oral or written
instructions that the Distributor or the Fund will forward to the
Company from time to time.
1.5. The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts, qualified
pension and retirement plans or such other persons as are permitted
under applicable provisions of the Internal Revenue Code of 1986, as
amended, (the "Internal Revenue Code"), and regulations promulgated
thereunder, the sale to which will not impair the tax treatment
currently afforded the Contracts. No shares of any Portfolio will be
sold to the general public except as set forth in this Section 1.5.
1.6. The Fund agrees to redeem for cash, upon the Company's
request, any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its agent of the
request for redemption. For purposes of this Section 1.6, the Company
will be the designee of the Fund for receipt of requests for redemption
from each Account or the appropriate subaccount of each Account and
receipt by such designee will constitute receipt by the Fund, provided
the Fund receives notice of request for redemption by 10:00 a.m. Eastern
Time on the next following Business Day. Payment will be in federal
funds transmitted by wire to the Company's account as designated by the
Company in writing from time to time, on the same Business Day the Fund
receives notice of the redemption order from the Company. The Fund
reserves the right to delay payment of redemption proceeds, but in no
event may such payment be delayed longer than the period permitted by
the 0000 Xxx. The Fund will not bear any responsibility whatsoever for
the proper disbursement or crediting of redemption proceeds; the Company
alone will be responsible for such action. If notification of
redemption is received after 10:00 a.m. Eastern Time, payment for
redeemed shares will be made on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the
Designated Portfolios offered by the then current prospectus of the Fund
in accordance with the provisions of such prospectus.
1.8. Issuance and transfer of the Fund's shares will be by book
entry only. Stock certificates will not be issued to the Company or any
Account. Purchase and redemption orders for Fund shares will be
recorded in an appropriate title for each Account or the appropriate
subaccount of each Account.
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1.9. The Fund will furnish same day notice (by telecopier, followed
by written confirmation) to the Company of the declaration of any
income, dividends or capital gain distributions payable on each
Designated Portfolio's shares. The Company hereby elects to receive all
such dividends and distributions as are payable on the Designated
Portfolio shares in the form of additional shares of that Designated
Portfolio. The Fund will notify the Company of the number of shares so
issued as payment of such dividends and distributions. The Company
reserves the right to revoke this election upon reasonable prior notice
to the Fund and to receive all such dividends and distributions in cash.
1.10. The Fund will make the net asset value per share for each
Designated Portfolio available to the Company on a daily basis as soon
as reasonably practical after the net asset value per share is
calculated and will use its best efforts to make such net asset value
per share available by 6:00 p.m., Eastern Time, but in no event later
than 7:00 p.m., Eastern Time, each business day.
1.11. In the event adjustments are required to correct any
error in the computation of the net asset value of the Fund's shares,
the Fund or the Distributor will notify the Company as soon as
practicable after discovering the need for those adjustments that result
in an aggregate reimbursement of $150 or more to any one subaccount of
each Account maintained by a Designated Portfolio unless notified
otherwise by the Company (or, if greater, results in an adjustment of
$10 or more to each contractowner's account). Any such notice will
state for each day for which an error occurred the incorrect price, the
correct price and, to the extent communicated to the Fund's
shareholders, the reason for the price change. The Company may send
this notice or a derivation thereof (so long as such derivation is
approved in advance by the Distributor or the Adviser) to contractowners
whose accounts are affected by the price change. The parties will
negotiate in good faith to develop a reasonable method for effecting
such adjustments. The Fund shall provide the Company, on behalf of the
Account or the appropriate subaccount of each Account, with a prompt
adjustment to the number of shares purchased or redeemed to reflect the
correct share net asset value.
1.12.
(a) The parties hereto acknowledge that the arrangement
contemplated by this Agreement is not exclusive; the Fund's shares
may be sold to other insurance companies (subject to Section 1.8
hereof) and the cash value of the Contracts may be invested in
other investment companies, provided, however, that until this
Agreement is terminated pursuant to Article X, the Company shall
promote the Designated Portfolios on the same basis as other
funding vehicles available under the Contracts and funding vehicles
other than those listed on Schedule B to this Agreement may be
available for the investment of the cash value of the Contracts.
(b) The Company shall not, without prior notice to the
Advisor and the Distributor (unless otherwise required by
applicable law), take any action to operate the Account as a
management investment company under the 1940 Act.
(c) The Company shall not, without prior notice to the
Advisor and the Distributor (unless otherwise required by
applicable law), induce Contract owners to change or modify the
Fund or change the Fund's distributor or investment adviser.
(d) The Company shall not, without prior notice to the Fund,
induce Contract owners to vote on any matter submitted for
consideration by the shareholders of the Fund in a manner other
than as recommended by the Board of Trustees of the Fund.
