PARTICIPATION AGREEMENT
Among
(FUND)
(ADVISER)
and
GOLDEN AMERICAN LIFE INSURANCE COMPANY
THIS AGREEMENT, made as of the ____ day of _________ 1997, by
and among the FIRST GOLDEN AMERICAN LIFE INSURANCE COMPANY, a stock
insurance company domiciled in the State of New York (hereinafter
the "Company"), on its own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A
hereto as may be amended from time to time (each such account
hereinafter referred to as the "Account"), the
______________________ (hereinafter the "Fund")and
______________________________. (hereinafter the "Adviser"), a
__________________________.
WHEREAS, the Fund engages in business as an open-end
management investment company and is available to act as the
investment vehicle for separate accounts established for variable
annuity contracts and, subject to an order obtained from the
Securities and Exchange Commission (the "SEC"), available to act
as the investment vehicle for certain qualified pension and
retirement plans ("Qualified Plans") and for separate accounts
established for variable life insurance policies (such variable
life insurance policies and variable annuity contracts are
herein, collectively, the "'Variable Insurance Products") to be
offered by insurance companies which have entered into
participation agreements with the Fund and the Adviser
(hereinafter "Participating Insurance Companies"); and
WHEREAS, the beneficial interests in the Fund are divided
into several series of shares, each representing the interest in
a particular managed portfolio of securities and other assets;
and
WHEREAS, the Fund desires to make shares of such managed
portfolios as are listed on Schedule B attached hereto, as such
Schedule B may be amended from time to time hereafter by mutual
written agreement of all the parties hereto, available to the
Company for purchase (each such listed portfolio, a "Portfolio");
and
WHEREAS, the Fund is seeking and expects to obtain an order
from the SEC, granting Participating Insurance Companies and
variable annuity and variable insurance separate accounts
exemptions from the provisions of Sections 9(a), 13(a), 15(a),
and 15(b) of the Investment Company Act of 1940, as amended
(hereinafter the "1940 Act"), and Rules 6e-2(b)(15) and 6e-
3(T)(b)(15) thereunder, to the extent necessary to permit shares
of the Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies (hereinafter the "Mixed and
Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and its shares are
registered under the Securities Act of 1933, as amended
(hereinafter the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an Investment
Adviser under the Federal Investment Advisers Act of 1940 and any
applicable state securities law; and
WHEREAS, the Company has registered or will register certain
variable life and variable annuity contracts under the 1933 Act;
and
WHEREAS, each Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board
of Directors of the Company, on the date shown for such Account
on Schedule A hereto, to set aside and invest assets attributable
to one or more variable life and annuity contracts; and
WHEREAS, the Company has registered or will register each
Account as a unit investment trust under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance
laws and regulations, the Company intends to purchase shares in
the Portfolios on behalf of each Account to fund certain of the
aforesaid variable life and variable annuity contracts.
NOW, THEREFORE, in consideration of their mutual promises
the Company, the Fund and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company those shares of
the Fund which each Account orders, executing such orders on a
daily basis at the net asset value next computed after receipt by
the Fund or its designee of the order for the shares of the Fund.
For purposes of this Section 1.1, the Company shall be the
designee of the Fund for receipt of such orders from each Account
and receipt by such designee shall constitute receipt by the
Fund; provided that the Fund receives notice of such order by
10:00 a.m. Eastern time on the next following Business Day.
"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 pursuant to the rules of the Securities and
Exchange Commission.
1.2. The Fund agrees to make its shares available
indefinitely for purchase at the applicable net asset value per
share by the Company and its Accounts on those days on which the
Fund calculates its net asset value pursuant to the rules of the
SEC and the Fund shall use reasonable efforts to calculate such
net asset value on each day which the New York Stock Exchange is
open for trading. Notwithstanding the foregoing, the Board of
Directors of the Fund (hereinafter the "Board") may refuse to
sell shares of any Portfolio to any person, or suspend or
terminate the offering of shares of any Portfolio if such action
is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in
good faith and in light of their fiduciary duties under federal
and any applicable state laws, necessary in the best interest of
the shareholders of such Portfolio.
1.3. The Fund and the Adviser agree that shares of the Fund
will be sold only to Participating Insurance Companies and their
separate accounts and, in accordance with the terms of the Mixed
and Shared Funding Exemptive Order, certain Qualified Plans. No
shares of any Portfolio will be sold to the general public.
