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EX-99.24.C.8.II
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dex9924c8ii.txt
SERVICES AGREEMENT
EXHIBIT 24(C)(8)(II)
GOLDMAN SACHS TRUST SERVICE AGREEMENT
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April 1, 2010
Minnesota Life Insurance Company
400 Robert Street North
St. Paul, MN 55101-2098
RE:GOLDMAN SACHS VARIABLE INSURANCE TRUST (THE "TRUST") SERVICE AGREEMENT
Ladies and Gentlemen:
The undersigned, Goldman, Sachs & Co. ("Goldman Sachs"), 85 Broad Street, New
York, New York 10004, is the principal distributor of the shares of beneficial
interest of each Fund. Goldman Sachs Asset Management, a separate operating
division of Goldman Sachs, or an affiliate thereof, acts as an investment
adviser to the Trust, which is an open-end management investment company that
offers its shares of beneficial interest exclusively to separate accounts of
life insurance companies and various qualifying retirement plans or accounts.
(such Funds now or hereafter offered by the Trust are individually referred to
herein as a "Fund" and, collectively, as the "Funds"). Shares or units of
beneficial interest (the "Shares") of each Fund are divided into separate
classes. This Agreement relates to Service Shares of the Funds.
You (the "Company") are a life insurance company and the issuer of variable
annuity contracts and/or variable life insurance contracts (the "Contracts")
issued through one or more separate accounts. You, acting on behalf of the
separate account(s) purchase, hold, exchange and redeem Shares of the Funds as
investments for values accumulated under the Contracts. You have entered into
an agreement with the Trust and Goldman Sachs regarding the purchase and
redemption of the Shares (the "Participation Agreement"). You are willing to
perform, and Goldman Sachs wishes to compensate you for performing, certain
services with respect to the sale and distribution of the Contracts to Contract
owner (the "Services") that may indirectly result in the sale of Shares.
Accordingly, You and Goldman Sachs agree as follows:
1. AGREEMENT TO PROVIDE SERVICES. Goldman Sachs hereby engages the Company,
and the Company hereby agrees, to perform the following Services: (a) establish
and maintain relationships with owners of Contracts who are its customers or
customers of other broker-dealers with whom it has entered into agreements to
sell the Contracts ("Selling Dealers"); (b) provide Contract owners with
"personal services" (within the meaning of NASD Conduct Rule 2830(b)(9));
(c) assist in the preparation of advertisements and other sales literature for
the Contracts that describes or discusses the Funds; (d) provide sales
compensation to representatives of the Contract Underwriter; (e) pay money to
Selling Dealers for any of the foregoing purposes; and (f) perform additional
services primarily intended to result in the distribution of the Contracts and
the sale of the Shares.
2. EXPENSES OF THE COMPANY. The Company shall furnish such office space,
equipment, facilities and personnel as may be necessary to perform its duties
hereunder. The Company shall bear all costs incurred by it in performing such
duties.
3. FEES PAYABLE TO THE COMPANY. For the Services provided and the expenses
incurred by the Company hereunder, Goldman Sachs will pay to the Company a
quarterly service fee equal on an annual basis to 0.25% of the average daily
net asset value of the Shares of each Fund which are owned beneficially by
Contract owners through the Contracts during such period./1/
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/1/ The parties understand that voluntary service fee waivers are currently in
effect pursuant to which the distribution and service fees paid to Goldman,
Sachs & Co. by the Structured U.S. Equity Fund are capped at 0.21%, and by
the Growth Opportunities Fund at 0.16%. These waivers are voluntary and may
be modified or terminated by Goldman Sachs at any time. While these fee
waivers are in effect, the parties acknowledge and agree that Goldman
Sachs & Co. or an affiliate shall bear the cost, from its own assets, of
the difference between the distribution and service fees received by
Goldman, Sachs & Co. from these funds as a result of the relevant waiver
and the amounts paid to the Company under this Agreement.
4. PERFORMANCE OF DUTIES. In performing its duties hereunder, the Company
will act in conformity with Goldman Sachs' instructions, the terms of the
Contracts and Contract prospectuses, the then effective prospectuses and
statements of additional information for the Shares of each Fund, the
Investment Company Act of 1940, as amended (the "1940 Act") and all other
applicable federal and state laws, regulations and rulings and the
constitution, by-laws and rules of any applicable self-regulatory organization.
The Company will assume sole responsibility for its compliance with applicable
federal and state laws and regulations, and shall rely exclusively upon its own
determination, or that of its legal advisers, that the performance of its
duties hereunder complies with such laws and regulations. Under no
circumstances shall the Trust, any Fund, Goldman Sachs or any of their
affiliates be held responsible or liable in any respect for any statements or
representations made by them or their legal advisers to the Company or any
Contract owner concerning the applicability of any federal or state laws or
regulations to the activities described herein. The Company will perform its
duties hereunder in a manner consistent with the customs and practices of other
institutions that provide similar services.
5. ANTI-MONEY LAUNDERING. The Company and its affiliates are required either
by law, regulation or order, or as a matter of good practice, to operate
policies and procedures for the purpose of guarding against money laundering
activities. Among other matters, those policies and procedures include the
identification of Contract owners and the source of moneys provided by Contract
owners, the identification of "suspicious transactions" and the adoption of
anti-money laundering programs. As a consequence, you hereby agree that you
will identify your Contract owners underlying each transaction and the source
of the moneys used for each transaction, and will identify whether such
transactions are "suspicious transactions." In addition, you hereby agree that
you will fully comply with all applicable anti-money laundering laws,
regulations and orders, as now or hereafter in force.