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ARTICLE II. Representations and Warranties
------------------------------
2.1. The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act and that the Contracts will be
issued and sold in compliance with all applicable federal and state
laws, including state insurance suitability requirements. The Company
further represents and warrants that it is an insurance company duly
organized and in good standing under applicable law and that it has
legally and validly established each Account as a separate account under
applicable state law and has registered the Account as a unit investment
trust in accordance with the provisions of thin 1940 Act to serve as a
segregated investment account for the Contracts, and that it will
maintain such registration for so long as any Contracts are outstanding.
The Company will amend the registration statement under the 1933 Act for
the Contracts and the registration statement under the 1940 Act for the
Account from time to time as required in order to effect the continuous
offering of the Contracts or as may otherwise be required by applicable
law. The Company will register and qualify the Contracts for sale in
accordance with the securities laws of the various states only if and to
the extent deemed necessary by the Company.
2.2. The Company represents that the Contracts are currently and at
the time of issuance will be treated as endowment, annuity or life
insurance contracts under applicable provisions of the Internal Revenue
Code, and that it will make every effort to maintain such treatment and
that it will notify the Fund and the Adviser immediately upon having a
reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future.
2.3. The Company represents and warrants that it will not purchase
shares of the Designated Portfolios with assets derived from
tax-qualified retirement plans except, indirectly, through Contracts
purchased in connection with such plans.
2.4. The Fund represents and warrants that Fund shares of the
Designated Portfolios sold pursuant to this Agreement will be registered
under the 1933 Act and duly authorized for issuance in accordance with
applicable law and that the Fund is and will remain registered under the
1940 Act for as long as such shares of the Designated Portfolios are
outstanding. The Fund will 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. The Fund will
register and qualify the shares of the Designated Portfolios for sale in
accordance with the laws of the various states only if and to the extent
deemed advisable by the Fund.
2.5. The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Internal Revenue
Code, and that it will make every effort to maintain such qualification
(under Subchapter M or any successor or similar provision) and that it
will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so
qualify in the future.
2.6. The Fund represents and warrants that in performing the
services described in this Agreement, the Fund will comply with all
applicable laws, rules and regulations. The Fund makes no representation
as to whether any aspect of its operations (including, but not limited
to, fees and expenses and investment policies, objectives and
restrictions) complies with the insurance laws and regulations of any
state. The Fund and the Distributor agree that upon request they will
use their best efforts to furnish the information required by state
insurance laws so that the Company can obtain the authority needed to
issue the Contracts in the various states.
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2.7. The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act,
although it reserves the right to make such payments in the future. To
the extent that it decides to finance distribution expenses pursuant to
Rule 12b-1 the Fund undertakes to have its Fund Board formulate and
approve any plan under Rule 12b-1 to finance distribution expenses in
accordance with the 1940 Act.
2.8. The Distributor represents and warrants that it will
distribute the Fund shares of the Designated Portfolios in accordance
with all applicable federal and state securities laws including, without
limitation, the 1933 Act, the 1934 Act and the 0000 Xxx.
2.9. The Fund represents that it is lawfully organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it
does and will comply in all material respects with applicable provisions
of the 0000 Xxx.
2.10. The Distributor represents and warrants that it is and
will remain duly registered under all applicable federal and state
securities laws and that it will perform its obligations for the Fund in
accordance in all material respects with any applicable state and
federal securities laws.
2.11. The Fund and the Distributor represent and warrant that
all of their trustees, officers, employees, investment advisers, and
other individuals/entities having access to the funds and/or securities
of the Fund are and continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than the minimal coverage as required currently by Rule
17g-(1) of the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company.
ARTICLE III. Prospectuses and Proxy Statements; Voting
-----------------------------------------
3.1. The Fund or the Distributor will provide the Company, at the
Fund's or its affiliate's expense, with as many copies of the current
Fund prospectus for the Designated Portfolios as the Company may
reasonably request for distribution, at the Company's expense, to
prospective contractowners and applicants. The Fund or the Distributor
will provide, at the Fund's or its affiliate's expense, as many copies
of said prospectus as necessary for distribution, at the Company's
expense, to existing contractowners. The Fund or the Distributor will
provide the copies of said prospectus to the Company or to its mailing
agent. If requested by the Company in lieu thereof, the Fund or the
Distributor will provide such documentation, including a computer
diskette or a final copy of a current prospectus set in type at the
Fund's or its affiliate's expense, and such other assistance as is
reasonably necessary in order for the Company at least annually (or more
frequently if the Fund prospectus is amended more frequently) to have
the Fund's prospectus and the prospectuses of other mutual funds in
which assets attributable to the Contracts may be invested printed
together in one document, in which case the Fund or its affiliate will
bear its reasonable share of expenses as described above, allocated
based on the proportionate number of pages of the Fund's and other
fund's respective portions of the document.
3.2. The Fund or the Distributor will provide the Company, at the
Fund's or its affiliate's expense, with as many copies of the statement
of additional information as the Company may reasonably request for
distribution, at the Company's expense, to prospective contractowners
and applicants. The Fund or the Distributor will provide, at the Fund's
or its affiliate's expense, as many copies of said statement of
additional information as necessary for distribution, at the Company's
expense, to any existing contractowner who requests such statement or
whenever state or federal law otherwise requires that such
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statement be
provided. The Fund or the Distributor will provide the copies of said
statement of additional information to the Company or to its mailing
agent.
