FORM OF
FUND PARTICIPATION AGREEMENT
This Agreement dated as of the _____ day of ___________________ 200___ is made
by and among [Insurance Company X _____________________, Inc.] (including any
affiliates and/or subsidiaries listed on Exhibit A), Gartmore Mutual Fund
Capital Trust, which serves as adviser, and Gartmore Distribution Services,
Inc., which services as distributor, to the Gartmore Variable Insurance Trust
(the "Trust") with respect to its series of shares of beneficial interest (each,
a "Fund," and collectively, the "Funds"). In this Agreement, Gartmore Mutual
Fund Capital Trust and Gartmore Distribution Services, Inc. are collectively
referred to as "Gartmore."
WHEREAS, [Insurance Company X _____________________, Inc.] ("X___X") or a
subsidiary or affiliate thereof (collectively referred to as "X___X
Affiliate/Subsidiary") provides administrative and/or recordkeeping services to
variable contracts, which may include, but are not limited to, variable annuity
contracts, variable life insurance policies and various retirements plans, which
meet the definition of retirement plans under Sections 401, 403 and 457 of the
Internal Revenue Code of 1986, as amended (the "Code") (collectively,
"Contracts"); and
WHEREAS, X___X Affiliate/Subsidiary may issue variable annuity contracts and
variable life insurance policies through separate accounts ("Variable Accounts")
as listed on Exhibit A; and
WHEREAS, the Contracts allow for the allocation of net amounts received by X___X
to sub-accounts which correspond to each Fund for investment in shares of the
Funds; and
WHEREAS, selection of a particular sub-account is made by the contract owner or
by participants in various types of retirement plans and such contract owners
and/or participants may reallocate their investment options among the
sub-accounts in accordance with the terms of the Contracts; and
WHEREAS, X___X and Gartmore mutually desire the inclusion of the Funds as
investment options for the Contracts; and
NOW THEREFORE, X___X and Gartmore, in consideration of the promises and
undertakings described herein, agree that the Funds will be available in
products and services provided by X___X subject to the following:
REPRESENTATIONS AND UNDERTAKINGS
REPRESENTATIONS BY X___X
X___X or an X___X Affiliate/Subsidiary agrees to perform certain administrative
services ("Services") as listed on Exhibit B.
X___X represents that the X___X Affiliates/Subsidiaries, including Variable
Accounts, have been established and are in good standing under the state law in
which they were organized. The Variable Accounts are registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), unless otherwise
exempt therefrom.
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X___X and its agents shall make no representations concerning the Funds or Fund
shares except those contained in the Funds' then current prospectuses,
Statements of Additional Information or other documents produced by Gartmore (or
an entity on its behalf) which contain information about the Funds. X___X agrees
to allow a reasonable period of time for Gartmore to review any advertising and
sales literature drafted by X___X (or agents on its behalf) with respect to the
Funds prior to use and prior to submitting such material to any regulator.
X___X acknowledges that the identity of Gartmore (and its affiliates' and/or
subsidiaries') customers and all information maintained about those customers
constitute the valuable property of Gartmore. X___X agrees that, should it come
into contact or possession of any such information (including, but not limited
to, lists or compilations of the identity of such customers), X___X shall hold
such information or property in confidence and shall not use, disclose or
distribute any such information or property except with Gartmore prior written
consent or as required by law or judicial process. This paragraph shall survive
the expiration or termination of this Agreement.
X___X acknowledges that the services provided for under this Agreement by
Gartmore are not exclusive and that the same skill will be used in performing
services to other companies in similar contexts. X___X represents that it will
use its best efforts to give equal emphasis and promotion to shares of the Funds
as is given to other investment options that may be available in X___X
contracts.
X___X represents that the Contracts marketed as annuity contracts and/or life
insurance policies are currently treated as annuity contracts and/or life
insurance policies under the appropriate provisions of the Code, and that it
shall make every effort to maintain such treatment. X___X will promptly notify
Gartmore upon having a reasonable basis for believing that the Contracts have
ceased to be treated as annuity contracts or life insurance policies, or that
the Contracts may not be so treated in the future.
