FUND PARTICIPATION AGREEMENT
AXA EQUITABLE LIFE INSURANCE COMPANY,
BLACKROCK VARIABLE SERIES FUNDS, INC.,
BLACKROCK ADVISORS, LLC,
AND
BLACKROCK INVESTMENTS, LLC
OCTOBER 16 2009
FUND PARTICIPATION AGREEMENT
Among
AXA Equitable Life Insurance Company,
BlackRock Variable Series Funds, Inc.,
BlackRock Advisors, LLC
and
BlackRock Investments, LLC
THIS AGREEMENT, executed as of October XX 2009 and effective as of
October 16 2009, by and among AXA Equitable Life Insurance Company (the
"Company"), a New York Corporation, on its own behalf and on behalf of certain
separate accounts (the "Accounts"); BlackRock Variable Series Funds, Inc. an
open-end management investment company organized as a Maryland corporation (the
"Fund"); BlackRock Advisors. LLC ("BAL" or "Adviser"), and BlackRock
Investments, LLC ("BRIL" or the "Distributor"),
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and/or
variable annuity contracts (collectively, the "Variable Insurance Products") to
be offered by insurance companies (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio" and representing the interest in
a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC"), dated August 17 1995 (File No. IC-21389) (the
"Mixed and Shared Funding Exemptive Order"), granting Participating Insurance
Companies and variable annuity
and variable life insurance separate accounts exemptions from the provisions of
sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as
amended (hereinafter the "1940 Act"), and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolio(s) are registered under
the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended; and
WHEREAS, the Distributor is duly registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended, (the "1934 Act") and is a
member in good standing of the Financial Industry Regulatory Authority (the
"FINRA"); and
WHEREAS, the Company has issued and plans to continue to issue certain
variable life insurance policies and/or variable annuity contracts supported
wholly or partially by the Accounts (the "Contracts"); and such Contracts are
listed in Schedule A attached hereto and incorporated herein by reference, as
such schedule may be amended from time to time by mutual written agreement of
the parties; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of NewYork, to set aside and
invest assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to continue to purchase shares in the
Portfolios listed on Schedule B attached
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hereto and incorporated herein by reference, as such schedule may be amended
from time to time by mutual written agreement of the parties (the "Portfolios"),
on behalf of the Accounts to fund the Contracts, and the Fund is authorized to
sell such shares to unit investment trusts such as the Accounts at net asset
value; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company also intends to continue to purchase shares in other
open-end investment companies or series thereof not affiliated with the Fund
(the "Unaffiliated Funds") on behalf of the Accounts to fund the Contracts; and
WHEREAS, pursuant to Rule 22c-2 of the 1940 Act, Distributor, on behalf
of the Fund, and Company have entered into a Shareholder Information Agreement
executed on October XX, 0000.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, the Distributor and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company for its accounts those
shares of the Portfolios which the Account orders, executing such orders on each
Business Day at the net asset value next computed after receipt by the Fund or
its designee of the order for the shares of the Portfolios. For purposes of this
Section 1.1, the Company shall be the designee of the Fund for receipt of such
orders and receipt by such designee shall constitute receipt by the Fund,
provided that the Company uses best efforts to ensure that Fund receives notice
of any such order by 9:00 a.m. Eastern time on the next following Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange (the
"NYSE") is open for trading and on which the Portfolio calculates its net asset
value pursuant to the rules of the SEC as described in the then-current
registration statement of the Fund on Form N-1A. "Valuation Time" shall mean the
time
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as of which the Fund calculates net asset value for the shares of the Portfolios
on the relevant Business Day.
1.2. The Fund agrees to make shares of the Portfolios available for
purchase at the applicable net asset value per share by the Company and the
Accounts on those days on which the Fund calculates its Portfolios' net asset
value pursuant to rules of the SEC, and the Fund shall calculate such net asset
value on each day which the NYSE is open for trading. Notwithstanding the
foregoing, the Fund may refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of shares of any Portfolio if such action is
required by law or by regulatory authorities having jurisdiction or is, in the
sole discretion of the Fund acting in good faith, necessary or appropriate in
the best interests of the shareholders of such Portfolio. All orders accepted by
the Company shall be subject to the terms of the then current prospectus of the
Fund. The Company shall use its best efforts, and shall reasonably cooperate
with, the Fund to enforce stated prospectus policies regarding transactions in
Portfolio shares. The Company acknowledges that orders for Portfolio shares
accepted by it in violation of the stated policies of the Fund as set forth in
the Fund's then-current prospectus may be subsequently revoked or cancelled by
the Fund and that the Fund shall not be responsible for any losses incurred by
the Company or the Contract owner as a result of such cancellation. In addition,
the Company acknowledges that the Fund has the right to refuse any purchase
order for any reason, particularly if the Fund determines that a Portfolio would
be unable to invest the money effectively in accordance with its investment
policies or would otherwise be adversely affected due to the size of the
transaction, frequency of trading, or other factors.
1.3. The Fund will not sell shares of the Portfolios to any other
Participating Insurance Company separate account unless an agreement containing
provisions the substance of which are the same as Sections 2.1, 2.2 (except with
respect to designation of applicable law), 3.5, 3.6, 3.7, and Article VII of
this Agreement is in effect to govern such sales.
1.4. The Fund agrees to redeem for cash, on the Company's request, any
full or fractional shares of the Fund held by the Company, executing such
requests on each Business
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Day at the net asset value next computed after receipt by the Fund or its
designee of the request for redemption. For purposes of this Section 1.4, the
Company shall be the designee of the Fund for receipt of requests for redemption
and receipt by such designee shall constitute receipt by the Fund, provided that
Company uses best efforts to ensure that the Fund receives notice of any such
request for redemption by 9:00a. m. Eastern time on the next following Business
Day.