3.3. The Fund or the Distributor, at the Fund's or its affiliate's
expense, will provide the Company or its mailing agent with copies of
its proxy material, if any, reports to shareholders and other
communications to shareholders in such quantity as the Company will
reasonably require. The Company will distribute this proxy material,
reports and other communications to existing contract owners and
tabulate the votes.
3.4. If and to the extent required by law the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios held in the
Account in accordance with instructions received from
contractowners; and
(c) vote shares of the Designated Portfolios held in the
Account for which no timely instructions have been received, as
well as shares it owns, in the same proportion as shares of such
Designated Portfolio for which instructions have been received from
the Company's contractowners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contractowners. Except as set forth above, the Company reserves the
right to vote Fund shares held in any segregated asset account in its
own right, to the extent permitted by law. The Company will be
responsible for assuring that each of its separate accounts
participating in the Fund calculates voting privileges in a manner
consistent with all legal requirements, including the Mixed and Shared
Funding Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Fund either
will provide for annual meetings (except insofar as the SEC may
interpret Section 16 of the 1940 Act not to require such meetings) or,
as the Fund currently intends to comply with Section 16(c) of the 1940
Act (although the Fund is not one of the trusts described in Section
16(c) of that Act) as well as with Sections 16(a) and, if and when
applicable, 16(b). Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect
to periodic elections of trustees and with whatever rules the SEC may
promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
------------------------------
4.1. the Distributor will provide the Company on a timely basis
with investment performance information for each Designated Portfolio in
which the Company maintains a subaccount of the Account, including total
return for the preceding calendar month and calendar quarter, the
calendar year to date, and the prior one-year, five-year, and ten year
(or life of the Fund) periods. The Company may, based on the SEC
mandated information supplied by the Distributor, prepare communications
for contractowners ("Contractowner Materials"). The Company will
provide copies of all Contractowner Materials concurrently with their
first use for the Distributor's internal recordkeeping purposes. It is
understood that neither the Distributor nor any Designated Portfolio
will be responsible for errors or omissions in, or the content of,
Contractowner Materials except to the extent that the error or omission
resulted from information provided by or on behalf of the Distributor or
the Designated Portfolio. Any printed information that is furnished to
the Company pursuant to this Agreement other than each Designated
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Portfolio's prospectus or statement of additional information (or
information supplemental thereto), periodic reports and proxy
solicitation materials is the Distributor's sole responsibility and not
the responsibility of any Designated Portfolio or the Fund. The Company
agrees that the Portfolios, the shareholders of the Portfolios and the
officers and governing Board of the Fund will have no liability or
responsibility to the Company in these respects.
4.2. The Company will not give any information or make any
representations or statements on behalf of the Fund or concerning the
Fund in connection with the sale of the Contracts other than the
information or representations contained in the registration statement,
prospectus or statement of additional information for Fund shares, as
such registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
reports or proxy statements for the Fund, or in published reports for
the Fund which are in the public domain or approved by the Fund or the
Distributor for distribution, or in sales literature or other material
provided by the Fund, Adviser or by the Distributor, except with
permission of the Distributor. Any piece of sales literature or other
promotional material intended to be used by the Company which requires
the permission of the Distributor prior to use will be furnished by
Company to the Distributor, or its designee, at least ten (10) business
days prior to its use. No such material will be used if the Distributor
reasonably objects to such use within five (5) business days after
receipt.
Nothing in this Section 4.2 will be construed as preventing the Company
or its employees or agents from giving advice on investment in the Fund.
4.3. The Fund, the Adviser or the Distributor will furnish, or will
cause to be furnished, to the Company or its designee, each piece of
sales literature or other promotional material in which the Company or
its Account is named, at least ten (10) business days prior to its use.
No such material will be used if the Company reasonably objects to such
use within five (5) business days after receipt of such material.
4.4. The Fund, the Adviser and the Distributor will not give any
information or make any representations or statements on behalf of the
Company or concerning the Company, each Account, or the Contracts other
than the information or representations contained in a registration
statement, prospectus or statement of additional information for the
Contracts, as such registration statement, prospectus and statement of
additional information may be amended or supplemented from time to time,
or in published reports for each Account or the Contracts which are in
the public domain or approved by the Company for distribution to
contractowners, or in sales literature or other material provided by the
Company, except with permission of the Company. The Company agrees to
respond to any request for approval on a prompt and timely basis.
4.5. The Fund will provide to the Company at least one complete
copy of all registration statements, prospectuses, statements of
additions information, reports, proxy statements, sales literature and
other promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate
to the Fund or its shares, contemporaneously with the filing of such
document with the SEC, the NASD or other regulatory authority.
