FIRST GOLDEN AMERICAN LIFE
INSURANCE COMPANY OF NEW YORK
GENERAL AGENT
SALES AGREEMENT
Agreement dated as of _________________, ______ by and between
Directed Services, Inc. ("Directed Services"), a New York
corporation; _____________________, an ____________________________
corporation ("General Agent"), and _____________________________, a
___________________ corporation ("Broker-Dealer").
WITNESSETH
WHEREAS, Directed Services is a broker-dealer registered with
the Securities and Exchange Commission ("SEC") under the Securities
Exchange Act of 1934, as amended, and a member of the National
Association of Securities Dealers, Inc. ("NASD"), and Broker-Dealer
is also a broker-dealer registered with the SEC under the Exchange
Act and is a member of the NASD, and General Agent is an insurance
agency duly licensed to sell variable life and/or variable annuities
in any state or jurisdiction in which General Agent intends to
perform hereunder;
WHEREAS, First Golden American Life Insurance Company of New
York ("First Golden") has appointed Directed Services as principal
underwriter for sales of Policies and it is intended that General
Agent shall be authorized to offer and sell Policies to the general
public subject to the terms and conditions as set forth more fully
herein;
WHEREAS, First Golden has authorized Directed Services to enter
into separate written agreements with broker-dealers registered under
the Exchange Act or with broker-dealers' general agents which agree
to participate in the distribution of the Policies and the parties
desire that Broker-Dealer and/or General Agent be authorized to
solicit applications for the sale of the Policies.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and promises herein contained, the parties agree as
follows:
A. Definitions
(1) POLICIES - The variable life insurance Policies and
variable annuity contracts that First Golden will issue
through Directed Services and which will be funded through
the Variable Accounts.
(2) THE VARIABLE ACCOUNT - Segregated asset account identified
in Exhibit A, each of which has been established and
maintained by First Golden pursuant to the laws of the
State of New York and through which First Golden will issue
the Policies. The Variable Accounts will be divided into
divisions that invest in shares of The GCG Trust (the
"Trust").
(3) POLICY REGISTRATION STATEMENT - The most recent effective
registration statement or most recent effective post-
effective amendment thereto relating to the Policies and
the Variable Accounts as required by the Securities Act of
1933 and the Investment Company Act of 1940, including
financial statements included therein and all exhibits
thereto.
000 XXXX XXXXXX, XXXXX 000 XXX XXXX, XX 00000
1
A.(cont.)
(4) TRUST REGISTRATION STATEMENT - The most recent effective
registration statement or most recent effective post-
effective amendment thereto relating to the Trust as
required by the Securities Act of 1933 and the Investment
Company Act of 1940, including financial statements
included therein and all exhibits thereto.
(5) POLICY PROSPECTUS - The prospectus for the Policies
included within the Policy Registration Statement referred
to herein and including any policy prospectus filed
pursuant to Rule 424 or 497 under the Securities Act of
1933.
(6) TRUST PROSPECTUS - The prospectus for the Trust included
within the Trust Registration Statement referred to herein
and including any Trust prospectus filed pursuant to Rule
424 or 497 under the Securities Act of 1933.
(7) ICA - Investment Company Act of 1940, as amended.
(8) SECURITIES ACT - The Securities Act of 1933, as amended.
(9) EXCHANGE ACT - The Securities Exchange Act of 1934, as
amended.
(10) SEC - The Securities and Exchange Commission.
(11) AFFILIATED PERSON OR AFFILIATE - Affiliated person as
defined in Section 2(a)(3) of the ICA.
(12) TRUST - The GCG Trust and any other entity directly holding
portfolio securities and available through the Policies.
B. Agreements of Directed Services, Inc.
(1) Pursuant to the authority delegated to it by First Golden,
Directed Services hereby appoints General Agent as an
independent agent of First Golden to solicit applications
for the sale of the Policies during the term of this
Agreement.
(2) During the term of this Agreement, General Agent is hereby
authorized to solicit applications for the sale of the
Policies, provided there is an effective Registration
Statement relating to such Policies and, with respect to
each state in which applications are to be solicited, it is
further provided that General Agent has been notified by
Directed Services that the Policies are qualified for sale
under all applicable federal securities laws and the
insurance laws of the states or jurisdictions in which the
applications will be solicited. Directed Services agrees
that it will use its best efforts to have First Golden
secure and maintain all necessary qualifications of the
Policies for sale under applicable insurance laws in all
states and in any other territories or jurisdictions in
which the parties agree to sell the Policies.