For Contracts issued through the Variable Accounts, X___X represents that each
Variable Account is a "segregated asset account" and that interests in each
Variable Account are offered exclusively through the purchase of a "variable
contract", within the meaning of such terms pursuant to Section 1.817-5(f)(2) of
the Federal Tax Regulations, and that it shall make every effort to continue to
meet such definitional requirements. X___X shall promptly notify Gartmore upon
having a reasonable basis for believing that such requirements have ceased to be
met or that they may not be met in the future.
REPRESENTATIONS BY GARTMORE
Gartmore acknowledges that it receives substantial savings as a result of X___X
performing those Services listed on Exhibit B on behalf of the Funds.
Gartmore and its agents shall make no representations about X___X except those
contained in publicly available documents or other documents produced by X___X
(or an entity on its behalf). Gartmore agrees to allow a reasonable period of
time for X___X to review any advertising and sales literature drafted by
Gartmore (or agents on its behalf) with respect to X___X prior to use and prior
to submitting such material to any regulator.
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Gartmore acknowledges that the identity of X___X (and its affiliates' and/or
subsidiaries') customers and that all information maintained about those
customers constitute the valuable property of X___X. Gartmore agrees that,
should it come into contact or possession of any such information (including,
but not limited to, lists or compilations of the identity of such customers),
Gartmore shall hold such information or property in confidence and shall not
use, disclose or distribute any such information or property except with X___X'
prior written consent or as required by law or judicial process. This paragraph
shall survive the expiration or termination of this Agreement.
Gartmore acknowledges that the services provided for under this Agreement by
X___X or an X___X Affiliate/Subsidiary are not exclusive and that the same skill
will be used in performing services to other companies in similar contexts.
Gartmore represents that it will use its best efforts to give equal emphasis and
promotion to X___X as is given to companies in similar contexts.
Gartmore represents that the Funds are currently qualified as regulated
investment companies under Subchapter M of the Code, and that the Funds shall
make every effort to maintain such qualification. Gartmore shall promptly notify
X___X upon having a reasonable basis for believing that the Funds have ceased to
so qualify, or that they may not qualify as such in the future.
Gartmore represents that any insurance Funds utilized in the Contracts currently
comply with the diversification requirements pursuant to Section 817(h) of the
Code and Section 1.817-5(b) of the Federal Tax Regulations, if required, and
that such Funds will make every effort to maintain the Funds' compliance with
such diversification requirements, unless the Funds are otherwise exempt from
Section 817(h) and/or except as otherwise disclosed in each Fund's prospectus.
Gartmore will notify X___X promptly upon having a reasonable basis for believing
that the Funds have ceased to so qualify, of that the Funds might not so qualify
in the future.
CUSTOMER PRIVACY
Gartmore acknowledges that it has read, and to the extent applicable agrees to
comply with the X___X's privacy policy that is explained in X___X's Privacy
Statement, herein attached as Exhibit F, which may be updated from time to time.
Gartmore agrees to comply with all laws, rules, regulations, and ordinances
relating to privacy, confidentiality, security, data security, and the handling
of customer information which may from time to time be established.
Gartmore agrees not to disclose or use any consumer nonpublic personal
information (including nonpublic personal financial information and nonpublic
personal health information), which may be supplied by X___X to Gartmore in
performance under this Agreement other than to:
(a) carry out the purpose for which the information was provided; and
(b) to use or disclose the information as otherwise permitted or required
by law
X___X agrees to comply with all laws, rules, regulations, and ordinances
relating to privacy, confidentiality, security, data security, and the handling
of customer information, which may from time to time be established.
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X___X agrees not to disclose or use any consumer nonpublic personal information
(including nonpublic personal financial information and nonpublic personal
health information), which may be supplied by Gartmore to X___X in performance
under this Agreement other than to:
(a) carry out the purpose for which the information was provided; and
(b) to use or disclose the information as otherwise permitted or required
by law
This provision will survive and continue in full force and effect after the
termination of this Agreement.