1.4. The Fund will not sell Fund shares to any insurance
company or separate account unless an agreement containing
provisions substantially the same as Articles I and VII, Section
2.5 of Article II and Sections 3.4 and 3.5 of Article III of
this Agreement is in effect to govern such sales.
1.5 The Fund agrees to redeem for cash, on the Company's
request, any full or fractional shares of the Fund held by the
Company, executing such requests on a daily basis at the net
asset value next computed after receipt by the Fund or its
designee of the request for redemption. For purposes of Sections
2.10 and 2.11, upon the payment by the Fund to the Company of the
proceeds of such redemptions, such proceeds shall cease to be the
responsibility of the Fund and shall become the responsibility of
the Company. For purposes of this Section 1.5, the Company shall
be the designee of the Fund for receipt of requests for
redemption from each Account and receipt of requests for
redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that the Fund received
notice of such request for redemption by 10:00 a.m. Eastern time
on the next following Business Day.
1.6. The Company agrees to purchase and redeem the shares of
each Portfolio offered by the then current prospectus of the Fund
in accordance with the provisions of such prospectus. The
Company agrees that all net amounts available under the variable
life and variable annuity contracts with the form number(s) which
are listed on Schedule C attached hereto and incorporated herein
by this reference, as such Schedule C may be amended from time to
time hereafter by mutual written agreement of all the parties
hereto and which such contracts have been sold pursuant to an
Annuity Selling Agreement dated February 10, 1995, by and between
the Company, PFS Investments Inc. and Primerica Financial
Services, Inc. (the "Contracts"), shall be invested in the
Portfolios, in such other funds advised by the Adviser as may be
mutually agreed to in writing by the parties hereto, or in the
Company's general account, provided that such amounts may also be
invested in an investment company other than the Fund if (a) such
other investment company, or series thereof, has investment
objectives or policies that are substantially different from the
investment objectives and policies of the Portfolios of the Fund;
or (b) the Company gives the Fund and the Adviser 60 days written
notice of its intention to make such other investment company
available as a funding vehicle for the Contracts; or (c) such
other investment company was available as a funding vehicle for
the Contracts prior to the date of this Agreement and the Company
so informs the Fund and Adviser prior to their signing this
Agreement; or (d) the Fund or Adviser consents to the use of such
other investment company.
1.7. The Company shall pay for Fund shares on the next
Business Day after an order to purchase Fund shares is made in
accordance with the provisions of Section 1.1 hereof. Payment
shall be in federal funds transmitted by wire. For purpose of
Section 2.9 and 2.10, upon receipt by the Fund of the federal
funds so wired, such funds shall cease to be the responsibility
of the Company and shall become the responsibility of the Fund.
1.8. Issuance and transfer of the Fund's shares will be by
book entry only. Stock certificates will not be issued to the
Company or any Account. Shares ordered from the Fund will be
recorded in an appropriate title for each Account or the
appropriate subaccount of each Account.
1.9 The Fund shall furnish notice (by wire or telephone,
followed by written confirmation) as soon as is reasonably
practicable to the Company of any income, dividends or capital
gain distributions payable on the Fund's shares. The Company
hereby elects to receive all such income dividends and capital
gain distributions as are payable on the Portfolio shares in
additional shares of that Portfolio. The Company reserves the
right to revoke this election and to receive all such income
dividends and capital gain distributions in cash. The Fund shall
notify the Company of the number of shares so issued as payment
of such dividends and distributions.
1.10. The Fund shall make the net asset value per share
for each Portfolio available to the Company on a daily basis as
soon as reasonably practical after the net asset value per share
is calculated (normally 6:30 p.m. Eastern time) and shall use its
best efforts to make such net asset value per share available by
7:00 p.m. Eastern time. If the Fund provides the Company with
the incorrect share net asset value information, the Company on
behalf of the Account shall be entitled to a prompt adjustment to
the number of shares purchased or redeemed to reflect the correct
share net asset value. Upon a final determination that there has
been an error in the calculation of net asset value, dividend or
capital gain, the Fund shall report such error to the Company.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts
are or will be registered under the 1933 Act; that the Contracts
will be issued and sold in compliance in all material respects
with all applicable Federal and State laws and that the sale of
the Contracts shall comply in all material respects with state
insurance suitability requirements. The Company further
represents and warrants that it is an insurance company duly
organized and in good standing under applicable law and that it
has legally and validly established each Account prior to any
issuance or sale thereof as a segregated asset account under
Title 18 Section 3092 of the Delaware Insurance Law and has
registered or, prior to any issuance or sale of the Contracts,
will register each Account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a
segregated investment account for the Contracts.
