Exhibit 27(8)(1)
M FUND, INC.
PARTICIPATION AGREEMENT
WITH
THE LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
THIS AGREEMENT, made and entered into this 1st day of May, 2003, by
and among M FUND, INC., a corporation organized and existing under the laws of
the State of Maryland (the "Fund"), M FINANCIAL INVESTMENT ADVISERS, INC., a
corporation organized and existing under the laws of the State of Colorado (the
"Adviser") and The LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK, a life insurance
company organized and existing under the laws of the State of New York (the
"Company"), on its own behalf and on behalf of each separate account of the
Company identified herein.
WHEREAS, the Fund is a series-type mutual fund offering shares of
beneficial interest (the "Fund shares") consisting of one or more series
("Series") of shares ("Series shares"), each such Series share representing an
interest in a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund was established for the purpose of serving as an
investment vehicle for insurance company separate accounts supporting variable
annuity contracts and variable life insurance policies to be offered by
insurance companies; and
WHEREAS, the Company desires that the Fund serve as an investment
vehicle for certain separate account(s) of the Company;
WHEREAS, the Adviser is duly registered as an investment adviser
pursuant to the Investment Advisers Act of 1940;
NOW, THEREFORE, in consideration of their mutual promises, the Fund,
the Adviser, and the Company agree as follows:
ARTICLE I. ADDITIONAL DEFINITIONS
1.1. "Account" -- each separate account of the Company described
more specifically in Schedule 1 to this Agreement (as may be amended from time
to time).
1.2. "Business Day" -- each day that the New York Stock Exchange is
open for trading.
1.3. "Code" -- the Internal Revenue Code of 1986, as amended.
1.4. "Contracts" -- the class or classes of variable annuity
contracts and variable life insurance policies issued by the Company and
described more specifically on Schedule 2 to this Agreement (as may be amended
from time to time).
1.5. "Contract Owners" -- the owners of the Contracts, as
distinguished from all Product Owners.
1.6. "NASD" -- National Association of Securities Dealers, Inc.
1.7. "Participating Account" -- a separate account investing all or
a portion of its assets in the Fund, including the Account.
1.8. "Participating Insurance Company" -- any insurance company
investing in the Fund on its behalf or on behalf of a Participating Account,
including the Company.
1.9. "Products" -- variable annuity contracts and variable life
insurance policies supported by Participating Accounts investing assets
attributable thereto in the Fund, including the Contracts.
1.10. "Product Owners" -- owners of Products, including Contract
Owners.
1.11. "Prospectus" -- with respect to the Fund shares or a class of
Contracts, each version of the definitive prospectus therefor or supplement
thereto filed with the Securities and Exchange Commission (SEC) pursuant to Rule
497 under the 1933 Act. With respect to any provision of this Agreement
requiring a party to take action in accordance with a Prospectus, such reference
thereto shall be deemed to be to the version last so filed prior to the taking
of such action. For purposes of Section 4.6 and Article VIII, the term
"Prospectus" shall include any statement of additional information incorporated
therein.
1.12. "Registration Statement" -- with respect to the Fund shares or
a class of Contracts, the registration statement filed with the SEC to register
the securities issued thereby under the 1933 Act, or the most recently filed
amendment thereto, in either case in the form in which it was declared or became
effective. The Contracts Registration Statement (if any) is described more
specifically on Schedule 2 to this Agreement. The Fund Registration Statement
was filed on Form N-1A (File No. 33-95472).
1.13. "1940 Act Registration Statement" -- with respect to the Fund
or the Account, the registration statement filed with the SEC to register such
person as an investment company under the 1940 Act, or the most recently filed
amendment thereto. Each Account's 1940 Act Registration Statement (if any) is
described more specifically on Schedule 2 to this Agreement. The Funds 1940 Act
Registration Statement was filed on Form N-1A (File No. 811-9082).
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1.14. "Statement of Additional Information" -- with respect to the
Fund or a class of Contracts, each version of the definitive statement of
additional information or supplement thereto filed with the SEC pursuant to Rule
497 under the 0000 Xxx.
1.15. "SEC" -- the Securities and Exchange Commission.
1.16. "1933 Act" -- the Securities Act of 1933, as amended.
1.17. "1940 Act" -- the Investment Company Act of 1940, as amended.
ARTICLE II. SALE OF FUND SHARES
2.1. The Fund shall make shares of those Series listed on
Schedule 3 to this Agreement available for purchase by the Company on its own
behalf or on behalf of the Account, such purchases to be effected at net asset
value in accordance with Section 2.3 of this Agreement. Notwithstanding the
foregoing, (i) Fund Series in existence now or that may be established in the
future and not listed on Schedule 3 will be made available to the Company only
as the Adviser may so provide, and (ii) the Board of Directors of the Fund (the
"Fund Board") may suspend or terminate the offering of Fund shares of any Series
or class thereof, if such action is required by law or by regulatory authorities
having jurisdiction or if, in the sole discretion of the Fund Board acting in
good faith and in light of its fiduciary duties under federal and any applicable
state laws, suspension or termination is necessary or in the best interests of
the shareholders of any Series (it being understood that "shareholders" for this
purpose shall mean Product Owners).
2.2. The Fund shall redeem, at the Company's request, any full or
fractional shares of the Fund held by the Company on behalf of the Account, such
redemptions to be effected at net asset value in accordance with Section 2.3 of
this Agreement. Notwithstanding the foregoing, the Fund may delay redemption of
Fund shares of any Series to the extent permitted by the 1940 Act or any rules,
regulations or orders thereunder.
2.3. PURCHASE AND REDEMPTION PROCEDURES
(a) The Fund hereby appoints the Company as an agent of the
Fund for the limited purpose of receiving purchase and redemption requests
for shares of the Fund based on allocations of amounts to the Account or
subaccounts thereof under the Contracts and other transactions arising out
of the Contracts. Receipt of any such request (or relevant transactional
information therefor) on any Business Day by the Company as such limited
agent of the Fund prior to 4:00 p.m. New York Time ("NYT") shall
constitute receipt by the Fund on that same Business Day, provided that
the Fund receives notice of such request by 10:00 am NYT on the next
following Business Day.
