Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares. 2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports: (a) the Company’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company. 2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. 2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners
Appears in 9 contracts
Samples: Fund Participation Agreement (Minnesota Life Individual Variable Universal Life Account), Fund Participation Agreement (Variable Annuity Account), Fund Participation Agreement (Minnesota Life Individual Variable Universal Life Account)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”)), if any;
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter.
2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners
Appears in 4 contracts
Samples: Fund Participation Agreement (First MetLife Investors Variable Annuity Account One), Fund Participation Agreement (Metropolitan Life Separate Account E), Fund Participation Agreement (Metropolitan Life Separate Account E)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “'s "prospectus” " shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s 's expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s 's proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL ("Fund Parties") or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. The Company shall furnish, or shall cause to be furnished, to the Fund or its designee, each piece of sales sates literature or other promotional material in which the Fund, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “"Company Materials”"), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“"Updated Company Materials”") unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its its. designee so objects. The requirement to furnish sales literature and promotional materials under this provision shall not include literature or materials that simply list one or more of the underlying fund names, logo or underlying fund performance.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, practical to the Fund or its designee copies of the following reports:
(a) the Company’s 's annual financial statements report (prepared under generally accepted accounting principles s (“GAAP”))"GMP", if any);
(b) the Company’s 's quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-Fund sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, as1 and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in good faith.
(a) The Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund’s sole discretion) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the "Related Agreements") as it may reasonably request (including, without limitation, periodic certifications confirming the Company's provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law.
2.12 (b) The Underwriter Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designeedesignee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, shall a party will provide the Company with as many printed copies of historical records relating to transactions between the Fund’s current shareholder report as Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party's or parties' performance or perform general customer supervision. The Company may reasonably request. If requested shalt also maintain and preserve all records which would enable the Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund shall also provide an electronic copy containing or its designee. Upon reasonable request, the Fund’s shareholder reportsCompany agrees to make these records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such other assistance as is reasonably necessary due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report ("SSAE 16") and its Financial Intermediary Controls and Compliance Assessment.
(e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company's performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit and Fund or its designee will perform the audit in order a manner that minimizes, to the extent possible, the number of Company’s personnel and the Company's resources utilized for the audit. The Company twice each year is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require.
(once for f) Nothing in this Agreement will impose upon the Fund’s semi-annual report Fund or its designee the obligation to review the Company's practices, procedures and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerscontrols.
Appears in 2 contracts
Samples: Fund Participation Agreement (Principal Life Insurance Co Separate Account B), Fund Participation Agreement (Principal Life Insurance Co Separate Account B)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the The Underwriter or its designee shall promptly provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company or its delegate (suitable for duplication by the Company or its delegate at the Company’s expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company or its delegate free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL (“Fund Parties”) or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen xxx Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen xxx Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen xxx Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements report (prepared under generally accepted statutory accounting principles (“GAAP”)), if anyprinciples;
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company or its delegate shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company or its delegate shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 (a) The Underwriter Company or its designeedelegate will furnish the Fund or its designee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as many printed well as any other reports or filings that may be required by law.
(b) The Company or its delegate and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the FundFund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s current shareholder report as or parties’ performance or perform general customer supervision. The Company and its delegate shall also maintain and preserve all records which would enable the Company may reasonably request. If requested Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund shall also provide an electronic copy containing or its designee. Upon reasonable request, the Fund’s shareholder reportsCompany agrees that it or its delegate will make these records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and such other assistance as is reasonably necessary in order for the Company twice each or its delegate shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company or its delegate shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”).
(e) The Company and its delegate shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company or its delegate with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company and its delegate shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its delegate or its systems during the audit. The Company or its delegate is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company or its delegate may require.
(once for f) Nothing in this Agreement will impose upon the FundFund or its designee the obligation to review the Company’s semi-annual report or its delegate’s practices, procedures and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerscontrols.
Appears in 2 contracts
Samples: Fund Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4), Fund Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the The Underwriter or its designee shall promptly provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company or its delegate (suitable for duplication by the Company or its delegate at the Company’s expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company or its delegate free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL (“Fund Parties”) or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements report (prepared under generally accepted statutory accounting principles (“GAAP”)), if anyprinciples;
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company or its delegate shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company or its delegate shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 (a) The Underwriter Company or its designeedelegate will furnish the Fund or its designee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as many printed well as any other reports or filings that may be required by law.
(b) The Company or its delegate and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the FundFund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s current shareholder report as or parties’ performance or perform general customer supervision. The Company and its delegate shall also maintain and preserve all records which would enable the Company may reasonably request. If requested Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund shall also provide an electronic copy containing or its designee. Upon reasonable request, the Fund’s shareholder reportsCompany agrees that it or its delegate will make these records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and such other assistance as is reasonably necessary in order for the Company twice each shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”) and its Financial Intermediary Controls and Compliance Assessment.
(e) The Company and its delegate shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company or its delegate with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company and its delegate shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its delegate or its systems during the audit. The Company or its delegate is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company or its delegate may require.
(once for f) Nothing in this Agreement will impose upon the FundFund or its designee the obligation to review the Company’s semi-annual report or its delegate’s practices, procedures and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerscontrols.
Appears in 2 contracts
Samples: Fund Participation Agreement, Fund Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4)
Obligations of the Parties. 2.1 The Fund Trust shall prepare and be responsible for filing with the SEC Securities and Exchange Commission and any state securities sate regulators requiring such filing, filing all shareholder reports, notices, proxy materials (or similar materials such as voting instruction instructions solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filedTrust. The Fund Trust shall bear the costs of registration and qualification of its Sharesshares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Sharesshares.
2.2 At least annuallythe option of the Company, the Underwriter Trust shall either (a) provide the Company (at the Company’s expense) with as many copies of the Trust’s Shares’ current prospectus, annual report, semi-annual report and other shareholder communications, including any amendments or its designee supplements to any of the foregoing, as the Company shall reasonably request; or (b) provide the Company with a camera ready copy or PDF format, font embedded or zipped postscript file, of such documents in a form suitable for printing. The Trust shall provide the Company with a PDF copy the Shares’ statement of the current prospectus of the applicable Portfolio(s) additional information in a form suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Company. The Underwriter or Trust (at its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee expense) shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) Trust-sponsored proxy materials in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) require for distribution to Existing Contract Owners, where applicableowners. The Underwriter or its designee Trust will pay provide these documents within a reasonable period of time so that the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. Company can distribute them to contract owners in a timely manner.
