FORM OF
SHAREHOLDER SERVICES AGREEMENT
THIS SHAREHOLDER SERVICES AGREEMENT is made and entered into as of
______________ by and between GENWORTH LIFE AND ANNUITY INSURANCE COMPANY (the
"Company") and AMERICAN CENTURY INVESTMENT SERVICES, INC. ("Distributor").
WHEREAS, the Company offers to the public certain group and individual
variable annuity and variable life insurance contracts (the "Contracts"); and
WHEREAS, the Company wishes to make available as investment options under
the Contracts Class I of the funds listed in EXHIBIT A (the "Funds") which may
be amended from time to time, each of which is a series of mutual fund shares
registered under the Investment Company Act of 1940, as amended and issued by
American Century Variable Portfolios, Inc. (the "Issuer"); and
WHEREAS, on the terms and conditions hereinafter set forth, Distributor
desires to make shares of the Funds available as investment options under the
Contracts and to retain the Company to perform certain administrative services
on behalf of the Funds, and the Company is willing and able to furnish such
services.
NOW, THEREFORE, the Company and Distributor agree as follows:
1. TRANSACTIONS IN THE FUNDS. Subject to the terms and conditions of this
Agreement, Distributor will cause the Issuer to make shares of the Funds
available to be purchased, exchanged, or redeemed, by or on behalf of the
Separate Accounts (defined in SECTION 7(a) below) through a single account per
Fund at the net asset value applicable to each order. The Funds' shares shall be
purchased and redeemed on a net basis in such quantity and at such time as
determined by the Company to satisfy the requirements of the Contracts for which
the Funds serve as underlying investment media. Dividends and capital gains
distributions will be automatically reinvested in full and fractional shares of
the Funds.
2. ADMINISTRATIVE SERVICES. The Company agrees to provide all
administrative services for the Contract owners, including but not limited to
those services specified in EXHIBIT B (the "Administrative Services"). Neither
Distributor nor the Issuer shall be required to provide Administrative Services
for the benefit of Contract owners. The Company agrees that it will maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the Administrative Services, and will otherwise comply
with all laws, rules and regulations applicable to the marketing of the
Contracts and the provision of the Administrative Services. Upon request, the
Company will provide Distributor or its representatives reasonable information
regarding the quality of the Administrative Services being provided and its
compliance
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with the terms of this Agreement.
3. TIMING OF TRANSACTIONS. Distributor hereby appoints the Company as agent
for the Funds for the limited purpose of accepting purchase and redemption
orders for Fund shares from the Contract owners. On each day the New York Stock
Exchange (the "Exchange") is open for business (each, a "Business Day"), the
Company may receive instructions from the Contract owners for the purchase or
redemption of shares of the Funds ("Orders"). Orders received and accepted by
the Company prior to the close of regular trading on the Exchange (the "Close of
Trading") on any given Business Day (currently, 4:00 p.m. Eastern time) and
transmitted to the Funds' transfer agent by 8:30 a.m. Eastern time on the next
Business Day will be executed at the net asset value determined as of the Close
of Trading on such Business Day. Any Orders received by the Company on such day
but after the Close of Trading, and all Orders that are transmitted to the
Funds' transfer agent after 8:30 a.m. Eastern time on the next Business Day,
will be executed at the net asset value determined as of the Close of Trading on
the next Business Day following the day of receipt of such Order. The day as of
which an Order is executed by the Funds' transfer agent pursuant to the
provisions set forth above is referred to herein as the "Trade Date". All orders
are subject to acceptance or rejection by Distributor or the Funds in the sole
discretion of either of them.
4. PROCESSING OF TRANSACTIONS.
(a) If transactions in Fund shares are to be settled through the National
Securities Clearing Corporation's Mutual Fund Settlement, Entry, and
Registration Verification (Fund/SERV) system, the terms of the Fund/SERV and
Networking Agreement, between Company and American Century Services Corporation,
an affiliate of Distributor, shall apply.
(b) If transactions in Fund shares are to be settled directly with the
Funds' transfer agent; the following provisions shall apply:
(1) By 6:30 p.m. Eastern time on each Business Day, Distributor (or
one of its affiliates) will provide to the Company via facsimile or other
electronic transmission acceptable to the Company the Funds' net asset value,
dividend and capital gain information and, in the case of income funds, the
daily accrual for interest rate factor (mil rate), determined at the Close of
Trading.
