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EXHIBIT 3(b)
DEALERS AGREEMENT
AGREEMENT dated __________, by and between Directed
Services, Inc. ("Distributor"), a New York corporation and
__________ ("Broker/Dealer"), a __________
(corporation)(partnership).
WITNESSETH
In consideration of the mutual promises contained herein,
the parties hereto agree as follows:
A. DEFINITIONS
1. Account - The Western Capital Specialty Managers Separate
Account B ("Account") established and maintained by Golden
American Life Insurance Company, ("Golden American"), a
Minnesota corporation, pursuant to the laws of Minnesota, as
applicable, to fund the benefits under annuity contracts
offered through the Account.
2. Annuity Contracts - Deferred Variable Annuity and Variable
Annuity Certain contract which may be issued by Golden
American and for which Distributor has been appointed
principal under writer pursuant to a Distribution Agreement,
a copy of which has been furnished to Broker/Dealer.
3. Prospectus - The Prospectus relating to the Annuity
Contracts and the Account, including financial statements
and all exhibits.
4. 1933 Act - The Securities Act of 1933, as amended.
5. 1934 Act - The Securities Exchange Act of 1934, as amended.
6. SEC - The Securities and Exchange Commission.
B. AGREEMENTS OF DISTRIBUTOR
1. Pursuant to the authority delegated to it by Golden
American, Distributor hereby authorizes Broker/Dealer during
the term of this Agreement to solicit application for the
Annuity Contracts from eligible persons provided that
Broker/Dealer has been notified by Distributor that the
Annuity Contracts are qualified for sale under all
applicable securities and insurance laws. In connection
with the solicitation of applications for Annuity Contracts,
Broker/Dealer is hereby authorized to offer riders that are
available with Annuity Contracts in accordance with
instructions furnished by Distributor or Golden American.
2. Distributor, during the term of this Agreement, will notify
Broker/Dealer of the issuance by the SEC of any stop order
with respect to the offering of Annuity Contracts and of any
other action or circumstance that may prevent the lawful
sale of Annuity Contracts in any state or jurisdiction.
3. During the term of this Agreement, Distributor shall advise
Broker/Dealer of any amendment to the Prospectus or any
amendment or supplement thereto.
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C. AGREEMENTS OF BROKER/DEALER
1. It is understood and agreed that Broker/Dealer is a
registered Broker/Dealer under the 1934 Act and a member of
the National Association of Securities Dealers, Inc. and
that the agents or representatives of Broker/Dealer who will
be soliciting applications for Annuity Contracts also will
be duly registered representatives of Broker/Dealer.
2. Commencing at such times as Distributor and Broker/Dealer
shall agree upon, Broker/Dealer agrees to use its best
efforts to find purchasers for the Annuity Contracts
acceptable to Golden American. In meeting its obligation to
use its best efforts to solicit applications for the Annuity
Contracts, Broker/Dealer shall, during the terms of this
Agreement, engage in the following activities:
a. Continuously utilize only such training, sales and
other materials as have been approved by Golden
American;
b. Establish and implement reasonable procedures for
periodic inspections and supervision of sales practices
of its agents or representatives and submit periodic
reports to Distributor as may be requested on the
results of such inspections and the compliance with
such procedures.
c. Broker/Dealer shall take reasonable steps to ensure
that the various representatives appointed by
Broker/Dealer shall not make recommendations to an
applicant to purchase an Annuity Contract in the
absence of reasonable grounds to believe that the
purchase of an Annuity Contract is suitable for such
applicant. While not limited to the following, a
determination of suitability shall be based on
information furnished to Golden American after
reasonable inquiry concerning the applicant's insurance
and investment objectives and financial situation and
needs.
3. All payments for an Annuity Contract collected by agents or
representatives of Broker/Dealer shall be held at all times
ina fiduciary capacity and shall be remitted promptly in
full together with such applications, forms and other
required documentation to an office of Golden American
designated by Distributor. Checks or money orders in
payment of premiums shall be drawn to the order of Golden
American. Broker/Dealer acknowledges that Golden American
retains the ultimate right to control the sale of Annuity
Contracts and that the Distributor or Golden American shall
have the unconditional right to reject, in whole or in part,
any application for an Annuity Contract. In the event
Golden American or Distributor rejects an application,
Golden American immediately will return all payments
directly to the purchasers and Broker/Dealer will be
notified of such action.
4. Broker/Dealer shall act as an independent contractor, and
nothing herein contained shall constitute Broker/Dealer, its
agents or representatives, or any employees thereof as
employees of Golden American or Distributor in connection
with the solicitation of applications for Annuity Contracts.
Broker/Dealer, its agents or representative, and its
employees shall not hold themselves out to be employees of
Golden American or Distributor in this connection or in any
dealings with respect to Annuity Contracts.
5. Broker/Dealer agrees that it will not develop, or use any
sales, training, explanatory or other materials in
connection with the solicitation of applications for Annuity
Contracts hereunder without the prior written consent of
Distributor of Golden American.
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6. Solicitation and other activities by Broker/Dealer shall be
undertaken only in accordance with the applicable laws and
regulations. No agent or representative of Broker/Dealer
shall solicit applications for Annuity Contracts until duly
licensed and appointed by Golden American as an annuity and
variable contract Broker/Dealer or agent of Golden American
in the appropriate states or other jurisdictions.
Broker/Dealer shall ensure that such agents or
representative fulfill any training requirements necessary
to be licensed. Broker/Dealer understands and acknowledges
that neither it nor its agents or representative is
authorized by Distributor or Golden American to give any
information or make representation in connection with this
Agreement or the offering of an Annuity Contract other than
those contained in the Prospectus or other solicitation
material authorized in writing by Distributor or Golden
American.