4.6. The Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses, statements of
additional information, reports, solicitations for voting instructions,
sales literature and other promotional materials, applications for
exemptions, requests for no action letters, and all amendments to any of
the above, that relate to the Contracts or each Account,
contemporaneously with the filing of such document with the SEC, the
NASD or other regulatory authority.
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4.7. For purposes of this Article IV, the phrase "sales literature
or other promotional material" includes, but is not limited to,
advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone
or tape recording, videotape display, signs or billboards, motion
pictures, or other public media, (e.g., on-line networks such as the
Internet or other electronic messages), sales literature (i.e., any
written communication distributed or made generally available to
customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisements sales 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, prospectuses, statements of
additional information, shareholder reports, and proxy materials and any
other material constituting sales literature or advertising under the
NASD rules, the 1933 Act or the 0000 Xxx.
4.8. The Fund and the Distributor hereby consent to the Company's
use of the names Fleet Investment Advisors Inc., The Galaxy VIP Fund,
the portfolio names designated on Schedule B or other designated names
as may be used from time to time in connection with the marketing of the
Contracts, subject to the terms of Sections 4.1 and 4.2 of this
Agreement. Such consent will terminate with the termination of this
Agreement.
ARTICLE V. Fees and Expenses
-----------------
5.1. The Fund, the Adviser and the Distributor will pay no fee or
other compensation to the Company under this Agreement except if the
Fund or any Designated Portfolio adopts and implements a plan pursuant
to Rule 12b-1 under the 1940 Act to finance distribution expenses, then,
subject to obtaining any required exemptive orders or other regulatory
approvals, the Fund may make payments to the Company or to the
underwriter for the Contracts if and in such amounts agreed to by the
Fund in writing.
5.2. All expenses incident to performance by the Fund of this
Agreement will be paid by the Fund to the extent permitted by law. The
Fund will bear the expenses for the cost of registration and
qualification of the Fund's shares; preparation and filing of the Fund's
prospectus, statement of additional information and registration
statement, proxy materials and reports; setting in type and printing the
Fund's prospectus; setting in type and printing proxy materials and
reports by it to contractowners (including the costs of printing a Fund
prospectus that constitutes an annual report); the preparation of all
statements and notices required by any federal or state law; all taxes
on the issuance or transfer of the Fund's shares; any expenses permitted
to be paid or assumed by the Fund pursuant to a plan, if any, under Rule
12b-1 under the 1940 Act; and all other expenses set forth in Article
III of this Agreement.
ARTICLE VI. Diversification and Qualification
---------------------------------
6.1. The Adviser will ensure that the Fund will at all times invest
money from the Contracts in such a manner as to ensure that the
Contracts will be treated as variable annuity contracts under the
Internal Revenue Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund will comply with Section
817(h) of the Internal Revenue Code and Treasury Regulation 1.817-5, as
amended from time to time, relating to the diversification requirements
for variable annuity, endowment, or life insurance contracts and any
amendments or other modifications to such Section or Regulation. In the
event of a breach of this Article VI by the Fund, it will take all
reasonable steps: (a) to notify the Company of such breach; and (b) to
adequately diversify the Fund so as to achieve compliance within the
grace period afforded by Treasury Regulation 1.817-5.
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6.2. The Fund represents that it is or will be qualified as a
Regulated Investment Company under Subchapter M of the Internal Revenue
Code, and that it will make every effort to maintain such qualification
(under Subchapter M or any successor or similar provisions) and that it
will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so
qualify in the future.
6.3. The Company represents that the Contracts are currently, and
at the time of issuance shall be, treated as life insurance or annuity
insurance contracts, under applicable provisions of the Internal Revenue
Code, and that it will make every effort to maintain such treatment, and
that it will notify the Fund and the Distributor immediately upon having
a reasonable basis for believing the Contracts have ceased to be so
treated or that they might not be so treated in the future. The Company
agrees that any prospectus offering a contract that is a "modified
endowment contract" as that term is defined in Section 7702A of the
Internal Revenue Code (or any successor or similar provision), shall
identify such contract as a modified endowment contract.
ARTICLE VII. Potential Conflicts
-------------------
7.1. The Fund Board will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the Contract
owners of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are being managed; (e)
a difference in voting instructions given by variable annuity contract
and variable life insurance contract owners; or (f) a decision by an
insurer to disregard the voting instructions of contract owners. The
Fund Board shall promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Fund Board. The Company will assist the Fund
Board in carrying out its responsibilities under the Mixed and Shared
Funding Exemptive Order, by providing the Fund Board with all information
reasonably necessary for the Fund Board to consider any issues raised.
This includes, but is not limited to, an obligation by the Company to
inform the Fund Board whenever Contract owner voting instructions are
disregarded.
