PARTICIPATION AGREEMENT With SUN LIFE INSURANCE COMPANY
M
FUND, INC.
With
SUN
LIFE INSURANCE COMPANY
THIS
AGREEMENT, made and entered into this 1st day of April, 2007, by and among
M
Fund, Inc.,
a
corporation organized and existing under the laws of the State of Maryland
(the
"Fund"), M
Financial Investment Advisers, Inc.,
a
corpo-ra-tion organized and existing under the laws of the State of Colorado
(the "Adviser"), Sun
Life Assurance Company of Canada (US),
a life
insurance company organ-ized and exist-ing under the laws of the State of
Delaware (åSLUSæ) and Sun
Life Insurance and Annuity Company of New York,
a life
insurance company organized and existing under the laws of the State of New
York
(åSLNYæ and with SLUS, the "Company"), on its own behalf and on behalf of each
separate account of the Company identified herein.
WHEREAS,
the Fund is a series-type mutual fund offering shares of beneficial interest
(the "Fund shares") consisting of one or more series ("Series") of shares
("Series shares"), each such Series share representing an interest in a
particular managed portfolio of securities and other assets; and
WHEREAS,
the Fund was established for the purpose of serving as an investment vehicle
for
insurance company separate accounts supporting variable annuity contracts and
variable life insurance policies to be offered by insurance companies;
and
WHEREAS,
the Company desires that the Fund serve as an investment vehicle for certain
separate account(s) of the Company;
NOW,
THEREFORE, in consideration of their mutual promises, the Fund, the Adviser,
and
the Company agree as follows:
ARTICLE
I. Additional
Definitions
1.1.
"Account" -- each separate account of the Company described more specifically
in
Schedule 1 to this Agreement (as may be amended from time to time).
1.2.
"Business Day" -- each day that the Fund is open for business as provided in
the
Fund Prospectus.
1.3.
"Code" -- the Internal Revenue Code of 1986, as amended.
1.4.
"Contracts" -- the class or classes of variable annuity contracts and variable
life insurance policies issued by the Company and described more specifically
on
Schedule 1 to this Agreement (as may be amended from time to time).
1.5.
"Contract Owners" -- the owners of the Contracts, as distinguished from all
Product Owners.
1.6.
"NASD" -- National Association of Securities Dealers, Inc.
1.7.
"Participating Account" -- a separate account investing all or a portion of
its
assets in the Fund, including the Account.
1.8.
"Participating Insurance Company" -- any insurance company investing in the
Fund
on its behalf or on behalf of a Participating Account, including the
Company.
1.9.
"Products" -- variable annuity contracts and variable life insurance policies
supported by Participating Accounts investing assets attributable thereto in
the
Fund, including the Contracts.
1.10.
"Product Owners" -- owners of Products, including Contract Owners.
1.11.
"Prospectus" -- with respect to the Fund shares, each version of the definitive
prospectus therefore or supplement thereto filed with the SEC under the 1933
Act. With respect to any provision of this Agreement requiring a party to take
action in accordance with a Prospectus, such refer-ence thereto shall be deemed
to be to the version last so filed prior to the taking of such action. For
purposes of Section 4.6 and Article VIII, the term "Prospectus" shall include
any statement of additional information incorporated therein.
1.12.
"Registration Statement" -- with respect to the Fund shares, the registration
statement filed with the SEC to register the securities issued thereby under
the
1933 Act, or the most recently filed amendment thereto, in either case in the
form in which it was declared or became effective. The Fund Regis-tration
Statement was filed on Form N-1A (File No. 33-95472).
1.13.
"1940 Act Registration Statement" -- the registration statement filed with
the
SEC to register such entity as an invest-ment company under the 1940 Act, or
the
most recently filed amendment thereto. The Fund 1940 Act Registration Statement
was filed on Form N-1A (File No. 811-9082).
1.14.
"Statement of Additional Information" -- with respect to the Fund, each version
of the definitive statement of additional information or supple-ment thereto
filed with the SEC under the 0000 Xxx.
1.15.
"SEC" -- the Securities and Exchange Commission.
1.16.
"1933 Act" -- the Securities Act of 1933, as amended.
1.17.
"1940 Act" -- the Investment Company Act of 1940, as amended.