1.5. The parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Fund's shares may be sold to other
Participating Insurance Companies (subject to Section 1.3) and the cash value of
the Contracts may be invested in other investment companies.
1.6. The Company shall use best efforts to pay for Fund shares by 1:00
p.m. Eastern time on the next Business Day after an order to purchase Fund
shares is received in accordance with the provisions of Section 1.1 hereof.
Payment shall be in federal funds transmitted by wire and/or by a credit for any
shares redeemed the same day as the purchase.
1.7. The Fund shall pay and transmit the proceeds of redemptions of
Fund shares by 1:00 p.m. Eastern Time on the next Business Day after a
redemption order is received in accordance with Section 1.4 hereof; provided,
however, that the Fund may delay payment in extraordinary circumstances to the
extent permitted under Section 22(e) of the 1940 Act. Payment shall be in
federal funds transmitted by wire and/or a credit for any shares purchased the
same day as the redemption.
1.8. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or the Accounts.
Shares purchased from the Fund will be recorded in an appropriate title for the
relevant Account or the relevant sub-account of an Account.
1.9. The Fund shall furnish same day notice (by electronic
communication or telephone, followed by electronic confirmation) to the Company
of any income, dividends or
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capital gain distributions payable on a Portfolio's shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on a Portfolio's shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Fund shall notify
the Company by the end of the next following Business Day of the number of
shares so issued as payment of such dividends and distributions.
1.10. The Fund shall make the net asset value per share for each
Portfolio available to the Company on each Business Day as soon as reasonably
practicable after the net asset value per share is calculated and shall use its
best efforts to make the net asset value per share for each Portfolio available
by 6:30 p.m. Eastern time. In the event of an error in the computation of a
Portfolio's net asset value per share ("NAV") or any dividend or capital gain
distribution (each, a "pricing error"), the Adviser or the Fund shall notify the
Company as soon as reasonably possible after discovery of the error. Such
notification may be verbal, but shall be confirmed promptly in writing. A
pricing error shall be corrected pursuant to the NAV correction policy of the
Fund.
If the Fund provides materially incorrect share net asset value information, it
shall make an adjustment to the number of shares purchased or redeemed for any
affected Account to reflect the correct net asset value per share.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that: (a) the securities
deemed to be issued by the Accounts under the Contracts are or will be
registered under the 1933 Act, or are not so registered in proper reliance upon
an exemption from such registration requirements; (b) the Contracts will be
issued and sold in compliance in all material respects with all applicable
federal and state laws; and (c) the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements.
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2.2. The Company represents and warrants that: (a) it is an insurance
company duly organized and in good standing under applicable law; (b) it has
legally and validly established each Account prior to any issuance or sale of
units thereof as a separate account under New York State law; and (c) it has
registered each Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for the
Contracts, and will maintain such registration for so long as any Contracts are
outstanding as required by applicable law or, alternatively, the Company has not
registered one or more Accounts in proper reliance upon an exclusion from such
registration requirements.
2.3. The Fund represents and warrants that: (a) the Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act; (b) the Fund
shares sold pursuant to this Agreement shall be duly authorized for issuance and
sold in compliance with all applicable federal securities laws including,
without limitation, the 1933 Act, the 1934 Act, and the 1940 Act; (c) the Fund
is and shall remain a registered investment company under the 1940 Act; and (d)
the Fund shall amend the registration statement for its shares under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares.
2.4. The Fund represents and warrants that it has adopted a plan
pursuant to Rule 12b-1 under the 1940 Act for its Class II and Class III shares.
The parties acknowledge that the Fund reserves the right to modify its existing
plan or to adopt additional plans pursuant to Rule 12b-1 under the 1940 Act
(including with respect to its Class II and Class III shares) and to impose an
asset-based or other charge to finance distribution expenses as permitted by
applicable law and regulation. The Fund, the Distributor and the Adviser agree
to comply with applicable provisions and SEC interpretation of the 1940 Act with
respect to any distribution plan.
2.5. The Fund represents and warrants that it shall register and
qualify the shares for sale in accordance with the laws of the various states if
and to the extent required by applicable law.
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2.6. The Fund represents and warrants that it is lawfully organized and
validly existing under the laws of the State of Delaware and that it does and
will comply in all material respects with the 1940 Act.
2.7. The Fund will at all times invest money from the Contracts in such
a manner as to ensure that the Contracts will be treated as variable contracts
under the Code and the regulations issued thereunder. Without limiting the scope
of the foregoing or anything contained in Article VI of this Agreement, the Fund
represents and warrants that each Portfolio of the Fund will comply with Section
817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulations (and any revenue rulings, revenue procedures, notices, and other
published announcements of the Internal Revenue Service interpreting these
provisions). In the event the Fund should fail to so qualify, it will take all
reasonable steps (a) to notify the Company of such breach and (b) to resume
compliance with such diversification requirement within the grace period
afforded by Treasury Regulations 1.817-5.
2.8. The Adviser represents and warrants that it is and shall remain
duly registered as an investment adviser under all applicable federal and state
securities laws and that it shall perform its obligations for the Fund in
compliance in all material respects with any applicable state and federal
securities laws.
2.9. The Distributor represents and warrants that it is and shall
remain duly registered under all applicable federal and state securities laws
and that it shall perform its obligations for the Fund in compliance in all
material respects with the laws of any applicable state and federal securities
laws.