(a) The Company will shall bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”)the Trust’s Shares’ prospectus, the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information, shareholder reports and other shareholder communications to owners of and applicants for policies for which Shares of the Trust are serving or are to serve as an investment vehicle. The Company shall bear the costs of distributing proxy materials (or similar materials such as voting solicitation instructions) to Contract owners. The Company assumes sole responsibility for ensuring that such materials are delivered to Contract owners in accordance with applicable federal and state securities laws. The Trust or its adviser shall bear all the expenses associated with supplements to the prospectus that correct any errors or omissions made by the Trust within the prospectus.
2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to (b) If the Company (suitable for duplication elects to include any materials provided by the Trust, specifically prospectuses, SAIs, shareholder reports and proxy materials, on its web site or in any other computer or electronic format, the Company at assumes sole responsibility for maintaining such materials in the Company’s expense) form provided by the Trust and for distribution at promptly replacing such materials with all updates provided by the Company’s expense to any Existing Contract Owner or Prospective Purchaser.Trust
2.4 The Underwriter or its designee shall provide Company agrees and acknowledges that the Company free of charge copies Trust’s adviser, Janus Capital Corporation (or a PDF if requested by the Company“Janus Capital”), if is the sole owner of the name and xxxx “Xxxxx” and that all use of any designation comprised in whole or part of Janus (a “Xxxxx Xxxx”) under this Agreement shall inure to the extent applicable to the Sharesbenefit of Janus Capital. Except as provided in Section 2.5, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution not use any Xxxxx Xxxx on its own behalf or on behalf of the Accounts or Contracts in any registration statement, advertisement, sales literature or other materials relating to Existing Contract Ownersthe Accounts or Contracts without the prior written consent of Janus Capital. The Underwriter All references contained in this Agreement to “the name or its designee will pay xxxx ‘Xxxxx’” shall include but not be limited to the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”)Janus logo, the Underwriter or its designee will pay a pro rata portion of the printing website xxx.xxxxx.xxx and distribution costs based on the number of pages of the Combined Report that is attributable any and all electronic links relating to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 website. The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion make no use of the Underwriter name or its designee xxxx “Xxxxx” except as expressly provided in this agreement or expressly authorized by Janus Capital in writing. All goodwill associated with the name and xxxx “Xxxxx” shall inure to enable the Underwriter or its designee to verify the printing and distribution costs benefit of Janus Capital. Upon termination of this Agreement for which any reason, the Company requests reimbursement in respect shall cease any and all use of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industryXxxxx Xxxx(s).
2.6 (a) The Company shall furnish, or cause to be furnished, to the Fund Trust or its designee, a copy of language that would be used in any each Contract prospectus or statement of additional information for the Contracts in which the name, logos, trademarks Trust or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days its investment adviser is named prior to the filing of such document with the SECSecurities and Exchange Commission. The Company shall furnish, or shall cause to be furnished, to the Fund Trust or its designee, each piece of sales literature or other promotional material in which any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”)Trust or its investment adviser is named, at least fifteen ten Business Days prior to its use. No Company Materials such material shall be used if any of the Fund Parties Trust or its designee reasonably objects to such use within fifteen ten Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, No review of sales literature or cause to be furnished, to the Fund or its designee (i) materials for internal use only other promotional material produced by the Company shall be necessary if all references contained in connection with performing its obligations under this Agreement such materials regarding Trust are identical to those references that appear in Trust’s current prospectus (or any Related Agreement (as hereinafter definedprospectuses) or which include the names statement of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objectsadditional information.
2.7 At the reasonable request of the Fund or its designee, the Company (b) The Trust shall furnish, or shall cause to be furnished, as soon as practical, to the Fund Company or its designee, each piece of sales literature or other promotional material in which the Company is named, at least ten Business Days prior to its use. No such material shall be used if the Company or its designee copies reasonably objects to such use within ten Business Days after receipt of such material. No review of sales literature or other promotional material produced by the following reports:
(a) the Trust shall be necessary if all references contained in such materials regarding Company are identical to those references that appear in Company’s annual financial statements prospectus (prepared under generally accepted accounting principles (“GAAP”)), if any;
(bor prospectuses) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report statement of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulatoradditional information.
2.8 Notwithstanding anything to the contrary in this Agreement, the 2.6 The Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter Trust or concerning the Fund, the Underwriter Trust or BAL its investment adviser in connection with the sale of the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus prospectus for the SharesTrust Shares (as such registration statement and prospectus may be amended or supplemented from time to time), reports of the FundTrust, FundTrust-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund Trust or Underwriter (as such documents may be amended or supplemented from time to time)its designee, except as required by legal process or regulatory authorities or with the written permission of the Fund Trust or Underwriterits designee.
2.9 Neither the Fund nor the Underwriter 2.7 The Trust shall not give any information or make any ay representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements statement or Contract prospectuses prospectus for the Contracts (as such registration statements or Contract prospectuses statement and prospectus may by be amended or supplemented from time to time), or in materials approved by the Company for distribution including sales literature or other promotional materials, except as required by legal process or regulatory authorities or with the written permission of the Company.
2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so 2.8 So long as, and to the extent that the SEC Securities and Exchange Commission interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) variable policyowners, the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of policies whose cash values are invested, through the Shares Accounts, in shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund Trust. The Trust shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with Trust. With respect to each Account, the Company will vote Shares shares of the Fund Trust held by the Account and for which no timely voting instructions from Existing Contract Owners policyowners are received, received as well as Shares it owns that are held by the Account that are owned by the Company for its general accountsAccount, in the same proportion as the Company votes those Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the received. The Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares Trust shares held by Existing Contract Owners owners without the prior written consent of the FundTrust, which consent may be withheld in the FundTrust’s sole discretion.