7.3. If it is determined by a majority of the Fund Board, or a
majority of its disinterested members, that a material irreconcilable
conflict exists, the Company and other Participating Insurance Companies
shall, at their expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Fund Board members), take
whatever steps are necessary to remedy or eliminate the irreconcilable
material conflict, up to and including: (1) withdrawing the assets
allocable to some or all of the separate accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio of the Fund, or
submitting the question whether such segregation should be implemented
to a vote of all affected contract owners and, as appropriate,
segregating the assets of any appropriate 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 (2) establishing a new registered management
investment company or managed separate account.
- 10 -
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting instructions
and that decision represents a minority position or would preclude a
majority vote, the Company may be required, at the Fund's election, to
withdraw the Account's investment in the Fund and terminate this
Agreement with respect to each Account; provided, however, that such
withdrawal and termination shall be limited to the extent required by
the foregoing material irreconcilable conflict as determined by a
majority of the disinterested members of the Fund Board. Any such
withdrawal and termination must take place within six (6) months after
the Fund gives written notice that this provision is being implemented,
and until the end of that six month period the Fund shall continue to
accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state regulators, then the
Company will withdraw the affected Account's investment in the Fund and
terminate this Agreement with respect to such Account within six months
after the Fund Board informs the Company in writing that it has
determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the
Fund Board. Until the end of the foregoing six month period, the Fund
shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.6. For purposes of Section 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Fund Board shall determine
whether any proposed action adequately remedies any irreconcilable
material conflict, but in no event will the Fund be required to
establish a new funding medium for the Contracts. The Company shall not
be required by Section 7.3 to establish a new funding medium for the
Contract if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable
material conflict. In the event that the Fund Board determines that any
proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the
Fund and terminate this Agreement within six (6) months after the Fund
Board informs the Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited
to the extent required by any such material irreconcilable conflict as
determined by a majority of the disinterested members of the Fund Board.
7.7. If and to the extent the Mixed and Shared Funding Exemption
Order or any amendment thereto contains terms and conditions different
from Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this
Agreement, then the Fund and/or the Participating Insurance Companies,
as appropriate, shall take such steps as may be necessary to comply with
the Mixed and Shared Funding Exemptive Order, and Sections 3.4, 3.5,
3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in
effect only to the extent that terms and conditions substantially
identical to such Sections are contained in the Mixed and Shared Funding
Exemptive Order or any amendment thereto. If and to the extent that
Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to
provide exemptive relief from any provision of the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Mixed and
Shared Funding Exemptive Order, then (a) the Fund and/or the
Participating Insurance Companies, as appropriate, shall take such steps
as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended,
and Rule 6e-3, as adopted, to the extent such rules are applicable; and
(b) Sections 3.5, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of this Agreement
shall continue in effect only to the
- 11 -
extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s)
as so amended or adopted.
ARTICLE VIII. Indemnification
---------------
8.1. Indemnification By The Company
------------------------------
(a) The Company agrees to indemnify and hold harmless the
Fund, the Adviser, the Distributor, and each person, if any, who
controls or is associated with the Fund, the Adviser or the
Distributor within the meaning of such terms under the federal
securities laws and any director, trustee, officer, partner,
employee or agent of the foregoing (collectively, the "Indemnified
Parties" for purposes of this Section 8.1) against any and all
losses, claims, expenses, damages, liabilities (including amounts
paid 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 settlements:
(1) arise out of or are based upon any untrue statements
or alleged untrue statements of any material fact contained in
the registration statement, prospectus or statement of
additional 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 or necessary to make such statements not
misleading in light of the circumstances in which they were
made; provided that this agreement to indemnify will 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 written information furnished to the
Company by the Fund, the Adviser or the Distributor 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
(2) arise out of or as a result of statements or
representations by or on behalf of the Company or wrongful
conduct of the Company or persons under its control, with
respect to the sale or distribution of the Contracts or Fund
shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Fund
registration statement, prospectus, statement of additional
information or sales literature or other promotional material
of the Fund (or amendment or supplement) or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make such statements not
misleading in light of the circumstances in which they were
made, if such a statement or omission was made in reliance
upon and in conformity with information furnished to the Fund
by or on behalf of the Company or persons under its control;
or
(4) arise as a result of any failure by the Company to
provide the services and furnish the materials under the terms
of this Agreement; or
- 12 -
(5) arise out of any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach by the Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.3 hereof.
This indemnification will be in addition to any liability that the
Company otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.1(a) to the extent such loss, claim, damage, liability or
litigation is due to the willful misfeasance, bad faith, or gross
negligence in the performance of such party's duties under this
Agreement, or by reason of such party's reckless disregard of its
obligations or duties under this Agreement by the party seeking
indemnification.
