Exhibit (3)(d)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into as of this 30/th/ day of April, 2001 among
METROPOLITIAN LIFE INSURANCE COMPANY ("MetLife "), a life insurance company
organized under the laws of the State of New York(on behalf of itself and
certain of its separate accounts); AMERICAN FUNDS INSURANCE SERIES ("Series"),
an open-end management investment company organized under the laws of the
Commonwealth of Massachusetts, and CAPITAL RESEARCH AND MANAGEMENT COMPANY
("CRMC"), a corporation organized under the laws of the State of Delaware.
WITNESSETH:
WHEREAS, MetLife proposes to issue certain multi-manager variable annuity
contracts and variable life insurance policies that provide certain funds
("Funds") of the Series as investment options (the "Contracts");
WHEREAS, MetLife has established pursuant to New York insurance law one or
more separate accounts (each, an "Account") for purposes of issuing the
Contracts and has or will register each Account (unless the Account is exempt
from such registration) with the United States Securities and Exchange
Commission (the "Commission") as a unit investment trust under the Securities
Act of 1933 (the "1933 Act") and the Investment Company Act of 1940 (the "1940
Act");
WHEREAS, the Contracts, which are or will be registered by MetLife with the
Commission for offer and sale, will be in compliance with all applicable laws
prior to being offered for sale;
WHEREAS, the Series has received a "Mixed and Shared Funding Order" from
the Commission granting relief from certain provisions of the 1940 Act and the
rules thereunder to the extent necessary to permit shares of the Series to be
sold to variable annuity and life insurance separate accounts of unaffiliated
insurance companies;
WHEREAS, the Series is divided into various Funds, each Fund being subject
to certain fundamental investment policies which may not be changed without a
majority vote of the shareholders of such Fund;
WHEREAS, certain Funds listed in Attachment A to this Agreement will serve
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as certain of the underlying investment medium for the Contracts; and
WHEREAS, CRMC is the investment adviser for the Series.
NOW, THEREFORE, in consideration of the foregoing and of mutual covenants
and conditions set forth herein and for other good and valuable consideration,
MetLife, the Series and CRMC hereby agree as follows:
1. The Series and CRMC each represents and warrants to MetLife that: (a)
a registration statement under the 1933 Act and under the 1940 Act with respect
to the Series has been filed with the Commission in the form previously
delivered to MetLife, and copies of any and all amendments thereto will be
forwarded to MetLife at the time that they are filed with the Commission; (b)
the Series is, and shall be at all times while this Agreement is in force,
lawfully organized, validly existing, and properly qualified as an open-end
management investment company in accordance with the laws of the Commonwealth of
Massachusetts; and (c) the Series' registration statement and any further
amendments thereto will, when they become effective, and all definitive
prospectuses and statements of additional information and any further
supplements thereto ("Prospectus") shall, conform in all material respects to
the requirements of the 1933 Act and the 1940 Act, and the rules and regulations
of the Commission thereunder, and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statement therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Series by MetLife expressly for use therein.
2. The Series will furnish to MetLife such information with respect to
the Series in such form and signed by such of its officers as MetLife may
reasonably request, and will warrant that the statements therein contained when
so signed will be true and correct. The Series will advise MetLife immediately
of: (a) the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement of the Series or the initiation of
any proceeding for that purpose; (b) the institution of any proceeding,
investigation or hearing involving the offer or sale of the Contracts or the
Series of which it becomes aware; or (c) the happening of any material event, if
known, which makes untrue any statement made in the registration statement of
the Series or which requires the making of a change therein in order to make any
statement made therein not misleading.
3. The Series will use best efforts to register for sale under the 1933
Act and, if required, under state securities laws, such additional shares of the
Series as may reasonably be necessary for use as the funding vehicle for the
Contracts.
4. The Series agrees to make Class 2 shares of the Funds listed on
Attachment A hereto available to the Contracts. MetLife will be entitled to a
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Rule 12b-1 service fee to be accrued daily and paid monthly at an annual rate of
0.25% of the average daily net assets of the Class 2 shares of each Fund
attributable to the Contracts for personal services and account maintenance
services for Contract owners with investments in investment divisions
corresponding to the Class 2 shares of each Fund (each, an "Investment
Division") for as long as the Series' Plan of Distribution pursuant to Rule 12b-
1 under the 1940 Act (the "12b-1 plan") remains in effect. Fund shares to be
made available to Accounts for the Contracts shall be sold by the Series and
purchased by MetLife for a given Account at the net asset value of the
2
respective class of the respective Fund (without the imposition of a sales load)
next computed after receipt of each order by the Series or its designee, as
established in accordance with the provisions of the then current Prospectus of
the Series. For purposes of this Paragraph 4, MetLife shall be a designee of the
Series for receipt of such orders from each Account, and receipt by such
designee by 4:00 p.m. Eastern time (or other such time the Board of Trustees of
the Series shall so designate) shall constitute receipt by the Series; provided
that the Series receives notice of such order by 10:00 a.m. Eastern time on the
following Business Day ("Next Business Day"). "Business Day" shall mean any day
on which the New York Stock Exchange ("NYSE") is open for trading and on which
the Series calculates the net asset values of each class of shares of each Fund
pursuant to the rules of the Commission. The Series will make the shares of each
class of each Fund available indefinitely for purchase at the applicable net
asset value per share by each Company and its Accounts on those days on which
the Series calculates the net asset values of each such class and Fund pursuant
to the rules of the Commission, and the Series shall use its best efforts to
calculate such net asset values on each day on which the NYSE is open for
trading. The Series shall make the net asset value per share for each class of
each Fund available to MetLife on a daily basis as soon as reasonably practical
after the Series calculates such net asset values per share, and the Series
shall use its best efforts to make such net asset values per share available by
6:30 p.m. Eastern time. If the Series provides incorrect net asset value to
MetLife with respect to any class of shares of any Fund on any Business Day,
MetLife shall be entitled (on behalf of each affected Account) to an adjustment
to the number of shares purchased or redeemed of such class of shares to reflect
the correct net asset value per share. Any error in the calculation or reporting
of net asset values per share, dividends, or capital gain information shall be
reported promptly to MetLife. Any costs incurred by MetLife with respect to
correcting Contract owner accounts, including, but not limited to, amounts paid
to Contract owners and administrative expenses, shall be promptly reimbursed by
CRMC. The Series and CRMC are responsible for maintaining net asset values for
each class of each Fund in accordance with the requirements of the 1940 Act and
the Series' then current Prospectus. Payments for shares purchased will be made
in federal funds transmitted by wire on the Next Business Day, and the Company
and the Fund shall each use commercially reasonable efforts to wire (or cause to
be wired) funds to the other, for the purpose of settling net purchase orders or
orders of redemption, by 3:00 p.m. Eastern time on the Next Business Day.
The Series reserves the right to temporarily suspend sales if the
Board of Trustees of the Series deems it appropriate and in the best interests
of the Series or in response to the order of an appropriate regulatory
authority. MetLife reserves the right to refuse, to impose limitations on, or to
limit any transaction request if the request would tend to disrupt Contract
administration or is not in the best interest of the Contract holders or an
Account or Investment Division.
5. The Contracts funded through each Account will provide for the
allocation of net amounts among certain Investment Divisions for investment in
shares of a class of the Funds as may be offered from time to time in the
Contracts. The selection of the particular Investment Division is to be made by
the Contract owner and such selection may be changed in accordance with the
terms of the Contracts.
6. Transfer of the Series' shares will be by book entry only. No stock
certificates
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will be issued to the Account. Shares ordered from a particular Fund will be
recorded by the Series as instructed by MetLife in an appropriate title for the
corresponding Account or Investment Division.
7. The Series shall furnish notice promptly to MetLife of any dividend or
distribution payable on any shares underlying Investment Divisions. MetLife
hereby elects to receive all such dividends and distributions as are payable on
shares of a Fund recorded in the title for the corresponding Investment Division
in additional shares of that Fund. The Series shall notify MetLife of the number
of shares so issued. MetLife reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash.
8. The Series shall redeem its shares in accordance with the terms of its
then current Prospectus. For purposes of this Paragraph 8, MetLife shall be a
designee of the Series for receipt of requests for redemption from each Account,
and receipt by such designee by 4:00 p.m. Eastern time (or other such time the
Board of Trustees of the Series shall so designate) shall constitute receipt by
the Series; provided that the Series receives notice of such request for
redemption by 10:00 a.m. Eastern time on the Next Business Day. MetLife shall
purchase and redeem the shares of Funds offered by the then current Prospectus
of the Series in accordance with the provisions of such Prospectus.
9. The Series shall pay all expenses incidental to its performance under
this Agreement. The Series shall see to it that all of its shares are registered
and authorized for issue in accordance with applicable federal and state laws
prior to their purchase for the Account. The Series shall bear the expenses for
the cost of registration of its shares, preparation of prospectuses and
statements of additional information to be sent to existing Contract owners
(upon request in the case of the statement of additional information), proxy
statements and related materials and annual and semi-annual shareholder reports,
the printing and distribution of such items to each Contract owner who has
allocated net amounts to any Investment Division, the preparation of all
statements and notices required from it by any federal or state law, and taxes
on the issue or transfer of the Series' shares subject to this Agreement. The
Series will provide MetLife, at least once a year, with enough copies of its
Statement of Additional Information to be able to distribute one to each
Contract owner or prospective Contract owner who requests such Statement of
Additional Information.
