EXHIBIT (h) (24)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into as of this 14th day of August, 2006 among
New York Life Insurance and Annuity Corporation ("NYLIAC"), a life insurance
company organized under the laws of the State of Delaware (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, NYLIAC proposes to issue, now and in the future, certain
multi-manager variable life insurance and variable annuity contracts that
provide certain funds ("Funds") of the Series as investment options (the
"Contracts");
WHEREAS, NYLIAC has established pursuant to Delaware 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 NYLIAC 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
as certain of the underlying investment mediums 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,
NYLIAC, the Series and CRMC hereby agree as follows:
1. The Series and CRMC each represents and warrants to NYLIAC 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 NYLIAC, and copies of any and all amendments thereto
will be forwarded to NYLIAC 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;
(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 (the "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 NYLIAC
expressly for use therein;
(d) each Fund is and at all times since its inception has been qualified
as a regulated investment company under Subchapter M of the Code, and will at
times invest money from the Contracts in such a manner and take such other
actions as necessary to qualify as a regulated investment company under
Subchapter M (or any successor or similar provision) and that the Fund will make
every effort to maintain such qualification. In the event that any Fund ceases
to comply with Subchapter M of the Code, CRMC will make all reasonable efforts
to achieve compliance with such section. If CRMC determines that compliance will
not be possible, CRMC will promptly notify NYLIAC in writing;
(e) each 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 (or any successor
provisions) and at all times since its inception, each Fund has complied, and
will continue to comply, with Section 817 of the Code and Treasury Regulation
Section 1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
regulations. In the event that any Fund ceases to comply with Treasury
Regulation Section 1.817-5, CRMC will make all reasonable efforts to achieve
compliance with such section. If CRMC determines that compliance within the
grace period will not be possible, CRMC will promptly notify NYLIAC in writing;
(f) The Series and CRMC each shall promptly notify NYLIAC in writing if it
becomes aware of any circumstances that would preclude NYLIAC from "looking
through" to the investment of any Fund in which it invests, pursuant to the
"look-through" rules found in Treasury Regulation Section 1.817-5; and
(g) the Series, each Fund, and CRMC each, to the extent applicable, have
in place a compliance program as required by Rule 38a-1 under the 1940 Act that
is reasonably designed to prevent, detect, and correct violations of the Federal
Securities Laws as defined by the 0000 Xxx.
2. The Series will furnish to NYLIAC such information with respect to the
Series in
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such form and signed by such of its officers as NYLIAC may reasonably request,
and will warrant that the statements therein contained when so signed will be
true and correct. The Series will advise NYLIAC 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 shall 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. NYLIAC will be entitled to a
Rule 12b-1 service fee paid by the Series and 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 subaccounts
corresponding to the Class 2 shares of each Fund (each, a "Subaccount") 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 NYLIAC
for a given Account at the net asset value of the 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, NYLIAC 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 8:30 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 NYLIAC and its Accounts on those days on which the Series
calculates the net asset values of each such class pursuant to the rules of the
Commission, and the Series shall 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 NYLIAC on a daily basis as
soon as reasonably practical after the Series calculates such net asset values
per share, and the Series shall make such net asset values per share available
by 6:30 p.m. Eastern time.
In the event that the Series is unable to meet the 6:30 p.m. time stated
herein, the Series shall provide additional time for NYLIAC to place orders for
the purchase and redemption of shares equal to the additional time it takes the
Series to make the net asset values per share available to NYLIAC. However, if
the net asset values per share are not available for inclusion
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in the next business cycle and purchase orders/redemptions are not able to be
calculated and available for NYLIAC to execute within the time frame identified
in Section 4 of this Agreement, NYLIAC, on behalf of its Account(s), shall be
entitled to an adjustment to the number of shares purchased or redeemed to
reflect the net asset values per share computed as of the close of the prior
Business Day. The Series shall calculate such net asset values per share in
accordance with the Series' registration statement.
CRMC and the Series shall report to NYLIAC any material error in the
calculation of the net asset values, dividends or capital gain information as
soon as practicable upon discovery. Such notification may be verbal, but shall
be confirmed promptly in writing in accordance with Section 29 of this
Agreement. A pricing error shall be corrected as follows: (a) if the pricing
error results in a difference between the erroneous net asset values per share
and the correct net asset values per share of less than $0.01 per share, then no
corrective action need be taken; (b) if the pricing error results in a
difference between the erroneous net asset values per share and the correct net
asset values per share equal to or greater than $0.01 per share, but less than
1/2 of 1% of the designated Fund's net asset values per share at the time of the
error, then the Series shall take all steps necessary to obtain reimbursement
for any loss from any party responsible for the pricing error ("Responsible
Party"), after taking into consideration any positive effect of such error;
however, no adjustments to Contract owner accounts need be made; and (c) if the
pricing error results in a difference between the erroneous net asset values per
share and the correct net asset values per share equal to or greater than 1/2 of
1% of the Fund's net asset values per share at the time of the error, then the
Series shall take all steps necessary to obtain reimbursement for any loss from
any Responsible Party.
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 NYLIAC 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 has policies and procedures in place to detect and discourage
short-term or disruptive trading practices, which may include monitoring
shareholder trading activity. 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. Further, the Series reserves the right to reject any
purchase order if, in the opinion of the officers of the Series or CRMC, the
trading activities of any contract owner, through the Trust, is or potentially
may be harmful to the Series.
NYLIAC has policies and procedures in place to detect and discourage
short-term or disruptive trading practices, which may include monitoring
Contract holder trading activity. NYLIAC 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 Subaccount.
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5. The Contracts funded through each Account will provide for the
allocation of net amounts among certain Subaccounts 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 Subaccount 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 will be issued to the Account. Shares ordered from a particular
Fund will be recorded by the Series as instructed by NYLIAC in an appropriate
title for the corresponding Account or Subaccount. The Series shall furnish the
CUSIP number assigned to each Fund.
7. The Series shall provide monthly statements of account as of the end of
each month for all Company's accounts by the fifteenth (15) Business Day of the
following month.
8. The Series shall furnish notice (by wire or telephone, followed by
written confirmation) promptly to NYLIAC of any dividend or distribution payable
on any shares underlying Subaccounts. NYLIAC hereby elects to receive all such
dividends and distributions as are payable on shares of a Fund recorded in the
title for the corresponding Subaccount in additional shares of that Fund. The
Series shall notify NYLIAC by the end of the next Business Day following the
date any dividends or distributions are paid of the number of shares so issued.
NYLIAC reserves the right to revoke this election and to receive all such income
dividends and capital gain distributions in cash.
9. The Series shall redeem its shares in accordance with the terms of its
then current Prospectus. For purposes of this Paragraph 9, NYLIAC 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 11:00 a.m. Eastern time on the Next Business Day. NYLIAC 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.
10. As summarized in Attachment B to this Agreement, 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
Subaccount, 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 NYLIAC, 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.
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With respect to any prospectus and annual and semi-annual reports (the
"Reports") of the Series that are printed in combination with any one or more
such Reports of other investment options for the Contracts (the "Booklet"), the
Series shall bear the costs of printing and mailing the Booklet to existing
Contract owners based on the ratio of the number of pages of the Series' Reports
included in the Booklet to the number of pages in the Booklet as a whole.
11. As summarized in Attachment B to this Agreement, NYLIAC 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
NYLIAC 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 NYLIAC's expense
with respect to prospective investors).
Each party shall bear, or cause its agents to bear, the costs associated
with its obligations with regard to the foregoing and other materials as
described in, and in accordance with, Attachment B attached hereto and
incorporated herein by reference, as the Parties may mutually agree in writing
to amend from time to time.
12. NYLIAC represents and warrants to the Series that any information
furnished in writing by NYLIAC 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.
13. NYLIAC 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 NYLIAC,
AFD and CRMC dated as of August _____, 2006 (the "Business Agreement").
14. Shares of the Series have been and will only be sold to insurance
company separate accounts in accordance with the requirements of Treas. Reg.
Section 1.871-5(f)(2) or other investors permitted in accordance with Treas.
Reg. Section 1.817-5(f)(3) and other administrative guidance promulgated
thereunder. The Series 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"). 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 NYLIAC with securities holdings reports for each
Fund within ten days after each calendar quarter.
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15. 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 NYLIAC of the existence of irreconcilable material conflict and its
implications. If such a conflict exists, NYLIAC 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.
The Series hereby notifies NYLIAC that it may be appropriate to include in
the Prospectus pursuant to which a Contract is offered disclosure regarding the
risks of mixed and shared funding.
16. The Series will provide NYLIAC with as much notice as is reasonably
practicable of any proxy solicitation, and of any material change in the Series'
registration statement, particularly any change that could result in a change to
the registration statement or prospectus for any Account or Contracts. The
Series will work with NYLIAC so as to enable the Company to solicit proxies from
Contract owners, or to make changes to its prospectus or registration statement,
in an orderly manner.
17. NYLIAC agrees to indemnify and hold the Series harmless against, any
and all losses, claims, damages, liabilities, investigations or litigation
(including amounts paid in settlement with the written consent of the NYLIAC,
which consent shall not be unreasonably withheld, legal and other expenses,
including the reasonable costs of investigating or defending any alleged, loss,
claim, damage, liability, or expense and reasonable counsel fees incurred in
connection therewith) 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
NYLIAC'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 and
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 NYLIAC; (c) making wrongful or
inaccurate statements or representations or wrongful conduct of persons under
its control, with respect to the sale or distribution of the shares of the
Contracts (d) unlawful conduct, bad faith, willful malfeasance, or negligence by
NYLIAC with respect to the sale of the Contracts or Fund shares; and (e)
breaching this Agreement or a representation or warranty.
18. The Series and CRMC each agrees to indemnify and hold NYLIAC (or any
affiliate, control person, shareholder, director, officer, employee or agent of
NYLIAC) harmless against any and all losses, claims, damages, liabilities,
investigations or litigation (including amounts paid in settlement with the
written consent of the Series and/or CRMC, which consent shall not be
unreasonably withheld, legal and other expenses, including the reasonable costs
of investigating or defending any alleged, loss, claim, damage, liability, or
expense and reasonable
7
counsel fees incurred in connection therewith) to which NYLIAC 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 wrongful or inaccurate
statements or representations or wrongful conduct of the Series or persons under
its control, with respect to the sale or distribution of the shares of the
Funds; (c) making untrue statements of material facts that the Series includes
in its materials, provided NYLIAC relies on information supplied by the Series;
(d) unlawful conduct, bad faith, willful malfeasance, or negligence by the
Series with respect to the sale of the Contracts or Fund shares or the operation
of the Series or a Fund; (e) failure of the Series to comply with any Fund's
investment objectives, policies and restrictions; and (f) breaching this
Agreement or a representation or warranty, including, but not limited to, the
representations, warranties and covenants in Section 14.
19. A. NYLIAC 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. Accordingly, NYLIAC, where applicable, shall vote
shares of a Fund held in each Account in a manner consistent with voting
instructions timely received from its Contract owners.
B. The Series will comply with all provisions of the 1940 Act, the
regulations thereunder, and applicable SEC staff interpretations regarding
pass-through voting.
20. Each Fund will comply with all the provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Fund will either
provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of that
Act) as well as with Section 16(a) and if and when applicable Section 16(b).
Further, the Fund will act in accordance with the Commission's interpretation of
the requirements of Section 16(b). Further, the Fund will act in accordance with
the Commission's interpretation of the requirements of Section 16(a) with
respect to periodic elections of trustees and with whatever rules the Commission
may promulgate with respect thereto.
21. 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 in its entirety or
with respect to a particular Fund, as specified below, without penalty upon the
first to occur of:
(a) Termination by mutual agreement at any time; or
(b) Termination by any party at any time upon sixty days' written notice
to the other parties; or
(c) Termination at the option of NYLIAC, CRMC or the Series upon ten
calendar
8
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) Termination at the option of NYLIAC, upon ten calendar days' prior
written notice, if shares of the Series are not reasonably
available;
(e) Termination at the option of NYLIAC, 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) Termination 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 NYLIAC; in
such event prompt notice shall be given by NYLIAC or the Series to
the other party.
(g) Termination at NYLIAC's option by written notice to AFD and/or CRMC
if NYLIAC shall determine in its sole judgment exercised in good
faith, that either AFD or CRMC has suffered a material adverse
change in its business, operations, financial condition or prospects
since the date of this Agreement or is the subject of material
adverse publicity.
(h) Termination at the option of AFD or CRMC by written notice to NYLIAC
if AFD or CRMC shall determine in its sole judgment exercised in
good faith, that NYLIAC has suffered a material adverse change in
its business, operations, financial condition or prospects since the
date of this Agreement or is the subject of material adverse
publicity; or
(i) Termination in the event AFD ceases to serve as distributor of a
Fund provided the Series, on behalf of the Fund, shall promptly
notify the other parties of such an event;.
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.
22. 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):
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IF TO NYLIAC:
New York Life Insurance and Annuity Corporation
Attention: Xxxxxx X. Xxxxxx, Senior Vice President
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
WITH A COPY TO:
New York Life Insurance and Annuity Corporation
Office of the General Counsel
Attention: Variable Products Attorney
00 Xxxxxxx Xxxxxx, Xxxx 00XX
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
IF TO SERIES:
American Funds Insurance Series
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President
Facsimile No.: (000) 000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Vice President and Senior Counsel,
Fund Business Management Group
Facsimile No.: (000) 000-0000
IF TO CRMC:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President and Legal Counsel,
Fund Business Management Group, and Secretary
Facsimile No.: (000) 000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior Counsel,
Fund Business Management Group
Facsimile No.: (000) 000-0000
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23. 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.
24. If this Agreement terminates, the Series, at NYLIAC'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. NYLIAC 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 a vote of Contract owners.
25. 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, NYLIAC 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 NYLIAC
seeks satisfaction for any liability of the Series in respect of this Agreement,
NYLIAC (on behalf of itself or any Account) may seek recourse against CRMC.
26. This Agreement shall be construed in accordance with the laws of the
State of New York.
27. 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 parties 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.
28. It is understood and expressly stipulated that neither the
shareholders of shares the Series nor the Trustees or officers of the Series
shall be personally liable hereunder solely as a result of their capacities as
such.
29. Acknowledgements:
(a) NYLIAC acknowledges that the identity of the Series' and
CRMC's (and their affiliates' and/or subsidiaries') customers
and all information maintained about those customers
constitute the valuable property of the Series and CRMC,
respectively. NYLIAC agrees that, should it come into contact
or possession of any such information (including, but not
limited to, lists or compilations of the identity of such
customers), NYLIAC shall hold such information or property in
confidence and shall not use, disclose
11
or distribute any such information or property except with
prior written consent of the Series and/or CRMC or as required
by law or judicial process or to perform its obligations under
this Agreement.
(b) The Series and CRMC acknowledge that the identity of NYLIAC's
(and its affiliates' and/or subsidiaries') customers and all
information maintained about those customers constitute the
valuable property of NYLIAC. The Series and CRMC agree that,
should they come into contact or possession of any such
information (including, but not limited to, lists or
compilations of the identity of such customers), they shall
hold such information or property in confidence and shall not
use, disclose or distribute any such information or property
except with NYLIAC's prior written consent or as required by
law or judicial process or to perform its obligations under
this Agreement.
30. The following Paragraphs shall survive any termination of this
Agreement: 4, 17, 18, 22-30.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested as of the date first above written.
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION (ON BEHALF OF
ITSELF AND EACH ACCOUNT)
Attest:
By: _______________________________
___________________________ Its: Senior Vice President
AMERICAN FUNDS INSURANCE SERIES
Attest:
By: _______________________________
___________________________ Its: Secretary
CAPITAL RESEARCH AND MANAGEMENT
COMPANY
Attest:
By: _______________________________
___________________________ Its: Vice President and Secretary
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Attachment A
American Funds Insurance Series:
American Funds I.S. Growth & Income -- Class 2 Shares
American Funds I.S. Growth -- Class 2 Shares
American Funds I.S. Asset Allocation -- Class 2 Shares
American Funds I.S. Global Small Cap -- Class 2 Shares
American Funds I.S. International -- Class 2 Shares
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Attachment B
EXPENSE ALLOCATION
NYLIAC The Series
Preparing and filing the Account registration statements. Preparing and filing the FUND registration statement.
Text composition and alterations for the Account Text composition and alterations for the FUND
prospectuses, SAIs and any supplements thereto. prospectuses, SAIs and any supplements thereto, including
versions of these documents to accommodate various
combinations of Designated Portfolios offered under
Account prospectuses.
Printing of the FUND prospectuses and supplements thereto Supplying typeset, camera and/or web-ready FUND
for prospective Contract owners. Printing Account prospectuses, SAIs and supplements. Printing of the FUND
prospectuses, SAIs and supplements thereto. prospectuses, SAIs and supplements thereto for existing
Contract owners that invest in the FUND. Printing of SAIs
for prospective contract owners who request an SAI.
Mailing and distributing the FUND prospectuses, SAIs and All or the FUND's pro-rata portion (if combined with
supplements thereto to prospective Contract owners. Mailing documents of other funds) of mailing and distributing the
and distributing Account prospectuses, SAIs and supplements FUND prospectuses, SAIs and supplements thereto to
to prospective and existing Contract owners. (SAIs are existing Contract owners. (SAIs are distributed only
distributed only upon request of the Contract owner.) upon request of the Contract owner.)
Text composition and alterations of the Account portion of the Text composition and alterations of the FUND proxy
annual and semi-annual reports. statements and voting instructions solicitation materials
to Contract owners with respect to proxies related to the
FUND, annual and semi-annual reports for the FUND and
other communications to shareholders.
Printing, mailing and distributing annual and semi-annual All or the FUND's pro-rata portion (if combined with
reports for prospective Contract owners. documents of other funds) of mailing and distributing
annual and semi-annual reports for the FUND to existing
Contract owners that invest in the FUND.
Mailing and distributing and tabulation of proxy statements Supplying typeset, camera and/or web-ready FUND proxy
and voting instruction solicitation materials to Contract statements and voting instructions solicitation
owners with respect to proxies related to the Account(s). materials, annual and semi-annual reports and other
communications to shareholders. Printing costs for
copies of such materials distributed to Contract owners.
Preparation, printing and distributing sales material and
advertising related to the FUND and contained in Account
advertising and sales materials; and filing such materials with
and obtaining approval from, the SEC, the National
Association of Securities Dealers, Inc., any state insurance
regulatory authority and any other appropriate regulatory
authority, to the extent required.
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