(2) By 8:30 a.m. Eastern time on the next Business Day, the Company
will provide to Distributor via facsimile or other electronic transmission
acceptable to Distributor a report stating whether the instructions received by
the Company from Contract owners by the Close of Trading on such Business Day
resulted in the Separate Accounts being a net purchaser or net seller of shares
of the Funds. As used in this Agreement, the phrase "other electronic
transmission acceptable to Distributor" includes the use of remote computer
terminals located at the premises of the Company, its agents or affiliates,
which terminals may be linked electronically to the computer system of
Distributor, its agents or affiliates (hereinafter, "Remote Computer
Terminals").
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(3) Upon the timely receipt from the Company of the report described
in (2) above, the Funds' transfer agent will execute the purchase or redemption
transactions (as the case may be) at the net asset value computed as of the
Close of Trading on the Trade Date. Payment for net purchase transactions shall
be made by wire transfer to the applicable Fund custodial account designated by
the Funds on the Business Day next following the Trade Date. Such wire transfers
shall be initiated by the Company's bank prior to 4:00 p.m. Eastern time and
received by the Funds prior to 6:00 p.m. Eastern time on the Business Day next
following the Trade Date ("T+1"). If payment for a purchase Order is not timely
received, such Order will be, at Distributor's option, either (i) executed at
the net asset value determined on the Trade Date, and the Company shall be
responsible for all costs to Distributor or the Funds resulting from such delay,
or (ii) executed at the net asset value next computed following receipt of
payment. Payments for net redemption transactions shall be made by wire transfer
by the Issuer to the account(s) designated by the Company on T+1; PROVIDED,
HOWEVER, the Issuer reserves the right to settle redemption transactions within
the time period set forth in the applicable Fund's then-current prospectus. On
any Business Day when the Federal Reserve Wire Transfer System is closed, all
communication and processing rules will be suspended for the settlement of
Orders. Orders will be settled on the next Business Day on which the Federal
Reserve Wire Transfer System is open and the original Trade Date will apply.
5. PROSPECTUS AND PROXY MATERIALS.
(a) Distributor shall provide the Company with copies of the Issuer's proxy
materials, periodic fund reports to shareholders and other materials that are
required by law to be sent to the Issuer's shareholders. In addition,
Distributor shall provide the Company with a sufficient quantity of prospectuses
of the Funds to be used in conjunction with the transactions contemplated by
this Agreement, together with such additional copies of the Issuer's
prospectuses as may be reasonably requested by Company. If the Company provides
for pass-through voting by the Contract owners, or if the Company determines
that pass-through voting is required by law, Distributor will provide the
Company with a sufficient quantity of proxy materials for each, as directed by
the Company. If requested by the Company, Distributor shall provide such
documentation (including a "camera ready" copy of the new prospectus as set in
type or, at the request of the Company, as a diskette in the form sent to the
printer) and other assistance as is reasonably necessary in order for the
parties hereto once a year (or more frequently if the Funds' prospectuses are
supplemented or amended) to have the prospectus or private offering memorandum
for the Contracts and the prospectuses for the Funds printed together in one
document together with other funds available under the Contracts. If the Company
chooses to print such documents itself, the Company shall be responsible for any
printing costs. All Information should be provided to the Company within a
reasonable period so that the Company may fulfill its regulatory obligations.
(b) Distributor will provide the Company with at least one complete copy of
all prospectuses, statements of additional information, annual and semi-annual
reports, proxy statements and all amendments or supplements to any of the above
that relate to the Funds as
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soon as reasonably practicable after the filing of each such document with the
Securities and Exchange Commission (the "SEC") or other regulatory authority or
is available for shareholders. The Company will provide Distributor with at
least one complete copy of all prospectuses, private offering memoranda,
statements of additional information, annual and semi-annual reports, proxy
statements and all amendments or supplements to any of the above that relate to
an Account as soon as reasonably practicable after the filing, if applicable, of
each such document with the SEC or other regulatory authority or after it is
available for shareholders.
(c) The cost of any distribution of prospectuses, proxy materials, periodic
fund reports and other materials of the Issuer to the Contract owners shall be
paid by the Company and shall not be the responsibility of Distributor or the
Issuer.
