Exhibit 8(c)(i)
SHARED FUNDING AGREEMENT FOR SEPARATE ACCOUNT NO. 2
1.0 SHARED FUNDING AGREEMENT
1.1 This Agreement, dated November 7, 1990, between Mutual of America
Life Insurance Company, a New York mutual life insurance corporation
with principal offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Mutual), and Xxxxxxx Securities Corporation with principal offices
at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 ("Xxxxxxx"),
which serves as principal underwriter to Acacia Capital Corporation,
a registered investment company with principal offices at 00
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, (the "Fund"),
1.2 In consideration of the promises, representations, warranties,
covenants, agreements and conditions contained herein, and in order
to set forth the terms and conditions of the transactions
contemplated hereby and the mode of carrying the same into effect,
and intending to be legally bound, the parties hereto agree to the
provisions set forth below.
2.0 THE VARIABLE ANNUITY CONTRACTS AND THE SEPARATE ACCOUNT
2.1 Mutual shall maintain variable annuity contracts (the "Contracts")
designed to provide, under current law, the benefits of a
tax-deferred accumulation of income for retirement and other
purposes.
2.2 Purchase payments for the Contracts may be invested by Mutual in
Separate Account No. 2 (separate account), registered with the
Securities and Exchange Commission as a unit investment trust under
the Investment Company Act of 1940 (1940 Act). Such payments will
constitute assets of the separate account and shall be invested, as
directed by purchasers, in certain open-end diversified management
companies registered under the 0000 Xxx.
2.3 One of the open-end diversified management companies is the Fund, an
open-end diversified management investment company with eight
separate series, registered under the 1940 Act. Each series is a
separate investment portfolio with distinct investment objectives.
2.4 Mutual will offer one of the series of the Fund, specifically the
Xxxxxxx Socially Responsible Series (the "Series"), through the
separate account to its Contract Owners and their participants where
applicable (Contract Owners).
2.5 Mutual will use the name "Xxxxxxx Socially Responsible Fund" with
respect to the Separate Account, the name "Xxxxxxx Socially
Responsible Series" with respect to the Fund and the names "Xxxxxxx"
or "Xxxxxxx Series" where appropriate in its marketing and sales
literature when referring to investments in the Series.
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2.5.1 Mutual will use its best efforts to market and promote its
Contracts.
2.5.2 In marketing its Contracts, Mutual will comply with all
applicable state and federal laws. Mutual and its agents shall
make no representations or warranties concerning the Fund or
Series shares except those contained in the then current
prospectuses of the Fund and in the Fund's current printed
sales literature. Copies of all advertising and sales
literature describing or concerning the Fund which is prepared
by Mutual or its agents for use in marketing its Contracts
will be sent to Xxxxxxx for approval prior to use. Xxxxxxx
will give its approval or comments as soon as is reasonably
practical, but in no event later than 7 business days after
receipt. Mutual shall be responsible for compliance with any
state or federal filing or review requirements concerning
advertising and sales literature.
2.5.3 Mutual and its agents will not oppose voting recommendations
from Xxxxxxx or the Fund's Board of Directors or interfere
with the solicitation of proxies for the Fund shares held by
Mutual for Mutual Contract Owners, unless Mutual deems such
recommendations detrimental to it or to its Contract Owners.
Xxxxxxx agrees to prepare and print any proxy statements
required for Series' shareholder meetings, and to provide
sufficient number of copies of such proxy statements to
Mutual. Mutual agrees to timely distribute such proxy
statements to its Contract Owners. Mutual agrees to provide
pass-through voting privileges to all Mutual Contract Owners
and to assure that its separate account participating in the
Fund calculates voting privileges in a manner consistent with
all other separate accounts of any insurance company investing
in the Fund, as required by the exemptive order referenced in
Section 3.2.3 of this Agreement.
2.5.4 Mutual will be responsible for reporting to the Fund's Board
of Directors any potential or existing conflicts among the
interests of the Contract Owners of all its separate accounts
investing in the Fund, and to assist the Board by providing it
with all information reasonably necessary for the Board to
consider any issued raised. Mutual will be responsible for
taking remedial action as may be necessary with respect to its
separate account in the event of a Board determination of an
irreconcilable material conflict and to bear the cost of such
remedial action. Other relevant insurance companies will be
responsible for taking similar remedial action with respect to
their respective separate accounts and will bear the costs of
such actions.