ARTICLE
II. Sale
of Fund Shares
2.1
The
Fund shall make shares of those Series listed on Schedule 2 to this Agreement
available for purchase by the Company on behalf of the Account, such purchases
to be effected at net asset value in accordance with Section 2.3 of this
Agreement. Notwithstanding the foregoing, (i) Fund Series in existence now
or
that may be established in the future and not listed on Schedule 2 will be
made
avail-able to the Company only as the Adviser may so provide, and (ii) the
Board
of Directors of the Fund (the "Fund Board") may suspend or terminate the
offering of Fund shares of any Series or class thereof, if such action is
required by law or by regulatory authorities hav-ing jurisdiction or if, in
the
sole discretion of the Fund Board acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, suspension or
ter-mination is necessary or in the best interests of Product
Owners.
Without
limiting the foregoing, the Fund and the Adviser are concerned that the Fund
and
Product Owners may be adversely affected by Product Owners or other investors
whose purchase and redemption activity indicates market timing or other large,
short-term trading activity; accordingly, the Fund reserves the right to adopt
procedures to reduce, discourage or eliminate such trading activity, including
without limitation the rights (i) to reject specific purchase orders, and (ii)
to delay paying redemption proceeds to the fullest extent permitted by law.
Although the Company has adopted procedures aimed to accomplish the objectives
described immediately above, the Company agrees to cooperate with the Fund
and
Adviser and to assist in implementing such additional restrictions on purchase,
redemption and transfer activity as the Fund or Adviser reasonably determine,
in
good faith, are necessary for the protection of the Fund and Product
Owners.
2.2.
The
Fund shall redeem, at the Company's request, any full or fractional shares
of
the Fund held by the Company on behalf of the Account, such redemp-tions to
be
effected at net asset value in accordance with Section 2.3 of this Agree-ment.
Not-with-standing the foregoing, the Fund may delay redemption of Fund shares
of
any Series to the extent permitted by the 1940 Act or any rules, regulations
or
orders thereunder.
2.3.
Purchase
and Redemption Procedures
(a)
The
Company shall pay for shares of each Series on the same day that it notifies
the
Fund of a purchase request for such shares. Payment for Series shares shall
be
made in federal funds transmitted to the Fund by wire on the day the Fund is
notified of the purchase request for Series shares (unless the Fund determines
and so advises the Company that sufficient proceeds are available from
redemption of shares of other Series effected pursuant to redemption requests
tendered by the Company on behalf of the Account). If federal funds are not
received before the time that the Fund prices its shares (as specified in its
Registration Statement), then such funds will be invested, and Series shares
purchased thereby will be issued at the net asset value next determined after
the Fund receives such payment.
(b)
Payment for Series shares redeemed by the Account or the Company shall be made
in federal funds transmitted by wire to the Company or any other designated
person on the next Business Day after the Fund is properly notified of the
redemption order of Series shares (unless redemption proceeds are to be applied
to the purchase of Fund shares of other Series in accordance with Section 2.3(a)
of this Agreement), except that the Fund reserves the right to delay pay--ment
of redemption proceeds to the extent permitted under Section 22(e) of the 0000
Xxx. The Fund shall not bear any responsibility whatsoever for the proper
disbursement or crediting of redemption proceeds to Contract Owners; the Company
alone shall be responsible for such action.
2.4.
The
Fund shall use its best efforts to calculate and make the net asset value per
share for each Series available to the Company by 5:30 p.m. Eastern Time each
Business Day, and in any event, as soon as reasonably practicable after the
net
asset value per share for such Series is calculated, and shall calculate such
net asset value in accor--dance with the Fund Prospectus. Neither the Fund,
any
Series, the Adviser, nor any of their affiliates shall be liable for any
information provided to the Company pursuant to this Agreement to the extent
such information is based on incorrect information supplied by the Company
or
any other Participating Insurance Company or Qualified Person (as defined in
Section 2.8 of this Agreement) to the Fund or the Adviser.
2.5.
The
Fund shall furnish notice to the Company (by fax, or telephone followed by
written confirmation) as soon as reasonably practicable of any income divi-dends
or capital gain distributions payable on any Series shares. The Company, on
its
behalf and on behalf of the Account, hereby elects to receive all such dividends
and distri-butions as are payable on any Series shares in the form of additional
shares of that Series. The Company reserves the right, on its behalf and on
behalf of the Account, to revoke this election and to receive all such dividends
and distributions in cash. The Fund shall notify the Company promptly of the
number of Series shares so issued as payment of such dividends and
distributions.