(b) The Fund will confirm receipt of each trade (ending
share balance by Account and Fund) and these confirmations will be made
available to Company by 1:00 pm
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New York time on the day the Fund is properly notified of the trade, using
a mutually agreed upon format. The Company, which in addition to being a
life insurance company is a broker/dealer and member of the NASD, shall
pay for the shares on the same day that it places an order with the Fund
to purchase those Fund shares for an Account. Payment for Fund shares will
be made by each Account or the Company in Federal Funds to the Fund, prior
to the close of the Federal Reserve wire system on the day the Fund is
properly notified of the purchase order for shares. If payment is not
received by the Fund on the same Business Day, the Company shall, upon
Fund's request, promptly reimburse the Fund for any charges, costs, fees,
interest or other expenses incurred in connection with advances, borrowing
and overdrafts. If the banking system is closed, payment will be initiated
the next day the banking system is open for business. The Fund will
confirm receipt of each trade and these confirmations will be received on
time, such funds will be invested, and shares purchased thereby will be
issued, as soon as practicable.
Payment for shares redeemed by each Account or the Company will be made in
Federal Funds to the Company, prior to the close of the Federal Reserve
wire system on the same day the Fund is properly notified of the
redemption order or shares, except that the Fund reserves the right to
delay payment of redemption proceeds as permitted under Section 22(e) of
the 0000 Xxx. If payment is not received by Company the same Business Day,
the Fund shall, upon Company's request, promptly reimburse the Company for
any charges, costs, fees, interest or other expenses incurred in
connection with advances, borrowing, and overdrafts. If the banking system
is closed, payment will be initiated the next day the banking system is
open for business. Neither the Fund nor the Adviser shall bear any
responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds if securities are redeemed; the Company alone shall be
responsible for such action.
(c) Any purchase or redemption requests for Fund shares
that do not result directly from transactions relating to the Contracts or
the Account shall be effected at the net asset value per share next
determined after the Fund's receipt of such request, provided that, in the
case of a purchase request, payment for Fund shares so requested is
received by the Fund in federal funds prior to close of business for
determination of such value, as defined from time to time in the Fund
Prospectus.
2.4. The Fund shall use its best efforts to calculate and make the
net asset value per share for each Series available to the Company by 5:30 p.m.
NYT each Business Day, and in any event, as soon as reasonably practicable after
the net asset value per share for such Series is calculated, and shall calculate
such net asset value in accordance with the Fund Prospectus. Neither the Fund,
any Series, the Adviser, nor any of their affiliates shall be liable for any
information provided to the Company pursuant to this Agreement to the extent
such information is based on incorrect information supplied by the Company or
any other Participating Insurance Company or Qualified Person (as defined in
Section 2.8 of this Agreement) to the Fund or the Adviser.
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In the event that Fund is unable to meet 5:30 p.m. time stated
herein, it shall provide additional time for the Company to place orders for the
purchase and redemption of shares. Such additional time shall be equal to the
additional time which the Fund takes to make the net asset value available to
the Company. Also, the Fund will notify the Company when and if the Fund is
unable to provide the net asset value per share by 5:30 p.m. NYT. If the Fund
provides the Company with materially incorrect share net asset value information
through no fault of the Company, the Company on behalf of the Separate Accounts,
shall be entitled to an adjustment to the number of shares purchased or redeemed
to reflect the correct share net asset value. Any material error in the
calculation of net asset value per share, dividend or capital gain information
shall be reported promptly upon discovery to the Company. Neither the Company,
nor any of its affiliates shall be liable for any information provided to the
Fund or its affiliates or designees pursuant to this Agreement which information
is based on incorrect information supplied by the Fund to the Company. In the
event of any material error in the calculation or communication of net asset
value, dividends or capital gain information or any delay in the communication,
the responsible party or parties shall reimburse the Company for any losses or
reasonable costs incurred as a result of the error or delay, including but not
limited to, amounts needed to make contract owners whole and reasonable
administrative costs necessary to correct the error.
2.5. The Fund shall furnish notice to the Company (by fax, or
telephone followed by written confirmation) as soon as reasonably practicable of
any income dividends or capital gain distributions payable on any Series shares.
The Company, on its behalf and on behalf of the Account, hereby elects to
receive all such dividends and distributions as are payable on any Series shares
in the form of additional shares of that Series. The Company reserves the right,
on its behalf and on behalf of the Account, to revoke this election and to
receive all such dividends and distributions in cash. The Fund shall notify the
Company promptly of the number of Series shares so issued as payment of such
dividends and distributions.
2.6. Issuance and transfer of Fund shares shall be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Purchase and redemption orders for Fund shares shall be recorded in an
appropriate ledger for the Account or the appropriate subaccount of the Account.
2.7. (a) The Company may withdraw the Account's investment in the
Fund or a Series of the Fund only: (i) as necessary to facilitate Contract
Owner requests; (ii) upon a determination by a majority of the Fund Board,
or a majority of disinterested Fund Board members, that an irreconcilable
material conflict exists among (x) the interests of all Product Owners or
(y) the interests of the Participating Insurance Companies investing in
the Fund; (iii) upon requisite vote of the Contract Owners having an
interest in the affected Series; (iv) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general
implication; (v) upon sixty (60) days advance written notice; (vi) from a
Series, upon a change in the Portfolio Manager for that Series; or (vii)
as permitted by an order of the SEC pursuant to Section 26(b) of the 1940
Act.
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(b) The Company shall not, without the prior written consent
of the Adviser (unless otherwise required by applicable law), solicit,
induce or encourage Contract Owners to change or modify the Fund or change
the Fund's investment adviser.