6. COMPENSATION AND EXPENSES.
(a) The Separate Accounts shall be the sole shareholder of Fund shares
purchased for the Contract owners pursuant to this Agreement (the "Record
Owner"). The Record Owner shall properly complete any applications or other
forms required by Distributor or the Issuer from time to time.
(b) Distributor acknowledges that it will derive a substantial savings in
administrative expenses, such as a reduction in expenses related to postage,
shareholder communications and recordkeeping, by virtue of having a single
shareholder account per Fund for the Separate Accounts rather than having each
Contract owner as a shareholder. In consideration of the Administrative Services
and performance of all other obligations under this Agreement by the Company,
Distributor will pay the Company a fee (the "Administrative Services Fee") equal
to __ basis points (___%) per annum of the average aggregate amount invested by
the Company in Class I shares of the Funds and __ basis points (___%) per annum
of the average aggregate amount invested by the Company in Class II shares of
the VP Inflation Protection Fund under this Agreement.
(c) In consideration of performance of the Distribution Services specified
on EXHIBIT D by the Company, Distributor will pay the Company a fee (the
"Distribution Fee") of __ basis points (___%) of the average aggregate amount
invested by the Company in Class II shares of the VP Inflation Protection Fund
under this Agreeement
(d) For the purposes of computing the payment to the Company contemplated
by this SECTION 6, the average aggregate amount invested by the Company on
behalf of the Separate Accounts in the Funds over a one month period shall be
computed by totaling the Company's aggregate investment (share net asset value
multiplied by total number of shares of the Funds held by the Company) on each
Business Day during the month and dividing by the total number of Business Days
during such month.
(d) Distributor will calculate the amount of the payment to be made
pursuant to this
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SECTION 6 at the end of each calendar quarter and will make such payment to the
Company within 30 days thereafter. The check for such payment will be
accompanied by a statement showing the calculation of the amounts being paid by
Distributor for the relevant months and such other supporting data as may be
reasonably requested by the Company and shall be mailed to:
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Genworth Life and Annuity Insurance Company
0000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Variable Accounting
Phone No.: _________________________________________________
Fax No.: ___________________________________________________
7. REPRESENTATIONS.
(a) The Company represents and warrants that (i) this Agreement has been
duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; (ii) it has established the
Separate Accounts listed on EXHIBIT C, each of which is a duly authorized and
established separate account under the laws of the Commonwealth of Virginia, and
has registered each Separate Account as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act"), unless otherwise exempt
therefrom to serve as an investment vehicle for the Contracts; (iii) each
Contract provides for the allocation of net amounts received by the Company to a
Separate Account for investment in the shares of one or more specified
investment companies selected among those companies available through the
Separate Account to act as underlying investment media; (iv) selection of a
particular investment company is made by the Contract owner under a particular
Contract, who may change such selection from time to time in accordance with the
terms of the applicable Contract; and (v) the activities of the Company
contemplated by this Agreement comply in all material respects with all
provisions of federal and state securities laws applicable to such activities.
(b) Distributor represents that (i) this Agreement has been duly authorized
by all necessary corporate action and, when executed and delivered, shall
constitute the legal, valid and binding obligation of Distributor, enforceable
in accordance with its terms; (ii) the investments of the Funds will at all
times be adequately diversified within the meaning of Section 817(h) of the
Internal Revenue Service Code of 1986, as amended (the "Code"), and the
regulations thereunder, and that at all times while this Agreement is in effect,
all beneficial interests in each of the Funds will be owned by one or more
insurance companies or by any other party permitted under Section 1.817-5(f)(3)
of the Regulations promulgated under the Code; (iii) each Fund has elected to be
taxed as a "regulated investment company" under Subchapter M of the Code; (iv)
the prospectus of each Fund complies in all material respects with federal and
state securities laws; (v) shares of the Issuer are registered and authorized
for sale in accordance with all federal and state securities laws; and (vi) it
is duly registered and licensed under all applicable federal and state
securities laws where the failure to be so registered would have a material
adverse effect on its business.
(c) The Company represents that the Contracts are currently, and at the
time of issuance shall be treated as life insurance or annuity contracts, under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment, and that it will notify the Issuer and the Distributor
immediately upon having a reasonable basis for believing the Contracts have
ceased to
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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 Code (or any successor
or similar provision), shall identify such contract as a modified endowment
contract.
(d) The Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the Securities
and Exchange Commission. The Distributor further represents that it will sell
and distribute the shares of the Funds in accordance with any applicable state
and federal securities laws.