2.6.
Issuance and transfer of Fund shares shall be by book entry only. Stock
certificates will not be issued to the Company or the Account. Purchase and
redemp-tion orders for Fund shares shall be recorded in an appropriate ledger
for the Account or the appropriate sub account of the Account.
2.7. (a)
The
Company may withdraw the Account's investment in the Fund or a Series of the
Fund only: (i) as necessary to facilitate Contract Owner requests;
(ii) upon a deter-mination by a majority of the Fund Board, or a majority
of disinterested Fund Board members, that an irreconcilable material conflict
exists among (x) the interests of all Product Owners or (y) the interests
of the Partic---ipating Insurance Companies investing in the Fund;
(iii) upon requisite vote of the Contract Owners having an interest in the
affected Series; (iv) as required by state and/or federal laws or
regulations or judicial or other legal precedent of gen-eral implication;
(v) upon sixty (60) days advance written notice; (vi) from a Series,
upon a change in the Portfolio Manager for that Series; or (vii) as
per-mit-xxx by an order of the SEC pursuant to Section 26(b) of the 0000
Xxx.
(b)
The
Company shall not, without the prior written consent of the Adviser (unless
otherwise required by applicable law), solicit, induce or encourage Contract
Owners to change or modify the Fund or change the Fund's investment
adviser.
2.8.
The
Fund shall sell Fund shares only to Participating Insurance Companies and their
separate accounts and to persons or plans ("Qualified Persons") that qualify
to
purchase and hold shares of the Fund under Section 817(h) of the Code. The
Fund
shall not sell Fund shares to any insurance company, separate account or
Qual-i-fied Person unless an agreement containing provisions substantially
similar to Articles II, V, and VII of this Agreement is in effect to govern
such
sales (to the extent required in order to comply with the "Exemptive Order"
referred to in Section 7.1 below).
ARTICLE
III. Representations
and Warranties
3.1.
The
Company represents and warrants that: (i) SLUS is an insurance company duly
organized, duly existing and in good standing under Delaware insurance law;
(ii) SLNY is an insurance company duly organized, duly existing and in good
standing under New York insurance law; (iii) the Account is (or will be prior
to
the purchase by the Company of Fund shares for the Account) a validly existing
separate account, duly estab-lished and maintained in accordance with applicable
law; (iv) the Con-tracts will be issued in compliance in all material
respects with all appli-cable federal and state laws; (v) the Contracts
currently are and at the time of issuance will be treated as annuity contracts
or life insurance policies, whichever is appropriate, under applicable
pro-visions of the Code; and (vi) the Company and the Account qualify (or
will qualify prior to the purchase by the Company of Fund shares for the
Account) to purchase and hold shares of the Fund under Section 817(h) of the
Code.
3.2.
The
Fund represents and warrants that: (i) the Fund is a corporation duly
organized, validly existing and in good standing under Maryland law;
(ii) the Fund's 1940 Act Registration Statement has been filed with the SEC
in accordance with the pro-vi-sions of the 1940 Act and the Fund is and shall
remain duly registered as an open-end man-agement investment company thereunder;
(iii) the Fund Registration Statement has been declared effective by the
SEC; (iv) Fund shares sold pursuant to this Agree-ment have been duly
authorized for issuance in accordance with applicable law; (v) the Fund
currently qualifies as a "regulated investment company" under Subchapter M
of
the Code and is and shall remain in compliance with Section 817(h) of the Code;
(vi) the Fund's investment policies are in material compliance with any
investment restrictions set forth on Schedule 3 to this Agreement; and
(vii) the Fund does and will comply in all mate-rial respects with the 1940
Act. The Fund, however, makes no representation as to whether any aspect of
its
operations (including, but not limited to, fees and expenses and invest-ment
policies) otherwise complies with the insurance laws or regulations of any
state.
3.3.
The
Adviser represents and warrants that it is and will remain registered in all
material respects as an investment adviser under federal and all appli-cable
state securities laws, and shall perform its obligations hereunder in compliance
in all material respects with any such applicable state and federal laws. The
Adviser rep-re-sents that it will manage the Fund consistent with the Fund's
investment objectives, policies, and restrictions.
3.4.
Each
party represents that the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate or trust action, as applicable, by such party, and,
when so executed and delivered, this Agreement will be the valid and binding
obligation of such party enforceable in accordance with its terms.