(c) The Indemnified Parties promptly will notify the Company
of the commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with
the issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
8.2. Indemnification By The Adviser, the Fund and the Distributor
------------------------------------------------------------
(a) The Adviser, the Fund and the Distributor, in each case
solely to the extent relating to such party's responsibilities
hereunder, agree to indemnify and hold harmless the Company and
each person, if any, who controls or is associated with the Company
within the meaning of such terms under the federal securities laws
and any director, trustee, officer, partner, employee or agent of
the foregoing (collectively, the "Indemnified Parties" for purposes
of this Section 8.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the
written consent of the Adviser) 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:
(1) 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 or necessary to
make such statements not misleading in light of the
circumstances in which they were made; provided that this
agreement to indemnify will 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 to the Adviser, the Distributor or the
Fund by or 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 Contracts or Fund shares;
or
(2) arise out of or as a result of statements or
representations or wrongful conduct of the Adviser, the Fund
or the Distributor or persons under the control of the
Adviser, the Fund or the Distributor respectively, with
respect to the sale of the Fund shares; or
- 13 -
(3) 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 covering the
Contracts (or any amendment or supplement thereto), or the
omission or alleged omission to state therein a material fact
required to be stated or necessary to make such statement or
statements not misleading in light of the circumstances in
which they were made, if such statement or omission was made
in reliance upon and in conformity with written information
furnished to the Company by the Adviser, the Fund or the
Distributor or persons under the control of the Adviser, the
Fund or the Distributor; or
(4) arise as a result of any failure by the Fund, the
Adviser or the Distributor to provide the services and furnish
the materials under the terms of this Agreement (including a
failure, whether unintentional or in good faith or otherwise,
to comply with the diversification requirements and procedures
related thereto specified in Article VI of this Agreement); or
(5) arise out of or result from any material breach of
any representation and/or warranty made by the Adviser, the
Fund or the Distributor in this Agreement, or arise out of or
result from any other material breach of this Agreement by the
Adviser the Fund or the Distributor;
except to the extent provided in Sections 8.2(b) and 8.3 hereof.
This indemnification will be in addition to any liability that the
Fund, Adviser or the Distributor otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.2(a) to the extent such loss, claim, damage, liability or
litigation is due to the willful misfeasance, bad faith, or gross
negligence in the performance of such party's duties under this
Agreement, or by reason of such party's reckless disregard of its
obligations or duties under this Agreement by the party seeking
indemnification.
(c) The Indemnified Parties will promptly notify the Adviser,
the Fund and the Distributor of the commencement of any litigation,
proceedings, complaints or actions by regulatory authorities
against them in connection with the issuance or sale of the
Contracts or the operation of the account.
8.3. Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article
VIII ("Indemnifying Party" for the purpose of this Section 8.3) will not
be liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.3) unless such Indemnified Party will 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 will have been served upon such Indemnified Party (or after such
party will have received notice of such service on any designated
agent), but failure to notify the Indemnifying Party of any such claim
will 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 VIII, except to the extent that the failure to notify results in
the failure of actual notice to the Indemnifying Party and such
Indemnifying Party is damaged solely as a result of failure to give such
notice. In case any such action is brought against the Indemnified
Party, the
- 14 -
Indemnifying Party will be entitled to participate, at its
own expense, in the defense thereof. The Indemnifying Party also will
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 will 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 Agreement for any
legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than
reasonable costs of investigation, unless: (a) the Indemnifying Party
and the Indemnified Party will have mutually agreed to the retention of
such counsel; or (b) 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. The Indemnifying Party will not be liable for any
settlement of any proceeding effected without its written consent but if
settled with such consent or if there is a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such
settlement or judgment. A successor by law of the parties to this
Agreement will be entitled to the benefits of the indemnification
contained in this Article VIII. The indemnification provisions
contained in this Article VIII will survive any termination of this
Agreement.
ARTICLE IX. Applicable Law
--------------
9.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of
Delaware.
9.2 This 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 (including, but not limited to, any
Mixed and Shared Funding Exemptive Order) and the terms hereof shall be
interpreted and construed in accordance therewith. If, in the future,
the Mixed and Shared Funding Exemptive Order should no longer be
necessary under applicable law, then Article VII shall no longer apply.