(e) The Distributor represents and warrants that all of its trustees,
directors, officers, employees, investment advisers and other individuals or
entities dealing with the money and/or securities of the Funds are and shall
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 minimum
coverage as required currently by Rule 17g-1 of the 1940 Act or such related
provisions as may be promulgated from time to time. The aforesaid bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
(f) The Company represents and warrants that all of its directors,
officers, employees, investment advisers and other individuals or entities
employed or controlled by the Company dealing with the money and/or securities
of the Separate Account are covered by a blanket fidelity bond or similar
coverage for the benefit of the Separate Account. The aforesaid bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company. The Company agrees to hold for the benefit of the Distributor and to
pay the Distributor any amount lost from larceny, embezzlement or other events
covered by the aforesaid bond to the extent such amounts properly belong to the
Distributor pursuant to the terms of this Agreement. The Company agrees to make
all reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Distributor in the
event that such coverage no longer applies.
8. ADDITIONAL COVENANTS AND AGREEMENTS.
(a) Each party shall comply with all provisions of federal and state laws
applicable to its respective activities under this Agreement. All obligations of
each party under this Agreement are subject to compliance with applicable
federal and state laws.
(b) Each party shall promptly notify the other party in the event that it
is, for any reason, unable to perform any of its obligations under this
Agreement.
(c) The Company covenants and agrees that all Orders accepted and
transmitted by it hereunder with respect to each Separate Account on any
Business Day will be based upon
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instructions that it received from the Contract owners, in proper form prior to
the Close of Trading of the Exchange on that Business Day. The Company shall
time stamp all Orders or otherwise maintain records that will enable the Company
to demonstrate compliance with SECTION 8(c) hereof.
(d) The Company covenants and agrees that all Orders transmitted to the
Issuer, whether by telephone, telecopy, or other electronic transmission
acceptable to Distributor, shall be sent by or under the authority and direction
of a person designated by the Company as being duly authorized to act on behalf
of the owner of the Separate Accounts. Distributor shall be entitled to rely on
the existence of such authority and to assume that any person transmitting
Orders for the purchase, redemption or transfer of Fund shares on behalf of the
Company is "an appropriate person" as used in Sections 8-107 and 8-401 of the
Uniform Commercial Code with respect to the transmission of instructions
regarding Fund shares on behalf of the owner of such Fund shares. The Company
shall maintain the confidentiality of all passwords and security procedures
issued, installed or otherwise put in place with respect to the use of Remote
Computer Terminals and assumes full responsibility for the security therefor.
The Company further agrees to be responsible for the accuracy, propriety and
consequences of all data transmitted to Distributor by the Company by telephone,
telecopy or other electronic transmission acceptable to Distributor.
(e) The Company agrees that, to the extent it is able to do so, it will use
its best efforts to give equal emphasis and promotion to shares of the Funds as
is given to other underlying investments of the Separate Accounts, subject to
applicable Securities and Exchange Commission rules. In addition, the Company
shall not impose any fee, condition, or requirement for the use of the Funds as
investment options for the Contracts that operates to the specific prejudice of
the Funds VIS-A-VIS the other investment media made available for the Contracts
by the Company.
(f) The Company shall not, without the written consent of Distributor, make
representations concerning the Issuer or the shares of the Funds except those
contained in the then-current prospectus and/or Statement of Additional
Information and in current printed sales literature approved by Distributor or
the Issuer.
(g) The Distributor shall not, without the written consent of the Company,
make representations concerning the Company except for those contained in the
then current prospectus and/or Statement of Additional Information for the
Contracts and in current printed sales literature approved by the Company.
(h) Advertising and sales literature with respect to the Issuer or the
Funds prepared by the Company or its agents, if any, for use in marketing shares
of the Funds as underlying investment media to Contract owners shall be
submitted to Distributor for review and approval before such material is used.
(i) Advertising and sales literature with respect to the Company prepared
by the Distributor, if any, shall be submitted to the Company for review and
approval before such material is used. The Company shall use its best efforts to
review such material and provide comments, if
8
any, within a timely manner. If the Distributor does not receive any form
acknowledgement from the Company with regard to the advertising and sales
literature, it will assume the Company approves of the content of such material.