2.10. The Fund and the Adviser represent and warrant that all of their
respective officers, employees, investment advisers, and other individuals or
entities dealing with the money and/or securities of the Fund are, and shall
continue to be at all times, covered by one or more blanket
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fidelity bonds or similar coverage for the benefit of the Fund in an amount not
less than the minimal coverage required by Rule 17g-1 under the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid bonds
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
2.11. The Fund and the Adviser represent, warrant, and covenant: (i)
that each Portfolio is classified as a "regulated investment company" for
federal income tax purposes and Adviser shall use its best efforts to manage the
Fund at all times to maintain such classification; (ii) to notify the Company
upon having a reasonable basis for believing that the Fund or any Portfolio has
ceased to comply, or might not so comply, with the aforesaid classification as a
"regulated investment company," and (iii) that each Portfolio will not make any
direct or indirect investment which would require the Company to report such an
investment as a "listed transaction" on the Company's tax return or any similar
Internal Revenue Service reporting requirements.
2.12. The Fund and the Adviser represent and warrant that they will
provide the Company with as much advance notice as is reasonably practicable of
any material change affecting the Portfolios (including, but not limited to, any
material change in the registration statement or prospectus affecting the
Portfolios) and any proxy solicitation affecting the Portfolios and consult with
the Company in order to implement any such change in an orderly manner,
recognizing the expenses of changes and attempting to minimize such expenses by
implementing them in conjunction with regular annual updates of the prospectus
for the Contracts.
2.13. The Company represents and warrants, for purposes other than
diversification under Section 817 of the Internal Revenue Code of 1986, as
amended (the "Code"), that the Contracts are currently and at the time of
issuance will be treated as annuity contracts or life insurance policies under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment and that it will notify the Fund, the Distributor and
the Adviser immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they may not be so treated in the
future. In addition, the Company represents and
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warrants that interests in each Account are offered exclusively through the
purchase of or transfer into a "variable contract" within the meaning of such
terms under Section 817 of the Code and the regulations thereunder. The Company
will use best efforts to continue to meet such definitional requirements, and it
will notify the Fund, the Distributor and the Adviser immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they may not be met in the future.
2.14. Each party represents and warrants that it is currently in
compliance, and will remain in compliance, with all applicable anti-money
laundering laws, regulations, and requirements. In addition, the Company
represents and warrants that it has adopted and implemented policies and
procedures reasonably designed to achieve compliance with the applicable
requirements administered by the Office of Foreign Assets Control ("OFAC") of
the U.S. Department of the Treasury.
2.15. The Company represents and warrants that it is currently in
compliance, and will remain in compliance, with all applicable laws, rules and
regulations relating to consumer privacy, including, but not limited to,
Regulation S-P.
2.16. The Company represents and warrants that it has adopted, and will
at all times during the term of this Agreement maintain, reasonable and
appropriate procedures ("Late Trading Procedures") designed to ensure that any
and all orders relating to the purchase, sale or exchange of Fund shares
communicated to the Fund are treated in accordance with Article I of this
Agreement as having been received on a Business Day have been received by the
Valuation Time on such Business Day and were not modified after the Valuation
Time, and that all orders received from Contract owners but not rescinded by the
Valuation Time were communicated to the Fund or its agent as received for that
Business Day. Each transmission of orders by the Company shall constitute a
representation by the Company that such orders are accurate and complete and
relate to orders received by the Company by the Valuation Time on the Business
Day for which the order is to be priced and that such transmission includes all
orders relating to Fund shares received from Contract owners but not rescinded
by the Valuation Time. The
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Company agrees to provide the Fund or its designee with a copy of the Late
Trading Procedures and such certifications and representations regarding the
Late Trading Procedures as the Fund or its designee may reasonably request. The
Company will promptly notify the Fund in writing of any material change to the
Late Trading Procedures.
2.17. The Company represents and warrants that it has adopted, and will
at all times during the term of this Agreement maintain, reasonable and
appropriate procedures ("Market Timing Procedures") designed to minimize any
adverse impact on other Fund investors due to excessive trading. The Company
agrees to provide the Fund or its designee with a copy of Company's Market
Timing Procedures and such certifications and representations regarding the
Market Timing Procedures as the Fund or its designee may reasonably request. The
Company will promptly notify the Fund in writing of any material change to the
Market Timing Procedures. The parties agree to cooperate in light of any
conflict between the Market Timing Procedures and actions taken or policies
adopted by the Fund designed to minimize any adverse impact on other Fund
investors due to excessive trading.
2.18. The Fund, the Adviser and the Distributor make no representation
as to whether any aspect of the Fund's operations (including, but not limited
to, fees and expenses and investment policies) complies with the insurance laws
or regulations of the various states.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. At least annually, the Adviser or Distributor shall provide the
Company with as many copies of the Fund's current prospectus as the Company may
reasonably request, with reasonable expenses to be borne in accordance with
Schedule C hereof. If requested by the Company in lieu thereof, the Adviser,
Distributor or Fund shall provide such documentation (including an electronic
version of the current prospectus) and other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus for the Fund is amended) to have the prospectus for the Contracts and
the prospectus for the Fund printed together in one document.
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3.2. If applicable state or federal laws or regulations require that
the Statement of Additional Information ("SAI") for the Fund be distributed to
all Contract owners, then the Fund, Distributor and/or the Adviser shall provide
the Company with copies of the Fund's SAI in such quantities, with reasonable
expenses to be borne in accordance with Schedule C hereof, as the Company may
reasonably require to permit timely distribution thereof to Contract owners. The
Adviser, the Distributor and/or the Fund shall also provide an SAI to any
Contract owner or prospective owner who requests such SAI from the Fund.
3.3. The Fund, the Distributor and/or the Adviser shall provide the
Company with copies of the Fund's proxy material, reports to shareholders and
other communications to shareholders in such quantity, with reasonable expenses
to be borne in accordance with Schedule C hereof, as the Company may reasonably
require to permit timely distribution thereof to Contract owners.