10. MetLife shall bear the expenses for the cost of preparation and
delivery of Series prospectuses (and supplements thereto) to be sent to
prospective Contract owners. The Series shall provide, at its expense, such
documentation (in camera-ready or other mutually agreeable form) and other
assistance as is reasonably necessary in order for MetLife once each year (or
more frequently if the prospectus for the Series is amended), and twice each
year in the case of the annual and semi-annual shareholder reports, to have the
prospectus or prospectuses, and the annual and semi-annual shareholder reports
for the Contracts and the Series, printed together in one or more documents
(such printing to be done at MetLife's expense with respect to prospective
investors).
11. MetLife represents and warrants to the Series that any information
furnished in
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writing by MetLife to the Series for use in the registration statement of the
Series will not result in the registration statement's failing to conform in all
respects to the requirements of the 1933 Act and the 1940 Act and the rules and
regulations thereunder or containing any untrue statement of a material fact or
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
12. MetLife and its affiliates shall make no representations concerning
the Series' shares except those contained in the then current Prospectus of the
Series, in such printed information subsequently issued on behalf of the Series
or other funds managed by CRMC as supplemental to the Series' Prospectus, in
information published on the Series' or CRMC's internet site, or in materials
approved by AFD, as provided in the Business Agreement in effect among MetLife,
AFD, and CRMC dated April 30, 2001 (the "Business Agreement").
13. Shares of the Series may be offered to separate accounts of various
insurance companies in addition to MetLife. The Series and the Company each
represents, warrants and covenants that no shares of the Series shall be sold to
the general public in contravention of Section 817 of the Internal Revenue Code
of 1986 as amended and the regulations thereunder (the "Code") ("Section 817").
The Series agrees that each Fund will comply with the diversification
requirements of Section 817. The Series also agrees to maintain each Fund's
qualification as a "regulated investment company" ("RIC") under the Code. The
Series will provide MetLife with securities holdings reports for each Fund
within ten days after each calendar quarter.
14. The parties to this Agreement recognize that due to differences in tax
treatment or other considerations, the interests of various Contract owners
participating in one or more Funds might, at some time, be in conflict. Each
party shall report to the other party any potential or existing conflict of
which it becomes aware. The Board of Trustees of the Series shall promptly
notify MetLife of the existence of irreconcilable material conflict and its
implications. If such a conflict exists, MetLife will, at its own expense, take
whatever action it deems necessary to remedy such conflict; in any case,
Contract owners will not be required to bear such expenses.
15. MetLife agrees to indemnify and hold the Series harmless against, any
and all losses, claims, damages, liabilities or litigation (including legal and
other expenses) to which the Series may be subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements arising as a result of
MetLife's: (a) making untrue statements of material facts or omitting material
facts in a Contract's registration statement, prospectus, statement of
additional information, semi-annual or annual reports to Contract owners or
sales literature for the Contracts; (b) making untrue statements of material
facts that the Series includes in the same materials of the Series, provided
that Series relies on information supplied by MetLife; (c) unlawful conduct, bad
faith, willful malfeasance, or gross negligence by MetLife with respect to the
sale of the Contracts or Fund shares; and (d) breaching this Agreement or a
representation or warranty.
16. The Series and CRMC each agrees to indemnify and hold MetLife harmless
against any and all losses, claims, damages, liabilities or litigation
(including legal and other
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expenses) which MetLife may be subject under any statute, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements arising as a result of the Series',
or CRMC's: (a) making untrue statements of material facts or omitting material
facts in the Series' registration statement, prospectuses or statements of
additional information, semi-annual and annual reports to shareholders, and
sales literature; (b) making untrue statements of material facts that the Series
includes in its materials, provided MetLife relies on information supplied by
the Series; (c) unlawful conduct, bad faith, willful malfeasance, or gross
negligence by the Series with respect to the sale of the Contracts or Fund
shares or the operation of the Series or a Fund; (d) failure of the Series to
comply with any Fund's investment objectives, policies and restrictions; and (e)
breaching this Agreement or a representation or warranty, including, but not
limited to, the representations, warranties and covenants in Section 13.
17. MetLife shall be responsible for assuring that the Account calculates
pass-through voting privileges of Contract owners in a manner consistent with
the method of calculating pass-through voting privileges set forth in the
current Contract.