9. USE OF NAMES. Except as otherwise expressly provided for in this
Agreement, neither Distributor nor any of its affiliates nor the Funds shall use
any trademark, trade name, service xxxx or logo of the Company, or any variation
of any such trademark, trade name, service xxxx or logo, without the Company's
prior written consent, the granting of which shall be at the Company's sole
option. Except as otherwise expressly provided for in this Agreement, the
Company shall not use any trademark, trade name, service xxxx or logo of the
Issuer, Distributor or any variation of any such trademarks, trade names,
service marks, or logos, without the prior written consent of either the Issuer
or Distributor, as appropriate, the granting of which shall be at the sole
option of Distributor and/or the Issuer.
10. PROXY VOTING.
(a) The Company shall provide pass-through voting privileges to all
Contract owners so long as the SEC continues to interpret the 1940 Act as
requiring such privileges. It shall be the responsibility of the Company to
assure that it and the separate accounts of the other Participating Companies
(as defined in SECTION 12(a) below) participating in any Fund calculate voting
privileges in a consistent manner.
(b) The Company will distribute to Contract owners all proxy material
furnished by Distributor to the Company in a timely manner and will vote shares
in accordance with instructions received from such Contract owners. (If the
Company does not receive all proxy materials in time to distribute to Contract
owners for pass-through voting privileges, it will abstain from voting.) The
Company shall vote Fund shares for which no voting instructions are received in
the same proportion as shares for which such instructions have been received.
The Company and its agents shall not oppose or interfere with the solicitation
of proxies for Fund shares held for such Contract owners.
11. INDEMNITY.
(a) Distributor agrees to indemnify and hold harmless the Company and its
officers, directors, employees, agents, affiliates and each person, if any, who
controls the Company within the meaning of the Securities Act of 1933
(collectively, the "Indemnified Parties" for purposes of this SECTION 11(a))
against any losses, claims, expenses, damages or liabilities (including amounts
paid in settlement thereof) or litigation expenses (including legal and other
expenses) (collectively, "Losses"), to which the Indemnified Parties may become
subject, insofar as such Losses result from a breach by Distributor of a
material provision of this Agreement. Distributor will reimburse any legal or
other expenses reasonably incurred by the Indemnified Parties in connection with
investigating or defending any such Losses. Distributor shall not be liable for
indemnification hereunder if such Losses are attributable to the negligence or
misconduct of the Company in
9
performing its obligations under this Agreement.
(b) The Company agrees to indemnify and hold harmless Distributor and the
Issuer, and their respective officers, directors, employees, agents, affiliates
and each person, if any, who controls Issuer or Distributor within the meaning
of the Securities Act of 1933 (collectively, the "Indemnified Parties" for
purposes of this SECTION 11(b)) against any Losses to which the Indemnified
Parties may become subject, insofar as such Losses result from a breach by the
Company of a material provision of this Agreement or the use by any person of
the Remote Computer Terminals. The Company will reimburse any legal or other
expenses reasonably incurred by the Indemnified Parties in connection with
investigating or defending any such Losses. The Company shall not be liable for
indemnification hereunder if such Losses are attributable to the negligence or
misconduct of Distributor or the Issuer in performing their obligations under
this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this SECTION 11. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish to, assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this SECTION 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnifying party assumes the defense of any such action, the
indemnifying party shall not, without the prior written consent of the
indemnified parties in such action, settle or compromise the liability of the
indemnified parties in such action, or permit a default or consent to the entry
of any judgment in respect thereof, unless in connection with such settlement,
compromise or consent, each indemnified party receives from such claimant an
unconditional release from all liability in respect of such claim.
12. POTENTIAL CONFLICTS
(a) The Company has received a copy of an application for exemptive relief,
as amended, filed by the Issuer on December 21, 1987, with the SEC and the order
issued by the SEC in response thereto (the "Shared Funding Exemptive Order").