3.5. The
Fund
represents and warrants that all of its directors, officers, and employees
dealing with the money and/or securities of the Fund are and shall con-tinue
to
be at all times covered by a blanket fidelity bond or similar coverage for
the
bene--fit of the Fund in an amount not less than the minimal coverage as
required cur-rently by Rule 17g-1 of the 1940 Act or related provisions as
may
be promulgated from time to time. The aforesaid Bond shall include coverage
for
larceny and embezzlement and shall be issued by a reputable bonding
company.
3.6. The
Company represents and warrants that all of its directors, officers, and
employees dealing with the money and/or securities of the Fund are and shall
continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund, in an amount not less than the minimal
coverage as required cur--rently by entities subject to the requirements of
Rule
17g-1 of the 1940 Act or related pro--visions as may be promulgated from time
to
time. The aforesaid Bond shall include cov--erage for larceny and embezzlement
and shall be issued by a reputable bonding company.
ARTICLE
IV. Filings,
Information and Expenses
4.1.
The
Fund shall amend the Fund Registration Statement and the Fund's 1940 Act
Registration Statement from time to time as required in order to effect the
continuous offering of Fund shares and to maintain the Fund's registration
under
the 1940 Act for so long as Fund shares are sold. The Fund shall file, register,
qualify and obtain approval of the Fund shares for sale under state securities
laws to the extent deemed advisable by the Adviser.
4.2.
Unless other arrangements are made, the Fund shall provide the Company with:
(i) a copy, in camera-ready form or otherwise suitable for printing or
dup-li--cation, of each Fund Prospectus and any supplement thereto and each
Fund
Statement of Additional Information and any supplement thereto; and
(ii) copies of the Fund's proxy materials, reports to shareholders, and
other communications to share-holders in such quantity, if any, as the Company
shall reasonably require for distributing to Contract Owners.
4.3.
The
Company shall file, register, qualify and obtain approval of the Contracts
for
sale to the extent required by applicable insurance and securities laws of
the
various states.
4.4.
The
Company shall inform the Fund of any investment restrictions imposed by state
insurance law that may become applicable to the Fund from time to time as a
result of the Account's investment therein (including, but not limited to,
restric-tions with respect to fees and expenses and investment policies), other
than those set forth on Schedule 3 to this Agreement. Upon receipt of such
information from the Com-pany, the Fund shall determine whether it is in the
best interests of shareholders to comply with any such restrictions. If the
Fund
determines that it is not in the best interests of Product Owners, the Fund
shall so inform the Company, and the Fund and the Company shall discuss
alternative accommodations in the circumstances. If the Fund determines that
it
is in the best interests of Product Owners to comply with such restrictions,
the
Fund and the Company shall amend Schedule 3 to this Agreement to reflect such
restrictions.
4.5.
The
Company shall provide Contract private placement memoranda, Fund Prospectuses,
and Fund Statements of Additional Information, reports, solic-i-ta-tions for
voting instructions including any related Fund proxy solicitation materials,
and
all amendments or supplements to any of the foregoing, to Contract Owners and
prospective Contract Owners, to the extent required by the federal securities
laws, the Exemptive Order referred to in Article VII hereof, and any applicable
state insurance or securities laws.
4.6.
All
expenses incident to each party's performance under this Agreement (including
expenses expressly assumed by such party pursuant to this Agreement) shall
be
paid by such party to the extent permitted by law.
(a)
Expenses assumed by the Fund include, but are not limited to, the costs of:
(i)
registration and qualification of the Fund shares under the federal securities
laws; (ii) preparation and filing with the SEC of the Fund Prospectus, Fund
Registration Statement, Fund proxy materials and shareholder reports, and
preparation of a camera-ready copy thereof; (iii) preparation of all statements
and notices required by any federal or state securities law; (iv) distribution
of Fund proxy materials and reports to Contract Owners (v) all taxes on the
issuance or transfer of Fund shares; and (vi) any expenses permitted to be
paid or assumed by the Fund pursuant to a plan, if any, under Rule 12b-1 under
the 1940 Act. The Fund otherwise shall pay no fee or other compensation to
the
Company under this Agreement, unless the parties otherwise agree, except that
if
the Fund or any Series adopts and implements a plan pur-suant to Rule 12b-1
under the 1940 Act to finance distribution expenses, then payments may be made
to the Company in accordance with such plan. The Fund currently does not intend
to make any payments to finance distribution expenses pursuant to Rule 12b-1
under the 1940 Act or in contravention of such rule, although it may make
pay--ments pursuant to Rule 12b-1 in the future. To the extent that it decides
to finance distribution expenses pursuant to Rule 12b-1, the Fund undertakes
to
have a Board of Directors, a majority of whom are not inter-est-ed persons
of
the Fund, for-mu-late and approve any plan under Rule 12b-1 to finance
distri-bu-tion expenses.