2.2. The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933
Act, shall be duly authorized for issuance and sold in compliance
with the laws of the State of ____________ and all applicable
federal and state securities laws and that the Fund is and shall
remain registered under the 0000 Xxx. The Fund shall amend the
Registration Statement for its shares under the 1933 Act and the
1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Fund shall register and
qualify the shares for sale where necessary as determined by the
Fund or the Adviser in accordance with the laws of the various
states.
2.3. The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Internal
Revenue Code of 1986, as amended (the "Code"), and that it will
make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) and that it
will notify the Company immediately upon having a reasonable
basis for believing that it has ceased to so qualify or that it
might no so qualify in the future.
2.4. The Company represents that the Contracts are currently
treated as endowment, annuity or life insurance contracts, under
applicable provisions of the Code and that it will make every
effort to maintain such treatment and that it will notify the
Fund and the Adviser immediately upon having a reasonable basis
for believing that the Contracts have ceased to be so treated or
that they might not be so treated in the future.
2.5. The Fund currently does not intend to make any payments
to finance distribution expenses pursuant to Rule 12b-1 under the
1940 Act or otherwise, although it may make such payments in the
future. To the extent that it decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund undertakes to have a
board of directors, a majority of whom are not interested persons
of the Fund, formulate and approve any plan under Rule 12b-1 to
finance distribution expenses.
2.6. The Fund makes no representation as to whether any
aspect of its operations (including, but not limited to, fees and
expenses and investment policies) complies with the insurance
laws or regulations of the various states except that the Fund
and the Adviser represent that their respective operations are
and shall at all times remain in material compliance with the
laws of the State of _____________ to the extent required to
perform this Agreement.
2.7. The Fund represents that it is lawfully organized and
validly existing under the laws of the State of ____________ and
that it does and will comply in all material respects with the
1940 Act.
2.8. The Adviser represents and warrants that the Advisers
is and shall remain duly registered in all material respects
under all applicable federal and state laws and that the Adviser
shall perform its obligations for the Fund in compliance in all
material respects with the laws of the State of __________ and
any applicable state and federal securities laws.
2.9. The Fund and Adviser represent and warrant that all of
their directors, officers, employees, investment advisers, and
other individuals/entities dealing with the money and/or
securities of the Fund 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 minimal
coverage as required currently by Rule 17g-1 of the 1940 Act or
related provisions as may be promulgated from time to time. The
aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.10. The Company represents and warrants that all if
any of its directors, officers, employees, investment advisers,
and other individuals/entities deal with the money and/or
securities of the Fund they will at all such times be covered by
a blanket fidelity bond or similar coverage for the benefit of
the Fund, in an amount not less than the minimal coverage as
required by Rule 17g-1 of the 1940 Act or 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.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Adviser and the Fund shall provide to the Company
such documentation (including a final copy of the Fund's most
current prospectus as set in type at the Fund's expense) and
other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the prospectus for
the Fund is amended) to have the prospectus for the Contracts
and the Portfolios' prospectus printed (such printing to be at
the Company's expense except as provided in Section 5.3 hereof).
3.2. The Fund's prospectus shall state that the Statement of
Additional Information ("SAI") for the Fund is available from the
Adviser (or in the Fund's discretion, the Prospectus shall state
that such SAI is available from the Fund), and the Adviser (or
the Fund), at its expense, shall print and provide one copy of
such SAI free of charge to the Company and to any owner of a
Contract or prospective owner who requests such Statement. The
Company may make additional copies of the SAI at its expense.
3.3. The Fund, at its expense, shall provide the Company
with copies of its proxy material, reports to shareholders, and
other communications to shareholders in such quantity as the
Company shall reasonably require for distributing to Contract
owners; provided, however, that the Company shall bear the
expenses for the costs of printing and distributing any proxy
material, reports to shareholders and other communications to
shareholders that are prepared at the request of the Company.
3.4. If and to the extent required by law the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with
instructions received from
Contract owners; and
(iii) vote Fund shares for which no instructions
have been received in
the same proportion as Fund shares of such
Portfolio for which instructions have been
received;
so long as and to the extent that the SEC continues to interpret
the 1940 Act to require pass-through voting privileges for owners
of Variable Insurance Products. The Company reserves the right
to vote Fund shares held in any segregated asset account in its
own right, to the extent permitted by law. Participating
Insurance Companies shall be responsible for assuring that each
of their separate accounts participating in the Fund calculates
voting privileges in a manner consistent with this Section.