The Company has reviewed the conditions to the requested relief set forth in
such application for exemptive relief. As set forth in such application, the
Board of Directors of the Issuer (the "Board") will monitor the Issuer for the
existence of any material irreconcilable conflict between the interests of the
contract owners of all separate accounts ("Participating Companies") investing
in funds of the Issuer. An irreconcilable
10
material conflict may arise for a variety of reasons, including: (i) an action
by any state insurance regulatory authority; (ii) 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
actions by insurance, tax or securities regulatory authorities; (iii) an
administrative or judicial decision in any relevant proceeding; (iv) the manner
in which the investments of any portfolio are being managed; (v) a difference in
voting instructions given by variable annuity contract owners and variable life
insurance contract owners; or (vi) a decision by an insurer to disregard the
voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
(b) The Company will report any potential or existing conflicts of which it
is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order by providing the Board
with all information reasonably necessary for the Board to consider any issues
raised. This includes, but is not limited to, an obligation by the Company to
inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board
members, determines that a material irreconcilable conflict exists with regard
to contract owner investments in a Fund, the Board shall give prompt notice to
all Participating Companies. If the Board determines that the Company is
responsible for causing or creating said conflict, the Company shall at its sole
cost and expense, and to the extent reasonably practicable (as determined by a
majority of the disinterested Board members), take such action as is necessary
to remedy or eliminate the irreconcilable material conflict. Such necessary
action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Separate Accounts from
the Fund and reinvesting such assets in a different investment
medium or submitting the question of whether such segregation
should be implemented to a vote of all affected contract owners
and as appropriate, segregating the assets of any appropriate
group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating
Companies) that votes in favor of such segregation, or offering
to the affected contract owners the option of making such a
change; and/or
(ii) establishing a new registered management investment company or
managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision
by the Company to disregard its contract owner voting instructions and said
decision represents a minority position or would preclude a majority vote by all
of its contract owners having an interest in the Issuer, the Company at its sole
cost, may be required, at the Board's election, to withdraw a Separate Account's
investment in the Issuer and terminate this Agreement; 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 Board.
11
(e) For the purpose of this SECTION 12, a majority of the disinterested
Board members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the Issuer
be required to establish a new funding medium for any Contract. The Company
shall not be required by this SECTION 12 to establish a new funding medium for
any Contract if an offer to do so has been declined by vote of a majority of the
Contract owners materially adversely affected by the irreconcilable material
conflict.
13. TERMINATION; WITHDRAWAL OF OFFERING. This Agreement may be terminated
by either party upon 180 days' prior written notice to the other party, or, on
60 days' written notice pursuant to a vote of a majority f the outstanding
securities of the Funds. Notwithstanding the above, each Issuer reserves the
right, without prior notice, to suspend sales of shares of any Fund, in whole or
in part, or to make a limited offering of shares of any of the Funds in the
event that (A) any regulatory body commences formal proceedings against the
Company, Distributor, or any of the Issuers, which proceedings Distributor
reasonably believes may have a material adverse impact on the ability of the
Issuers or the Company to perform its obligations under this Agreement or (B) in
the judgment of Distributor, declining to accept any additional instructions for
the purchase or sale of shares of any such Fund is warranted by market, economic
or political conditions. Notwithstanding the foregoing, this Agreement may be
terminated immediately (i) by any party as a result of any other breach of this
Agreement by another party, which breach is not cured within 30 days after
receipt of notice from the other party, (ii) by any party upon a determination
that continuing to perform under this Agreement would, in the reasonable opinion
of the terminating party's counsel, violate any applicable federal or state law,
rule, regulation or judicial order, (iii) by a vote of a majority of the
independent directors of any of the Issuers, or (iv) upon assignment by either
party. Termination of this Agreement shall not affect the obligations of the
parties to make payments under SECTION 4 for Orders received by the Company
prior to such termination and shall not affect the Issuer's obligation to
maintain the Accounts. Following termination, Distributor shall not have any
Administrative Services payment obligation to the Company (except for payment
obligations accrued but not yet paid as of the termination date).
14. NON-EXCLUSIVITY. Both parties acknowledge and agree that this Agreement
and the arrangement described herein are intended to be non-exclusive and that
each party is free to enter into similar agreements and arrangements with other
entities.
15. SURVIVAL. The provisions of SECTION 9 (Use of Names) and SECTION 11
(Indemnity) of this Agreement shall survive termination of this Agreement.
16. AMENDMENT. Neither this Agreement, nor any provision hereof, may be
amended, waived, discharged or terminated orally, but only by an instrument in
writing signed by all of the parties hereto.
17. NOTICES. All notices and other communications hereunder shall be given
or made in writing and shall be delivered personally, or sent by telex,
telecopier, express delivery or registered
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or certified mail, postage prepaid, return receipt requested, to the party or
parties to whom they are directed at the following addresses, or at such other
addresses as may be designated by notice from such party to all other parties.