TRADING
Subject to the terms and conditions of this Agreement, X___X shall be appointed
to, and agrees to act, as a limited agent of Gartmore for the sole purpose of
receiving instructions from authorized parties as defined by the Contracts for
the purchase and redemption of Fund shares prior to the close of regular trading
each Business Day. A "Business Day" shall mean any day on which the New York
Stock Exchange is open for trading and on which the Fund calculates its net
asset value as set forth in the Fund's most recent prospectus and Statement of
Additional Information. Except as particularly stated in this paragraph, X___X
shall have no authority to act on behalf of Gartmore or to incur any cost or
liability on its behalf.
Until such time as Gartmore and X___X are able to utilize the National
Securities Clearing Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system; Gartmore will use its best efforts to
provide to X___X or its designated agent closing net asset value, change in net
asset value, dividend or daily accrual rate information and capital gain
information by 7:00 p.m. Eastern Time each Business Day. X___X or its agent
shall use this data to calculate unit values. Unit values shall be used to
process the same Business Day's contract transactions. Orders derived from, and
in amounts equal to, instructions received by X___X prior to the Close of
Trading on the New York Stock Exchange on any Business Day ("Day 1") shall be
transmitted without modification (except for netting or aggregating such orders)
to Gartmore by 9:00 a.m. Eastern Time on the next Business Day. Such trades will
be affected at the net assets value of each Fund's shares calculated as of the
Close of Trading on Day 1. Gartmore will not accept any order made on a
conditional basis or subject to any delay or contingency. X___X shall only place
purchase orders for shares of Funds on behalf of its customers whose addresses
recorded on X___X' books are in a state or other jurisdiction in which the Funds
are registered or qualified for sale, or are exempt from registration or
qualification as confined in writing by Gartmore.
Until such time as Gartmore and X___X are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after its receipt of an
instruction or confirmation transmitted, verify its receipt of such instruction
or confirmation, and in the absence of such verification such a party to whom an
instruction or confirmation is sent shall not be liable for any failure to act
in accordance with such instruction or confirmation, and the sending party may
not claim that such an instruction or confirmation was received by the other.
Each party shall notify the other of any errors, omissions or interruptions in,
or delay or unavailability as promptly as possible.
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(a) For those purchase orders not transmitted via the DCC&S
Fund/SERV system, X___X shall initiate payment to Gartmore or
its designated agent in federal funds no later than 1:00 p.m.
on the Business Day following the day on which the
instructions are treated as having been received by Gartmore
pursuant to this Agreement.
(b) For those redemption orders not transmitted via the DCC&S
Fund/SERV system, Gartmore or its designated agent shall
initiate payment in federal funds no later than 1:00 p.m. on
the Business Day following the day on which the instructions
are treated as having been received by Gartmore pursuant to
this Agreement.
At such time as Gartmore and X___X are able to transmit information via the
NSCC's DCC&S Fund/SERV System:
(a) Orders derived from, and in amounts equal to, instructions
received by X___X prior to the Close of Trading on Day 1 shall
be transmitted without modification (except for netting and
aggregation of such orders) via the NSCCs DCC&S Fund/SERV
system to Gartmore no later than 5:00 A.M. Eastern Time on the
Next Business Day. Such trades will be effected at the net
asset value of each Fund's shares calculated as of the Close
of Trading on Day 1.
(b) Gartmore and X___X shall mutually agree there may be instances
when orders shall be transmitted to Gartmore via facsimile no
later than 9:00 A.M. rather than through the DCC&S Fund/SERV
system. In such instances, such orders shall be transmitted to
Gartmore via facsimile no later than 9:00 A.M. Eastern Time on
the next Business Day.
(c) With respect to purchase and redemption orders received by
Gartmore on any Business Day for any Fund, within the time
limits set forth in this Agreement, settlement shall occur
consistent with the requirements of DCC&S Fund/SERV system.
At such time as Gartmore and X___X are able to transmit information via the
DCC&S Fund/SERV system; Gartmore or its designated agent shall send to X___X,
via the DCC&S Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders ("Confirmations ") on
each Business Day for which X___X has transmitted such orders. Such
confirmations shall include the total number of shares of each Fund held by
X___X following such net purchase or redemption. Gartmore, or its designated
agent, shall submit in a timely manner, such confirmations to the DCC&S
Fund/SERV system in order for X___X to receive such confirmations no later than
11:00 A.M. Eastern Time the next Business Day. Gartmore or its designated agent
will transmit to X___X via DCC&S NETWORKING system those Networking activity
files reflecting account activity. In addition, within five (5) business days
after the end of each month, Gartmore or its affiliate will send X___X a
statement of account which shall confirm all transactions made during that
particular month in the account.