2.12 . The Underwriter or Trust will use its designee, shall best efforts to provide the Company with as many printed copies reasonable advance notice of proxy solicitations and prospectus supplements.
2.9 The Company shall notify the Trust of any applicable state insurance laws that restrict the Portfolios’ investments or otherwise affect the operation of the Fund’s current shareholder report as Trust and shall notify the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and Trust of any changes in such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerslaws.
Appears in 2 contracts
Samples: Fund Participation Agreement (Massachusetts Mutual Variable Life Separate Account I), Fund Participation Agreement (Massachusetts Mutual Variable Life Separate Account I)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “'s "prospectus” " shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s 's expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s 's proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL ("Fund Parties") or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “"Company Materials”"), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“"Updated Company Materials”") unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. , No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s 's annual financial statements report (prepared under generally accepted accounting principles (“"GAAP”))", if any);
(b) the Company’s 's quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s 's sole discretion.
2.12 (a) The Underwriter Company will furnish the Fund or its designeedesignee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the "Related Agreements") as it may reasonably request (including, without limitation, periodic certifications confirming the Company's provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and /or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as many printed well as any other reports or filings that may be required by law.
(b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the Fund’s current shareholder report as Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party's or parties' performance or perform general customer supervision. The Company may reasonably request. If requested shall also maintain and preserve all records which would enable the Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund shall also provide an electronic copy containing or its designee. Upon reasonable request, the Fund’s shareholder reportsCompany agrees to make these records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and such other assistance as is reasonably necessary in order for the Company twice each shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report ("SSAE 16") and its Financial Intermediary Controls and Compliance Assessment.
(e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company's performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity of the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require.
(once for f) Nothing in this Agreement will impose upon the Fund’s semi-annual report Fund or its designee the obligation to review the Company's practices, procedures and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerscontrols.
Appears in 2 contracts
Samples: Fund Participation Agreement (Horace Mann Life Insurance Co Separate Account), Fund Participation and Service Agreement (Horace Mann Life Insurance Co Separate Account)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above Underwriter or its designee to verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any printing expenses. If the Company prints such documents, Company agrees that any printer its selects shall be a reputable printer with respect to Existing Contract Owners and will not pay any costs a recognized specialty in connection with printing or distributing such materials to Prospective Purchasersfinancial services printing. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide shall not make any representations regarding the Fund, the Underwriter or BAL (“Fund Parties”) or any Portfolio or its designee with supporting documentation which is sufficient shares except those contained in the reasonable opinion Fund’s then current prospectus or statement of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Ownersadditional information. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL Fund Parties or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the initial filing of such document with the SECSEC (“Registration Materials”). The Company need not furnish, or cause to be furnished, to the Fund or its designee revisions to Registration Materials previously approved by the Fund or its designee (“Updated Registration Materials”) unless the Registration Materials have been materially changed. The Fund or its designee also reserves the right to review Registration Materials and Updated Registration Materials at any time upon request made by the Fund or its designee to the Company. 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, any of Portfolio, the Marks are used (such materials together Underwriter, or BAL or any entity with Contract prospectuses and statements of additional information, BlackRock in its name is named ( “Company Marketing Materials”), at least fifteen ten Business Days prior to its first use. No Company Marketing Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen five Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Marketing Materials previously approved by the Fund or its designee (“Updated Company Marketing Materials”) unless the Company Registration or Marketing Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Marketing Materials and Updated Company Marketing Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Marketing Materials or Updated Company Marketing Materials. No Company Marketing Materials or Updated Company Marketing Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reportsreports to assist the Fund or its designee in performing on-going due diligence:
(a) the Company’s annual financial statements report (prepared under generally accepted accounting principles (“GAAP”)), if any);
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator; and
(e) any other such documentation as the Fund or its designee may reasonably request.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 (a) The Underwriter Company will furnish the Fund or its designeedesignee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as many printed well as any other reports or filings that may be required by law.
(b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the FundFund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s current shareholder report as or parties’ performance or perform general customer supervision. The Company shall also maintain and preserve all records which would enable the Company may reasonably request. If requested Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund shall also provide an electronic copy containing or its designee. Upon reasonable request, the Fund’s shareholder reportsCompany agrees to make these records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and such other assistance as is reasonably necessary in order for the Company twice shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee (i) a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”) and/or a Financial Intermediary Controls and Compliance Assessment (“XXXXX”) or any successor report that is substantially similar, each issued by a recognized independent public accounting firm selected by the Company or (ii) certification that the Company’s obligations under this Agreement are being met.
(e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require.
(once for f) Nothing in this Agreement will impose upon the FundFund or its designee the obligation to review the Company’s semi-annual report practices, procedures and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerscontrols.
Appears in 1 contract
Samples: Fund Participation Agreement (MEMBERS Horizon Variable Separate Account)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”)), if any;
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter.
2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownersthe
Appears in 1 contract
Samples: Fund Participation Agreement (Aul American Individual Variable Life Unit Trust)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund (“Shareholder Communications”) required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay shall provide the Company’s usual, customary free of charge, with as many copies of the current statutory prospectus (describing only the Portfolios listed in Schedule B hereto) and reasonable costs other Shareholder Communications for printing and distributing prospectuses the Shares as the Company may reasonably request for Existing distribution to existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasersowners whose Contracts are funded by such Shares. The Underwriter or its designee shall provide the Company free of charge with as many copies of any supplement to the current prospectus of Shareholder Communications for the relevant Portfolio(s) in such quantity Shares as the Company shall may reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination require with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, expenses to be borne by the Companyin accordance with Schedule D hereof. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs expenses for which the Company requests reimbursement in respect of Existing Contract Ownersreimbursement. The Company agrees to use its best efforts to minimize any printing and distribution costsexpenses. If the Company prints such documents, Company agrees that any printer it its selects shall be a reputable printer within the industry. Notwithstanding the above, the Company is not obligated to distribute any Shareholder Communication, except as required by law. If requested by the Company in lieu thereof, the Underwriter or its designee shall provide such documentation (including a soft copy of the new prospectus as set in type or, at the request of the Company, a diskette in the form sent to the financial printer, a print-ready PDF, or an electronic copy of the documents in a format suitable for printing and posting on the Company’s website) and other assistance as is reasonably necessary in order for the Company to have Shareholder Communications of different registered investment companies printed together in a single document or posted on the Company’s web-site or printed individually by the Company if it so chooses, with expenses to be borne in accordance with Schedule D hereof. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Fund or its designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company) for distribution to any owner of a Contract funded by the Shares or to a prospective purchaser who requests such statement. The prospectus for the Shares shall state that the statement of additional information for the Shares is available from the Fund or its designee.