2.8. The Fund shall sell Fund shares only to Participating
Insurance Companies and their separate accounts and to persons or plans
("Qualified Persons") that qualify to purchase and hold shares of the Fund under
Section 817(h) of the Code. The Fund shall not sell Fund shares to any insurance
company, separate account or Qualified Person unless an agreement containing
provisions substantially similar to Articles II, V, and VII of this Agreement is
in effect to govern such sales (to the extent required in order to comply with
the "Exemptive Order" referred to in Section 7.1 below).
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1. The Company represents and warrants that: (i) the Company is
an insurance company duly organized, validly existing under New York insurance
law; (ii) the Account is (or will be prior to the purchase by the Company of
Fund shares for the Account) a validly existing separate account, duly
established and maintained in accordance with applicable law; (iii) the
Contracts will be issued in compliance in all material respects with all
applicable federal and state laws; (iv) the Contracts currently are and at the
time of issuance will be treated as annuity contracts or life insurance
policies, whichever is appropriate, under applicable provisions of the Code; and
(v) the Company and the Account qualify (or will qualify prior to the purchase
by the Company of Fund shares for the Account) to purchase and hold shares of
the Fund under Section 817(h) of the Code.
3.2. The Fund represents and warrants that: (i) the Fund is a
corporation duly organized, validly existing and in good standing under Maryland
law; (ii) the Fund's 1940 Act Registration Statement has been filed with the SEC
in accordance with the provisions of the 1940 Act and the Fund is and shall
remain duly registered as an open-end management investment company thereunder;
(iii) the Fund Registration Statement has been declared effective by the SEC (or
will be declared effective before the sale by the Fund of its shares pursuant to
this Agreement); (iv) Fund shares sold pursuant to this Agreement have been duly
authorized for issuance in accordance with applicable law; (v) the Fund is and
shall remain qualified as a "regulated investment company" under Subchapter M of
the Code and is and shall remain in compliance with Section 817(h) of the Code;
(vi) the Fund's investment policies are in material compliance with any
investment restrictions set forth on Schedule 4 to this Agreement; and (vii) the
Fund does and will comply in all material respects with the 1940 Act. The Fund,
however, makes no representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies)
otherwise complies with the insurance laws or regulations of any state.
3.3. The Adviser represents and warrants that it is and will remain
registered in all material respects as an investment adviser under federal and
all applicable state securities
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laws, and shall perform its obligations hereunder in compliance in all material
respects with any such applicable state and federal laws. The Adviser represents
that it will manage the Fund consistent with the Fund's investment objectives,
policies, and restrictions.
3.4. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party, and, when so executed and delivered, this Agreement will be the
valid and binding obligation of such party enforceable in accordance with its
terms.
3.5. The Fund represents and warrants that all of its directors,
officers, and employees dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid Bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
3.6. The Company represents and warrants that all of its directors,
officers, and employees dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund, in an amount not less than the
minimal coverage as required currently by entities subject to the requirements
of Rule 17g-1 of the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
ARTICLE IV. FILINGS, INFORMATION AND EXPENSES
4.1. The Fund shall amend the Fund Registration Statement and the
Fund's 1940 Act Registration Statement from time to time as required in order to
effect the continuous offering of Fund shares and to maintain the Fund's
registration under the 1940 Act for so long as Fund shares are sold. The Fund
shall file, register, qualify and obtain approval of the Fund shares for sale
under state securities laws to the extent deemed advisable by the Adviser.
4.2. Unless other arrangements are made, the Fund shall provide the
Company with: (i) a copy, in PDF and hard copy in final form no later than 15
calendar days before they must be mailed: Reports- February 13th and August
14th, Prospectuses-April 15th or otherwise suitable for printing or duplication,
of each Fund Prospectus and any supplement thereto and each Fund Statement of
Additional Information and any supplement thereto; and (ii) copies of the Fund's
proxy materials, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract Owners.
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4.3. The Company shall amend the Contracts' Registration Statement
(if any) and the Account's 1940 Act Registration Statement (if any) from time to
time as required in order to effect the continuous offering of the Contracts or
as may otherwise be required by applicable law. The Company shall file,
register, qualify and obtain approval of the Contracts for sale to the extent
required by applicable insurance and securities laws of the various states.
4.4. The Company shall inform the Fund of any investment
restrictions imposed by state insurance law that may become applicable to the
Fund from time to time as a result of the Account's investment therein
(including, but not limited to, restrictions with respect to fees and expenses
and investment policies), other than those set forth on Schedule 4 to this
Agreement. Upon receipt of such information from the Company, the Fund shall
determine whether it is in the best interests of shareholders to comply with any
such restrictions. If the Fund determines that it is not in the best interests
of shareholders (it being understood that "shareholders" for this purpose shall
mean Product Owners), the Fund shall so inform the Company, and the Fund and the
Company shall discuss alternative accommodations in the circumstances. If the
Fund determines that it is in the best interests of shareholders to comply with
such restrictions, the Fund and the Company shall amend Schedule 4 to this
Agreement to reflect such restrictions.
4.5. The Company shall provide Contracts, Contracts and Fund
Prospectuses, Contracts and Fund Statements of Additional Information, reports,
solicitations for voting instructions including any related Fund proxy
solicitation materials, and all amendments or supplements to any of the
foregoing, to Contract Owners and prospective Contract Owners, all in accordance
with the federal and any applicable state securities laws.
4.6. All expenses incident to each party's performance under this
Agreement (including expenses expressly assumed by such party pursuant to this
Agreement) shall be paid by such party to the extent permitted by law.