ARTICLE X. Termination
-----------
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, with
respect to some or all of the Designated Portfolios, upon sixty
(60) days' advance written notice to the other parties or, if
later, upon receipt of any required exemptive relief or orders from
the SEC, unless otherwise agreed in a separate written agreement
among the parties; or
(b) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with respect to any
Designated Portfolio if shares of the Designated Portfolio are not
reasonably available to meet the requirements of the Contracts as
determined in good faith by the Company; or
(c) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with respect to any
Designated Portfolio in the event any of the Designated Portfolio's
shares are not registered, issued or sold in accordance with
applicable state and/or Federal law or such law precludes the use
of such shares as the underlying investment media of the Contracts
issued or to be issued by Company; or
- 15 -
(d) at the option of the Fund, upon receipt of the Fund's
written notice by the other parties, upon institution of formal
proceedings against the Company by the NASD, 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 Account, or the purchase of the Fund shares, provided that the
Fund determines in its sole judgment, exercised in good faith, that
any such proceeding would have a material adverse effect on the
Company's ability to perform its obligations under this Agreement;
or
(e) at the option of the Company, upon receipt of the
Company's written notice by the other parties, upon institution of
formal proceedings against the Fund, Adviser or the Distributor by
the NASD, the SEC, or any state securities or insurance department
or any other regulatory body, provided that the Company determines
in its sole judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on the Fund's or
the Distributor's ability to perform its obligations under this
Agreement; or
(f) at the option of the Company, upon receipt of the
Company's written notice by the other parties, if the Fund ceases
to qualify as a Regulated Investment Company under Subchapter M of
the Internal Revenue Code, or under any successor or similar
provision, or if the Company reasonably and in good faith believes
that the Fund may fail to so qualify; or
(g) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with respect to any
Designated Portfolio if the Fund fails to meet the diversification
requirements specified in Article VI hereof or if the Company
reasonably and in good faith believes the Fund may fail to meet
such requirements; or
(h) at the option of any party to this Agreement, upon
written notice to the other parties, upon another party's material
breach of any provision of this Agreement which material breach is
not cured within thirty (30) days of said notice; or
(i) at the option of the Company, if the Company determines
in its sole judgment exercised in good faith, that either the Fund,
the Adviser or the Distributor has suffered a material adverse
change in its business, operations or financial condition since the
date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact upon
the business and operations of the Company, such termination to be
effective sixty (60) days' after receipt by the other parties of
written notice of the election to terminate; or
(j) at the option of the Fund or the Distributor, if the Fund
or the Distributor respectively, determines in its sole judgment
exercised in good faith, that the Company has suffered a material
adverse change in its business, operations or financial condition
since the date of this Agreement or is the subject of material
adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Fund or the Adviser, such
termination to be effective sixty (60) days' after receipt by the
other parties of written notice of the election to terminate; or
(k) at the option of the Company or the Fund upon receipt of
any necessary regulatory approvals and/or the vote of the
contractowners having an interest in the Account (or any
subaccount) to substitute the shares of another investment company
for the corresponding Designated Portfolio shares of the Fund in
accordance with the terms of the Contracts for which those
Designated Portfolio shares had been selected to serve as the
underlying investment media.
- 16 -
The Company will give sixty (60) days'
prior written notice to the Fund of the date of any proposed vote
or other action taken to replace the Fund's shares; or
(l) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a majority of the
disinterested Fund Board members, that an irreconcilable material
conflict exists among the interests of: (1) all contractowners of
variable insurance products of all separate accounts; or (2) the
interests of the Participating Insurance Companies investing in the
Fund as set forth in Article VII of this Agreement; or
(m) at the option of the Fund in the event any of the
Contracts are not issued or sold in accordance with applicable
federal and/or state law. Termination will be effective
immediately upon such occurrence without notice.
10.2. Notice Requirement. No termination of this Agreement
-------------------
will be effective unless and until the party terminating this Agreement
gives prior written notice to all other parties of its intent to
terminate, which notice will set forth the basis for the termination.
10.3. Effect of Termination. Notwithstanding any termination
----------------------
of this Agreement, the Fund and the Distributor will, at the option of
the Company, continue to make available additional shares of the Fund
pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this
Agreement ( hereinafter referred to as "Existing Contracts.") .
Specifically, without limitation, the owners of the Existing Contracts
will be permitted to reallocate investments in the Portfolios (as in
effect on such date), redeem investments in the Portfolios and/or invest
in the Portfolios upon the making of additional purchase payments under
the Existing Contracts.
10.4. Surviving Provisions. Notwithstanding any termination of
---------------------
this Agreement, each party's obligations under Article VIII to indemnify
other parties will survive and not be affected by any termination of
this Agreement. In addition, each party's obligations under
Section 12.7 will survive and not be affected by any termination of this
Agreement. Finally, with respect to Existing Contracts, all provisions
of this Agreement also will survive and not be affected by any
termination of this Agreement.
ARTICLE XI. Notices
-------
11.1. Any notice shall be sufficiently given when sent by
registered or certified mail to the other party at the address of such
party set forth below or at such other address as such party may from
time to time specify in writing to the other party.
If to the Fund: THE GALAXY VIP FUND
[c/o ]
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
If to the Company: Golden American Life Insurance Company
c/o Xxxxx Xxxxxxx
Executive Vice President and General Counsel
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
- 17 -
If to Adviser: Fleet Investment Advisers Inc.
[c/o ]
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
If to Distributor: First Data Distributors, Inc.
[c/o ]
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
ARTICLE XII. Miscellaneous
-------------
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund
as neither the directors, trustees, officers, partners, employees,
agents or shareholders assume any personal liability for obligations
entered into on behalf of the Fund. No Portfolio or series of the Fund
will be liable for the obligations or liabilities of any other Portfolio
or series.