2.6 Mutual will bear the costs of, and have the primary responsibility
for:
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2.6.1 Registering the Contracts and the separate account with the
SEC;
2.6.2 Developing all policy forms, application forms, confirmations
and other administrative forms or documents and filing such of
these as are necessary to comply with the requirements of all
insurance laws and regulations in each state in which the
Contracts are offered;
2.6.3 Administration of the Contracts and the separate account,
including all Contract Owner service and communication
activities;
2.6.4 Preparing and approving all marketing and sales literature
involving the sale of Mutual's separate account fund which
invests in shares of the Fund;
2.6.5 Printing (from camera ready copy provided to Mutual by
Xxxxxxx) and distributing to Mutual Contract Owners copies of
the current prospectuses, statements of additional information
(as requested by Contract Owners) and periodic reports for the
separate account and the Fund. Mutual is hereby authorized to
reproduce in any manner whatsoever, at a cost borne by Mutual,
the Series prospectus, statement of additional information,
and annual and semi-annual reports.
2.6.6 Preparing and filing any reports or other filings as may be
required under state insurance laws or regulations with
respect to the Contracts or separate account; and
2.6.7 Providing Xxxxxxx with any and all amendments to the
registration statement of the Separate Account as they are
filed with the SEC, and where such registration statement
references the Series, the Fund, or Xxxxxxx, providing Xxxxxxx
an opportunity to comment on same prior to the effective date.
2.6.8 Reimbursing the Fund up to $1,500 for the cost of obtaining a
separate audit opinion for the 1990 fiscal year for the
Series, distinct from the other seven series; and further,
Mutual agrees that for every year thereafter, it will
reimburse the Fund for Mutual's pro rata share of the cost of
obtaining a separate audit opinion for the Series distinct
from the Fund's other seven series. Mutual's share of this
expense will be in direct proportion to the percentage of
Series assets held by all of Mutual's separate accounts.
3.0 THE SERIES
3.1 The Fund and Xxxxxxx shall make available shares of the Series as an
underlying investment medium for Mutual Contract Owners.
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3.2 The Fund shall bear the costs of, and shall have, or shall cause the
Fund and the Series to assume, the primary responsibility for:
3.2.1 Registering the Fund with the SEC including a separate
prospectus for the series which does not reference the
other seven series of the Fund. The costs of printing and
distributing such prospectus to Mutual Contract Owners
shall be borne by Mutual as provided in Section 2.6.5
above;
3.2.2 Preparing, producing and maintaining the effectiveness of
such registration statements for the Fund as are required
under federal and state securities law, and clearing such
registration statements through the SEC and pursuant to the
securities laws and regulations in each state in which the
contracts are offered;
3.2.3 Preparing and filing an Application for Exemptive Relief
which grants appropriate exemptive relief from the relevant
provisions of the 1940 Act ("Application") which permits
Mutual Contracts to use the Fund as an underlying
investment alternative;
3.2.4 Operating and maintaining the Fund in accordance with
applicable law, including the diversification standards of
the Internal Revenue Code of 1986 applicable to variable
annuity contracts;
3.2.5 Preparing and filing any reports or other filings as may be
required with respect to the Fund under federal or state
securities laws;
3.2.6 Using its best efforts to provide Mutual with the daily net
asset values of the Series by 5:00 p.m. E.S.T. on each day
the New York Stock Exchange is open;
3.2.7 Providing Mutual with camera-ready copy necessary for the
printing of the periodic shareholder reports and the
prospectus for the Fund;
3.2.8 Providing Mutual with monthly performance data by the 6th
business day after the close of a month and with such
information and data related to the portfolio
characteristics, holdings, and performance of the Fund, as
may reasonably be requested from time to time;
3.2.9 Informing Mutual in writing whenever the Series declares an
income dividend or a capital gain distribution, specifying
the amount per unit, the declaration date, the ex-dividend
date, and the payment date.