(a) Expenses assumed by the Fund include, but are not
limited to, the costs of: (i) registration and qualification of the Fund
shares under the federal securities laws; (ii) preparation and filing with
the SEC of the Fund Prospectus, Fund Registration Statement, Fund proxy
materials and shareholder reports, and preparation of a PDF copy thereof;
(iii) preparation of all statements and notices required for the Fund by
any federal or state securities law; (iv) printing and mailing to Contract
Owners of all proxy materials, prospectuses (including supplements) and
reports required to be provided by the Fund to its shareholders; (v) all
taxes on the issuance or transfer of Fund shares; and (vi) any expenses
permitted to be paid or assumed by the Fund pursuant to a plan, if any,
under Rule 12b-1 under the 1940 Act. The Fund otherwise shall pay no fee
or other compensation to the Company under this Agreement, unless the
parties otherwise agree, except that if the Fund or any Series adopts and
implements a plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution expenses, then payments may be made to the Company in
accordance with such plan. The Fund currently does not intend to make any
payments to finance distribution expenses pursuant to Rule 12b-1 under the
1940 Act or
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in contravention of such rule, although it may make payments pursuant to
Rule 12b-1 in the future. To the extent that it decides to finance
distribution expenses pursuant to Rule 12b-1, the Fund undertakes to have
a Board of Directors, a majority of whom are not interested persons of the
Fund, formulate and approve any plan under Rule 12b-1 to finance
distribution expenses.
(b) Expenses assumed by the Company include, but are not
limited to, the costs of: (i) registration and qualification of the
Contracts under the federal and any applicable state securities laws; (ii)
preparation and filing with the SEC of the Contracts Prospectus and
Contracts Registration Statement; and (iii) preparation and dissemination
of all statements and notices to Contract Owners required by any federal
or state insurance law other than those paid for by the Fund.
4.7. Any piece of advertising or sales literature or other
promotional material in which the Fund is named and which will be used by the
Company shall be furnished by the Company to the Fund not less than 10 days
prior to its use. No such material shall be used if the Fund or its designee
objects to such use within 10 days after receipt of such material, provided that
it may be used earlier than the end of such 10 day period if the Fund or its
designee consents in writing to its use. The Fund may delegate its rights and
responsibilities under this provision to the Adviser.
4.8. Any piece of advertising or sales literature or other
promotional material in which the Company or the Account is named and which will
be used by the Fund or the Adviser shall be furnished by the Fund or the
Adviser, as applicable, to the Company not less than 10 days prior to its use.
No such material shall be used if the Company or its designee objects to such
use within 10 days after receipt of such material, provided that it may be used
earlier than the end of such 10 day period if the Company or its designee
consents in writing to its use.
4.9. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund to
the public (including current and prospective Contract owners) in connection
with the sale of the Contracts other than the information or representations
contained in the Fund Registration Statement or Fund Prospectus (as such
Registration Statement or Prospectus may be amended or supplemented from time to
time) or in reports or proxy statements for the Fund, or in sales literature or
other promotional material approved in accordance with Section 4.7 of this
Agreement, except with the prior written consent of the Fund.
4.10. The Fund and the Adviser shall not give any information or
make any representations on behalf of the Company or concerning the Company, the
Account or the Contracts other than the information or representations contained
in the Contracts' Registration Statement or Contracts Prospectus (as such
Registration Statement or Prospectus may be amended or supplemented from time to
time) or approved in writing by the Company for distribution to Contract Owners,
or in sales literature or other promotional material approved in accordance with
Section 4.8 of this Agreement except with the prior written consent of the
Company.
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4.11. The Fund and the Company shall provide to the other upon
request at least one complete copy of all Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statements, solicitations of voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the
above, that relate to the Fund, the Contracts or the Account, as the case may
be, promptly after the filing by or on behalf of such party of such document
with the SEC or other regulatory authorities.
4.12. Each party shall provide to the other upon request copies of
draft versions of any Registration Statements, Prospectuses, Statements of
Additional Information, periodic and other shareholder or Contract Owner
reports, proxy statements, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the
above, to the extent that the other party reasonably needs such information for
purposes of preparing a report or other filing to be filed with or submitted to
a regulatory agency. If a party reasonably requests any such information before
it has been filed, the other party will provide the requested information if
then available and in the version then available at the time of such request.
4.13. Each party hereto shall cooperate with the other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit each other and such
authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. However, such access shall not extend to attorney-client
privileged information.
4.14. The Company reserves the right to modify any of the Contracts
in any respect whatsoever. The Company reserves the right in its sole discretion
to suspend the sale of any of the Contracts, in whole or in part, or to accept
or reject any application for the sale of a Contract. The Company agrees to
notify the Fund and the Adviser promptly upon the occurrence of any event the
Company believes might necessitate a material MODIFICATION OR SUSPENSION.
4.15. For purposes of this Article IV, the phrase "sales literature
or other promotional material" includes, but is not limited to, any material
constituting sales literature or advertising under the NASD rules, the 1940 Act
or the 1933 Act.
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ARTICLE V. VOTING OF FUND SHARES
5.1. With respect to any matter put to vote by the holders of Fund
shares or Series shares ("Voting Shares"), to the extent required by law
(including the Exemptive Order referred to in Section 7.1 below) the Company
shall:
(a) solicit voting instructions from Contract Owners to which
Voting Shares are attributable;
(b) vote Voting Shares of each Series attributable to Contract
Owners in accordance with instructions or proxies timely received from
such Contract Owners;
(c) vote Voting Shares of each Series attributable to Contract
Owners for which no instructions have been received in the same proportion
as Voting Shares of such Series for which instructions have been timely
received; and
(d) vote Voting Shares of each Series held by the Company on
its own behalf or on behalf of the Account that are not attributable to
Contract Owners in the same proportion as Voting Shares of such Series for
which instructions have been timely received;
provided, however, that if the SEC changes its interpretations of voting
privileges for variable contracts the Company may vote such shares in its own
right. The Company shall be responsible for assuring that voting privileges for
the Account are calculated in a manner consistent with the provisions set forth
above.