(3) All initial premium payments made by policy owners will be
sent to General Agent, who in turn will promptly transmit
the payment to First Golden at Customer Service Center,
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000 or at such other address as First Golden or Directed
Services may subsequently specify in writing. Additional
payments and loan repayments will be sent by policy owners
to the Service Center for First Golden. In the event such
additional payments and loan repayments are sent to Broker-
Dealer or General Agent rather than the Service Center,
such payments received by Broker-Dealer or General Agent
shall be remitted promptly in full together with any
applicable application form(s) and any other required
documentation to First Golden at said Service Center.
Checks or money orders drawn from payments by policy owner
shall be drawn to the order of First Golden. General
Agent acknowledges that Directed Services, on behalf of
First Golden, shall have the unconditional right to reject,
in whole or in part, any application for a Policy. In the
event that a Policy is returned to First Golden, Directed
Services, or General Agent within the applicable "free-
look" period of a particular state, General Agent will be
notified before the return of any funds. Any amount
required to be refunded pursuant to such requirements will
be returned to the purchaser, and General Agent will be
promptly notified of such action.
2
B.(3)(cont.)
In the event that the Policy is returned to First
Golden within (a) the free-look period, (b) six months of
issuance or (c) one year of issuance, then, in the event
General Agent has received compensation based on any such
returned payment, General Agent agrees to repay the full
amount of such compensation to First Golden or Directed
Services, as may be appropriate; except in the event of (c)
above, General Agent shall repay only 50% of the
compensation received by it on account of such a policy or
contract. Directed Services reserves the right to offset
future payments due against any compensation to be returned
by General Agent on account of such policy or contract
returns. General Agent shall not be required to repay any
compensation based on amounts withdrawn by purchaser for
any Policy after one year from the date of issuance.
If and to the extent that any policy loans or partial
withdrawals are made with respect to any Policy during the
first year after issuance, the compensation due to General
Agent shall be recomputed as though the amount of the
original policy loans or partial withdrawal had never been
paid as premium, and Directed Services shall have the right
to collect from General Agent or to withhold from future
payments due General Agent under this Agreement an amount
equal to the reduction in compensation effected by this
provision.
If and to the extent that a Policy is exchanged for another
Policy during the first policy or contract year, the
compensation due to General Agent shall be recomputed as
though the policy or contract had never been issued, and
Directed Services shall have the right to collect from
General Agent or to withhold from future payments due
General Agent under the Agreement an amount equal to the
reduction in compensation, if any, effected by this
provision.
(4) Directed Services, during the term of the Agreement, will
promptly notify General Agent:
(a) When the Policy Registration Statement or the Trust
Registration Statement has become effective or when
any post-effective amendment with respect to the
Policy Registration Statement or Trust Registration
Statement thereafter becomes effective;
(b) Of any request by the SEC for any amendments or
supplements to the Registration Statement or of any
request for additional information that must be
provided by General Agent or any company affiliated
with General Agent;
(c) Of the issuance by the SEC of any stop order with
respect to the Policy Registration Statement or the
Trust Registration Statement or of any amendments
thereto or the initiation of any proceedings for that
purpose or for any other purpose relating to the
registration and/or offering of the Policies or Trust
shares.
(d) In which states or jurisdictions approval of the
Policy forms is required under the applicable
insurance laws and regulations, and when such
approvals have been obtained;
(e) In which state or jurisdictions Policies may not be
lawfully sold;
(f) If any event occurs as a result of which the
prospectus or Registration Statement or any sales
literature for the Policies would include any untrue
statement of a material fact or omit to state a
material fact necessary to make the statements therein
not misleading.
Directed Services will provide General Agent with notification
of these matters immediately by telephone, with notification in
writing promptly thereafter.
(5) During the term of this Agreement, Directed Services
will provide General Agent, without charge, with as many
copies of the Prospectus for the Policies and the Trust (and
any amendment or supplement thereto) and application kits as
may be reasonably requested by General Agent. Directed
Services will pay the cost of the application kits for the
Policies. Upon termination of this Agreement, any
prospectuses, applications, and other materials or supplies
furnished by Directed Services or First Golden to General
Agent or Broker-Dealer or duly appointed agents of General
Agent shall be promptly returned to First Golden at the
Service Center.