2.4 The Fund shall provide the Company with information regarding the Fund’s expenses, which information may include a table of fees and related narrative disclosure, for use in any prospectus or other descriptive document relating to a Contract.
2.5 The Underwriter or its designee shall provide the Company free of charge copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders in such quantity as the Company shall reasonably request for distribution to Contract owners. The Company will distribute this proxy material, reports, and other communications to existing Contract owners.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL (“Fund Parties”) or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen eight Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies one copy of the following reports:
(a) the Company’s annual financial statements report (prepared under generally accepted accounting principles (“GAAP”)), if any);
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, statement notice or report of the Company sent to policyholders; andtoContract owners invested in Portfolio Shares;
(d) any registration statement (without exhibits) exhibits)and financial reports and annual and quarterly financial reports of the Company filed with the SEC relating to Contracts with assets invested in Portfolio Shares; and
(e) all registration statements, prospectuses, statement of additional information, reports, financial statement, proxy statements, sales literature and other promotional materials, applications for exemptions, requests for no-action letters, and all amendments of any state insurance regulator.of the above, that relate to the Fund or Fund Shares, within a reasonable time after filing such document with the SEC or FINRA
2.8 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter. The Fund agrees to respond to any request for approval on a prompt and timely basis.
2.9 Upon request, the Fund or its designee will furnish, or will cause to be furnished, to the Company or its designees, each piece of sales literature or other promotional material for distribution. No party shall use any other party’s names, logos, trademarks or service marks, whether registered or unregistered, without the prior written consent of such party. Notwithstanding the foregoing, the Company may use the Fund’s and Portfolios’ names and logos for the limited purpose of including them among a list of fund options available in the Contracts and Accounts. Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 The Fund will provide the Company shall register with as much notice as is reasonably practicable of any proxy solicitation for any Portfolio, and qualify of any material change in the Contracts for sale Fund’s registration statement, particularly any change resulting in a change to the extent required by applicable securities laws and insurance laws registration statement or prospectus or statement of additional information for any Account. The Fund will cooperate with the various states. Company so as to enable the Company to solicit proxies from Contract owners or to make changes to its prospectus, statement of additional information or registration statement, in an orderly manner.
2.11 The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulationsApplicable Law. (All applicable laws, rules and regulations including, without limitation, and the rules and regulations of any regulatory or self-regulatory authority organization with jurisdiction over a party are collectively referred to herein as “Applicable Law”. .) The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various statesApplicable Law.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.12 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 (a) The Underwriter Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law.
(b) Each party and its employees will, upon reasonable request, be available during normal business hours to consult with the non-requesting party or its designee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s or parties’ performance or perform general customer supervision.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”) and its Financial Intermediary Controls and Compliance Assessment.
(e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity or the Fund or its designee, shall provide and the Company with as many printed copies of the Fund’s current shareholder report audit will be subject to such reasonable security and confidentiality measures as the Company may reasonably request. If requested by require.
(f) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, procedures and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerscontrols.
Appears in 1 contract
Samples: Fund Participation Agreement (Thrivent Variable Annuity Account I)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL (“Fund Parties”) or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements report (prepared under generally accepted accounting principles (“GAAP”)), if any);
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 2.11 (a) The Underwriter Company will furnish the Fund or its designeedesignee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company with for the Fund (the “Related Agreements”) as many printed copies of the Fund’s current shareholder report as the Company it may reasonably request. If requested by request (including, without limitation, periodic certifications confirming the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once provision of services for the Fund’s semi-annual report ) and once for will cooperate with the Fund’s annual report) to distribute Fund or its designee in connection with the preparation of reports to Existing Contract Ownersthe Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law.
Appears in 1 contract
Samples: Fund Participation Agreement (Jefferson National Life of New York Annuity Account 1)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, at the expense of the Underwriter or its designee, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “"Existing Contract Owners”") and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing prospectuses for Existing Contract Owners, and the Underwriter or its designee will pay the Company's usual, customary and reasonable costs for printing and of distributing the prospectuses for to Existing Contract Owners. The Company will bear At the costs expense of printing and distributing prospectuses for Prospective Purchasers. The the Underwriter or its designee, the Underwriter or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) of any supplement to the current prospectus of the applicable Portfolio(s) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “"Combined Prospectus/Supplement”"), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(esPortfolio(s)'prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective PurchasersContract Owners whose Contracts are not funded by Shares of Portfolio(s) or prospective purchasers of Contracts. The Company may use such PDF described above to assist will provide the Underwriter or its designee with supporting documentation which is sufficient in the updating of any of its Contract prospectuses or related materials in order to have the prospectuses reasonable opinion of the Portfolios conform Underwriter or its designee to enable the Company’s Underwriter or its designee to verify the printing and distribution expenses for which the Company requests reimbursement in respect of Existing Contract prospectuses or related materialsOwners. The Company agrees to use its best efforts to minimize any printing and distribution expenses. If the Company prints such documents, with Company agrees that any printer it selects shall be a reputable printer within the industry. The Company will bear the costs of such updating, including printing, to be borne by the Companyprinting and distributing prospectuses for prospective purchasers of Contracts. For purposes of this Section 2.2 only, references to a Portfolio’s “'s "prospectus” " shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s 's expense) for distribution at the Company’s 's expense to any Existing Contract Owner or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s 's reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “"Reports”") for distribution to Existing Contract Owners (in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The request).The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable costs of printing and distributing Reports for to Existing Contract Owners. Owners If a Report is printed in combination with such documents of other fund families (a “"Combined Report”"), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s 's Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 Contract Owners whose Contracts are not funded by Shares of Portfolio(s) or prospective purchasers of Contracts. The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs expenses for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costsexpenses. If the Company prints such documents, Company agrees that any printer it its selects shall be a reputable printer within the industry.