5.2. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either provide
for annual meetings or comply with Section 16(c) of the 1940 Act (although the
Fund is not one of the trusts described in Section 16(c) of that Act) as well as
with Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will
act in accordance with the Securities and Exchange Commission's interpretation
of the requirements of Section 16(a) with respect to periodic elections of
trustees and with whatever rules the Commission may promulgate with respect
thereto.
ARTICLE VI. COMPLIANCE WITH CODE
6.1. The Fund shall comply with Section 817(h) of the Code, and all
regulations issued thereunder and shall notify the Company immediately upon
having a reasonable basis for believing that it has ceased to so qualify or that
it might not so qualify in the future.
6.2. The Fund shall maintain its qualification as a regulated
investment company (under Subchapter M of the Code or any successor or similar
provision), and shall notify the Company immediately upon having a reasonable
basis for believing that it has ceased to so qualify or that it might not so
qualify in the future.
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6.3. The Company shall maintain the treatment of the Contracts as
annuity contracts or life insurance policies, whichever is appropriate, under
applicable provisions of the Code and shall notify the Fund and the Adviser
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future.
ARTICLE VII. POTENTIAL CONFLICTS
7.1. The parties to this Agreement acknowledge that the Fund has
obtained (or will obtain) an order of exemption from the SEC (the "Exemptive
Order," File No. 812-9674) granting relief from various provisions of the 1940
Act and the rules thereunder to the extent necessary to permit Fund shares to be
sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated Participating Insurance Companies
and other Qualified Persons (as defined in Section 2.8). The Fund hereby
notifies the Company that Contracts Prospectus disclosure regarding potential
risks of such mixed and shared funding may be appropriate.
7.2. The Fund Board shall monitor the existence of any material
irreconcilable conflict between the interests of Product Owners. The Fund Board
shall promptly inform the Company if it determines that a material
irreconcilable conflict exists and the implications thereof.
7.3. (a) The Company shall report any potential or existing
conflicts promptly to the Fund Board, and in particular whenever Contract
Owner voting instructions are disregarded, and recognizes that it shall be
responsible for assisting the Fund Board in carrying out its
responsibilities in connection with the Exemptive Order. The Company
agrees to carry out such responsibilities with a view only to the
interests of Contract Owners.
(b) The Company shall at least annually submit to the Fund
Board such reports, materials or data as the Fund Board may reasonably
request so that the Fund Board and the Fund may fully carry out the
obligations imposed upon them by the conditions of the Exemptive Order,
and such reports, material and data shall be submitted more frequently if
deemed appropriate by the Fund Board.
7.4. If a majority of the Fund Board, or a majority of its
directors who are not "interested persons" as defined in the 1940 Act
("Disinterested Directors"), determines that a material irreconcilable conflict
exists with regard to Contract Owner investments in the Fund, the Fund Board
shall give prompt notice to all Participating Insurance Companies. If the Fund
Board determines that the Company is responsible in full or in part for causing
or creating said conflict, the Company (and other responsible Participating
Insurance Companies) shall at no cost and expense to the Fund, and to the extent
reasonably practicable (as determined by a majority of
12
the Disinterested Directors), take such action as is necessary to remedy or
eliminate the irreconcilable material conflict. Such necessary action may
include, but shall not be limited to:
(a) Withdrawing the assets allocable to the Account from
the Fund or any portfolio thereof and reinvesting such assets in a
different investment medium, or submitting the question of whether such
segregation should be implemented to a vote of all affected Contract
Owners and, as appropriate, segregating the assets of any appropriate
group (I.E., annuity Contract Owners, life insurance Contract Owners, or
other Product Owners) that votes in favor of such segregation or offering
to the affected Contract Owners the option of making such a change; and
(b) Establishing a new registered management investment
company.
7.5. If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard Contract Owner voting instructions and said
decision represents a minority position or would preclude a majority vote by all
Contract Owners having an interest in the Fund, the Company may be required, at
the Fund Board's election, to withdraw the Account's investment in the Fund and
terminate this Agreement with respect to such Account; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
Disinterested Directors. Any such withdrawal and termination must take place
within six (6) months or whenever a substitution order has been approved by the
SEC, after the Fund gives written notice that this provision is being
implemented, and until the end of that six month period or whenever a
substitution order has been approved by the SEC, the Adviser and fund shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund (subject to Section 2.1 above). No charge or
penalty will be imposed as a result of such withdrawal.
7.6. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the affected Account's investment in the Fund and terminate this
Agreement with respect to such Account within six months or whenever a
substitution order has been approved by the SEC after the Board informs the
Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the Disinterested
Directors. Until the end of the foregoing six month period or whenever a
substitution order has been approved by the SEC, the Adviser and Fund shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund (subject to Section 2.1 above).