Directed Services will be responsible for
approving and filing all sales material and promotional
material respecting the Policies or the Trust to be used by
General Agent or Broker-Dealer, with the NASD and with the
appropriate state authorities. No sales material respecting
the Policies or the Trust will be used by General Agent or
Broker-Dealer, without the written approval of Directed
Services.
3
B.(cont.)
(7) Directed Services will compile periodic marketing
reporting summarizing sales results to the extent reasonably
requested by General Agent.
C. Agreements of General Agent and Broker-Dealer
(1) General Agent must at all times, when performing its
functions under this Agreement, be duly licensed under
applicable insurance and securities laws to sell variable
life insurance and/or variable annuities, as appropriate, in
any state or jurisdiction where required in which it intends
to perform its functions hereunder.
(2) General Agent is authorized to select and recommend
individuals who are registered representatives of Broker-
Dealer as agents of General Agent for appointment by First
Golden. On behalf of First Golden, Directed Services will
undertake to apply for life insurance agent licenses in the
appropriate states or jurisdictions for such recommended
agents, provided that Directed Services reserves the right
to recommend to First Golden that First Golden refuse to
appoint any proposed agent or, once appointed, to terminate
the same. General Agent or Broker-Dealer shall pay all
expenses incurred in obtaining life insurance agent
licenses.
(3) General Agent and Broker-Dealer shall be responsible
for carrying out sales and administrative obligations under
this Agreement in continued compliance with applicable
federal and state laws. General Agent and Broker-Dealer are
not authorized to give any information or make any
representations concerning First Golden, the Trust, the
Variable Accounts, and the Policies other than those
contained in the Policy Prospectus, Policy Registration
Statement, Trust Prospectus, Trust Registration Statement,
or in such sales literature, advertisements or reports that
are both approved and, if required, filed with the NASD by
First Golden or Directed Services.
(4) General Agent agrees that it shall be fully responsible
for ensuring that no person shall offer the Policies on its
behalf until such person is duly licensed and appointed by
First Golden.
(5) General Agent agrees to train, supervise and be solely
responsible for the conduct of its agents appointed by First
Golden in their solicitation of Applications for the
Policies and for the supervision as to their strict
compliance with applicable rules and regulations of any
governmental or other agencies that have jurisdiction over
variable life insurance activities. In addition, General
Agent agrees to train, supervise, and be solely responsible
for the conduct of its agents as to their strict compliance
with First Golden's rules and procedures.
(6) General Agent and Broker-Dealer agree to (a) maintain
appropriate books and records concerning the activities of
duly appointed agents as may be required by the appropriate
state agencies that have jurisdiction and (b) to maintain
books and records as may reasonably be required by Directed
Services to adequately reflect the solicitation and sale of
Policies processed through General Agent. Such books and
records respecting the Policies are to be made available to
Directed Services during business hours upon reasonable
written request by Directed Services or First Golden.
(7) General Agent understands that the public offering of
the Policies will commence as soon as practicable after the
effective date of the Policy Registration Statement and the
Trust Registration Statement. Beginning at the time and
during the term of this Agreement, General Agent agrees that
it will use its best efforts to solicit applications for the
Policies. General Agent is under no obligation to sell or
solicit any specified number of Policies.
(8) Any marketing program for the Policies and other
activities related to this marketing program by General
Agent, shall be undertaken only in accordance with
applicable laws and regulations. General Agent and Broker-
Dealer shall ensure that any agents, representatives or
other employees fulfill any training requirements necessary
under law to engage in any marketing program for the
Policies. It is understood that First Golden reserves the
right to refuse to appoint any proposed agent or, once
appointed, to thereafter terminate the same. General Agent
also understands that its agents or representatives who
engage in direct personal solicitation for the Policies must
have variable contract licenses where required and that
certain states require that a special variable life
insurance examination be passed by an agent before he or she
can solicit applications for the Policies.
4
C.(cont.)
(9) General Agent shall not directly or by means of
its employees offer, or attempt to offer, or solicit
applications for the Policies, or deliver Policies in any
state or jurisdiction in which the Policies may not legally
be sold or offered for sale. For purposes of determining
where the Policies may be offered and applications
solicited, General Agent may rely on the notification it
receives from Directed Services pursuant to paragraph B(4)
regarding jurisdictions in which the Policies may be sold or
applications solicited.