(b)
Expenses assumed by the Company include, but are not limited to, the costs
of:
(i) filing and qualification of the Contracts under any applicable state
insurance or securities laws; (ii) preparation and dissemination of any
necessary disclosure documents for the Contracts or the Account; and
(iii) preparation and dissem-ina-tion of all statements and notices to
Contract Owners required by any federal or state insurance law.
4.7.
The
Fund and the Adviser shall not give any information or make any representations
on behalf of the Company or concerning the Company, the Account or the Contracts
other than the information or representations contained in disclosure documents
for the Contracts (including any private placement memoranda) or in published
reports of the Account which are in the public domain or approved in writing
by
the Company for dis-tri-bu-tion to Contract Owners.
4.8.
The
Fund and the Company shall provide to the other upon request at least one
complete copy of all Registration Statements, Prospectuses, Statements of
Additional Information, private placement memoranda, periodic and other
shareholder or Contract Owner reports, proxy statements, solicitations of voting
instructions, applications for exemptions, requests for no-action letters,
and
all amend-ments or supplements to any of the above, that relate to the Fund,
the
Contracts or the Account, as the case may be, promptly after the filing by
or on
behalf of such party of such document with the SEC or other regulatory
authorities, to the extent such filings are applicable.
4.9.
Each
party shall provide to the other upon request copies of draft versions of any
Registration Statements, Prospectuses, Statements of Additional Information,
private placement memoranda, periodic and other shareholder or Contract Owner
reports, proxy statements, solicitations for voting instructions, appli-ca-tions
for exemptions, requests for no-action letters, and all amendments or
supplements to any of the above, to the extent that the other party reasonably
needs such information for purposes of preparing a report or other filing to
be
filed with or sub-mitted to a regu-la-tory agency, and to the extent such
exists. If a party requests any such information before it has been filed,
the
other party will provide the requested information if then available and in
the
version then avail-able at the time of such request.
4.10.
Each party hereto shall cooperate with the other party and all appropriate
governmental authorities (in-cluding without limitation the SEC, the NASD and
state insurance regulators) and shall permit each other and such authorities
reason-able access to its books and records in connection with any investigation
or inquiry relat-ing to this Agreement or the transactions contemplated
hereby. However, such access shall not extend to attorney-client privileged
information.
4.11.
The
Company reserves the right to modify any of the Contracts in any respect
whatsoever. The Company reserves the right in its sole discretion to suspend
the
sale of any of the Contracts, in whole or in part, or to accept or reject any
appli-ca-tion for the sale of a Contract. The Company agrees to notify the
Fund
and the Adviser promptly upon the occurrence of any event the Company believes
might necessitate a material modification or suspension.
4.12 Any
piece
of advertising or sales literature or other promotional material in which the
Fund is named and which will be used by the Company shall be furnished by the
Company to the Fund not less than 15 days prior to its use. No such material
shall be used if the Fund or its designee objects to such use within 15 days
after receipt of such material; provided that it may be used earlier than the
end of such 15-day period if the Fund or its designee consents in writing to
its
use. The Fund may delegate its rights and responsibilities under this provision
to the Adviser.
4.13 Any
piece
of advertising or sales literature or other promotional material in which the
Company or the Account is named and which will be used by the Fund or the
Adviser shall be furnished by the Fund or the Adviser, as applicable, to the
Company not less than 15 days prior to its use. No such material shall be used
if the Company or its designee objects to such use within 15 days after receipt
of such material; provided that it may be used earlier than the end of such
15-day period if the Company or its designee consents in writing to its use.