3.5. The Fund will comply with all provisions of the 1940
Act requiring voting by shareholders.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be
furnished, to the Fund or its designee, each piece of sales
literature or other promotional material in which the Fund, the
Adviser, or the Fund's underwriter is named, at least ten
Business Days prior to its use. No such material shall be used
if the Fund or its designee object to such use within ten
Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning
the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration
statement or prospectus for the Fund shares, as such registration
statement and prospectus may be amended or supplemented from time
to time, or in reports or proxy statements for the Fund, or in
sales literature or other promotional material approved by the
Fund or its designee or by the Adviser, except with the
permission of the Fund or the Adviser or the designee of either.
4.3. The Fund, and the Adviser, or its designee shall
furnish, or shall cause to be furnished, to the Company or its
designee, each piece of sales literature or other promotional
material in which the Company and/or its separate account(s), is
named at least ten Business Days prior to its use. No such
material shall be used if the Company or its designee object to
such use within ten Business Days after receipt of such material.
4.4. The Fund and the Adviser shall not give any information
or make any representations on behalf of the Company or
concerning the Company, each Account, or the Contracts other than
the information or representations contained in a registration
statement or prospectus for the Contracts, as such registration
statement and prospectus may be amended or supplemented from time
to time, or in published reports for each Account which are in
the public domain or approved by the Company for distribution to
Contract owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the
permission of the Company.
4.5. The Fund will provide to the Company at least one
complete copy of all registration statements, prospectuses,
Statements of Additional Information, reports, proxy statements,
sales literature and other promotional materials, applications
for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Fund or its
shares, as soon as is reasonably practicable after the filing of
such document with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one
complete copy of all registration statements, prospectuses,
Statements of Additional Information, annual and semi-annual
reports, solicitations for voting instructions, applications for
exemptions, requests for no action letters, and all amendments to
any of the above, that relate to the Contracts or each Account,
as soon as is reasonably practicable after the filing of such
document with the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales
literature or other promotional material" includes, but is not
limited to, advertisements (such as materials 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, seminar texts, reprints or excerpts of any
other advertisement, sales literature, or published article),
educational or training materials or other communications
distributed or made generally available to some or all agents or
employees, and registration statements, prospectuses, Statements
of Additional Information, shareholder reports, and proxy
materials.
ARTICLE V. Fees and Expenses
5.1. The Fund and Adviser shall pay no fee or other
compensation to the Company under this Agreement, except that if
the Fund or any Portfolio adopts and implements a plan pursuant
to Rule 12b-1 to finance distribution expenses, then the
underwriter may make payments to the Company for the Contracts if
and in amounts agreed to by the Adviser in writing and such
payments will be made out of existing fees otherwise payable to
the Adviser, past profits of the Adviser or other resources
available to the Adviser, or by the Fund, to the extent
permitted. Currently, no such payments are contemplated.
5.2. All expenses incident to performance by the Fund under
this Agreement shall be paid by the Fund. Except as provided in
Sections 3.1, 3.2, 3.3., and 5.3 hereof, the Fund shall bear the
expenses for the cost of registration and qualification of the
Fund's shares, preparation and filing of the Fund's prospectus
and registration statement, proxy materials and reports, setting
the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders (including, if so elected,
the costs of printing a prospectus that constitutes an annual
report), the preparation of all statements and notices required
by any federal or state law, all taxes on the issuance or
transfer of the Fund's shares.
5.3. The printing and distributing of the prospectus for the
Portfolios (or that portion of a prospectus relating to the
Portfolios should the Company determine to print a combined
prospectus) to existing owners of Contracts shall be at the
expense of the Fund.
ARTICLE VI. Diversification
6.1. Subject to the following sentence, the Fund will at all
times comply with Section 817(h) of the Code and Treasury
Regulation 1.817-5, relating to the diversification requirements
for variable annuity, endowment, or life insurance contracts and
any amendments or other modifications to such Section or
Regulation. In the event of any changes to such Section or
Regulation relating to the treatment of variable contracts, the
Company will advise the Fund of such changes.