7.7. For purposes of this Article, a majority of the Disinterested
Directors shall determine whether or not any proposed action adequately remedies
any irreconcilable material conflict, but in no event shall the Fund be required
to bear the expense of establishing a new funding medium for any Contract. The
Company shall not be required by this Article to
13
establish a new funding medium for any Contract. In the event that the Board
determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will withdraw the Account's
investment in the Fund and terminate this Agreement within six (6) months or
whenever a substitution order has been approved by the SEC after the Board
informs the Company in writing of the foregoing determination, provided,
however, that such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as determined by a
majority of the Disinterested Directors.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provisions of the 1940 Act or the rules promulgated thereunder with respect to
mixed and shared funding on terms and conditions materially different from those
contained in the Exemptive Order, then (a) the Fund and/or the Company, as
appropriate, shall take such steps as may be necessary to comply with Rules 6e-2
and 6e-3(T), as amended, or Rule 6e-3, as adopted, as applicable, to the extent
such rules are applicable, and (b) Sections 7.2 through 7.7 of this Agreement
shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify
and hold harmless the Fund, the Adviser and each person who controls the Fund or
the Adviser within the meaning of such terms under the 1933 Act (but not any
Participating Insurance Companies or Qualified Plans) and any officer, trustee,
director, employee or agent of the foregoing, against any and all losses,
claims, damages or liabilities, joint or several (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amounts
paid with the written consent of the Company in settlement of, any action, suit
or proceeding or any claim asserted), to which they or any of them may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities are related to the sale or
acquisition of the Fund's shares or the Contracts and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Contracts
Registration Statement, Contracts Prospectus, sales literature or other
promotional material for the Contracts or the Contracts themselves (or any
amendment or supplement to any of the foregoing), or the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances in which they were made; provided that this
obligation to indemnify shall not apply if such statement or omission or
such alleged statement or alleged omission was made in reliance upon and
in conformity with information furnished in writing to the Company by or
on behalf of the Fund or Adviser for use in the Contracts Registration
Statement, Contracts Prospectus or in the Contracts or sales literature or
promotional material for the Contracts (or any amendment or supplement to
any of the foregoing) or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
14
(b) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Fund Registration Statement,
Fund Prospectus or sales literature or other promotional material of the
Fund (or any amendment or supplement to any of the foregoing), or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Fund or the Adviser by or on
behalf of the Company; or
(c) arise out of or are based upon any wrongful conduct of
the Company or persons under its control (or subject to its authorization)
with respect to the sale or distribution of the Contracts or Fund shares;
or
(d) arise as a result of any failure by the Company to
provide the services and furnish the materials or to make any payments as
required under this Agreement; or
(e) arise out of any material breach by the Company of this
Agreement.
This indemnification will be in addition to any liability that the Company may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.2. INDEMNIFICATION BY THE FUND. The Fund shall indemnify and hold
harmless the Company and each person who controls the Company within the meaning
of such terms under the 1933 Act and any officer, director, employee or agent of
the foregoing, against any and all losses, claims, damages or liabilities, joint
or several (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amounts paid with the written consent of
the Fund in settlement of, any action, suit or proceeding or any claim
asserted), to which they or any of them may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities are related to the sale or acquisition of the Fund's shares or
the Contracts and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Fund
Registration Statement, Fund Prospectus or sales literature or other
promotional material of the Fund (or any amendment or supplement to any of
the foregoing), or the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which
they were made; provided that this obligation to indemnify shall not apply
if such statement or omission or alleged statement or alleged omission was
made in reliance upon and in conformity with information furnished in
writing to the Fund by or on behalf of the Company for use in the Fund
Registration Statement, Fund Prospectus or sales literature
15
or promotional material for the Fund (or any amendment or supplement to
any of the foregoing); or
(b) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Contracts Registration
Statement, Contracts Prospectus or sales literature or other promotional
material for the Contracts (or any amendment or supplement to any of the
foregoing), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which
they were made, if such statement or omission was made in reliance upon
information furnished in writing by or on behalf of the Fund to the
Company; or
(c) arise out of or are based upon wrongful conduct of the
Fund or persons under its control (or subject to its authorization) with
respect to the sale of Fund shares; or
(d) arise as a result of any failure by the Fund to provide
the services and furnish the materials required under the terms of this
Agreement; or
(e) arise out of any material breach by the Fund of this
Agreement (including any breach of Article VI of this Agreement).
This indemnification will be in addition to any liability that the Fund may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.3. INDEMNIFICATION BY THE ADVISER. The Adviser shall indemnify
and hold harmless the Company and each person who controls the Company within
the meaning of such term under the 1933 Act and any officer, director, employee
or agent of the foregoing, against any and all losses, claims, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid with the
written consent of the Adviser in settlement of, any action, suit or proceeding
or any claim asserted), to which they or any of them may become subject under
any statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities are related to the sale or acquisition of the
Fund's shares or the Contract and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Fund
Registration Statement, Fund Prospectus or sales literature or other
promotional material of the Fund (or any amendment or supplement to any of
the foregoing), or the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which
they were made; provided that this obligation to indemnify shall not apply
if such statement or omission or alleged statement or alleged omission was
made in reliance upon and in
16
conformity with information furnished in writing by or on behalf of the
Company to the Fund or the Adviser for use in the Fund Registration
Statement, Fund Prospectus or sales literature or promotional material for
the Fund (or any amendment or supplement to any of the foregoing); or
(b) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Contracts Registration
Statement, Contracts Prospectus or sales literature or other promotional
material for the Contracts (or any amendment or supplement to any of the
foregoing), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which
they were made, if such statement or omission was made in reliance upon
information furnished in writing by or on behalf of the Adviser to the
Company; or
(c) arise out of or are based upon wrongful conduct of the
Fund or the Adviser with respect to the sale of Fund shares; or
(d) arise as a result of any failure by the Fund or the
Adviser to provide the services and furnish the materials required under
the terms of this Agreement; or
(e) arise out of any material breach by the Fund or the
Adviser of this Agreement (including any breach of Article VI of this
Agreement).
This indemnification will be in addition to any liability that the Adviser may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
17
8.4. INDEMNIFICATION PROCEDURES. After receipt by a party entitled
to indemnification ("indemnified party") under this Article VIII of notice of
the commencement of any action, if a claim in respect thereof is to be made by
the indemnified party against any person obligated to provide indemnification
under this Article VIII ("indemnifying party"), such indemnified party will
notify the indemnifying party in writing of the commencement thereof as soon as
practicable thereafter, provided that the omission to so notify the indemnifying
party will not relieve it from any liability under this Article VIII, except to
the extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
the failure to give such notice. The indemnifying party, upon the request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel
and to participate in the defense of such proceeding, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment against the indemnified party, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this Article VIII.
The indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Maryland,
without giving effect to the principles of conflicts of law.
9.2. This Agreement shall be subject to the provisions of the 1933
Act, 1940 Act and Securities Exchange Act of 1934, as amended, and the rules and
regulations and rulings thereunder, including such exemptions from those
statutes, rules and regulations as the SEC may grant, and the terms hereof shall
be limited, interpreted and construed in accordance therewith.