ARTICLE
V. Voting
of Fund Shares
5.1. With
respect to any matter put to vote by the holders of Fund shares or Series shares
("Voting Shares"), to the extent required by law (including the Exemptive Order
referred to in Section 7.1 below) the Company shall:
(a)
solicit voting instructions from Contract Owners to which Voting Shares are
attributable;
(b)
vote
Voting Shares of each Series attributable to Contract Owners in accordance
with
instructions or proxies timely received from such Contract Owners;
(c)
vote
Voting Shares of each Series attributable to Contract Owners for which no
instructions have been received in the same proportion as Voting Shares of
such Series for which instructions have been timely received; and
(d)
vote
Voting Shares of each Series held by the Company on its own behalf or on behalf
of the Account that are not attributable to Contract Owners in the same
proportion as Voting Shares of such Series for which instructions have been
timely received;
provided,
however, that if the SEC changes its interpretations of voting privileges for
vari-able contracts the Company may vote such shares in its own right. The
Company shall be responsible for assuring that voting privileges for the Account
are calculated in a man-ner consistent with the provisions set forth above
and
with the manner employed by all other Participating Accounts.
ARTICLE
VI. Compliance
with Code
6.1.
The
Fund shall comply with Section 817(h) of the Code, and all regulations issued
thereunder and shall notify the Company immediately upon having a reasonable
basis for believing that it has ceased to so qualify or that it might not so
qualify in the future.
6.2.
The
Fund shall maintain its qualification as a regulated investment company (under
Subchapter M of the Code or any suc-ces-sor or similar provision), and shall
notify the Com-pany immed-iately upon having a reasonable basis for believing
that it has ceased to so qualify or that it might not so qualify in the
future.
6.3.
The
Fund and the Adviser acknowledge and agree that any failure (whether intentional
or in good faith or otherwise) of any Fund to comply with the requirements
of
Subchapter M of the Code or the diversification requirements of 817(h) of the
Code may result in the Contracts not being treated as variable contracts for
federal income tax purposes, which would have adverse tax consequences for
the
Contract Owners and could also adversely affect the Company’s corporate tax
liability. The Fund and the Adviser further acknowledge
and agree that any such failure may result in costs and expenses being incurred
by the Company. For example, the Company may incur costs and expenses in
obtaining whatever regulatory authorizations are required to correct a failure
to diversify and/or substitute shares of an investment company for those of
the
failed Fund, fees and expenses of legal counsel and other advisors to the
Company, and federal taxes, interest or tax penalties. Without limiting
the
provisions
of Article VIII of this Agreement, the Fund and the Adviser acknowledge and
agree that they will be financially liable for all reasonable costs and expenses
incurred by the Company due to the failure to comply with Subchapter M of the
Code or the diversification requirements of 817(h) of the Code.
6.4.
The
Company shall maintain the treatment of the Contracts as annuity contracts
or
life insurance policies, whichever is appropriate, under applicable provisions
of the Code and shall notify the Fund and the Adviser immediately upon having
a
reason--able basis for believing that the Contracts have ceased to be so treated
or that they might not be so treated in the future.
ARTICLE
VII. Potential
Conflicts
7.1.
The
parties to this Agreement acknowledge that the Fund has obtained an order of
exemption from the SEC (the "Exemptive Order," File No. 812-9674) granting
relief from various provisions of the 1940 Act and the rules there--under to
the
extent necessary to permit Fund shares to be sold to and held by vari-able
annuity and variable life insurance separate accounts of both affiliated and
unaffil-i-ated Participating Insurance Companies and other Qualified Persons
(as
defined in Section 2.8). The Fund hereby notifies the Company that Contracts
Private Offering Memorandum disclosure regard--ing potential risks of such
mixed
and shared funding may be appropriate.
7.2.
The
Fund Board shall monitor the existence of any material irreconcil-able conflict
between the interests of Product Owners. The Fund Board shall promptly inform
the Company if it determines that a material irreconcilable conflict exists
and
the implications thereof.
7.3. (a)
The
Company shall report any potential or existing conflicts promptly to the Fund
Board, and in particular whenever Contract Owner voting instruc-tions are
disregarded, and recognizes that it shall be responsible for assist-ing the
Fund
Board in carrying out its responsibilities in connection with the Exemptive
Order. The C-ompany agrees to carry out such responsibili-ties with a view
only
to the interests of Contract Owners.
(b)
The
Company shall at least annually submit to the Fund Board such reports, materials
or data as the Fund Board may reasonably request so that the Fund Board and
the
Fund may fully carry out the obligations imposed upon them by the conditions
of
the Exemptive Order, and such reports, material and data shall be submitted
more
frequently if deemed appropriate by the Fund Board.