ARTICLE VII. Potential Conflicts
7.1. The parties to this Agreement acknowledge that the Fund
has filed an application with the SEC to request an order (the
"Exemptive Order") granting relief from various provisions of the
1940 Act and the rules thereunder to the extent necessary to
permit Fund shares to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and
unaffiliated Participating Insurance Companies and Qualified
Plans. It is anticipated that the Exemptive Order, when and if
issued, shall require the Fund and each Participating Insurance
Company to comply with conditions and undertakings substantially
as provided in this Article VII. If the Exemptive Order imposes
conditions on the Company materially different from those
provided for in this Article VII, the conditions and undertakings
imposed by the Exemptive Order shall govern this Agreement. The
Fund will not enter into a participation agreement with any other
Participating Insurance Company unless it imposes the same
conditions and undertakings as are imposed on the Company hereby.
7.2. The Company will report any potential or existing
conflicts promptly to the Board, and in particular whenever
contract owner voting instructions are disregarded, and
recognizes that it shall be responsible for assisting the Board
in carrying out its responsibilities in connection with the
Exemptive Order. The Company agrees to carry out such
responsibilities with a view to the interests of contract owners.
7.3. If it is determined by a majority of the Board, or a
majority of its disinterested directors that a material
irreconcilable conflict exists, the Company and other
Participating Insurance Companies shall, at their expense and to
the extent reasonably practicable (as determined by a majority of
the disinterested trustees), take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict,
including but not limited to: (1) withdrawing the assets
allocable to some or all of the separate accounts from the Fund
or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such
segregation should be implemented, to a vote of all affected
Contract owners and, as appropriate, segregating the assets of
any group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or
offering to the affected contract owners the option of making
such a change; and (2) establishing a new registered management
investment company or managed separate account.
7.4. If a material irreconcilable conflict arises as a
result of a decision by the Company to disregard contract owner
voting instructions and said decision represents a minority
position or would preclude a majority vote by all contract owners
having an interest in the Fund, the Company may be required, at
the Board's election, to withdraw the Account's investment in the
Fund.
7.5. For purposes of this Article VII, a majority of the
disinterested directors shall determine whether or not any
proposed action adequately remedies any irreconcilable material
conflict, but in no event shall the Fund be required to bear the
expense of establishing a new funding medium for any Contract.
The Company shall not be required by this Article VII 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. In the event that the Board determines that any
proposed action does not adequately remedy any irreconcilable
material conflict, then the Company will withdraw the Account's
investment in the Fund and terminate this Agreement within six
(6) months after the Board informs the Company in writing of the
foregoing determination, provided, however, that such withdrawal
and termination shall be limited to the extent required by any
such material irreconcilable conflict as determined by a majority
of the disinterested members of the Board.
7.6. If and to the extent that Rule 6e-2 and Rule 6e-3(T)
are amended, or Rule 6e-3 is adopted, to provide exemptive relief
from any provision of the Act or the rules promulgated thereunder
with respect to mixed or shared funding (as defined in the mixed
and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may
be necessary to comply with Rules 6e-2 and 6e-3(T) as amended,
and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and
7.5 of this Agreement shall continue in effect only to the extent
that terms and conditions substantially identical to such
Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification by the Company
8.1(a). The Company agrees to indemnify and hold
harmless the Fund and each of its directors and
officers and each person, if any, who controls the Fund
within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes
of this Section 8.1) against any and all losses,
claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or
litigation (including legal and other expenses), to
which the Indemnified Parties may become subject under
any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Fund's
shares or the Contracts and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any
material fact contained in the Registration
Statement or prospectus for the Contract or
contained in the Contracts or sales literature for
the Contracts (or any amendment or supplement to
any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to
state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading, provided that this
agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or
such alleged statement or omission was made in
reliance upon and in conformity with information
furnished to the Company by or on behalf of the
Fund for use in the Registration Statement or
prospectus for the Contracts or in the Contracts
or sales literature (or any amendment or
supplement) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Registration
Statement, prospectus or sales literature of the
Fund not supplied by the Company, or persons under
its control) or wrongful conduct of the Company or
persons under its control, with respect to the
sale or distribution of the Contracts or Fund
shares; or
(iii) arise out of any untrue statement or
alleged untrue statement of a material fact
contained in a Registration Statement, prospectus,
or sales literature of the Fund or any amendment
thereof or supplement thereto or the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading if such a
statement or omission was made in reliance upon
information furnished to the Fund by or on behalf
of the Company; or
(iv) arise as a result of any failure by the
Company to provide the services and furnish the
materials under the terms of this Agreement; or
(v) arise out of or result from any material
breach of any representation and/or warranty made
by the Company in this Agreement or arise out of
or result from any other material breach of this
Agreement by the Company.