2.6 2.5 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “"Marks”") are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “"Company Materials”"), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“"Updated Company Materials”") unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s 's annual financial statements (prepared under generally accepted accounting principles (“"GAAP”)"), if any;
; (b) the Company’s 's quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter.
2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners
Appears in 1 contract
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses, including summary prospectuses if available, and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer it selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”)), if any;
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter.
2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners
Appears in 1 contract
Samples: Fund Participation Agreement (Pruco Life Inurance Co of New Jersey FLXBL Prmium Var Ann Ac)
Obligations of the Parties. 2.1 The Fund Trust shall prepare and be responsible for filing with the SEC Securities and Exchange Commission and any state securities sate regulators requiring such filing, filing all shareholder reports, notices, proxy materials (or similar materials such as voting instruction instructions solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filedTrust. The Fund Trust shall bear the costs of registration and qualification of its Sharesshares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Sharesshares.
2.2 At least annuallythe option of the Company, the Underwriter Trust shall either (a) provide the Company (at the Company’s expense) with as many copies of the Trust’s Shares’ current prospectus, annual report, semi-annual report and other shareholder communications, including any amendments or its designee supplements to any of the foregoing, as the Company shall reasonably request; or (b) provide the Company with a camera ready copy or PDF format, font embedded or zipped postscript file, of such documents in a form suitable for printing. The Trust shall provide the Company with a PDF copy the Shares’ statement of the current prospectus of the applicable Portfolio(s) additional information in a form suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Company. The Underwriter or Trust (at its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee expense) shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) Trust-sponsored proxy materials in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) require for distribution to Existing Contract Owners, where applicableowners. The Underwriter or its designee Trust will pay provide these documents within a reasonable period of time so that the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. Company can distribute them to contract owners in a timely manner.
(a) The Company will shall bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”)the Trust’s Shares’ prospectus, the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information, shareholder reports and other shareholder communications to owners of and applicants for policies for which Shares of the Trust are serving or are to serve as an investment vehicle. The Company shall bear the costs of distributing proxy materials (or similar materials such as voting solicitation instructions) to Contract owners. The Company assumes sole responsibility for ensuring that such materials are delivered to Contract owners in accordance with applicable federal and state securities laws. The Trust or its adviser shall bear all the expenses associated with supplements to the prospectus that correct any errors or omissions made by the Trust within the prospectus.
2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to (b) If the Company (suitable for duplication elects to include any materials provided by the Trust, specifically prospectuses, SAIs, shareholder reports and proxy materials, on its web site or in any other computer or electronic format, the Company at assumes sole responsibility for maintaining such materials in the Company’s expense) form provided by the Trust and for distribution at promptly replacing such materials with all updates provided by the Company’s expense to any Existing Contract Owner or Prospective Purchaser.Trust
2.4 The Underwriter or its designee shall provide Company agrees and acknowledges that the Company free of charge copies Trust’s adviser, Janus Capital Corporation (or a PDF if requested by the Company“Janus Capital”), if is the sole owner of the name and xxxx “Xxxxx” and that all use of any designation comprised in whole or part of Janus (a “Xxxxx Xxxx”) under this Agreement shall inure to the extent applicable to the Sharesbenefit of Janus Capital. Except as provided in Section 2.5, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution not use any Xxxxx Xxxx on its own behalf or on behalf of the Accounts or Contracts in any registration statement, advertisement, sales literature or other materials relating to Existing Contract Ownersthe Accounts or Contracts without the prior written consent of Janus Capital. The Underwriter All references contained in this Agreement to “the name or its designee will pay xxxx ‘Xxxxx’” shall include but not be limited to the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”)Janus logo, the Underwriter or its designee will pay a pro rata portion of the printing website xxx.xxxxx.xxx and distribution costs based on the number of pages of the Combined Report that is attributable any and all electronic links relating to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 website. The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion make no use of the Underwriter name or its designee xxxx “Xxxxx” except as expressly provided in this agreement or expressly authorized by Janus Capital in writing. All goodwill associated with the name and xxxx “Xxxxx” shall inure to enable the Underwriter or its designee to verify the printing and distribution costs benefit of Janus Capital. Upon termination of this Agreement for which any reason, the Company requests reimbursement in respect shall cease any and all use of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industryXxxxx Xxxx(s).
2.6 (a) The Company shall furnish, or cause to be furnished, to the Fund Trust or its designee, a copy of language that would be used in any each Contract prospectus or statement of additional information for the Contracts in which the name, logos, trademarks Trust or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days its investment adviser is named prior to the filing of such document with the SECSecurities and Exchange Commission. The Company shall furnish, or shall cause to be furnished, to the Fund Trust or its designee, each piece of sales literature or other promotional material in which any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”)Trust or its investment adviser is named, at least fifteen ten Business Days prior to its use. No Company Materials such material shall be used if any of the Fund Parties Trust or its designee reasonably objects to such use within fifteen ten Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, No review of sales literature or cause to be furnished, to the Fund or its designee (i) materials for internal use only other promotional material produced by the Company shall be necessary if all references contained in connection with performing its obligations under this Agreement such materials regarding Trust are identical to those references that appear in Trust’s current prospectus (or any Related Agreement (as hereinafter definedprospectuses) or which include the names statement of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objectsadditional information.
2.7 At the reasonable request of the Fund or its designee, the Company (b) The Trust shall furnish, or shall cause to be furnished, as soon as practical, to the Fund Company or its designee, each piece of sales literature or other promotional material in which the Company is named, at least ten Business Days prior to its use. No such material shall be used if the Company or its designee copies reasonably objects to such use within ten Business Days after receipt of such material. No review of sales literature or other promotional material produced by the following reports:
(a) the Trust shall be necessary if all references contained in such materials regarding Company are identical to those references that appear in Company’s annual financial statements prospectus (prepared under generally accepted accounting principles (“GAAP”)), if any;
(bor prospectuses) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report statement of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulatoradditional information.