18
ARTICLE X. TERMINATION
10.1 This Agreement shall not terminate until the Fund is
dissolved, liquidated, or merged into another entity, or, as to any Series of
the Fund, the Account no longer invests in that Series. However, this Agreement
may be terminated (a) by either party at any time, without the payment of any
penalty, on not less than 90 days' written notice to the other party, or (b)
certain obligations of, or restrictions on, the parties to this Agreement may
terminate as provided in Sections 10.2 and 10.3, and the Company may be required
to redeem shares pursuant to Section 10.4 or in the circumstances contemplated
by Article VII.
10.2. TERMINATION OF THE FUND'S OBLIGATION TO SELL. The obligation
of the Fund to sell shares to the Company pursuant to Article II of this
Agreement shall terminate at the option of the Fund upon notice to the Company
as provided below:
(a) the Fund Board has terminated the offering of Fund
shares or Series shares pursuant to Section 2.1 of this Agreement; or
(b) upon institution of formal proceedings against the
Company by the NASD, the SEC, the insurance commission of any state or any
other regulatory body regarding the Company's duties under this Agreement
or related to the sale of the Contracts, the operation of the Account, the
administration of the Contracts or the purchase of Fund shares, or an
expected or anticipated ruling, judgment or outcome which would, in the
Fund's reasonable judgment, materially impair the Company's ability to
meet and perform the Company's obligations and duties hereunder; or
(c) in the event any of the Contracts are not registered,
issued or sold in accordance with applicable federal and/or state law; or
(d) if the Fund or the Adviser, respectively, shall
determine, in their sole judgment exercised in good faith, that either (1)
the Company shall have suffered a material adverse change in its business
or financial condition since the date of this Agreement or (2) the Company
shall have been the subject of material adverse publicity which is likely
to have a material adverse impact upon the business and operations of
either the Fund or the Adviser; or
(e) upon the Company's assignment of this Agreement
(including, without limitation, any transfer of any Contract or the
Account to another insurance company pursuant to an assumption reinsurance
agreement) unless the Fund consents thereto; or
(f) upon termination pursuant to Section 10.1 or notice
from the Company pursuant to Section 10.3.
Termination of the Fund's obligation shall take effect immediately upon the
giving of such notice upon the occurrence of an event described in clauses (b)
or (c) above, and 10 (ten) days after the
19
giving of such notice in all other cases. In exercising its option to terminate
its obligation to sell shares to the Company, the Fund will continue to make
Fund shares available to the extent necessary to permit owners of Contracts in
effect on the effective date of such termination (hereinafter referred to as
"Existing Contracts") to reallocate investments in the Fund, redeem investments
in the Fund and/or invest in the Fund upon the making of additional purchase
payments under the Existing Contracts, unless the Existing Contracts are the
basis for the termination. In that case, the Fund may nonetheless elect to
continue to make Fund shares available for Existing Contracts and if it so
elects, shall promptly notify the Company whether the Fund is electing to make
Fund shares available after termination.
10.3. AS TO THE COMPANY. The restrictions on the Company under
Section 2.7(a) of this Agreement shall terminate at the option of the Company
upon 10 days' notice to the Fund:
(a) if shares of any Series are not reasonably available to
meet the requirements of the Contracts as determined by the Company, and
the Fund, after receiving written notice from the Company of such
non-availability, fails to make available a sufficient number of Fund
shares to meet the requirements of the Contracts within 10 days after
receipt thereof; or
(b) upon institution of formal proceedings against the Fund
by the NASD, the SEC or any state securities or insurance commission or
any other regulatory body; or
(c) if the Fund ceases to qualify as a regulated investment
company under Subchapter M of the Code, or under any successor or similar
provision, or if the Company reasonably believes the Fund may fail to so
qualify, and the Fund, upon written request, fails to provide reasonable
assurance that it will take action to cure or correct such failure; or
(d) if the Fund fails to meet the diversification
requirements specified in Section 817(h) of the Code and any regulations
thereunder, and the Fund, upon written request, fails to provide
reasonable assurance that it will take action to cure or correct such
failure; or
(e) if the Fund informs the Company pursuant to Section 4.4
that the Fund will not comply with investment restrictions as requested by
the Company, and the Fund and the Company are unable to agree upon any
reasonable alternative accommodations; or
(f) upon receipt by the Company of any necessary regulatory
approvals and the vote of the Contract Owners having an interest in the
Account (or any subaccount) to substitute the shares of another investment
company for the corresponding Portfolio shares of the Fund in accordance
with the terms of the Contracts for which those Portfolio shares had been
selected to serve as the underlying investment media. The Company will
give 30 days' prior written notice to the Fund of the date of any proposed
vote or other action taken to replace the Fund's shares; or
20
(g) upon a material breach of any provision of this
Agreement by either the Fund or the Adviser; or
(h) if the Company determines in its sole judgment
exercised in good faith, that either the Fund or the Adviser has suffered
a material adverse change in its business, operations, or financial
conditions since the date of this Agreement or is the subject of material
adverse publicity which is likely to have a material adverse impact upon
the business and operations of the Company.
10.4. COMPANY REQUIRED TO REDEEM. The parties understand and
acknowledge that it is essential for compliance with Section
817(h) of the Code that the Contracts qualify as annuity
contracts or life insurance policies, as applicable, under the
Code. Accordingly, if any of the Contracts cease to qualify as
annuity contracts or life insurance policies, as applicable,
under the Code, or if the Fund reasonably believes that any
such Contracts may fail to so qualify and the Company fails to
provide reasonable assurance that it will take action to cure
or correct such failure, the Fund shall have the right to
require the Company to redeem Shares attributable to such
Contracts upon ten (10) days written notice to the Company and
the Company shall so redeem such Shares in order to ensure
that the Fund complies with the provisions of Section 817(h)
of the Code applicable to ownership of Fund Shares. Notice to
the Company shall specify the period of time the Company has
to redeem the Shares or to make other arrangements
satisfactory to the Fund and its counsel, such period of time
to be determined with reference to the requirements of Section
817(h) of the Code. In addition, the Company may be required
to redeem Shares pursuant to action taken or request made by
the Fund Board in accordance with an order of the SEC as
described in Article VII, or other SEC rule, regulation or
order that may be adopted after the date hereof. The Company
agrees to redeem Shares in such circumstances and to comply
with applicable terms and provisions.