12.2. The Fund, the Adviser and the Distributor acknowledge
that the identities of the customers of the Company or any of its
affiliates (collectively the "Company Protected Parties" for purposes of
this Section 12.2), information maintained regarding those customers,
and all computer programs and procedures or other information developed
or used by the Company Protected Parties or any of their employees or
agents in connection with the Company's performance of its duties under
this Agreement are the valuable property of the Company Protected
Parties. The Fund, the Adviser and the Distributor agree that if they
come into possession of any list or compilation of the identities of or
other information about the Company Protected Parties' customers, or any
other information or property of the Company Protected Parties, other
than such information as is publicly available or as may be
independently developed or compiled by the Fund, the Adviser or the
Distributor from information supplied to them by the Company Protected
Parties' customers who also maintain accounts directly with the Fund,
the Adviser or the Distributor, the Fund, the Adviser and the
Distributor will hold such information or property in confidence and
refrain from using, disclosing or distributing any of such information
or other property except: (a) with the Company's prior written consent;
or (b) as required by law or judicial process. The Company acknowledges
that the identities of the customers of the Fund, the Adviser, the
Distributor or any of their affiliates (collectively the "Adviser
Protected Parties" for purposes of this Section 12.2), information
maintained regarding those customers, and all computer programs and
procedures or other information developed or used by the Adviser
Protected Parties or any of their employees or agents in connection with
the Fund's, the Adviser's or the Distributor's performance of their
respective duties under this Agreement are the valuable property of the
Adviser Protected Parties. The Company agrees that if it comes into
possession of any list or compilation of the identities of or other
information about the Adviser Protected Parties' customers, or any other
information or property of the Adviser Protected Parties, other than
such information as is publicly available or as may be independently
developed or compiled by the Company from information supplied to them
by the Adviser Protected Parties' customers who also maintain accounts
directly with the Company, the Company will hold such information or
property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with
the Fund's, the Adviser's or the Distributor's prior written consent; or
(b) as required by law or judicial process. Each party acknowledges
that any breach of the agreements in this Section 12.2 would result in
immediate and irreparable harm to the other parties for which there
would be no adequate remedy at law and agree that in the event of such a
breach, the other parties will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
- 18 -
12.3. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of
the provisions hereof or otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together will constitute one and
the same instrument.
12.5. If any provision of this Agreement will be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of the Agreement will not be affected thereby.
12.6. This Agreement will not be assigned by any party hereto
without the prior written consent of all the parties.
12.7. Each party to this Agreement will maintain all records
required by law, including records detailing the services it provides.
Such records will be preserved, maintained and made available to the
extent required by law and in accordance with the 1940 Act and the rules
thereunder. Each party to this Agreement will cooperate with each other
party and all appropriate governmental authorities (including without
limitation the SEC, the NASD and state insurance regulators) and will
permit each other and such authorities reasonable access to its books
and records in connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby. Upon request by
the Fund or the Distributor, the Company agrees to promptly make copies
or, if required, originals of all records pertaining to the performance
of services under this Agreement available to the Fund or the
Distributor, as the case may be. The Fund agrees that the Company will
have the right to inspect, audit and copy all records pertaining to the
performance of services under this Agreement pursuant to the
requirements of any state insurance department. Each party also agrees
to promptly notify the other parties if it experiences any difficulty in
maintaining the records in an accurate and complete manner. This
provision will survive termination of this Agreement.
12.8. Each party represents that the execution and delivery of
this Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary corporate or board
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.
12.9. The parties to this Agreement may amend the schedules to
this Agreement from time to time to reflect changes in or relating to
the Contracts, the Accounts or the Designated Portfolios of the Fund or
other applicable terms of this Agreement.
12.10. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights.
[12.11. If Fund is a Mass business trust - The parties to this
Agreement acknowledge and agree that all liabilities of the Fund
arising, directly or indirectly, under this agreement, will be satisfied
solely out of the assets of the Fund and that no trustee, officer, agent
or holder of shares of beneficial interest of the Fund will be
personally liable for any such liabilities. ]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as
of the date specified below:
GOLDEN AMERICAN LIFE INSURANCE
COMPANY:
By: __________________________
Title: _______________________
Date: ________________________
THE GALAXY VIP FUND:
By: __________________________
Title: _______________________
Date: ________________________
FLEET INVESTMENT ADVISORS INC :
By: __________________________
Title: _______________________
Date: ________________________
FIRST DATA DISTRIBUTORS, INC.
By: __________________________
Title: _______________________
Date: ________________________
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SCHEDULE A
GOLDEN AMERICAN LIFE INSURANCE COMPANY
CONTRACTS AND SEPARATE ACCOUNT(S)
CONTRACT(S):
Deferred Combination Variable and Fixed Annuity
Contract - Premium Plus featuring The Galaxy VIP
Fund
SEPARATE ACCOUNT(S):
Separate Account B of Golden American Life Insurance
Company
SCHEDULE B
THE GALAXY VIP FUND
DESIGNATED PORTFOLIOS
PORTFOLIOS:
Equity Fund
Growth and Income Fund
Small Company Growth Fund
Asset Allocation Fund
High Quality Bond Fund
Schedule Date: October 1, 1999
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