8.1(b). The Company shall not be liable under this
indemnification provision with respect to any losses,
claims, damages, liabilities or litigation incurred or
assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations
or duties under this Agreement or to the Fund,
whichever is applicable.
8.1(c). The Company shall not be liable under this
indemnification provision with respect to any claim
made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in
writing within a reasonable time after the summons or
other first legal process giving information of the
nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any
designated agent), but failure to notify the Company of
any such claim shall not relieve the Company from any
liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on
account of this indemnification provision. In case any
such action is brought against the Indemnified Parties,
the Company shall be entitled to participate, at its
own expense, in the defense of such action. The
Company also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named
in the action. After notice from the Company to such
party of the Company's election to assume the defense
thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and
the Company will not be liable to such party under this
Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with
the defense thereof other than reasonable costs of
investigation.
8.1(d). The indemnification provided by this Section
8.1 shall survive the termination of this Agreement and
shall be in addition to any other liability the Company
may have.
8.2. Indemnification by the Adviser
8.2(a). The Adviser agrees to indemnify and hold
harmless the Company and each of its directors and
officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for
purposes of this Section 8.2) against any and all
losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the
Adviser) or litigation (including legal and other
expenses) to which the Indemnified Parties may become
subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or
settlements:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the Registration
Statement or prospectus or sales literature of the
Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein
a material fact required to be stated therein or
necessary to make the statements therein not
misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified
Party if such statement or omission or such
alleged statement or omission was made in reliance
upon and in conformity with information furnished
to the Adviser or Fund by or on behalf of the
Company for use in the Registration Statement or
prospectus for the fund or in sales literature (or
any amendment or supplement) or otherwise for use
in connection with the sale of the Contracts or
Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Registration
Statement, prospectus or sales literature for the
Contracts not supplied by the Adviser or persons
under its control) or wrongful conduct of the Fund
or Adviser or persons under their control; or
(iii) arise out of any untrue statement or
alleged untrue statement of a material fact
contained in a Registration Statement, prospectus
or sales literature covering the Contracts, or any
amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement or statements
therein not misleading, if such statement or
omission was made in reliance upon information
furnished to the Company by or on behalf of the
Fund; or
(iv) arise as a result of (a) any failure by the
Fund to provide the services and furnish the
material under the terms of this Agreement; or (b)
a failure to comply with Article VI of this
Agreement with respect to diversification
requirements; or (c) failure to qualify as a
registered investment company under Subchapter M
of the Code; or
(v) arise out of or result from any material
breach of any representation and/or warranty made
by the Adviser or the Fund in this Agreement or
arise out of or result from any other material
breach of this Agreement by the Adviser or the
Fund.
8.2.(b). The Adviser shall not be liable under this
indemnification provision with respect to any losses,
claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason
of such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations
and duties under this Agreement or to the Company or
Account, whichever is applicable.
8.2.(c). The Adviser shall not be liable under this
indemnification provision with respect to any claim
made against an Indemnified Party unless such
Indemnified Party shall have notified the Adviser in
writing within a reasonable time after the summons or
other first legal process giving information of the
nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any
designated again), but failure to notify the Adviser of
any such claim shall not relieve the Adviser from any
liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on
account of this indemnification provision. In case any
such action is brought against the Indemnified Parties,
the Adviser will be entitled to participate, at its own
expense, in the defense thereof. The Adviser also
shall be entitled to assume the defense thereof with
counsel satisfactory to the party named in the action.
After notice from the Adviser to such party of the
Adviser's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Adviser
will not be liable to such party under this Agreement
for any legal or other expenses subsequently incurred
by such party independently in connection with the
defense thereof other than reasonable costs of
investigation.
8.2(d). The indemnification provided by this Section
8.2 shall survive the termination of this Agreement and
shall be in addition to any other liability the Fund or
Adviser may have.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the
State of ___________.
9.2. This Agreement shall be subject to the provisions of
the 1933, 1934 and 1940 Acts, and the rules and regulations and
rulings thereunder, including such exemptions from those
statutes, rules and regulations as the SEC may grant (including,
but not limited to, the Shared Funding Exemptive Order) and the
terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. Term and Termination
10.1. This Agreement is effective as of the date hereof
and will remain in effect until terminated in accordance with the
provisions herein.