3.4. It is understood and agreed that, except with respect to
information regarding the Company provided in writing by that party, the Company
shall not be responsible for the content of the prospectus or SAI for the Fund.
It is also understood and agreed that, except with respect to information
regarding the Fund, the Distributor, the Adviser or the Portfolios provided in
writing or approved of in writing by the Fund, the Distributor or the Adviser,
neither the Fund, the Distributor nor Adviser are responsible for the content of
the prospectus or SAI for the Contracts.
3.5. If and to the extent required by law the Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Portfolio shares held in the Accounts in accordance
with instructions received from Contract owners;
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(c) vote Portfolio shares held in the Accounts for which no
instructions have been received in the same proportion as Portfolio shares for
which instructions have been received from Contract owners, so long as and to
the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners; and
(d) vote Portfolio shares held in its general account or otherwise
in the same proportion as Portfolio shares for which instructions have been
received from Contract owners, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require such voting by the insurance
company. The Company reserves the right to vote Fund shares in its own right, to
the extent permitted by law.
3.6. The Company shall be responsible for assuring that each of its
separate accounts holding shares of a Portfolio calculates voting privileges as
directed by the Fund and agreed to by the Company and the Fund. The Fund agrees
to promptly notify the Company of any changes of interpretations or amendments
of the Mixed and Shared Funding Exemptive Order.
3.7. 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 (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, 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
SEC's interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors or trustees and with whatever rules the SEC may
promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, a copy of each piece of sales literature or other
promotional material that the Company develops or proposes to use and in which
the Fund (or a Portfolio thereof), the Adviser or the Distributor is named in
connection with the Contracts, at least five (5) Business Days prior to its
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use. No such material shall be used if the Fund or its designee objects to such
use within five (5) Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of or concerning the Fund, the
Portfolios, the Adviser or the Distributor in connection with the sale of the
Contracts other than the information or representations contained in the
registration statement, including the prospectus or SAI for the Fund, as the
same may be amended or supplemented from time to time, or in sales literature or
other promotional material approved by the Fund, the Distributor or the Adviser,
except with the permission of the Fund, the Distributor or the Adviser.
4.3. The Fund, the Adviser or the Distributor shall furnish, or shall
cause to be furnished, to the Company, a copy of each piece of sales literature
or other promotional material in which the Company and/or its separate
account(s) is named at least five (5) Business Days prior to its use. No such
material shall be used if the Company objects to such use within five (5)
Business Days after receipt of such material.
4.4. The Fund, the Distributor and the Adviser shall not give any
information or make any representations on behalf of the Company or concerning
the Company, the Accounts, or the Contracts other than the information or
representations contained in a registration statement, including the prospectus
or SAI for the Contracts, as the same may be amended or supplemented from time
to time, or in sales literature or other promotional material approved by the
Company or its designee, except with the permission of the Company.
4.5. The Fund or its designees will provide to the Company at least one
complete copy of all registration statements, prospectuses, SAIs, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments and supplements to any of the
above, that relate to the Fund within a reasonable period of time following the
filing of such document(s) with the SEC or FINRA or other regulatory
authorities.
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4.6. The Company will provide to the Fund or its designees at least one
complete copy of all registration statements, prospectuses, SAIs, reports,
solicitations for voting instructions, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments and supplements to any of the above, that relate to the Accounts with
respect to the Fund, within a reasonable period of time following the filing of
such document(s) with the SEC, FINRA, or other regulatory authority.
4.7. For purposes of Articles IV and VIII, the phrase "sales literature
and other promotional material" includes, but is not limited to, sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and shareholder reports, and proxy
materials (including solicitations for voting instructions) and any other
material constituting sales literature or advertising under the FINRA rules, the
1933 Act or the 0000 Xxx.
4.8. At the request of any party to this Agreement, each other party
will make available to the other party's independent auditors and/or
representatives of the appropriate regulatory authorities, all records, data and
access to operating procedures that may be reasonably requested in connection
with compliance and regulatory requirements related to this Agreement or any
party's obligations under this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund, the Distributor and the Adviser shall pay no fee or
other compensation to the Company under this Agreement, and the Company shall
pay no fee or other compensation to the Fund, the Distributor or Adviser under
this Agreement; provided, however, (a) the parties will bear their own expenses
as reflected in Schedule C and other provisions of this Agreement,
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and (b) the parties may enter into other agreements relating to the Company's
investment in the Fund, including administrative services agreements.
ARTICLE VI. Diversification and Qualification
6.1. The Adviser represents that it will use reasonable efforts in
managing the Fund and each Portfolio thereof with the intention that they will
at all times comply with Section 817(h) of the Code and Treasury Regulation
ss.1.817-5, as amended from time to time, and any Treasury interpretations
thereof, relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts and any amendments or other modifications
or successor provisions to such Section or Regulations. The Fund, the
Distributor or the Adviser shall provide timely to the Company a quarterly
written diversification certification, in the form attached hereto as Schedule
D, as to whether each Portfolio complies with the diversification requirements
of Section 817(h) of the Code.
6.2. The Fund, the Distributor and the Adviser represent and warrant
that shares of the Portfolios will be sold only to Participating Insurance
Companies and their separate accounts and to Qualified Plans. No shares of any
Portfolio of the Fund will be sold to the general public.
6.3. The Fund, the Distributor and the Adviser represent and warrant
that prior to allowing an initial purchase of shares of the Fund, the status of
each purchaser, including any insurance company separate account or Qualified
Plan, is verified and documented.
6.4. The Fund, the Distributor or the Adviser will notify the Company
immediately upon having a reasonable basis for believing that the Fund or any
Portfolio has ceased to comply with the aforesaid Section 817(h) diversification
requirements or might not so comply in the future.
6.5. The Company agrees that if the Internal Revenue Service ("IRS")
asserts in writing in connection with any governmental audit or review of the
Company (or, to the
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Company's knowledge, of any Contract owner) that any Portfolio has failed to
comply with the diversification requirements of Section 817(h) of the Code or
the Company otherwise becomes aware of any facts that could give rise to any
claim against the Fund, the Distributor or the Adviser as a result of such a
failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor
and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and
the Adviser as to how to minimize any liability that may arise as a result of
such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any
liability of the Fund, the Distributor and the Adviser resulting from such
failure, including, without limitation, demonstrating, pursuant to Treasury
Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such
failure was inadvertent;
(d) Any written materials to be submitted by the Company to the
IRS, any Contract owner or any other claimant in connection with any of the
foregoing proceedings or contests (including, without limitation, any such
materials to be submitted to the IRS pursuant to Treasury Regulations, Section
1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and
the Adviser (together with any supporting information or analysis)
contemporaneous with such submission;
(e) The Company shall provide the Fund, the Distributor and the
Adviser with such cooperation as the Fund, the Distributor and the Adviser shall
reasonably request (including, without limitation, by permitting the Fund, the
Distributor and the Adviser to review the relevant books and records of the
Company) in order to facilitate the review by the Fund, the Distributor and the
Adviser of any written submissions provided to it or its assessment of the
validity or amount of any claim against it arising from such failure or alleged
failure;
17
(f) The Company shall not with respect to any claim of the IRS or
any Contract owner that would give rise to a claim against the Fund, the
Distributor and the Adviser (i) compromise or settle any claim, (ii) accept any
adjustment on audit, or (iii) forego any allowable administrative or judicial
appeals, without the express written consent of the Fund, the Distributor and
the Adviser, which shall not be unreasonably withheld; provided that, the
Company shall not be required to appeal any adverse judicial decision unless the
Fund, the Distributor, or the Adviser shall have provided an opinion of
independent counsel to the effect that a reasonable basis exists for taking such
appeal; and further provided that the Fund, the Distributor and the Adviser
shall bear the costs and expenses, including reasonable attorney's fees,
incurred by the Company in complying with this clause (f).
ARTICLE VII. Potential Conflicts and Compliance With Mixed and Shared Funding
Exemptive Order
7.1. The Fund's Board of Trustees (the "Board") will monitor the Fund
for the existence of any material irreconcilable conflict between the interests
of the Contract owners of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise for a variety of reasons, including:
(a) an action by any state insurance regulatory authority; (b) a change in
applicable federal or state insurance, tax, or securities laws or regulations,
or a public ruling, private letter ruling, no-action or interpretative letter,
or any similar action by insurance, tax, or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio is being managed; (e) a
difference in voting instructions given by variable annuity contract and
variable life insurance contract owners or by contract owners of different
Participating Insurance Companies; or (f) a decision by a Participating
Insurance Company to disregard the voting instructions of Contract owners. The
Board shall promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing material
conflicts of which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, by providing the Board with all information
18
reasonably necessary for the Board to consider any issues raised. This includes,
but is not limited to, an obligation by the Company to inform the Board whenever
Contract owner voting instructions are to be disregarded. Such responsibilities
shall be carried out by the Company with a view only to the interests of its
Contract owners.
7.3. If it is determined by a majority of the Board, or a majority of
its directors who are not interested persons of the Fund, the Distributor, the
Adviser or any subadviser to any of the Portfolios, as defined in Section
2(a)(19) of the 1940 Act (the "Independent Trustees"), that a material
irreconcilable conflict exists, the Company and other Participating Insurance
Companies shall, at their expense and to the extent reasonably practicable (as
determined by a majority of the Independent Trustees), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, up to and
including: (1) withdrawing the assets allocable to some or all of the separate
accounts from the Fund or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio,
or submitting the question 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 variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a decision
by the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the Account's investment in
the Fund and terminate this Agreement; 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 Independent
Trustees. Any such withdrawal and termination must take place within six (6)
months after the Fund gives written notice that this provision is being
implemented, and until the end of that six-
19
month period the Adviser, the Distributor and the Fund shall continue to accept
and implement orders by the Company for the purchase (and redemption) of shares
of the Fund.
7.5. 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
Account's investment in the Fund and terminate this Agreement within six (6)
months 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 Independent Trustees. Until the end of the foregoing six-month
period, the Fund shall continue to accept and implement orders by the Company
for the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.5 of this Agreement, a
majority of the Independent Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Fund be required to establish a new funding medium for the Contracts. The
Company shall not be required by Section 7.3 to establish a new funding medium
for the Contracts if an offer to do so has been declined by vote of a majority
of Contract owners affected by the irreconcilable material conflict. 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 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 Independent Trustees.
7.7. 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 provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms
and conditions materially different from those contained in the
20
Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the
Participating Insurance Companies, as appropriate, shall take such steps as may
be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3,
as adopted, to the extent such rules are applicable; and (b) Sections 3.5, 3.6,
3.7, 7.1, 7.2, 7.3, 7.4, and 7.5 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
(a) As limited by and in accordance with Section 8.1(b) and 8.1(c)
hereof, the Company agrees to indemnify and hold harmless the Fund, the
Distributor and the Adviser and each of their respective officers and directors
or trustees and each person, if any, who controls the Fund, the Distributor or
the Adviser within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, expenses, damages and liabilities (including amounts paid in
settlement with the written consent of the Company) or litigation (including
reasonable legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, expenses, damages or liabilities (or actions in respect
thereof) or settlements are related to the sale or acquisition of the Fund's
shares or the Contracts and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any
material fact contained in the registration statement
or prospectus or SAI covering the Contracts or
contained in the Contracts or sales literature or
other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or
arise out of or are based upon 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, provided that
this Agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or
such alleged statement or omission was made in
reliance upon and in conformity with information
furnished in writing to the Company or approved in
writing to the Company by or on behalf of the
Adviser,
21
Distributor or Fund for use in the registration
statement or prospectus for the Contracts or in the
Contracts or sales literature or other promotional
material (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
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus, SAI or sales literature or
other promotional material of the Fund not supplied
by the Company or persons under its control) or
wrongful conduct of the Company or persons under its
control, with respect to the sale or distribution of
the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement, prospectus, SAI, or sales
literature or other promotional material of the Fund,
or any amendment thereof or supplement thereto, 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, if such a statement or omission was made
in reliance upon information furnished in writing to
the Fund by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company
to provide the services and furnish the materials
under the terms of this Agreement; or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the
Company in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Company, including without limitation Section
2.13 and Section 6.5 hereof.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal
22
process giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Company of any such claim shall not relieve the Company from any liability which
it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision, except to the
extent that the Company has been prejudiced by such failure to give notice. In
case any such action is brought against the Indemnified Parties, the Company
shall be entitled to participate, at its own expense, in the defense of such
action. The Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Company to such party of the Company's election to assume the defense thereof,
the Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation. The Company shall not be liable under this indemnification
provision with respect to any claim, action, suit, or preceding settled by an
Indemnified Party without the Company's written approval.
(d) The Indemnified Parties will promptly notify the Company of
the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Fund Shares or the Contracts or the operation
of the Fund.
8.2. Indemnification by the Adviser
(a) The Adviser agrees to indemnify and hold harmless the Company
and its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in settlement with the
written consent of the Adviser) or litigation (including reasonable legal and
other expenses) to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or
23
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material
fact contained in the registration statement or
prospectus or SAI or sales literature or other
promotional material of the Fund prepared by the
Fund, the Distributor or the Adviser (or any
amendment or supplement to any of the foregoing), or
arise out of or are based upon 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, provided that
this Agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or
such alleged statement or omission was made in
reliance upon and in conformity with information
furnished in writing to the Adviser, the Distributor
or the Fund by or on behalf of the Company for use in
the registration statement, prospectus or SAI for the
Fund or in sales literature or other promotional
material (or any amendment or supplement to any of
the foregoing) or otherwise for use in connection
with the sale of the Contracts or the Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus, SAI or sales literature or
other promotional material for the Contracts not
supplied by the Adviser or persons under its control)
or wrongful conduct of the Fund, the Distributor or
the Adviser or persons under their control, with
respect to the sale or distribution of the Contracts
or Fund shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement, prospectus, SAI, or sales
literature or other promotional material covering the
Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein
or necessary to make the statement or statements
therein not misleading, if such statement or omission
was made in reliance upon information furnished in
writing to the Company by or on behalf of the
Adviser, the Distributor or the Fund; or
(iv) arise as a result of any failure by the Fund,
the Distributor or the Adviser to provide the
services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the
Fund, the Distributor or the Adviser in this
24
Agreement or arise out of or result from any other
material breach of this Agreement by the Adviser, the
Distributor or the Fund (including, without
limitation, any material breach, whether
unintentional or in good faith or otherwise, of the
representations, warranties, or covenants set forth
in Section 2.11 of this Agreement); or
(vi) arise out of or result from the incorrect or
untimely calculation or reporting by the Fund, the
Distributor or the Adviser of a Portfolio's daily NAV
per share (subject to Section 1.10 of this Agreement)
or dividend or capital gain distribution rate.
Notwithstanding anything to the contrary in this
Agreement, Fund Parties will reimburse the Company
for reasonable out of pocket costs and expenses
incurred due to an NAV adjustment resulting from the
incorrect or untimely calculation or reporting by the
Fund of a Portfolio's daily NAV in an amount not to
exceed $1,000 per day and not to exceed $5,000 per
occurrence.
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Adviser specified in Article VI hereof.
(b) The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
(c) The Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Adviser of any
such claim shall not relieve the Adviser from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that
25
the Adviser has been prejudiced by such failure to give notice. In case any such
action is brought against the Indemnified Parties, the Adviser will be entitled
to participate, at its own expense, in the defense thereof. The Adviser also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Adviser to such party of
the Adviser's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Adviser will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation. The Adviser shall not be liable under this indemnification
provision with respect to any claim, action, suit, or preceding settled by an
Indemnified Party without the Adviser's written approval.
(d) The Company agrees promptly to notify the Adviser of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
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 Delaware,
without regard to the Delaware conflict of laws provisions.
9.2. This Agreement shall be subject to the provisions of the 1933 Act,
the 1934 Act and the 1940 Act, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and regulations
as the SEC may grant (including, but not limited to, the Mixed and Shared
Funding Exemptive Order) and the terms hereof shall be interpreted and construed
in accordance therewith.
26
ARTICLE X. Termination
10.1. This Agreement shall terminate:
(a) at the option of any party, with or without cause, with
respect to some or all Portfolios, upon sixty (60) days' advance written notice
delivered to the other parties; or
(b) at the option of the Company by written notice to the other
parties with respect to any Portfolio based upon the Company's determination
that shares of such Portfolio are not reasonably available to meet the
requirements of the Contracts; or
(c) at the option of the Company by written notice to the other
parties with respect to any Portfolio in the event any of the Portfolio's shares
are not registered, issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such Portfolio as the underlying
investment option of the Contracts issued or to be issued by the Company; or
(d) at the option of the Fund, the Distributor or the Adviser in
the event that formal administrative proceedings are instituted against the
Company by FINRA, the SEC, the insurance commissioner or comparable official 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 any Account,
or the purchase of the Fund shares, if, in each case, the Fund, Distributor or
Adviser, as the case may be, reasonably determines in its sole judgment
exercised in good faith, that any such administrative proceedings or an expected
or anticipated ruling, judgment or outcome which would have a material adverse
effect upon the ability of the Company to perform its obligations under this
Agreement; or
(e) at the option of the Company in the event that formal
administrative proceedings are instituted against the Fund, the Distributor or
the Adviser by FINRA, the SEC, or any state securities or insurance department
or any other regulatory body, if the Company
27
reasonably determines in its sole judgment exercised in good faith, that any
such administrative proceedings will have a material adverse effect upon the
ability of the Fund, the Distributor or the Adviser to perform their obligations
under this Agreement; or
(f) at the option of the Company by written notice to the Fund
with respect to any Portfolio if the Company reasonably believes that the
Portfolio will fail to meet the diversification requirements of Section 817(h)
of the Code specified in Article VI hereof; or
(g) at the option of any non-defaulting party hereto in the event
of a material breach of this Agreement by any party hereto (the "defaulting
party") other than as described in Section 10.1(b)-(f); provided, that the
non-defaulting party gives written notice thereof to the defaulting party, with
copies of such notice to all other non-defaulting parties, and if such breach
shall not have been remedied within thirty (30) days after such written notice
is given, then the non-defaulting party giving such written notice may terminate
this Agreement by giving thirty (30) days written notice of termination to the
defaulting party; or
(h) at any time upon written agreement of all parties to this
Agreement.
10.2. Notice Requirement
No termination of this Agreement shall be effective unless and until
the party terminating this Agreement gives prior written notice to all other
parties of its intent to terminate, which notice shall set forth the basis for
the termination. Furthermore,
(a) in the event any termination is based upon the provisions of
Article VII, or the provisions of Section 10.1(a) of this Agreement, the prior
written notice shall be given in advance of the effective date of termination as
required by those provisions unless such notice period is shortened by mutual
written agreement of the parties;
28
(b) in the event any termination is based upon the provisions of
Section 10.1(d) or 10.1(e) of this Agreement, the prior written notice shall be
given at least sixty (60) days before the effective date of termination; and
(c) in the event any termination is based upon the provisions of
Section 10.1(b), 10.1(c), 10.1(f) or 10.1(g), the prior written notice shall be
given in advance of the effective date of termination, which date shall be
determined by the party sending the notice.
10.3. Effect of Termination
Notwithstanding any termination of this Agreement, other than as a
result of a failure by either the Fund or the Company to meet the
diversification requirements of Section 817(h) of the Code, the Fund and the
Distributor will, upon the mutual agreement of the parties hereto, continue to
make available additional shares of the Fund pursuant to the terms and
conditions of this Agreement, for all Contracts in effect on the effective date
of termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, if the Fund and the Distributor
so agree to make additional Shares available, the owners of the Existing
Contracts shall be permitted 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. The parties agree that this
Section 10.3 shall not apply to any terminations under Article VII of this
Agreement and the effect of such Article VII terminations shall be governed by
Article VII of this Agreement.
10.4. Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII of this Agreement to indemnify other parties
shall survive and not be affected by any termination of this Agreement.
29
ARTICLE XI. Notices
11.1. Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other parties.
30
If to the Company:
AXA Equitable Life Insurance Company
1290 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Funds Management Group
If to the Fund:
BlackRock Variable Series Funds, Inc.
Attn: Xxxx Xxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxxx Xxxxxxxx
General Counsel
BlackRock, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
If to the Adviser:
BlackRock Advisors, LLC
Attn: Xxxxx Xxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxxx Xxxxxxxx
General Counsel
BlackRock, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
31
If to the Distributor:
BlackRock Investments, LLC
Attn: Xxxxx Xxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxx Xxxxxxx
Chief Compliance Officer
BlackRock Investments, LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ARTICLE XII. Miscellaneous
12.1. Except as required by law, subpoena, court order or regulatory
order or request, each party hereto shall treat as 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 without the express
written consent of the affected party until such time as such information may
come into the public domain.
12.2. 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.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
32
12.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
FINRA and state insurance regulators) and shall permit 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.
12.6. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
12.7. 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.
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that a transaction that does not result in a change
of actual control or management of a party hereto shall not be deemed to be an
assignment of this Agreement for purposes of this Section 12.8. Any assignment
of this Agreement in violation of this Section 12.8 shall be void.
12.9. The Company agrees that the obligations assumed by the Fund,
Distributor and the Adviser pursuant to this Agreement shall be limited in any
case to the Fund, Distributor and Adviser and their respective assets and the
Company shall not seek satisfaction of any such obligation from the shareholders
of the Fund, Distributor or the Adviser, the Directors, officers, employees or
agents of the Fund, Distributor or Adviser, or any of them.
12.10. The Fund, the Distributor and the Adviser agree that the
obligations assumed by the Company pursuant to this Agreement shall be limited
in any case to the Company and its
33
assets and neither the Fund, Distributor nor Adviser shall seek satisfaction of
any such obligation from the shareholders of the Company, the directors,
officers, employees or agents of the Company, or any of them.
12.11. No provision of this Agreement may be deemed or construed to
modify or supersede any contractual rights, duties, or indemnifications, as
between the Adviser and the Fund, and the Distributor and the Fund.
34
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
AXA EQUTIABLE LIFE INSURANCE COMPANY, ON BEHALF OF CERTAIN
SEPARATE ACCOUNTS
By its authorized officer,
By:
--------------------------------------------
Title: Senior Vice President
BLACKROCK VARIABLE SERIES FUNDS, INC.
By its authorized officer,
By:
--------------------------------------------
Title:
BLACKROCK ADVISORS, LLC
By its authorized officer,
By:
--------------------------------------------
Title:
BLACKROCK INVESTMENTS, LLC
By its authorized officer,
By:
--------------------------------------------
Title:
35
SCHEDULE A
CONTRACTS
Separate Account 49- All Contracts
Separate Account 65- All Contracts
SCHEDULE B
PORTFOLIOS
CLASS FUND CUSIP TICKER
I BlackRock Balanced Capital V.I. Fund 00000X000 AMBLI
I BlackRock Basic Value X.X. Xxxx 00000X000 XXXXX
II BlackRock Basic Value V.I. Fund 00000X000 BAVII
III BlackRock Basic Value V.I. Fund 00000X000 BVIII
I BlackRock Fundamental Growth V.I. Fund 00000X000 FDGRI
I BlackRock Global Allocation V.I. Fund 00000X000 GLALI
II BlackRock Global Allocation V.I. Fund 00000X000 GLAII
III BlackRock Global Allocation V.I. Fund 00000X000 GAIII
I BlackRock Global Growth X.X. Xxxx 00000X000 XXXXX
III BlackRock Global Growth X.X. Xxxx 00000X000 XXXXX
I BlackRock Government Income X.X. Xxxx 00000X000 XXXXX
I BlackRock High Income V.I. Fund 00000X000 HICUI
I BlackRock International Value X.X. Xxxx 00000X000 XXXXX
I BlackRock Large Cap Core V.I. Fund 00000X000 LGCCI
II BlackRock Large Cap Core V.I. Fund 00000X000 LGCII
III BlackRock Large Cap Core V.I. Fund 00000X000 LCIII
I BlackRock Large Cap Growth V.I. Fund 00000X000 LGGGI
III BlackRock Large Cap Growth X.X. Xxxx 00000X000 XXXXX
I BlackRock Large Cap Value V.I. Fund 00000X000 LCVAX
II BlackRock Large Cap Value V.I. Fund 00000X000 LCVBX
III BlackRock Large Cap Value V.I. Fund 00000X000 LVIII
I BlackRock S&P 500 Index V.I. Fund 00000X000 IDXVI
II BlackRock S&P 500 Index V.I. Fund 00000X000 IXVII
I BlackRock Total Return V.I. Fund 00000X000 CRBDI
I BlackRock Utilities and Telecommunications X.X. Xxxx 00000X000 XXXXX
I BlackRock Value Opportunities V.I. Fund 00000X000 SMCPI
II BlackRock Value Opportunities V.I. Fund 00000X000 SMCII
III BlackRock Value Opportunities V.I. Fund 00000X000 SCIII
SCHEDULE C
EXPENSES
The Fund and/or the Distributor and/or Adviser, and the Company will coordinate
the functions and pay the costs of the completing these functions based upon an
allocation of costs in the tables below. Costs shall be allocated to reflect the
Fund's share of the total costs determined according to the number of pages of
the Fund's respective portions of the documents.
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ITEM FUNCTION PARTY RESPONSIBLE FOR PARTY RESPONSIBLE FOR EXPENSE
COORDINATION
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Mutual Fund Prospectus Printing of prospectuses Company Existing - Fund
Prospective - Company
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Distribution (including Company Fund
postage) to Existing
Clients
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Distribution (including Company Company
postage) to Prospective
Clients
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Mutual Fund Prospectus If Required by Fund, Fund, Distributor or Fund, Distributor or Adviser
Update & Distribution Distributor or Adviser Adviser
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If Required by Company Company (Fund, Company
Distributor or Adviser to
provide Company with
document in PDF format)
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Mutual Fund SAI Printing (If required) Fund, Distributor or Fund, Distributor or Adviser
Adviser
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Distribution (including Party who receives the Party who receives the request
postage) request
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Proxy Material for Mutual Printing of proxy Fund, Distributor or Fund, Distributor or Adviser
Fund required by Law Adviser
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Distribution (including Company Fund, Distributor or Adviser
labor) of proxy required
by Law
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ITEM FUNCTION PARTY RESPONSIBLE FOR PARTY RESPONSIBLE FOR EXPENSE
COORDINATION
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Mutual Fund Annual & Printing of reports Fund, Distributor or Fund, Distributor or Adviser
Semi-Annual Report Adviser
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Distribution Company Fund, Distributor or Adviser
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Other communication to New If Required by Law, the Company Distributor or Adviser
and Prospective clients Fund, Distributor or
Adviser
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If Required by Company Company Company
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Other communication to Distribution (including Company Fund, Distributor or Adviser
existing clients labor and printing) if
required by the Fund,
Distributor or Adviser
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Distribution (including Company Company
labor and printing) if
required by Company
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Operations of the Fund All operations and Fund, Distributor or Fund or Adviser
related expenses, Adviser
including the cost of
registration and
qualification of shares,
taxes on the issuance or
transfer of shares, cost
of management of the
business affairs of the
Fund, and expenses paid
or assumed by the fund
pursuant to any Rule
12b-1 plan
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Operations of the Accounts Federal registration of Company Company
units of separate account
(24f-2 fees)
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SCHEDULE D
Diversification Compliance Certification
Name of Portfolio: FUND
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CERTIFICATION
Fund was in compliance with the federal tax rules relating to diversification
requirements under Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, for the quarter ending [Insert most recently ended fiscal
quarter].
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Signed by Date
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