21
ARTICLE XI. APPLICABILITY TO NEW ACCOUNTS AND NEW CONTRACTS
The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect, as appropriate, changes in or relating
to the Contracts, or Series or funding vehicles thereof, additions of new
classes of Contracts to be issued by the Company and separate accounts therefor
investing in the Fund. The provisions of this Agreement shall be equally
applicable to each such class of Contracts, Series and Accounts, effective as of
the date of amendment of such Schedule, unless the context otherwise requires.
ARTICLE XII. NOTICE, REQUEST OR CONSENT
Any notice, request or consent to be provided pursuant to this
Agreement is to be made in writing and shall be given:
If to the Fund prior to June 1, 2003:
M Fund, Inc.
River Park Center
000 X.X. Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: President
If to the Fund after June 1, 2003:
M Fund, Inc.
M Financial Plaza
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: President
If to the Adviser prior to June 1, 2003:
M Financial Investment Advisers, Inc.
River Park Center
000 X.X. Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: President
22
If to the Adviser after June 1, 2003:
M Financial Investment Advisers, Inc.
M Financial Plaza
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: President
If to the Company:
Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: President
or at such other address as such party may from time to time specify in writing
to the other party. Each such notice, request or consent to a party shall be
sent by registered or certified United States mail with return receipt
requested, by overnight delivery with a nationally recognized courier or by
electronically transmitted facsimile, and shall be effective upon receipt or
three days after mailing.
ARTICLE XIII. MISCELLANEOUS
13.1. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
13.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which together shall constitute one and the same
instrument.
13.3. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
13.4. Subject to the requirement of legal process and regulatory
authority, each party hereto shall treat as if confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement shall not disclose, disseminate, or utilize such
names and addresses and other confidential information until such time as it may
come into the public domain without the express written consent of the affected
party.
13.5. The rights, remedies, and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies,
and obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
23
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized officer
on the date specified below.
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
(Company)
Date: 5/1/03 By: /s/ Rise X. X. Xxxxxx
Name: Rise X. X. Xxxxxx
Title: 2nd Vice President
M FUND, INC.
(Fund)
Date: 5/1/03 By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
M FINANCIAL INVESTMENT ADVISERS, INC.
(Adviser)
Date: 5/1/03 By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
24
SCHEDULE 1
Accounts of the Company
Investing in the Fund
Effective as of the date the Agreement was executed, the following separate
accounts of the Company are subject to the Agreement:
DATE ESTABLISHED BY SEC 1940 ACT
NAME OF ACCOUNT AND BOARD OF DIRECTORS OF THE REGISTRATION NUMBER TYPE OF PRODUCT
SUBACCOUNTS COMPANY (IF APPLICABLE) SUPPORTED BY ACCOUNT
------------------------------------------------------------------------------------------------------------
Lincoln Life Flexible November 24, 1997 811-08559 Variable Life
Premium Variable Life
Account M
LLANY Separate Account R for January 29, 1998 811-08651 Variable Life
Flexible Premium Variable
Life Insurance
SCHEDULE 2
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Effective as of the date the Agreement was executed, the following classes of
Contracts are subject to the Agreement:
SEC 1933 ACT
REGISTRATION NUMBER NAME OF SUPPORTING
POLICY MARKETING NAME (IF APPLICABLE) ACCOUNT ANNUITY OR LIFE
-------------------------------------------------------------------------------------------------------
VULCV-III 333-084684 LLANY Account M Life
VULDB-II 333-084688 LLANY Account M Life
SVUL-III 333-090508 LLANY Account M Life
SCHEDULE 3
Fund Series and Other Funding
Vehicles Available Under
Each Class of Contracts
Effective as of the date the Agreement was executed, the following Fund Series
are available under the Contracts:
M Fund, Inc. Fund Series:
Xxxxxxx International Equity Fund
Frontier Capital Appreciation Fund
Xxxxxx Core Growth Fund
Business Opportunity Value Fund
SCHEDULE 4
Investment Restrictions
Applicable to the Fund
Effective as of the date the Agreement was executed, the following investment
restrictions are applicable to the Fund:
The California Department of Insurance has established the following Guidelines
for an underlying portfolio of a Separate Account:
Borrowing. Borrowing limits for any variable contract separate account portfolio
are (1) 10% of net asset value when borrowing for any general purpose; and (2)
25% of net asset value when borrowing as a temporary measure to facilitate
redemptions. Net asset value of a portfolio is the market value of all
investments or assets owned less outstanding liabilities of the portfolio at the
time that any new or additional borrowing is undertaken.
Foreign Investments- Diversification.
1. A portfolio will be invested in a minimum of five different foreign
countries at all times. However, this minimum is reduced to four
when foreign investments comprise less than 80% of the portfolio's
net asset value; to three when less than 60% of that value; to two
when less than 40%; and to one when less than 20%.
2. Except as set forth in item 3 and 4 below, a Portfolio will have no
more than 20% of its net asset value invested in securities of
issuers located in any one country.
3. A Portfolio may have an additional 15% of its net asset value
invested in scurities of issuers located in any one of the following
countries: Australia, Canada, France, Japan, the United Kingdom, or
Germany.
4. A Portfolio's investments in the United States issuers are not
subject to the foreign country diversification guidelines.