3.2.10 Providing Mutual with drafts of financial statements
(semi-annual and annual) no later than 4 weeks after the
close of June 30 and December 31 respectively; and
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3.2.11 Providing Mutual with any and all amendments to the Fund's
registration statement and financial statements as they are
filed with the SEC. and where such registration statement
references Mutual, providing Mutual an opportunity to
comment on same prior to the effective date and providing
such material on a timely basis for inclusion in any
federal or state securities law filing of Mutual's separate
account of which the Series is a part.
3.3 The Fund or Xxxxxxx shall maintain records in accordance with the
1940 Act or other statutes, rules and regulations applicable to the
Fund's operation in connection with the performance of its duties.
Mutual shall have the right to access such records, upon reasonable
notice and during business hours, in order to respond to regulatory
requirements, inquiries, complaints or judicial proceedings. Fund
and Xxxxxxx records of all transactions with respect to the
Contracts shall be retained for a period of not less than six (6)
years from each transaction.
3.4 The parties or their duly authorized independent auditors have the
right under this Agreement to perform on-site audits of records
pertaining to the Contracts and the Fund, at such frequencies as
each shall determine, upon reasonable notice and during normal
business hours. At the request of the other, each will make
available to the other's auditors and/or representatives of the
appropriate regulatory agencies, all requested records, data, and
access to operating procedures.
4.0 COST AND EXPENSES
4.1 Except for costs and expenses for which indemnification is required
pursuant to Section 7.19 or Section 7.20 or as otherwise agreed in
writing by the parties in specific instances or, as set forth
herein, the parties shall each pay their respective costs and
expenses incurred by them in connection with this Agreement.
4.2 Xxxxxxx agrees that through May 1, 1991 it shall cause the annual
operating expenses of the Series to not exceed 0.85% of the Series'
average annual daily net assets. If Xxxxxxx intends to cause or
allow such expenses to exceed this amount after May 1, 1991, Xxxxxxx
will notify Mutual in writing of the new expense guarantee no later
than February 15, 1991, or no later than February 15 of any
subsequent year in which it may cause or allow such expenses to
exceed 0.85% in the subsequent 12 month period ending April 30 of
the following year. Xxxxxxx will notify Mutual in writing if, at any
time it decides to discontinue guaranteeing the level of annual
operating expenses of the Series.
5.0 TERM OF AGREEMENT
5.1 The term of this Agreement shall be indefinite unless terminated
pursuant to Section 6 of this Agreement.
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6.0 TERMINATION
6.1 This Agreement will terminate:
6.1.1 At the option of any party upon 90 days' prior written notice
to the other parties. If a party notifies the other parties
that it intends to terminate, or is terminating, this
Agreement, the affected parties shall immediately file with
the SEC such documents, if any, as are necessary to permit the
offering of shares of the Series to Mutual Contract Owners to
be discontinued; or
6.1.2 Upon assignment of this Agreement unless the assignment is
made with the written consent of the other party.
6.2.3 In the event of termination of this Agreement pursuant to this
Section 6.0, the provisions of Sections 4.0, and 7.0 shall
survive such termination.
7.0 GENERAL PROVISIONS
7.1 This Agreement is the complete and exclusive statement of the
agreement between the parties as to the subject matter hereof which
supersedes all proposals or agreements, oral or written, and all
other communications between the parties related to the subject
matter of this Agreement.
7.2 This Agreement can only be modified by a written agreement duly
signed by the persons authorized to sign agreements on behalf of the
respective party.
7.3 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or be impaired thereby.
7.4 This Agreement and the rights, duties and obligations of the parties
hereto shall not be assignable by either party hereto without the
prior written consent of the other.
7.5 No waiver by either party of any default by the other in the
performance of any promise, term or condition of this Agreement
shall be construed to be a waiver by such party of any other or
subsequent default in performance of the same or any other covenant,
promise, term or condition of this Agreement. No prior transactions
or dealings between the parties shall be deemed to establish any
custom or usage waiving or modifying any provision hereof.