18. The parties understand that there is no intention to create a joint
venture in the subject matter of this Agreement. Accordingly, the right to
terminate this Agreement and to engage in any activity not inconsistent with
this Agreement is absolute. This Agreement will terminate:
(a) by mutual agreement at any time; or
(b) any party at any time upon six months written notice to the other
parties; or
(c) at the option of MetLife or the Series upon ten calendar days prior
written notice to the other party if a final non-appealable
administrative or judicial decision is entered against the other party
which has a material impact on the Contracts;
(d) at the option of MetLife, upon ten calendar days prior written notice,
if shares of the Series are not reasonably available;
(e) at the option of MetLife, immediately upon written notice, if the
Series or CRMC fails to meet the requirements for either
diversification under Section 817 or RIC status under the Code, or if
the Board of the Series terminates the 12b-1 plan; or
(f) in the event the Series' shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such law
precludes the use of such shares as an underlying investment for the
Contracts issued or to be issued by MetLife; in such event prompt
notice shall be given by MetLife or the Series to the other party.
The effective date for termination pursuant to any notice given under this
Paragraph shall be calculated beginning with the date of receipt of such notice.
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19. All notices, consents, waivers, and other communications under this
Agreement must be in writing, and will be deemed to have been duly received: (a)
when delivered by hand (with written confirmation of receipt); (b) when sent by
telecopier (with written confirmation of receipt), provided that a copy is
mailed by registered mail, return receipt requested; or (c) the day after it is
sent by a nationally recognized overnight delivery service, in each case to the
appropriate addresses and telecopier numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties):
If to MetLife:
Metropolitan Life Insurance Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Assistant General Counsel
Facsimile No.: 212-251-1622
with a copy to:
New England Financial
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Series:
American Funds Insurance Series
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Capital Research and Management Company
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President and Senior Counsel,
Fund Business Management Group
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to CRMC:
Capital Research and Management Company
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and Legal Counsel,
Fund Business Management Group, and Secretary
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to:
Capital Research and Management Company
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President and Senior Counsel,
Fund Business Management Group
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
20. If this Agreement terminates, any provision of this Agreement
necessary to the orderly windup of business under it will remain in effect as to
that business, after termination.
21. If this Agreement terminates, the Series, at MetLife's option, will
continue to make additional shares of the Series available for all existing
Contracts as of the effective date of termination (under the same terms and
conditions as were in effect prior to termination of this Agreement with respect
to existing Contract owners), unless the Series liquidates or applicable laws
prohibit further sales. MetLife agrees not to redeem shares unless (i) the
Agreement is terminated pursuant to Section 18(e) or 18(f); (ii) legitimately
required to do so according to a Contract owner's request; or (iii) under an
order from the Commission or pursuant to vote of Contract owners.
22. The obligations of the Series under this Agreement are not binding
upon any of the Trustees, officers, employees, or shareholders (except CRMC if
it is a shareholder) of the Series individually, but bind only the Series'
assets. When seeking satisfaction for any liability of the Series in respect of
this Agreement, MetLife and the Account agree not to seek recourse against said
Trustees, officers, employees, or shareholders, or any of them, or any of their
personal assets for such satisfaction. Notwithstanding the foregoing, if MetLife
seeks satisfaction for any liability of the Series in respect of this Agreement,
MetLife (on behalf of itself or any Account) may seek recourse against CRMC.
23. This Agreement shall be construed in accordance with the laws of the
State of New York.
24. This Agreement and the parties' rights, duties, and obligations under
this Agreement are not transferable or assignable by any of them without the
express, prior written consent of the other party hereto. Any attempt by a party
to transfer or assign this Agreement or any of its rights, duties or obligations
under this Agreement without such consent is void; provided, however, that a
merger of, reinsurance arrangement by, or change of control of a party shall not
be deemed to be an assignment for purposes of this Agreement.
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25. The following Paragraphs shall survive any termination of this
Agreement: 4, 15, 16, 17, 20, 21-26.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested as of the date first above written.
METROPOLITAN LIFE INSURANCE
COMPANY (on behalf of itself and each
Account)
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------- ---------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Its: SENIOR VICE PRESIDENT
Asst. Secretary
AMERICAN FUNDS INSURANCE SERIES
Attest:
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ---------------------------------
Its: Senior Vice President
CAPITAL RESEARCH AND MANAGEMENT
COMPANY
Attest:
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ---------------------------------
Its: Senior Vice President, Fund Business
Management Group, Legal Counsel
and Secretary
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Attachment A
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American Funds Insurance Series:
. Global Small Capitalization Fund
. Growth Fund
. Growth-Income Fund