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DOCUMENTS AND OTHER MATERIALS
DOCUMENTS PROVIDED BY X___X
X___X agrees to provide Gartmore and/or the Trust, upon written request, any
reports indicating the number of shareholders that hold interests in the Funds
and such other information (including books and records) that Gartmore may
reasonably request or as may be necessary or advisable to enable it to comply
with any law, regulation or order.
DOCUMENTS PROVIDED BY GARTMORE
Within 10 Business Days after the end of each calendar month, Gartmore shall
provide X___X, or its designee, a monthly statement of account, which shall
confirm all transactions made during that particular month.
Gartmore shall promptly provide X___X, or cause X___X to be provided with, a
reasonable quantity of the Funds' prospectuses, Statements of Additional
Information and any supplements thereto.
NOTICE
Each notice required by this Agreement shall be given in writing to:
[Insurance Company X _____________________, Inc.]
[Address]
Attention: _______________________ [Securities Officer]
Fax Number: (_______) ___-___________
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Treasurer
Fax Number: (000) 000-0000
Any party may change its address by notifying the other party(ies) in writing.
VOTING
For Variable Accounts that are registered under the 1940 Act and so long as and
to the extent that the U.S. Securities and Exchange Commission ("SEC") continues
to interpret the 1940 Act to require pass-through voting privileges for variable
contract owners, X___X shall distribute all proxy material furnished by Gartmore
(provided that such material is received by X___X or its designated agent at
least 10 Business Days prior to the date scheduled for mailing to contract
owners) and shall vote Fund shares in accordance with instructions received from
the contract owners who have interests in such Fund shares. X___X shall vote the
Fund shares for which no instructions have been received in the same proportion
as Fund shares for which said instructions have been received from the contract
owners, provided that such proportional voting is not prohibited by a contract
owner's plan or trust document, if applicable. X___X and its agents will in no
way recommend an action in connection with or oppose or interfere with the
solicitation of proxies in the Fund shares.
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EXPENSES
All expenses incident to the performance by X___X under this Agreement shall be
paid by X___X. Likewise, all expenses incident to the performance by Gartmore
under this Agreement shall be paid by Gartmore.
X___X shall not bear any of the expenses for the cost of registration of the
Funds' shares, preparation of the Funds' prospectuses, proxy materials, and
reports and the preparation of other related statements and notices required by
law except as otherwise mutually agreed upon by the parties to the Agreement.
Should a Fund no longer be available in an X___X contract, Gartmore shall be
responsible for any and all expenses incurred as a result of removing such Fund
as an available investment option under the Contract.
For X___X' annual mailing to customers of product and Fund prospectuses,
Gartmore will pay the lesser of :
(a) The cost to print individual Fund prospectuses; or
(b) Gartmore's portion of printing costs if X___X does not use
individual prospectuses, but reprints Fund prospectuses in
another format.
Should X___X desire to no longer have a Fund available in an X___X contract,
X___X shall be responsible for any and all expenses incurred as a result of
removing such Fund as an available investment option under the Contract.
Should a removal of a fund as an available investment option be mutually desired
by the parties, the parties agree to equally share any expenses incurred as a
result of removing such Fund as an available investment option.
Both X___X and Gartmore agree to provide reasonable advance notice of the
election to remove a Fund as an available investment option in order to permit
the parties to file documentation as may be required under applicable law.
CONFLICTS
Each party agrees to inform the other of the existence of, or any potential for,
any material conflicts of interest between the parties and any possible
implications of the same.
It is agreed that if it is determined by a majority of the members of the Board
of Trustees of the Funds, or a majority of the Funds' Trustees who are not
"interested persons" (as defined in the 0000 Xxx) of any party to this Agreement
or with respect to the distribution plan adopted by the Trust under Rule 12b-1
under the 1940 Act ("Rule 12b-1"), that a material conflict exists caused by
X___X, X___X shall at its own expense, take whatever steps are necessary to
remedy or eliminate such material conflict.
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It is agreed that if it is determined by X___X that a material conflict exists
caused by Gartmore, Gartmore shall at its own expense, take whatever steps are
necessary to remedy or eliminate such material conflict.
INDEMNIFICATION
Each party shall promptly notify the other party(ies) in writing of any
situation which presents or appears to involve a claim which may be the subject
of indemnification under this Agreement and the indemnifying party shall have
the option to defend against any such claim. In the event the indemnifying party
so elects, it shall notify the indemnified party and shall assume the defense of
such claim, and the indemnified party shall cooperate fully with the
indemnifying party, at the indemnifying party's expense, in defense of such
claim. Notwithstanding the foregoing, the indemnified party shall be entitled to
participate in the defense of such claim at its own expense through counsel of
its own choosing. Neither party shall admit to wrong-doing nor make any
compromise in any action or proceeding which may result in a finding of
wrongdoing by the other party without the other party's prior written consent.
Any notice given by the indemnifying party to an indemnified party or
participation in or control of the litigation of any such claim by the
indemnifying party shall in no event be deemed an admission by the indemnifying
party of culpability, and the indemnifying party shall be free to contest
liability among the parties with respect to the claim.
INDEMNIFICATION BY X___X
X___X agrees to reimburse and/or indemnify and hold harmless Gartmore and each
of its directors, officers, employees, agents and each person, if any, who
controls Gartmore within the meaning of the Securities Act of 1933, as amended
(the "1933 Act"), (collectively, "Gartmore Affiliated Party") against any
losses, claims, damages or liabilities ("Gartmore Losses") to which Gartmore or
any such Gartmore Affiliated Party may become subject under the 1933 Act or
otherwise, insofar as such Gartmore Losses (or actions in respect thereof) arise
out of or are based upon, but not limited to:
(1) Any untrue statement or alleged untrue statement of any
material fact contained in information furnished by X___X;
(2) The omission or alleged omission to state in the registration
statements, prospectuses, informational brochures or other
similar material of X___X or with respect to the Trust or any
of the Funds, a material fact required to be stated therein or
necessary to make the statements therein with respect to the
Trust or any of the Funds not misleading;
(3) Conduct, statements or representations of X___X or its agents,
with respect to the sale and distribution of Contracts for
which Fund shares are an investment option;
(4) The failure of X___X or an X___X Affiliate/Subsidiary to
provide the services and furnish the materials under the terms
of this Agreement;
8
(5) A breach of this Agreement or of any of the representations
contained herein; or
(6) Any failure to register Contracts or Variable Account that do
not meet any exemptions under federal or state securities
laws, state insurance laws or failure to otherwise comply with
applicable laws, rules, regulations or orders.
Provided however, that X___X shall not be liable in any such case to the extent
that such statement, omission or representation or such alleged statement,
alleged omission or alleged representation was made in reliance upon and in
conformity with written information furnished to X___X by or on behalf of
Gartmore specifically for use therein. X___X shall reimburse any legal or other
expenses reasonably incurred by Gartmore or any Gartmore Affiliated Party in
connection with investigating or defending any such Gartmore Losses, provided
however, that X___X shall have prior approval of the use of said counsel or the
expenditure of said fees.
This indemnity agreement shall be in addition to any liability that X___X may
otherwise have.
INDEMNIFICATION BY GARTMORE
Gartmore agrees to reimburse and/or indemnify and hold harmless X___X and/or
X___X Affiliate/Subsidiary and each of its directors, officers, employees,
agents and each person, if any, who controls X___X or X___X Affiliate/Subsidiary
within the meaning of the 1933 Act (collectively, "X___X Affiliated Party")
against any losses, claims, damages or liabilities ("X___X Losses") to which
X___X, X___X Affiliate/Subsidiary or any such X___X Affiliated Party may become
subject under the 1933 Act or otherwise, insofar as such X___X Losses (or
actions in respect thereof) arise out of or are based upon, but not limited to:
(1) Any untrue statement or alleged untrue statement of any
material fact contained in information furnished by Gartmore,
including but not limited to, the registration statements,
prospectuses, or sales literature of the Funds;
(2) The omission or alleged omission to state in such registration
statements, prospectuses, informational brochures or other
similar material, a material fact required to be stated
therein or necessary to make the statements therein no
misleading;
(3) A failure to keep applicable Funds qualified as regulated
investment companies as required by the 1940 Act and
applicable regulations thereunder, and if applicable, fully
diversified as is required by the Code and applicable
regulations thereunder;
(4) The failure of Gartmore to provide the services and furnish
the materials under the terms of this Agreement;
(5) A breach of this Agreement or of any of the representations
contained herein; or
(6) A failure to register the Funds under federal or state
securities laws or to otherwise comply with such laws, rules,
regulations or orders.
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Provided however, that Gartmore shall not be liable in any such case to the
extent that such statement, omission or representation or such alleged
statement, alleged omission or alleged representation was made in reliance upon
and in conformity with written information furnished to Gartmore by or on behalf
of X___X specifically for use therein.
Gartmore shall reimburse any legal or other expenses reasonably incurred by
X___X or any X___X Affiliated Party in connection with investigating or
defending any such X___X Losses, provided however, that Gartmore shall have
prior approval of the use of said counsel or the expenditure of said fees.
This indemnity agreement shall be in addition to any liability which Gartmore
may otherwise have.
SERVICE FEES
In consideration for the Services provided by X___X pursuant to this Agreement,
Gartmore will calculate and pay, or cause one of its affiliates to pay, and
X___X or an X___X Affiliate/Subsidiary that is registered as a broker/dealer,
will be entitled to receive from Gartmore a fee ("Service Fee"). Such fee will
be calculated at an annualized rate equal to the rates shown on Exhibit C of the
average daily net assets of each Fund for which X___X performed administrative
services during the period in which they were earned.
The Service Fees will be paid to X___X, or its designee, by electronic funds
transfer as soon as practicable, but no later than 30 days after the end of the
period in which they were earned. If the Fund assets administered by X___X are
less than $1 billion as of December 31 of the prior calendar year, the Service
Fees will be paid on a quarterly basis. Once assets are greater than $1 billion,
the Service Fees will be paid on a monthly basis. The Service Fee payment will
be accompanied or preceded by a statement showing the calculation of the amounts
being paid by Gartmore for the relevant period and such other supporting data as
may be reasonably requested by X___X.
The Service Fee shall be paid either by:
(a) Gartmore or one of its affiliates from general operating funds;
(b) Gartmore or one of its affiliates from funds received pursuant
to a shareholder service plan ("Rule 12b-1 Plan") a copy of
which is attached as Exhibit D and incorporated herein by
reference. Services are listed on Exhibit E.
(c) Administrative Services fee paid by the Funds; or
(d) A combination thereof.
The Service Fee shall be calculated as an annualized percentage of the average
aggregate amount invested in the Funds for the applicable period. The average
aggregate amount shall be computed by totaling the aggregate investment on each
business day during the period and dividing by the total number of Business Days
during the period.
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The parties agree that a Service Fee will be paid to X___X or its designee
according to this Agreement with respect to each Fund as long as shares of such
Fund are held by an X___X Affiliate/Subsidiary on behalf of the beneficial
owners of contracts issued by an X___X Affiliate/Subsidiary. This provision will
survive the termination of this Agreement.
Fees paid pursuant to a Rule 12b-l Plan may be terminated at any time, without
the payment of any penalty, by the vote of a majority of the members of the
Board of Trustees of the Trust who are not interested persons of the Trust and
who have no direct or indirect financial interest in the operation of the Rule
12b-1 Plan or in any related agreements to the Rule 12b-l Plan ("Disinterested
Trustees") or by a majority of the outstanding voting securities of the
applicable Fund or Funds and/or applicable class or classes of such Fund or
Funds, upon delivery of written notice thereof to the parties to this Agreement.