6. REPRESENTATIONS AND WARRANTIES. The Company hereby represents, warrants
and covenants to Goldman Sachs:
(a).it is in full compliance with the rules, regulations and policies
governing capital requirements, financial reporting, bonding, fiduciary
standards and supervisory concerns; and its entering into and performing
its obligations under this Agreement does not and will not violate any
laws, rules or regulations; or
(b).That it is a corporation, association or partnership duly organized,
validly existing, and in good standing under the laws of the state of
its organization;
(c).That entering into and performing its obligations under this Agreement
does not and will not violate (i) its charter or by-laws; or (ii) any
agreements to which it is a party;
(d).It will keep confidential any information acquired as a result of this
Agreement regarding the business and affairs of the Trust and Goldman,
Sachs & Co., which requirement shall survive the term of this Agreement;
and
(e).It will not, without written consent of the Trust in each instance, use
in advertising, publicity, administering and servicing the Funds or
otherwise the name of the Trust, Goldman, Sachs & Co., or any of their
affiliates nor any trade name, trademark, trade device, service mark,
symbol or any abbreviation, contraction or simulation thereof (the
"Mark") of the Trust, Goldman, Sachs
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& Co. or their affiliates. Company acknowledges that Goldman Sachs owns
all right, title and interest in and to the Mark and the registration
thereof. Upon termination of this Agreement, the Company or its
successor, (to the extent and as soon as it lawfully can), will cease
the use of the Mark.
(f).You covenant and agree that you will only offer or sell Contracts to
"U.S. persons" and that all offering or other solicitation activities in
which you engage shall be conducted by you or any of your agents solely
within the "United States," in each case as defined in Rule 902
promulgated under the Securities Act of 1933, as amended.
7. RESPONSIBILITIES OF THE COMPANY. The Company agrees that neither Goldman
Sachs nor any Fund nor any of its agents shall have any responsibility or
liability to review any purchase, exchange or redemption request which is
presented by the Company (A) to determine whether such request is genuine or
authorized by the Contract owner; or (B) to determine the suitability of the
selected Class or Fund for such Contract owner. Goldman Sachs, each Fund and
their agents shall be entitled to rely conclusively on any purchase or
redemption request communicated to any of them by the Company pursuant to the
Participation Agreement, and shall have no liability whatsoever for any losses,
claims or damages to or against the Company or any Contract owner resulting
from a failure of the Company to provide the services provided for under this
agreement. Goldman Sachs and the Company agree that the Participation Agreement
shall govern the process by which the Company purchases, exchanges and redeems
of Shares for its separate accounts
8. AMENDMENT; TERMINATION. This Agreement may be amended by a written
instrument executed by both parties and may be terminated by Goldman Sachs or
the Company at any time on 60 days' written notice mailed or delivered to the
other party at its address set forth above.
9. INDEMNIFICATION. Goldman Sachs agrees to indemnify the Company and each
person who controls (as defined in Section 2(a)(9) of the 1940 Act) the Company
from and against any losses, claims, damages, expenses (including reasonable
fees and expenses of counsel) or liabilities ("Damages") to which the Company
or such person may become subject in so far as such Damages arise out of the
failure of Goldman Sachs or its employees or agents to comply with Goldman
Sachs' obligations under this Agreement or any other agreement between Goldman
Sachs and the Company relating to the performance of Services hereunder (a
"Covered Agreement"). The Company agrees to indemnify Goldman Sachs, the Funds,
their agents and each person who controls (as defined in Section 2(a)(9) of the
1940 Act) any of them from and against any Damages to which any of them may
become subject in so far as such Damages arise out of the failure of the
Company or its employees, agents or Contract owners to comply with the
Company's obligations under a Covered Agreement. Notwithstanding the foregoing,
neither Goldman Sachs nor the Company shall be entitled to be indemnified for
Damages arising out of its or its employee's gross negligence. The foregoing
indemnity agreements shall be in addition to any liability Goldman Sachs or the
Company may otherwise have, and shall survive the termination of this Agreement.
10. NO ASSOCIATION OR AGENCY. The Company shall be deemed an independent
contractor and not an agent of Goldman Sachs or any Fund for all purposes
hereunder and shall have no authority to act for or represent Goldman Sachs or
any Fund. In addition, no officer or employee of the Company shall be deemed to
be an employee or agent of the Funds or Goldman Sachs or be subject, in any
respect, to the supervision of Goldman Sachs or any affiliate thereof.
11. APPLICABLE LAW. If any provision of this Agreement shall be held or made
invalid by a decision in a judicial or administrative proceeding, statute, rule
or otherwise, the enforceability of the remainder of this Agreement will not be
impaired thereby. This Agreement shall be governed by the laws of the State of
New York and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors.
12. IMPORTANT INFORMATION. In accordance with government regulations,
financial institutions are required to obtain, verify, and record information
that identifies each person or entity that opens an account. Except as provided
in the Participation Agreement, when the Company opens a Contract owner account
the Trust may ask for the name, address, identification number and other
information that will allow us to identify the Contract owner. The Trust may
also ask to see government-issued identifying documents.
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Very truly yours,
GOLDMAN, SACHS & CO.
By: /s/ James McNamara
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[Authorized Officer]
Accepted and agreed to as of the date first above written:
MINNESOTA LIFE INSURANCE COMPANY
By: /s/ Bruce P. Shay
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[Authorized Officer]
Bruce P. Shay, Executive Vice President
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(Print Name)
April 1, 2010
(Date)