10.2. This Agreement shall terminate:
(a) at the option of any party upon 180 days advance
written notice to the other parties unless otherwise agreed in a
separate written agreement among the parties; or
(b) at the option of the Company if shares of the
Portfolios delineated in Schedule 2 are not reasonably available
to meet the requirements of the Contracts as determined by the
Company; provided, however, that such termination shall only
apply to the Portfolio(s) not reasonably available. Prompt
notice of the election to terminate for such cause shall be
furnished by the Company; or
(c) at the option of the Fund upon institution of
formal proceedings against the Company by the NASD, the SEC. the
insurance commission of any state or any other regulatory body
regarding the Company's duties under this Agreement or related to
the sale of the Contracts, the administration of the Contracts,
the operation of the Account, or the purchase of the Fund shares,
the expected or anticipated ruling, judgment or outcome of which
would, in the Fund's reasonable judgment, materially impair the
Company's ability to perform its obligation and duties hereunder;
or
(d) at the option of the Company upon institution of
formal proceedings against the Fund by the NASD, the SEC, or any
state securities or insurance department or any other regulatory
body, the expected or anticipated ruling, judgment or outcome of
which would, in the Company's reasonable judgment, materially
impair the Fund's ability to perform its obligations and duties
hereunder; or
(e) at the option of the Company or the Fund upon
receipt of any necessary regulatory approvals and/or the vote of
the contract owners having an interest in the Account (or any
subaccount) to substitute the shares of another investment
company for the corresponding Portfolio shares of the Fund in
accordance with the terms of the Contracts for which those
Portfolio shares had been selected to serve as the underlying
investment media. The Company will give 30 days' prior written
notice to the Fund of the date of any proposed vote or other
action taken to replace the Fund's shares; or
(f) at the option of the Company or the fund upon a
determination by a majority of the Fund Board, or a majority of
the disinterested Fund Board members, that an irreconcilable
material conflict exists among the interests of (i) all contract
owners of variable insurance products or all separate accounts or
(ii) the interests of the Participating Insurance Companies
investing in the Fund as delineated in Article VII of this
Agreement; or
(g) at the option of the Company if the Fund ceases to
qualify as a Regulated Investment Company under Subchapter M of
the Code, or under any successor or similar provision, or if the
Company reasonably believes that the Fund may fail to so qualify;
or
(h) at the option of the Company if the Fund fails to
meet the diversification requirements specified in Article VI
hereof; or
(i) at the option of any party to this Agreement, upon
another party's material breach of any provision of this
Agreement; or
(j) at the option of the Company, if the Company
determines in its sole judgment exercised in good faith, that
either the Fund or the Adviser has suffered a material adverse
change in its business, operations or financial condition since
the date of this Agreement or is the subject of material adverse
publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the
business and operations of the Company; or
(k) at the option of the Fund or Adviser, if the Fund
or Adviser respectively, shall determine in its sole judgment
exercised in good faith, that the Company has suffered a material
adverse change in its business, operations or financial condition
since the date of this Agreement or is the subject of material
adverse publicity and such material adverse change or material
adverse publicity is likely to have a material adverse impact
upon the business and operations of the Fund or Adviser; or
(l) at the option of the fund in the event any of the
Contracts are not issued or sold in accordance with applicable
federal and/or state law. Termination shall be effective
immediately upon such occurrence without notice; or
(m) automatically upon its assignment by any party
without the other parties' prior written consent; or
(n) in the event the Fund's shares are not registered,
issued or sold in accordance with applicable state or federal
law, or such law precludes the use of such shares for the
underlying investment medium of variable contracts issued or to
be issued by the Company. Termination shall be effective
immediately upon such occurrence without notice.
10.3. Notice Requirement
(a) In the event that any termination of this
Agreement is based upon the provisions of Article VII such prior
written notice shall be given in advance of the effective date of
termination as required by such provisions.
(b) In the event that any termination of this
Agreement is based upon the provisions of Sections 10.2(b) - (d)
or 10.2(g) - (i), prior written notice of the election to
terminate this Agreement for cause shall be furnished by the
party terminating the Agreement to the non-terminating parties,
with said termination to be effective upon receipt of such notice
by the non-terminating parties.
(c) In the event that any termination of this
Agreement is based upon the provisions of Sections 10.2(j) or
10.2(k), prior written notice of the election to terminate this
Agreement for cause shall be furnished by the party terminating
this Agreement to the non-terminating parties. Such prior
written notice shall be given by the party terminating this
Agreement to the non-terminating parties at least 30 days before
the effective date of termination.
10.4. It is understood and agreed that the right to
terminate this Agreement pursuant to Section 10.2(a) may be
exercised for any reason or for no reason.