7.6 No liability shall result to any party, nor shall any party be
deemed to be in default hereunder, as the result of delay in its
performance or from its non-performance hereunder caused by
circumstances beyond its control, including but limited to: act
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of God, act of war, riot, epidemic; fire; flood or other disaster;
or act of government. Nevertheless, the party shall be required to
be diligent in attempting to remove such cause or causes.
7.7 Each of the parties will act as an independent contractor under the
terms of this Agreement and neither is now, or in the future, an
agent or a legal representative of the other for any purpose.
Neither party has any right or authority to supervise or control the
activities of the other party's employees in connection with the
performance of this Agreement or to assign or create any application
of any kind, express or implied, on behalf of the other party or to
bind it in any way, to accept any service of process upon it or to
receive any notice of any nature whatsoever on its behalf.
7.8 This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York.
7.9 Nothing herein shall prevent either party from participating in any
proceeding before any regulatory authority having jurisdiction over
any matter relating to this Agreement, the Contracts, the separate
account or the Fund which may affect the parties to it. The parties
shall each give the others prompt notice of any such proceeding.
7.10 In all matters relating to the preparation, review, prior approval
and filing of documents, the parties shall cooperate in good faith.
Neither party shall unreasonably withhold its consent with respect
to the filing of any document with any federal or state regulatory
authority having jurisdiction over the Contracts, the separate
account or the Fund.
7.11 Captions contained in this Agreement are for reference purposes only
and do not constitute part of this Agreement.
7.12 All notices which are required to be given or submitted pursuant to
this Agreement shall be in writing and shall be sent by registered
or certified mail, return receipt requested, to the addresses set
forth below:
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxxx
Executive Vice President General Counsel
and General Counsel Xxxxxxx Securities Corp.
Mutual of America Life 0000 Xxxxxxxxxx Xxxxxx
Insurance Company Suite 0000 X
000 Xxxxx Xxxxxx Xxxxxxxx, XX 00000
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as the parties may from time to time
designate. Any notice of one party refunds the other shall be deemed
recent as of the date of said refund.
7.13 Each party hereto shall promptly notify the other in writing of any
claims, demands or actions having any bearing on this Agreement.
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7.14 Each party agrees to perform its obligations hereunder in accordance
with all applicable laws, rules and regulations now or hereafter in
effect.
7.15 If this Agreement is terminated for other than default, it is
specifically agreed that neither party shall be entitled to
compensation of any kind except as specifically set forth herein.
7.16 In any litigation or arbitration between the parties, the prevailing
party shall be entitled to reasonable attorneys' fees and all costs
of proceedings incurred in enforcing this Agreement.
7.17 This Agreement shall be binding upon an inure to the benefit of the
parties hereto, their successors and permitted assigns.
7.18 Each party represents that it has full power and authority to enter
into and perform this Agreement, and the person signing this
Agreement on behalf of it has been properly authorized and empowered
to enter into this Agreement. Each party further acknowledges that
it has read this Agreement, understands it, and agrees to be bound
by it.
7.19 Mutual shall indemnify and hold the Fund and Xxxxxxx and each of
their respective directors, officers, employees and agents harmless
from any liability or expense (including reasonable attorneys' fees)
arising from any failure of Mutual or the separate account to
fulfill their respective obligations under this Agreement.
7.20 Xxxxxxx shall indemnify and hold Mutual and its directors, officers,
employees and agents harmless from all liabilities or expenses
(including reasonable attorney's fees) arising from any failure of
the Fund or Xxxxxxx to fulfill their respective obligations under
this Agreement and Xxxxxxx shall indemnify and hold such parties
harmless from a failure of the Fund's investment adviser to manage
the Fund in compliance with the diversification requirements of the
Internal Revenue Code of 1986, as amended, or any regulations
thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
XXXXXXX SECURITIES CORPORATION MUTUAL OF AMERICA LIFE
INSURANCE COMPANY
BY: /s/ Xxxx X. Xxxxxxxxx BY: /s/ Xxxxxxx Xxxxxxxx
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Xxxx X. Xxxxxxxxx Xxxxxxx Xxxxxxxx
Vice President Executive Vice President
and Treasurer