2.8 Notwithstanding anything to the contrary in this Agreement, the 2.6 The Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter Trust or concerning the Fund, the Underwriter Trust or BAL its investment adviser in connection with the sale of the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus prospectus for the SharesTrust Shares (as such registration statement and prospectus may be amended or supplemented from time to time), reports of the FundTrust, FundTrust-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund Trust or Underwriter (as such documents may be amended or supplemented from time to time)its designee, except as required by legal process or regulatory authorities or with the written permission of the Fund Trust or Underwriterits designee.
2.9 Neither the Fund nor the Underwriter 2.7 The Trust shall not give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements statement or Contract prospectuses prospectus for the Contracts (as such registration statements or Contract prospectuses statement and prospectus may by be amended or supplemented from time to time), or in materials approved by the Company for distribution including sales literature or other promotional materials, except as required by legal process or regulatory authorities or with the written permission of the Company.
2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so 2.8 So long as, and to the extent that the SEC Securities and Exchange Commission interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) variable policyowners, the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of policies whose cash values are invested, through the Shares Accounts, in shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund Trust. The Trust shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with Trust. With respect to each Account, the Company will vote Shares shares of the Fund Trust held by the Account and for which no timely voting instructions from Existing Contract Owners policyowners are received, received as well as Shares it owns that are held by the Account that are owned by the Company for its general accountsAccount, in the same proportion as the Company votes those Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the received. The Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares Trust shares held by Existing Contract Owners owners without the prior written consent of the FundTrust, which consent may be withheld in the FundTrust’s sole discretion.
2.12 . The Underwriter or Trust will use its designee, shall best efforts to provide the Company with as many printed copies reasonable advance notice of proxy solicitations and prospectus supplements.
2.9 The Company shall notify the Trust of any applicable state insurance laws that restrict the Portfolios’ investments or otherwise affect the operation of the Fund’s current shareholder report as Trust and shall notify the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and Trust of any changes in such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerslaws.
Appears in 1 contract
Samples: Fund Participation Agreement (C M Life Variable Life Separate Account I)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter Fund or its designee shall provide the Company with a PDF of the current prospectus summary and statutory prospectuses (“Prospectuses”) of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing both statutory and summary prospectuses for Prospective Purchasers. The Underwriter Fund or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus Prospectuses of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser.
2.4 The Underwriter Fund or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other required communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter Fund or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 The Company will provide the Underwriter Fund or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter Fund or its designee to enable the Underwriter Fund or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRILDIST, BAL Cboe Vest or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, if applicable, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”))statements, if any;
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL Cboe Vest in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter.
2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter Fund or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter The Fund or its designee shall solely bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materialsmaterials and tabulating proxy voting instructions, soliciting including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 (a) The Underwriter Company will furnish the Fund or its designeedesignee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as many printed well as any other reports or filings that may be required by law, including at the request of a regulatory or self-regulatory authority (including, without limitation, the SEC, FINRA and state insurance regulators).
(b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records, including without limitation, copies of historical records relating to the Fund’s current shareholder report as transactions effected pursuant to this Agreement. Without limiting the generality of the foregoing, the Company may reasonably request. If requested shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided and fees charged by the Company, compliance with the terms of the Agreement, and the internal controls over services provided by the Company as well as written communications regarding the Fund shall also provide an electronic copy containing to or from the Fund’s shareholder reportsExisting Contract Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe.
(e) The Company shall provide the Fund or its designee with periodic certifications relating to its compliance with the terms of this Agreement and the Related Agreements, and will respond to periodic due diligence questionnaires as agreed to by the Company and the Fund from time to time.
(f) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls.
(a) The Company and Fund each represents and warrants that, to the best of its knowledge, the various procedures and systems which the Company or Fund have implemented with regard to safeguarding its records, data, equipment, facilities and other assistance property used in the performance of its obligations hereunder or under the Related Agreements from loss or damage attributable to fire, theft, cyber security threat or any other cause are adequate, and the Company and Fund will make such changes therein from time to time as is reasonably necessary in order its reasonable judgment are required for the secure performance of the Company’s obligations hereunder. The parties shall review such systems and procedures on a periodic basis, and may from time to time specify the types of records to be safeguarded in accordance with this Section 2.13, provided that such request is not unreasonable.
(b) The Company twice each year (once and Fund shall maintain a commercially reasonable disaster recovery plan that meets commercially reasonable standards for systems backup and will provide a copy of its then-current plan to the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract OwnersFund or its designee upon its request.
Appears in 1 contract
Samples: Fund Participation Agreement (Guardian Separate Account R)
Obligations of the Parties. 2.1 The Fund Trust shall prepare and be responsible for filing with the SEC Securities and Exchange Commission and any state securities sate regulators requiring such filing, filing all shareholder reports, notices, proxy materials (or similar materials such as voting instruction instructions solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filedTrust. The Fund Trust shall bear the costs of registration and qualification of its Sharesshares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Sharesshares.
2.2 At least annuallythe option of the Company, the Underwriter Trust shall either (a) provide the Company (at the Company’s expense) with as many copies of the Trust’s Shares’ current prospectus, annual report, semi-annual report and other shareholder communications, including any amendments or its designee supplements to any of the foregoing, as the Company shall reasonably request; or (b) provide the Company with a camera ready copy or PDF format, font embedded or zipped postscript file, of such documents in a form suitable for printing. The Trust shall provide the Company with a PDF copy the Shares’ statement of the current prospectus of the applicable Portfolio(s) additional information in a form suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Company. The Underwriter or Trust (at its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee expense) shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) Trust-sponsored proxy materials in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) require for distribution to Existing Contract Owners, where applicableowners. The Underwriter or its designee Trust will pay provide these documents within a reasonable period of time so that the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. Company can distribute them to contract owners in a timely manner.
(a) The Company will shall bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”)the Trust’s Shares’ prospectus, the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information, shareholder reports and other shareholder communications to owners of and applicants for policies for which Shares of the Trust are serving or are to serve as an investment vehicle. The Company shall bear the costs of distributing proxy materials (or similar materials such as voting solicitation instructions) to Contract owners. The Company assumes sole responsibility for ensuring that such materials are delivered to Contract owners in accordance with applicable federal and state securities laws. The Trust or its adviser shall bear all the expenses associated with supplements to the prospectus that correct any errors or omissions made by the Trust within the prospectus.
2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to (b) If the Company (suitable for duplication elects to include any materials provided by the Trust, specifically prospectuses, SAIs, shareholder reports and proxy materials, on its web site or in any other computer or electronic format, the Company at assumes sole responsibility for maintaining such materials in the Company’s expense) form provided by the Trust and for distribution at promptly replacing such materials with all updates provided by the Company’s expense to any Existing Contract Owner or Prospective Purchaser.Trust
2.4 The Underwriter or its designee shall provide Company agrees and acknowledges that the Company free of charge copies Trust’s adviser, Janus Capital Corporation (or a PDF if requested by the Company“Janus Capital”), if is the sole owner of the name and mark “Janus” and that all use of any designation comprised in whole or part of Janus (a “Xxxxx Xxxx”) under this Agreement shall inure to the extent applicable to the Sharesbenefit of Janus Capital. Except as provided in Section 2.5, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution not use any Xxxxx Xxxx on its own behalf or on behalf of the Accounts or Contracts in any registration statement, advertisement, sales literature or other materials relating to Existing Contract Ownersthe Accounts or Contracts without the prior written consent of Janus Capital. The Underwriter All references contained in this Agreement to “the name or its designee will pay mark ‘Janus’” shall include but not be limited to the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”)Janus logo, the Underwriter or its designee will pay a pro rata portion of the printing website xxx.xxxxx.xxx and distribution costs based on the number of pages of the Combined Report that is attributable any and all electronic links relating to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers.
2.5 website. The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion make no use of the Underwriter name or its designee mark “Janus” except as expressly provided in this agreement or expressly authorized by Janus Capital in writing. All goodwill associated with the name and mark “Xxxxx” shall inure to enable the Underwriter or its designee to verify the printing and distribution costs benefit of Janus Capital. Upon termination of this Agreement for which any reason, the Company requests reimbursement in respect shall cease any and all use of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industryXxxxx Xxxx(s).
2.6 (a) The Company shall furnish, or cause to be furnished, to the Fund Trust or its designee, a copy of language that would be used in any each Contract prospectus or statement of additional information for the Contracts in which the name, logos, trademarks Trust or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days its investment adviser is named prior to the filing of such document with the SECSecurities and Exchange Commission. The Company shall furnish, or shall cause to be furnished, to the Fund Trust or its designee, each piece of sales literature or other promotional material in which any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”)Trust or its investment adviser is named, at least fifteen ten Business Days prior to its use. No Company Materials such material shall be used if any of the Fund Parties Trust or its designee reasonably objects to such use within fifteen ten Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, No review of sales literature or cause to be furnished, to the Fund or its designee (i) materials for internal use only other promotional material produced by the Company shall be necessary if all references contained in connection with performing its obligations under this Agreement such materials regarding Trust are identical to those references that appear in Trust’s current prospectus (or any Related Agreement (as hereinafter definedprospectuses) or which include the names statement of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objectsadditional information.
2.7 At the reasonable request of the Fund or its designee, the Company (b) The Trust shall furnish, or shall cause to be furnished, as soon as practical, to the Fund Company or its designee, each piece of sales literature or other promotional material in which the Company is named, at least ten Business Days prior to its use. No such material shall be used if the Company or its designee copies reasonably objects to such use within ten Business Days after receipt of such material. No review of sales literature or other promotional material produced by the following reports:
(a) the Trust shall be necessary if all references contained in such materials regarding Company are identical to those references that appear in Company’s annual financial statements prospectus (prepared under generally accepted accounting principles (“GAAP”)), if any;
(bor prospectuses) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report statement of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulatoradditional information.
2.8 Notwithstanding anything to the contrary in this Agreement, the 2.6 The Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter Trust or concerning the Fund, the Underwriter Trust or BAL its investment adviser in connection with the sale of the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus prospectus for the SharesTrust Shares (as such registration statement and prospectus may be amended or supplemented from time to time), reports of the FundTrust, FundTrust-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund Trust or Underwriter (as such documents may be amended or supplemented from time to time)its designee, except as required by legal process or regulatory authorities or with the written permission of the Fund Trust or Underwriterits designee.
2.9 Neither the Fund nor the Underwriter 2.7 The Trust shall not give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements statement or Contract prospectuses prospectus for the Contracts (as such registration statements or Contract prospectuses statement and prospectus may by be amended or supplemented from time to time), or in materials approved by the Company for distribution including sales literature or other promotional materials, except as required by legal process or regulatory authorities or with the written permission of the Company.
2.10 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so 2.8 So long as, and to the extent that the SEC Securities and Exchange Commission interprets the 1940 Act to require pass-through voting privileges for Contract Owners: (a) variable policyowners, the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of policies whose cash values are invested, through the Shares Accounts, in shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund Trust. The Trust shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with Trust. With respect to each Account, the Company will vote Shares shares of the Fund Trust held by the Account and for which no timely voting instructions from Existing Contract Owners policyowners are received, received as well as Shares it owns that are held by the Account that are owned by the Company for its general accountsAccount, in the same proportion as the Company votes those Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the received. The Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares Trust shares held by Existing Contract Owners owners without the prior written consent of the FundTrust, which consent may be withheld in the FundTrust’s sole discretion.
2.12 . The Underwriter or Trust will use its designee, shall best efforts to provide the Company with as many printed copies reasonable advance notice of proxy solicitations and prospectus supplements.
2.9 The Company shall notify the Trust of any applicable state insurance laws that restrict the Portfolios’ investments or otherwise affect the operation of the Fund’s current shareholder report as Trust and shall notify the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and Trust of any changes in such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerslaws.
Appears in 1 contract
Samples: Fund Participation Agreement (C M Life Variable Life Separate Account I)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “'s "prospectus” " shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s 's expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s 's proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL ("Fund Parties") or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen ten Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “"Company Materials”"), at least fifteen ten Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen ten Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“"Updated Company Materials”") unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) : the Company’s 's annual financial statements report (prepared under generally accepted accounting principles (“"GAAP”))", if any;
(b) ); the Company’s 's quarterly statements, if any;
(c) ; any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) and any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s 's sole discretion.
2.12 (a) The Underwriter Company will furnish the Fund or its designeedesignee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement directly related to this Agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the "Related Agreements") as it may reasonably request (including, without limitation, periodic certifications confirming the Company's provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as many printed well as any other reports or filings that may be required by law.
(b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the Fund’s current shareholder report as Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party's or parties' performance or perform general customer supervision. The Company may reasonably request. If requested shall also maintain and preserve all records which would enable the Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund shall also provide an electronic copy containing or its designee. Upon reasonable request, the Fund’s shareholder reportsCompany agrees to make these records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and such other assistance as is reasonably necessary in order for the Company twice each shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report ("SSAE 16") and its Financial Intermediary Controls and Compliance Assessment.
(e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall, during normal business hours, permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company's performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require.
(once for f) Nothing in this Agreement will impose upon the Fund’s semi-annual report Fund or its designee the obligation to review the Company's practices, procedures and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerscontrols.
Appears in 1 contract
Samples: Fund Participation Agreement (Variable Annuity I Ser Acc of GRT West Li & Annu Ins Co of Ny)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners and will not pay verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any costs in connection with printing or distributing expenses. If the Company prints such materials to Prospective Purchasersdocuments, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL (“Fund Parties”) or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements report (prepared under generally accepted accounting principles (“GAAP”)), if any);
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 2.11 (a) The Underwriter Company will furnish the Fund or its designeedesignee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company with for the Fund (the “Related Agreements”) as many printed copies of the Fund’s current shareholder report as the Company it may reasonably request. If requested by request (including, without limitation, periodic certifications confirming the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once provision of services for the Fund’s semi-annual report ) and once for will cooperate with the Fund’s annual report) to distribute Fund or its designee in connection with the preparation of reports to Existing Contract Ownersthe Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law.
Appears in 1 contract
Samples: Fund Participation Agreement (National Variable Annuity Account Ii)
Obligations of the Parties. 2.1 The Fund shall prepare and be responsible for filing with the SEC and any state securities regulators requiring such filing, all shareholder reports, notices, proxy materials (or similar materials such as voting instruction solicitation materials), Prospectuses prospectuses and statements of additional information of the Fund required to be so filed. The Fund shall bear the costs of registration and qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At least annually, the The Underwriter or its designee shall promptly provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts whose cash values are invested, through the Accounts, in funded by Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing and distributing prospectuses for Existing existing Contract Ownersowners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages with supporting documentation which is sufficient in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that reasonable opinion of the Underwriter or its designee will only pay to enable the costs described above with respect Underwriter or its designee to Existing Contract Owners verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any printing expenses. If the Company prints such documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Underwriter shall reimburse the Company within 30 days, upon the Company’s request, for the Company’s costs. The Underwriter agrees to use best efforts to resolve any billing discrepancies detected by the Company and will not pay to immediately remit any costs in connection with printing or distributing such materials to Prospective Purchaserscorrective payment upon demand. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information.
2.3 The Underwriter Fund or its designee, at its expense, designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing owner of a Contract Owner funded by the Shares or Prospective Purchaserto a prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company)copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners.
2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry.
2.6 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy of language that would be used in any prospectus for the Contracts or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, the Underwriter or BAL (“Fund Parties”) or any of their respective affiliates (the “Marks”) are used Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the Marks are used Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects.
2.7 2.6 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, as soon as practical, to the Fund or its designee copies of the following reports:
(a) the Company’s annual financial statements report (prepared under generally accepted statutory accounting principles (“GAAP”)), if anyprinciples;
(b) the Company’s quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and
(d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator.
2.8 2.7 Notwithstanding anything to the contrary in this Agreement, the Company shall not give any information or make any representations or statements on behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the SharesShares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time)Underwriter, except with the written permission of the Fund or Underwriter.
2.9 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the registration statements or Contract prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time), except with the written permission of the Company.
2.10 2.9 The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various stateslaw. The Company shall amend the registration statement of the Contracts under the 1933 Act and the registration statement for each Account under the 1940 Act from time to time as required in order to effect the continuous offering of the Contracts or as may otherwise be required by applicable laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”law. The Company shall register and qualify the Contracts for sale to the extent required by applicable securities laws and insurance laws of the various states.
2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract Ownersowners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote owners of Contracts whose cash values are invested, through the Accounts, in Shares of the Fund in accordance with instructions received from the Existing Contract OwnersFund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) with respect to each Account, the Company will vote Shares of the Fund held by the Account and for which no timely voting instructions from Existing Contract Owners owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Ownersowners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion.
2.12 (a) The Underwriter Company will furnish the Fund or its designeedesignee (including, shall provide without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as many printed well as any other reports or filings that may be required by law.
(b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the FundFund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s current shareholder report as or parties’ performance or perform general customer supervision. The Company shall also maintain and preserve all records which would enable the Company may reasonably request. If requested Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund shall also provide an electronic copy containing or its designee. Upon reasonable request, the Fund’s shareholder reportsCompany agrees that it will make these records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and such other assistance as is reasonably necessary in order for the Company twice each shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”).
(e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require.
(once for f) Nothing in this Agreement will impose upon the FundFund or its designee the obligation to review the Company’s semi-annual report practices, procedures and once for the Fund’s annual report) controls.
2.12 Insurer agrees to distribute the reports promptly advise BRIL if it receives notice of any investor complaint, litigation initiated or threatened, or communication by a regulatory authority which relates to Existing Contract Ownersa Fund or to a transaction in Shares by it.
Appears in 1 contract
Samples: Fund Participation Agreement (Massachusetts Mutual Variable Life Separate Account I)