10.5. Effect of Termination
(a) Notwithstanding any termination of this Agreement
pursuant to Section 10.2 of this Agreement, the Fund may, at its
option, or in the event of termination of this Agreement by the
Fund or the Adviser pursuant to Section 10.2(a) of this
Agreement, the Company may require the Fund and the Adviser to,
continue to make available additional shares of the Fund for so
long after the termination of this Agreement as the Fund or the
Company, if the Company is so requiring, desires pursuant to the
terms and conditions of this Agreement as provided in paragraph
(b) below for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, if the
Fund or if the Company is so requiring, the owners of the
Existing Contracts shall be permitted to reallocate investments
in the Fund, redeem investments in the Fund and/or invest in the
fund upon the making of additional purchase payments under the
Existing Contracts. The parties agree that this Section 10.5
shall not apply to any terminations under Article VII and the
effect of such Article VII terminations shall be governed by
Article VII of this Agreement.
(b) In the event of a termination of this Agreement
pursuant to Section 10.2 of this Agreement, the Fund shall
promptly notify the Company whether the Fund will continue to
make available shares of the Fund after such termination, except
that, with respect to a termination by the Fund or the Adviser
pursuant to Section 10.2(a) of this Agreement, the Company shall
promptly notify the Fund whether it wishes the Fund to continue
to make available additional shares of the Fund. If shares of
the Fund continue to be made available after such termination,
the provisions of this Agreement shall remain in effect except
for Section 10.2(a) and thereafter the Fund or the Company may
terminate the Agreement, as so continued pursuant to this Section
10.5 upon written notice to the other party, such notice to be
for a period that is reasonable under the circumstances.
(c) In determining whether to make available
additional Fund shares, the Fund shall act in good faith, giving
due consideration to the interest of the existing shareholders,
including holders of the Existing Contracts.
10.6. Except (a) as necessary to implement contract
owner initiated or approved transactions, or (b) as required by
state insurance laws or regulations (a "Legally Required
Redemption"), the Company shall not redeem Fund shares
attributable to the Contracts (as opposed to Fund shares
attributable to the Company's assets held in the Account), and
the Company shall not prevent contract owners from allocating
payments to a Portfolio that was otherwise available under the
Contracts, until 90 days after the Company shall have notified
the Fund or Adviser of its intention to do so. Upon request, the
Company will promptly furnish to the Fund and Adviser the opinion
of counsel for the company (which counsel shall be reasonably
satisfactory to the Fund and the Adviser) to the effect that a
particular redemption is a Legally Required Redemption.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by
registered or certified mail to the other party at the address of
such party set forth below or at such other address as such party
may from time to time specify in writing to the other party.
If to the Fund:
Firm
Address
City, State, Zip
Attn:__________________
If to the Company:
Golden American Life Insurance Company of New York
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Secretary
If to the Adviser:
Firm Name
Address
City, State, Zip
Attn:__________________
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Fund must look solely
to the property of the Fund for the enforcement of any claims
against the Fund as neither the Board, officers, agents or
shareholders assume any personal liability for obligations
entered into on behalf of the Fund.
12.2. Subject to the requirement of legal process and
regulatory authority, each party hereto shall treat as if
confidential the names and addresses of the owners of the
Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or
utilize such names and addresses and other confidential
information until such time as it may come into the public domain
without the express written consent of the affected party.
12.3. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate
any of the provisions hereof or otherwise affect their
construction or effect.
12.4. This Agreement may be executed simultaneously in
two or more counterparts, each of which taken together shall
constitute one and the same instrument.
12.5. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise,
the remainder of the Agreement shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other
party and all appropriate governmental authorities (including
without limitation, the SEC, the NASD, and state insurance
regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or
inquiry relating to this Agreement or the transactions
contemplated hereby.
12.7. The rights, remedies and obligations contained in
this Agreement are cumulative and are in addition to any and all
rights, remedies and obligations, at law or in equity, which the
parties hereto are entitled to under state and federal laws.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed in its name and on its behalf by
its duly authorized representative and its seal to be hereunder
affixed hereto as of the date specified below.
GOLDEN AMERICAN LIFE FUND
INSURANCE COMPANY OF By its authorized officer
NEW YORK
By its authorized officer
By:______________________ By:__________________________
Title:____________________ Title:________________________
Date:____________________ Date:________________________
ADVISER
By its authorized officer officer
By:______________________
Title:____________________
Date:____________________
SCHEDULE A
Golden American Life Insurance Company of New York
Separate Account B
SCHEDULE B
Fund:
Portfolios:
