Amendment No. 5 to Participation Agreement (Pioneer)
[Retail]
Exhibit 8(x)(2)
Amendment No. 5 to Participation Agreement (Pioneer)
1
[Retail]
AMENDMENT NO. 5 TO PARTICIPATION AGREEMENT
THIS AMENDMENT No. 5 to the Retail Fund Participation Agreement (the “Agreement”) dated March 1, 2005, by and among Transamerica Advisors Life Insurance Company of New York (the “Company”), on its own behalf and on behalf of each separate account of the Company set forth in Schedule A of the Agreement, as may be revised from time to time (a “Separate Account”) and Pioneer Funds Distributor, Inc. (“PFD”), (hereinafter the “Underwriter”) is effective as of May 1, 2013.
WHEREAS, the parties executed an amendment dated March 1, 2012, to add Confidential Information, complying with Massachusetts privacy laws that shall hereafter be referred to as Amendment Number 4 to the Participation Agreement.
WHEREAS, the parties desire to further amend the Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. A new section, numbered consecutively, is added to the Agreement as follows:
ARTICLE XII. Summary Prospectus.
Should the Fund and the Company desire to distribute the prospectuses of the funds within the Fund pursuant to Rule 498 of the Securities Act of 1933, as amended, (“Rule 498”), the roles and responsibilities of the Parties to the Agreement (the “Parties”), for complying with Rule 498 and other applicable laws, are set forth as follows:
12.1 For purposes of this Section, the terms “Summary Prospectus” and “Statutory Prospectus” shall have the same meaning as set forth in Rule 498.
12.2 The Fund shall provide, or cause to provide, the Company with copies of the Summary Prospectuses and any supplements thereto in the same manner and at the same times as the Participation Agreement requires that the Fund provide the Company with Statutory Prospectuses. If the Fund makes any changes to the Summary Prospectus by way of a filing pursuant to Rule 497 under the Securities Act of 1933, upon the Company’s request, the Fund shall provide the Company with a supplement setting forth the changes in the Rule 497 filing instead of providing the Company with a revised Summary Prospectus.
12.3 The Fund and/or the Adviser/Underwriter shall be responsible for compliance with Rule 498(e).
12.4 The Fund and Adviser/Underwriter each represent and warrant that the Summary Prospectuses and the web site hosting of such Summary Prospectuses will comply with the requirements of Rule 498 applicable to the Fund and its series. The Fund further represents and warrants that it has reasonable policies and procedures in place to ensure that such web site complies with Rule 498.
12.5 The Fund and Adviser/Underwriter each agree that the URL indicated on each Summary Prospectus will lead Contract owners directly to the web page used for hosting Summary Prospectuses (“Landing Page”) and that such Landing Page will host the current Fund and series’ documents required to be posted in compliance with Rule 498. The Fund shall promptly notify the Company of any interruptions in availability of this Landing Page that last more than 24 hours. Such Landing Page will contain the investment options available under the Agreement.
2
[Retail]
12.6 The Fund and Adviser/Underwriter represent and warrant that they will be responsible for compliance with the provisions of Rule 498(f)(1) involving Contract owner requests for additional Fund documents made directly to the Fund. The Fund and Adviser/Underwriter further represent and warrant that any information obtained about Contract owners pursuant to this provision will be used solely for the purposes of responding to requests for additional Fund documents.
12.7 The Company represents and warrants that it will respond to requests for additional fund documents made by Contract owners directly to the Company or one of its affiliates.
12.8 Company represents and warrants that any binding together of Summary Prospectuses and/or Statutory Prospectuses will be done in compliance with Rule 498.
12.9 If the Fund determines that it will end its use of the Summary Prospectus delivery option, the Fund and Adviser/Underwriter will provide the Company with at least 90 days’ advance notice of its intent.
12.10 The Parties agree that the Company is not required to distribute Summary Prospectuses to its Contract owners, but rather that the use of the Summary Prospectus will be at the discretion of the Company. The Company agrees that it will give Adviser/Underwriter and the Fund reasonable notice of its intended use of the Summary Prospectuses or the Statutory Prospectuses.
12.11 The Parties agree that all other provisions of the Participation Agreement, including the Indemnification provisions, will apply to the terms of this Section as applicable.
2. Existing Section 10.8 of the Agreement is hereby deleted in its entirety and replaced with the following:
10.8 The parties to this Agreement may revise or supplement, with notice to all parties, the Schedules to this Agreement from time to time to reflect changes in or relating to the Contracts, the Separate Accounts or the Funds of the Fund.
3. Schedule A of the agreement is hereby deleted in its entirety and replaced with the attached Schedule A.
3
[Retail]
All other terms and provisions of the Agreement not amended herein shall remain in full force and effect. Unless otherwise specified, all defined terms shall have the same meaning given to them in the Agreement.
Effective Date: May 1, 2013
| PIONEER FUNDS DISRIBUTOR, INC. | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxx | |
| Title: | President | |
| Date: | 6-24-13 | |
| TRANSAMERICA ADVISORS LIFE INSURANCE COMPANY OF NEW YORK | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Vice President | |
| Date: | 7-5-13 | |
4
[Retail]
SCHEDULE A
Revised May 1, 2013
SEPARATE ACCOUNTS
ML of New York Life Variable Annuity Separate Account D
CONTRACTS
FUNDS
Pioneer High Yield Fund – Class A
Pioneer Fund – Class A
Pioneer Emerging Markets Fund – Class A
Pioneer Real Estate Shares Fund – Class A
Pioneer Select Mid Cap Growth Fund – Class A
5