7. Broker/Dealer shall not have authority on behalf of
Distributor or Golden American to make, alter or discharge
any form with respect to an Annuity Contract; waive any
forfeiture, extend the time of paying any premium; or
receive any monies or premiums due to Golden American,
except as set forth in Section C.3. of this Agreement.
8. Broker/Dealer shall have the responsibility for maintaining
all records of pertaining to its representatives, who are
licensed, registered and otherwise qualified to sell Annuity
Contracts. Broker/Dealer shall maintain such other records
as are required of it by applicable laws and regulations.
The books, accounts and records of Broker/Dealer relating to
the sale of Annuity Contracts shall be maintained so as to
clearly and accurately disclose the nature and details of
the transactions. All records maintained by Broker/Dealer
in connection with this Agreement shall, upon request,
become the property of Golden American and shall, in any
event, be delivered to Golden American upon termination of
this Agreement, free from any claims or retention of rights
by Broker/Dealer. Nothing in this Section C.8. shall be
interpreted to prevent Broker/Dealer from retaining copies
of any such records which Broker/Dealer in its discretion,
deems necessary or desirable to keep. The Broker/Dealer
shall keep confidential all information obtained pursuant to
this Agreement and may disclose such information only if
Golden American has authorized such disclosure, or its
disclosure is expressly required by applicant, federal or
state regulatory authorities. Broker/Dealer shall promptly
notify Distributor of any such demand or request, and shall
afford Distributor and Golden American the opportunity to
contest the same before providing records to any regulatory
authorities.
D. COMPENSATION
1. Pursuant to the Distribution Agreement between the
Distributor and Golden American, Distributor shall cause
Golden American to arrange for the payment of commissions to
Broker/Dealer as compensation for the sale of Annuity
Contracts sold by an agent or representative of
Broker/Dealer. The amount of such compensation shall be
based on a schedule to be determined by Golden American.
Golden American should identify to Broker/Dealer with each
such payment the name of the agent or representative of
Broker/Dealer who solicited the Annuity Contract covered by
the payment.
2. Neither Broker/Dealer nor any of its agents or
representatives shall have any right to withhold or deduct
any part of any premium it shall receive for purposes of
payment of commission or otherwise. Neither Broker/Dealer
nor any of its agents or representatives shall have an
interest in any compensation paid by Golden American to
Distributor, now or hereafter, in connection with the sale
of Annuity Contracts hereunder.
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E. COMPLAINTS AND INVESTIGATIONS
Broker/Dealer and Distributor jointly agree to cooperate
fully in any insurance regulatory investigation or
proceeding or judicial proceeding arising in connection with
the Annuity Contracts marketed under this Agreement.
Broker/Dealer and Distributor further agree to cooperate
fully in any securities regulatory investigation or
proceeding or judicial proceeding with respect to
Broker/Dealer, Distributor, their affiliates and their
agents or representatives to the extent that such
investigation o proceeding is in connection with an Annuity
Contract marketed under this Agreement. Broker/Dealer shall
furnish applicable federal and state regulatory authorities
with any information or reports in connection with its
services under this Agreement which such authorities may
request in order to ascertain whether Golden American's
operations are being conducted in a manner consistent with
any applicable law ore regulation.
F. TERM OF AGREEMENT
1. This Agreement shall continue in force for one year from its
effective date and thereafter shall automatically be renewed
every year for a further one year period; provided that
either party may unilaterally terminate this Agreement upon
thirty (30) days written notice to the other party of its
intention to do so.
2. Upon termination of this agreement, all authorizations,
rights and obligations shall cease except (a) the agreements
contained in Section C.8. and Section E hereof; (b) the
indemnity set for the in Section G hereof; and (c) the
obligations to settle accounts hereunder, including
commission payments for Annuity Contracts in effect at the
time of termination or issued pursuant to applications
received by Broker/Dealer prior to termination.
G. INDEMNITY
1. Broker/Dealer shall be held to the exercise of reasonable
care in carrying out the provisions of this Agreement.
2. Distributor agrees to indemnify and hold harmless
Broker/Dealer and each officer or director of Broker/Dealer
against any losses, claims, damages or liabilities, joint or
several, to which Broker/Dealer or such officer or director
may become subject, under the 1933 Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact, required to be stated therein or necessary to make the
statements therein not misleading, contained in the
Prospectus or any amendment thereof provided by Golden
American or by the Distributor.
3. Broker/Dealer agrees to indemnify and hold harmless Golden
American and Distributor and each of their current and
former directors and officers and each person if any, who
controls or has controlled Golden American or Distributor
within the meaning of the 1933 Act or the 1934 Act, against
any losses, claims or damages or liabilities to which Golden
American or Distributor and any such director or officer or
controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon:
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a. Any verbal or written misrepresentations or any
unlawful sales practices concerning Annuity Contracts
by Broker/Dealer;
b. Claims by agents or representatives or employees of
Broker/Dealer for commissions, service fees,
development allowances or other compensation or
remuneration of any type; or
c. The failure of Broker/Dealer, its officers, employees,
or agents to comply with the provisions of this
Agreement.
Broker/Dealer will reimburse Golden American and
Distributor and any director or officer or controlling
person of either for any legal or other expenses
reasonably incurred by Golden American, Distributor, or
such director officer or controlling person in
connection with investigating or defending any such
loss, claims, damage liability or action. This
indemnity agreement will be in addition to any
liability which Broker/Dealer may otherwise have.
H. ASSIGNABILITY
This Agreement shall not be assigned by either party without
the written consent of the other, and any assignment without
such written consent shall be void.
I. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
Attest: DIRECTED SERVICES, INC.
____________________ ______________________________
Attest: BROKER/DEALER
____________________ ______________________________
Secretary President
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