(10) General Agent and Broker-Dealer shall not have
authority on behalf of Directed Services or First Golden to:
(a) make, alter, or discharge any Policy or other contract;
and (b) receive any monies or payments, except as set forth
in Section B(3) of this Agreement. General Agent and Broker-
Dealer shall not expend or contract for the expenditure of
the funds of Directed Services or First Golden, nor shall
General Agent or Broker-Dealer possess or exercise any
authority on behalf of Directed Services or First Golden
other than that expressly conferred on General Agent and
Broker-Dealer by this Agreement. Nothing herein contained
shall constitute General Agent or Broker-Dealer, or any
employees thereof, as employees of Directed Services or
First Golden in connection with the marketing program for
the Policies.
(11) General Agent will be obligated to pay the following
expenses related to its distribution of the Policies: (a)
expenses associated with the training of its agents and
employees including any written training material, (b) the
cost of designing and printing of any advertisements and/or
marketing material which may be developed by General Agent
for use by General Agent in connection with the marketing of
the Policies, and (c) any other expense incurred by General
Agent or its employees for the purpose of carrying out the
obligations of General Agent hereunder, unless Directed
Services and General Agent shall have agreed in advance in
writing to share the cost of any expenses incurred by
General Agent. General Agent will also be supplied by
Directed Services, at Directed Services' cost with
prospectuses for the Policies and the Trust and application
kits for the Policies. General Agent will be responsible
for distributing marketing materials (if any), prospectus,
and applications to prospective policy owners and for using
same in any marketing plan.
For purposes of paragraphs B(6), C(11), C(14), C(15) and E,
the phrase "sales literature and 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), 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, seminars texts, reprints or excerpts or any other
advertisements, sales literature or published article), and
educational or training materials or other communications
distributed or made generally available to some or all
agents or employees.
(12) With respect to the enumerated activities outlined in
this Agreement, it is understood that Broker-Dealer is also
a registered broker-dealer under the Exchange Act and a
member of the NASD. Broker-Dealer agrees (1) to assume
responsibility for the securities training and supervision
of the agents and registered representatives involved in the
marketing program for the Policies; and (2) to otherwise
comply with applicable federal and state securities law
requirements in connection with the marketing program by its
personnel.
(13) Broker-Dealer will also be responsible for having all
personnel who must be licensed pursuant to federal or state
securities laws in order to sell the policies, be duly
licensed. Broker-Dealer agrees to maintain appropriate
books and records concerning the activities of duly
appointed registered representatives as are required by the
SEC, NASD, or any other governmental or regulatory agencies
that have jurisdiction. Such books and records are to be
made available to Directed Services and First Golden during
business hours upon reasonable written request by Directed
Services or First Golden.
General and Broker-Dealer shall establish and
implement reasonable written procedures acceptable to
Directed Services for periodic inspection and supervision by
Broker-Dealer of the sales practices of its agent and
registered representatives and shall make available to
Directed Services periodic reports on the results of such
inspections and compliance with such procedures.
(14) General Agent is authorized for the term of this
Agreement to distribute the Policy Prospectus and the Trust
Prospectus and, upon request for an investor, the statement
of additional information for the Policies, if any, or the
Trust in connection with the solicitation of application for
sales of the Policies.
5
C.(cont.)
(15) General Agent agrees that neither it nor any of
its directors, partners, officers, employees, registered
representatives, agents, or affiliated persons will give any
information or make any representations or statements,
whether written or oral, on behalf of the Variable Accounts
or the Trust or concerning the Policies, the Trust or Trust
shares in connection with the offer or sale of the Policies
other than information, or representations contained in the
prospectus, statement of additional information, or
registration statement for the Policies and/or the Trust, as
they may be supplemented or amended from time to time, or in
reports or proxy statements for the Variable Accounts or the
Trust, or in sales literature and promotional material or
information supplied or approved by Directed Services.
(16) General Agent agrees that neither it nor any of its
directors, partners, officers, employees, registered
representatives, agents, or affiliated persons shall use any
sales literature and promotional material respecting the
Policies or the Trust unless such material has been approved
in advanced by Directed Services.
(17) Directed Services represents at Section 7 of the
Organizational Agreement among First Golden, the Variable
Accounts, the Trust and the Trust's Manager, which concerns
the investment in the Trust by the Variable Accounts,
provides, in pertinent part, that in the event of a
shareholder meeting, First Golden agrees to provide the
Trust and/or the Trust's Manager with a list of the names
and addresses of owners of the Policies within five (5) days
of receipt of the written request for such list and that
under the Organizational Agreement such information may only
be used for purposes relating to meetings of shareholders of
the Trust (including sending to owners of the Policies
notices of shareholder meetings and soliciting proxies from
policy owners in connection with shareholders meetings).
General Agent and Broker-Dealer agree that Directed Services
or First Golden may release the names and addresses of
owners of the Policies under the terms of the Organizational
Agreement and Agrees that the Trust and its Manager may
receive such information. Notwithstanding any provision of
Section H of the Agreement respecting the confidentiality of
such information, General Agent and Broker-Dealer will hold
harmless First Golden, Directed Services, the Trust and its
Manager for the release by First Golden of such information
for such purposes.
(18) For each application for a Policy solicited by General
Agent, General Agent agrees to complete an agent's report
addressing the suitability of the Policy for the applicant.
General Agent shall retain a copy of each such report, and
shall provide Directed Services with a copy of any such
report upon reasonable request for Directed Services.
D. Compensation
Directed Services shall pay to General Agent for each Policy issued
through a Variable Account compensation based on the provision set
forth in Schedule A hereto, as such Schedule A may be amended or
modified from time to time. Duly appointed agents of General Agent
shall have no interest hereunder.
E. Indemnification
(1) Directed Services shall (i) indemnify and hold
harmless General Agent and Broker-Dealer and its directors,
officers, employees, agent or affiliated persons and each
person, if any who controls General Agent or Broker-Dealer
within the meaning of the Securities Act (collectively, the
"Indemnified Person") against any losses, claims, damages,
litigation expenses or liabilities, joint or several, to
which the Indemnified Persons may become subject, under the
Securities Act or otherwise, insofar as such losses, claims,
damages, litigation expenses or liabilities (or actions,
proceedings, or investigations in respect thereto) are
related to the sale of the Policies and arise directly out
of or are based directly upon any untrue statement or
alleged untrue statement of any material fact contained in
any Policy Prospectus, Trust Prospectus, Registration
Statement for the Policies or the Trust, or sales literature
approved by Directed Services (collectively the "Offering
Materials") or any amendment or supplement thereto, or arise
out of or are based upon any statements, actions or
omissions by Directed Services or its officers, directors,
employees, agents or affiliated persons, or any person
controlling within the meaning of the Securities Act, in
connection with the offer and persons controlling within the
meaning of the Securities Act, in connection with the offer
and sale of any Policies and (ii) reimburse General Agent,
Broker-Dealer, and any director, officer, employee, agent or
affiliated person of General Agent or Broker-Dealer and such
controlling persons for any legal or other expenses
reasonably incurred by them in connection with investigating
of defending against any such loss, claims, action,
proceeding or investigation; provided, however, that
Directed Services shall not be liable in any such case to
the extent that any such claim,
6
E.(cont.)
damage or liability arises
out of or is based upon (i) an untrue statement or alleged
untrue statement or an omission or alleged omission made by
Offering Materials, or any amendment or supplement thereto,
in reliance upon and in conformity with information (including,
without limitation, negative responses to inquiries) furnished
to Directed Services by or on behalf of any Indemnified Person
specifically for use in the preparation thereof, or (ii)
willful misfeasance, bad faith or gross negligence of any
Indemnified Person in the performance of such Indemnified
Person of its obligation and duties under this Agreement.
This indemnity agreement will be in addition to any
liability which Directed Services may otherwise have.
(2) General Agent and Broker-Dealer shall indemnify and
hold harmless Directed Services, First Golden, the Trust,
the Trust's Manager, and each of their directors, trustees,
officers, employees, affiliated persons or agents, and each
person, if any, who controls Directed Services, the Trust,
or the Trust's Manager, within the meaning of Section 15 of
the Securities Act (collectively, the "Indemnified Persons")
against any losses, claims, damages, litigation expenses or
liabilities, including legal and other expenses, and amounts
paid in settlement, to which any Indemnified Person may
become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, litigation
expenses, liabilities, or actions, proceedings, or
investigations in respect thereof are related to the offer
and/or sale of the Policies, which shall include the Trust
shares, arising out of or based upon any unauthorized use of
Offering Materials or any verbal or written
misrepresentations or any unlawful sales practices
concerning the Policies, including but not limited to,
failure to deliver the Policy Prospectus or the Trust
Prospectus by General Agent, and reimburse the Indemnified
Persons for any legal and other expenses reasonably incurred
by them in connection with investigating or defending
against such loss, claim, action, proceeding or
investigation; provided, however, that General Agent and
Broker-Dealer shall not be liable in any such case to the
extent that such claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue
statement or omission or alleged omission was made in
Offering Materials, or any amendment or supplement thereto,
in reliance upon and in conformity with information
(including, without limitation, negative responses upon and
in inquiries) furnished by or on behalf of Directed Services
or any affiliate thereof to General Agent, Broker-Dealer, or
its affiliates, specifically for use in the preparation
thereof, or willful misfeasance, bad faith or gross
negligence of Directed Services in the performance of its
obligations and duties under this Agreement. This indemnity
agreement will be in addition to any liability which General
Agent and Broker-Dealer may otherwise have.
In no case will an indemnifying party be liable
under the provision of this Section E with respect to any
claims made against an indemnified party unless the
indemnified party shall have notified the indemnifying party
in writing pursuant to Section O within a reasonable time
after the summons or other first legal process giving
information of the nature of the claim shall have served
upon the indemnifying party (or after such indemnified party
shall have received notice of such service on any designated
agent), but failure to notify the indemnifying party of any
claim shall not relieve it from any liability which it may
have to the person against whom such action is brought
otherwise than on account of this Agreement contained in
this Section E.
The indemnifying party will be entitled to
participate at its own expense in the defense or, if it so
elects, to assume the defense of any suit brought to enforce
any such liability, but if the indemnifying party elects to
assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to each indemnified
party who is a defendant in the suit. In the event the
indemnifying party elects to assume the defense of any such
suit and retain such counsel, the indemnified parties who
are defendants in the suit shall bear the fees and expense
of any additional counsel retained by them, but, in case the
indemnifying party does not elect to assume the defense of
any such suit, it will reimburse such indemnified parties
who are defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. In any event,
General Agent, Broker-Dealer and Directed Services each
agree to promptly notify the other party in accordance with
Section O of this Agreement of the commencement of any
litigation proceedings against it or any Affiliated Person
thereof in connection with the issuance or sale of the
Policies.
F. Term and Exclusivity of Agreement
(1) This Agreement shall be effective as of the date
first written above. This Agreement relates solely to the
Policies identified in Schedule A hereto and will remain in
effect for the period commencing on the effective date of
this Agreement and ending one year from that date and unless
sooner terminated as provided below, shall automatically
continue for one-year periods thereafter. This Agreement
may be terminated by either party by giving sixty (60) days'
written notice to the other party.
7
F.(cont.)
(2) If any party shall default in any material respect
in the performance of its respective obligations under this
Agreement, the non-defaulting party may, at its option,
cancel and terminate this Agreement immediately without
notice.
(3) Upon termination of this Agreement, all
authorizations, rights and obligations hereunder shall cease
except (1) the commission recapture provisions of Section B;
(2) the indemnification provisions set forth in Section E;
(3) the record-keeping provisions set forth in Section C(6);
(4) the confidentiality provisions set forth in Section H;
(5) the complaints and investigations provisions set forth
in Section G; (6) the product name provision set forth in
Section I.
G. Complaints and Investigations
(1) General Agent, Broker-Dealer and Directed Services
jointly agree to cooperate fully in any insurance regulatory
investigation or proceeding or judicial proceeding arising
in connection with the Policies marketed under this
Agreement. General Agent, Broker-Dealer and Directed
Services further agree to cooperate fully in any securities
regulatory investigation or proceeding or judicial
proceeding arising in connection with the Policies marketed
under this Agreement. Without limiting the foregoing:
(a) Directed Services will promptly notify
General Agent of any customer complaint or notice of any
regulatory investigation or proceeding or judicial
proceeding received by Directed Services or First Golden
with respect to General Agent or any employee of General
Agent or which may affect First Golden's issuance of any
Policy marketed under this Agreement.
(b) General Agent or Broker-Dealer will
promptly notify Directed Services and/or First Golden, as
appropriate, of any written customer complaint or notice
of any regulatory investigation or proceeding received by
General Agent or Broker-Dealer with respect to General
Agent, Broker-Dealer or any of its employees in
connection with any Policy marketed under this Agreement
or any activity in connection with any such Policy.
(2) In the event of a customer complaint, Directed
Services, General Agent and Broker-Dealer will cooperate in
investigating such complaint and any response to such will
be agreed to among Directed Services, General Agent and
Broker-Dealer prior to its being sent to the customer or
interested regulatory authority by Directed Services,
General Agent or Broker-Dealer.
H. Confidentiality
General Agent and Broker-Dealer agree that Directed Services or
any company affiliated therewith shall have the right to contact any
client of General Agent or Broker-Dealer, for any reason, if such
client is or was a policyowner or contract owner, insured, annuitant,
or beneficiary of a First Golden policy or contract.
I. Product Name
General Agent and Broker-Dealer agree that Directed Services
and First Golden and their affiliates have the exclusive right to use
the names "Directed Services," "Golden American, and "First Golden"
and any names including the phrase "Directed Services," "Golden
American," and/or "First Golden." Directed Services, General Agent,
and Broker-Dealer acknowledge that all rights in the name
"GOLDENSELECT" are owned by an affiliate to the Manager of the Trust,
and General Agent and Broker-Dealer agree that under this Agreement,
General Agent and Broker-Dealer are not granted any right in or
license to the name "GOLDENSELECT."
J. Modification of Agreement
This Agreement supersedes all prior agreements, either oral or
written between the parties relating to the Policies, and except for
the amendment of Schedule A pursuant to the terms of paragraph D
hereof, may not be modified in any way unless by written agreement
signed by all of the parties.
K. Assignability
The Agreement shall be nonassignable by the parties hereto,
except that the parties may assign their rights to any subsidiary of
or any company under common control with the party, provided that the
assignee is duly licensed and otherwise competent to perform all
functions required of the party under this Agreement.
8
L. Governing Law
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
M. Headings
The headings 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.
N. Severability
In any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
O. Miscellaneous
The Trust, the Trust's Manager, and affiliated persons thereof
shall be third party beneficiaries under this
Agreement.
Notice given pursuant to any of the provisions of this
Agreement, unless otherwise specified, shall be sufficiently given
when sent by Registered or Certified Mail to the parties at the
addresses of such parties as set forth below (or to such other
addresses as such parties may from time to time specify in writing or
the other parties):
To: To:
Directed Services, Inc. ______________________________
0000 Xxxxxxxxx Xxxxxx. ______________________________
Xxxxx 000 ______________________________
Xxxxxxxxxx, Xxxxxxxx 00000 ______________________________
Attn.: ________________________
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
DIRECTED SERVICES, INC. _________________________________
General Agent
By: __________________________ By: _____________________________
Name: Name:
Title: Title:
_________________________________
Broker-Dealer
By: ______________________________
Name:
Title:
9
SCHEDULE A
Schedule of gross compensation on GOLDENSELECT products issued
through First Golden American Life Insurance Company of New York.
I. Flexible Premium Deferred Combination Variable and Fixed Annuity
Form FG-IA-1000-12/95
A Alternative 1 - front end
compensation
Commission Expense
Allowance
Percentage of Initial and
Additional Premium
Owner Issue Ages 0 - 80 3.50% 2.50%
Owner Issue Ages 81 - 85 1.00% 2.50%
---------------------------------
* For sales of DVA PLUS, NY contracts to any of the following
described persons, no compensation shall be paid: (i) employees of
any company affiliated with Directed Services, Inc.; (ii) any
persons performing wholesaling functions on behalf of Directed
Services, Inc. regardless of whether such persons are employees
of some other entity, or are independent contractors engaged by
Directed Services, Inc.; and (iii) registered representatives and
employees (and members of their immediate families) of any
general agent and broker-dealer offering such Contracts pursuant
to a Sales Agreement with Directed Services, Inc.
---------------------------------
IN WITNESS HEREOF, I have executed this revision to Schedule A
effective the dates stated above.
DIRECTED SERVICES, INC.
____________________________
Name:
Title:
A-1