To the Company:
Genworth Life & Annuity Insurance Company
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Office of General Counsel
(000) 000-0000 (office number)
(000) 000-0000 (telecopy number)
To the Issuer or Distributor:
American Century Investment Services, Inc.
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
(000) 000-0000 (office number)
(000) 000-0000 (telecopy number)
Any notice, demand or other communication given in a manner prescribed in this
SECTION 17 shall be deemed to have been delivered on receipt.
18. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned and will be
terminated automatically upon any attempted assignment. This Agreement shall be
binding upon and inure to the benefit both parties hereto.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
20. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
21. ENTIRE AGREEMENT. This Agreement, including the attachments hereto,
constitutes the entire agreement between the parties with respect to the matters
dealt with herein, and supersedes the Shareholder Services Agreement dated
August 20, 2002, as amended on May 1, 2005, and all other previous agreements,
written or oral, with respect to such matters.
13
If the foregoing correctly sets forth our understanding, please indicate
your agreement to and acceptance thereof by signing below, whereupon this
Agreement shall become a binding agreement between us as of the latest date
indicated.
AMERICAN CENTURY INVESTMENT
SERVICES, INC.
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
Date:
----------------------------------
We agree to and accept the terms of the foregoing Agreement.
GENWORTH LIFE AND ANNUITY
INSURANCE COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
14
EXHIBIT A
Available Investment Options:
CLASS I FUNDS
VP Balanced Fund
VP Income & Growth Fund
VP Capital Appreciation Fund
VP International Fund
VP Ultra Fund
VP Value Fund
VP Vista Fund
CLASS II FUNDS
VP Inflation Protection Fund
EXHIBIT B
ADMINISTRATIVE SERVICES
Pursuant to the Agreement to which this is attached, the Company shall perform
all administrative and shareholder services required or requested under the
Contracts with respect to the Contract owners, including, but not limited to,
the following:
1. Maintain separate records for each Contract owner, which records shall
reflect the shares purchased and redeemed and share balances of such Contract
owners. The Company will maintain a single master account with each Fund on
behalf of the Contract owners and such account shall be in the name of the
Company (or its nominee) as the record owner of shares owned by the Contract
owners.
2. Disburse or credit to the Contract owners all proceeds of redemptions of
shares of the Funds and all dividends and other distributions not reinvested in
shares of the Funds.
3. Prepare and transmit to the Contract owners, as required by law or the
Contracts, periodic statements showing the total number of shares owned by the
Contract owners as of the statement closing date, purchases and redemptions of
Fund shares by the Contract owners during the period covered by the statement
and the dividends and other distributions paid during the statement period
(whether paid in cash or reinvested in Fund shares), and such other information
as may be required, from time to time, by the Contracts.
4. Transmit purchase and redemption orders to the Funds on behalf of the
Contract owners in accordance with the procedures set forth in SECTION 4 to the
Agreement.
5. Distribute to the Contract owners copies of the Funds' prospectus, proxy
materials, periodic fund reports to shareholders and other materials that the
Funds are required by law or otherwise to provide to their shareholders or
prospective shareholders.
6. Maintain and preserve all records as required by law to be maintained
and preserved in connection with providing the Administrative Services for the
Contracts.
EXHIBIT C
Registered Accounts
NAME SEC FILE NUMBER DATE ESTABLISHED RENAME DATE
--------------------------------------------------------------------------------------
Genworth Life & Annuity VL Separate August 21, 1986 XXX
Xxxxxxx
Xxxxxxxx Xxxx & Xxxxxxx XX Separate August 19, 1987 TBD
Account 1
Unregistered Accounts
NAME DATE ESTABLISHED RENAME DATE
-----------------------------------------------------------------
Genworth Life & Annuity Group VA May 20, 1996 TBD
Separate Account 1
Genworth Life & Annuity Group VA TBD N/A
Separate Account 2
EXHIBIT D
DISTRIBUTION SERVICES
Pursuant to the Agreement to which this is attached, the Company shall perform
distribution services for Class II VP Inflation Protection Fund shares,
including, but not limited to, the following:
1. Receive and answer correspondence from prospective shareholders, including
distributing prospectuses, statements of additional information and
shareholder reports.
2. Provide facilities to answer questions from prospective investors about
Fund shares.
3. Assist investors in completing application forms and selecting dividend and
other account options.
4. Provide other reasonable assistance in connection with the distribution of
Fund shares.