X___X and Gartmore agree that the Service Fees described in this Agreement are
for administrative and distribution services of the Funds only, and do not
constitute payment in any manner for investment advisory services for the Fund
or for costs of administrative and distribution services on behalf of the
Contracts.
COMPLIANCE WITH AGREEMENT
The forbearance or neglect of any party to insist upon strict compliance by
another party with any of the provisions of this Agreement, whether continuing
or not, or to declare a forfeiture of termination against the other parties,
shall not be construed as a waiver of any rights or privileges of any party
hereunder. No waiver of any right or privilege of any party arising from any
default or failure of performance by any party shall affect the rights or
privileges of the other parties in the event of a further default or failure of
performance.
TERMINATION
This Agreement shall terminate as to the availability of shares of the Funds for
new Contracts:
(1) at the option of X___X or Gartmore upon at least 90 days'
advance written notice to the other;
(2) at any time upon Gartmore's election, if the Funds determine
that liquidation of the Funds is in the best interest of the
Funds or their beneficial owners (reasonable advance notice of
election to liquidate shall be provided to X___X in order to
permit the substitution of Fund shares, if necessary, with
shares of another investment company pursuant to the 1940 Act
and other applicable securities regulations);
(3) if the applicable annuity contracts and life insurance
policies are not treated as annuity contracts or life
insurance policies by the applicable regulators or under
applicable rules and regulations;
(4) if the Variable Accounts are not deemed "segregated asset
accounts" by the applicable regulators or under applicable
rules and regulations;
(5) at the option of X___X, if Fund shares are not available for
any reason to meet the requirements of Contracts as determined
by X___X (reasonable advance notice of election to terminate
(and time to cure) shall be furnished by X___X);
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(6) at the option of X___X or Gartmore, upon institution of
relevant formal proceedings against the broker-dealer(s)
marketing the Contracts, the Variable Accounts, X___X, an
X___X Affiliate/Subsidiary or the Funds by the National
Association of Securities Dealers, Inc., the U.S. Internal
Revenue Service, the U.S. Department of Labor, the SEC, state
insurance departments or any other regulatory body;
(7) upon a decision by X___X, in accordance with the 1940 Act and
applicable regulations, to substitute such Fund shares with
the shares of another investment company for Contracts for
which the Fund shares have been selected to serve as the
underlying investment medium (X___X shall give at least 60
days' written notice to Gartmore of any proposal to substitute
Fund shares);
(8) upon assignment of this Agreement unless such assignment is
made with the written consent of each party; and
(9) in the event Fund shares are not registered, issued or sold
pursuant to federal law and state securities laws, or such
laws preclude the use of Fund shares as an underlying
investment medium of Contracts issued or to be issued by an
X___X Affiliate/Subsidiary (prompt written notice shall be
given by either party to the other in the event the conditions
of this provision occur).
JURISDICTION
This Agreement shall be construed and the provisions hereof interpreted under
and in accordance with the laws of the State of Delaware, without respect to its
choice of law provisions and in accordance with the 1940 Act. In the case of any
conflict, the 1940 Act shall control.
PARTNERSHIPS/JOINT VENTURES
Nothing in this Agreement shall be deemed to create a partnership or join
venture by and among the parties hereto.
AMENDMENTS TO THIS AGREEMENT
This Agreement supersedes any and all prior Agreements made by and between the
parties.
This Agreement may not be amended or modified except by a written amendment,
which includes any amendments to the Exhibits, executed by all parties to the
Agreement.
EXECUTION
Each party hereby represents and warrants to the other that the persons
executing this Agreement on its behalf are duly authorized and empowered to
execute and deliver the Agreement and that the Agreement constitutes a legal,
valid and binding obligation, and is enforceable in accordance with its terms.
12
Except as particularly set forth herein, neither party assumes any
responsibility hereunder and will not be liable to the other for any damages,
loss of data, delay or any other loss whatsoever caused by events beyond its
control.
This Agreement may be executed by facsimile signature and it may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
[Insurance Company X ____________, Inc.] GARTMORE MUTUAL FUND CAPITAL TRUST
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By: By:
Title: [ Vice President ] Title: [ Vice President ]
GARTMORE DISTRIBUTION SERVICES, INC.
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By:
Title: [ Vice President ]
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EXHIBIT A
This Exhibit corresponds to the Fund Agreement dated as of
_________________ ___, 200___.
REGISTERED BROKER DEALERS
AFFILIATES AND SUBSIDIARIES
VARIABLE ACCOUNTS
____________________ Variable Account - II
____________________ Variable Account - 3
____________________ Variable Account - 4
EXHIBIT B
ADMINISTRATIVE SERVICES PROVIDED BY X___X
Pursuant to the Agreement, X___X shall perform all administrative and
shareholder services with respect to the Contracts (including various
retirements plans, which meet the definition of retirement plans under Sections
401, 403 and 457 of the Code (each, a "Plan")), including but not limited to,
the following:
1. Maintaining separate records for each Contract owner and each Plan,
which shall reflect the Fund shares purchased and redeemed and Fund
share balances of such Contract owners and Plans. X___X will maintain
accounts with each Fund on behalf of Contract owners and Plans, and
such account shall be in the name of X___X (or its nominee) as the
record owner of shares owned by such Contract owners and Plans.
2. Disbursing or crediting to Contract owners and Plans all proceeds of
redemption of shares of the Funds and all dividends and other
distributions not reinvested in shares of the Funds.
3. Supporting and responding to service inquiries about the Trust and the
Funds from Contract owners and Plans.
4. Maintaining and preserving all records required by law to be maintained
and preserved in connection with providing the Services for Contract
owners and Plans.
5. Distributing to Contract owners and Plans, to the extent required by
applicable law, Funds' prospectuses, 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. Receiving, aggregating and processing purchase and redemption orders
from Contract owners and Plans and placing net purchase and redemption
orders with the Funds' transfer agent on behalf of the Contract owners
and Plans.
EXHIBIT C
TO FUND PARTICIPATION AGREEMENT
This Exhibit corresponds with the Agreement dated as of _____________ __, 200__.
GVIT Funds Basis Points per annum
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Variable Annuity and Variable Life: _____ bps
Class ____, Class ____, and Class _____ - All funds, except those otherwise noted
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Class _____ - All Funds _____ bps
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_____bps
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457 and 401(k)
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Equity Funds _____bps
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Fixed Income _____ bps
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Money Market Fund _____ bps
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____________________ Program (Maintenance Fee) Beginning Calendar Year 200______
Annual maintenance fee per fund (daily recordkeeping and quarterly fact sheet) $___________
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_____________________ Program - One-Time Set-Up Fee for funds added to the program beginning in
____________, 200___ $___________
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___________________Advisory Services (Wrap) Program - One Time Set-Up Fee for Funds $___________
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___________________ Advisory Services (Wrap) Program - Annual Maintenance Fee $___________
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EXHIBIT D (12B-1 PLAN)
TO FUND PARTICIPATION AGREEMENT
EXHIBIT E
SERVICES PROVIDED BY X___X FOR 12B-1 FEES
X___X shall perform services including, but are not limited to, some or all of
the following:
Shareholder services:
(a) Answering routine shareholder inquiries regarding the Funds.
(b) Providing information to shareholders on their investments in
the Funds.
(c) Processing purchase, exchange and redemption requests from
customers and placing orders with GDSI or the Funds'
designated transfer agent.
(d) Providing personnel and communication equipment used in
connection therewith.
(e) Providing such other services as Distributor may reasonably
request.
(f) Preparing such quarterly reports for Distributor as shall
reasonably be required by Distributor.
(g) Maintaining records of sales, redemptions and repurchases of
Shares and furnishing the Distributor with such records on
request.
(h) Distributing Prospectuses and reports to the
Client-shareholders.
Distribution Fee:
(a) GDSI or an affiliate can make payments to broker/dealers and
other eligible institutions for distribution assistance
pursuant to an agreement with the Broker/Dealer; and
(b) Reimbursement pursuant to an agreement in connection with
distribution assistance including, but not limited to, the
reimbursement of expenses relating to printing and
distributing advertising, sales literature and reports to
shareholders.
EXHIBIT F
[INSURANCE COMPANY X _____________________, INC.] PRIVACY STATEMENT