7.4.
If a
majority of the Fund Board, or a majority of its directors who are not
"interested persons" as defined in the 1940 Act ("Disinterested Directors"),
determines that a material irreconcilable con--flict exists with regard to
Contract Owner invest-ments in the Fund, the Fund Board shall give prompt notice
to all Partici-pating Insurance Companies. If the Fund Board determines that
the
Company is responsible in full or in part for causing or creating said
con-flict, the Company (and other responsible Par-tic-ipating Insurance
Companies) shall at no cost and expense to the Fund, and to the extent
reasonably practicable (as deter-mined by a majority of the Disinterested
Directors), take such action as is neces-sary to remedy or elimi-nate the
irreconcilable material con-flict. Such necessary action may include, but shall
not be limited to:
(a)
Withdrawing the assets allocable to the Account from the Fund or any portfolio
thereof and reinvesting such assets in a different investment medium, or
submitting the question of whether such segregation should be implemented to
a
vote of all affected Contract Owners and, as appropriate, segregating the assets
of any appropriate group (i.e.,
annuity
Contract Owners, life insurance Contract Owners, or other Product Owners) that
votes in favor of such segregation or offering to the affected Contract Owners
the option of making such a change; and
(b)
Establishing a new registered management investment
company.
|
7.5.
If a
material irreconcilable conflict arises as a result of a decision by the Company
to disregard Contract Owner voting instructions and said decision represents
a
minority position or would preclude a majority vote by all Contract Owners
having an interest in the Fund, the C-ompany may be required, at the Fund
Board's election, to withdraw the Account's investment in the Fund and terminate
this Agreement with respect to such Account; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as deter--mined by a majority of
the
Disinterested Directors. Any such withdrawal and termi-na-tion must take place
within six (6) months after the Fund gives written notice that this pro--vision
is being implemented, and until the end of that six month period the Adviser
and
fund shall continue to accept and implement orders by the Company for the
pur-chase (and redemption) of shares of the Fund (subject to Section 2.1 above).
No charge or penalty will be imposed as a result of such
withdrawal.
7.6. If
a
material irreconcilable conflict arises because a particular state insurance
regulator's decision applicable to the Company conflicts with the majority
of
other state regulators, then the Company will withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such Account
within six months after the Board informs the Company in writing that it has
determined that such deci--sion has created an irreconcilable material conflict;
provided, however, that such with--drawal and termination shall be limited
to
the extent required by the foregoing mate-rial irre-concilable conflict as
determined by a majority of the Disinterested Directors. Until the end of the
foregoing six month period, the Adviser and Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares
of
the Fund (subject to Section 2.1 above).
7.7.
For
purposes of this Article VII, a majority of the Disinter-ested Directors shall
determine whether or not any pro-posed action adequately remedies any
irreconcil-able material conflict, but in no event shall the Fund be required
to
bear the expense of estab--lishing a new funding medium for any Con--tract.
The
Company shall not be required by this Article VII to establish a new funding
medium for any Con-tract if an offer to do so has been declined by vote of
a
majority of the Contract Owners materially ad-versely affected by the
irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable mate--rial
con-flict, then the Company will withdraw the Account's investment in the Fund
and ter-mi-nate this Agreement within six (6) months after the Board informs
the
Company in writing of the foregoing determination, provided, however, that
such
withdrawal and ter-mi-nation shall be limited to the extent required by any
such
material irreconcilable conflict as determined by a majority of the
Disinterested Directors.
7.8.
If
and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3
is
adopted, to provide exemptive relief from any provisions of the 1940 Act or
the
rules promulgated thereunder with respect to mixed and shared funding on terms
and con--ditions materially different from those contained in the Exemptive
Order, then (a) the Fund and/or the Company, as appropriate, shall take such
steps as may be necessary to com--ply with Rules 6e-2 and 6e-3(T), as amended,
or Rule 6e-3, as adopted, as appli-c-able, to the extent such rules are
applicable, and (b) Sections 7.2 through 7.7 of this Agree--ment shall continue
in effect only to the extent that terms and conditions sub-xxxx-tially identical
to such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE
VIII. Indemnification
8.1.
Indemnification
by the Company.
The
Company shall indemnify and hold harmless the Fund, the Adviser and each person
who controls the Fund or the Adviser within the meaning of such terms under
the
1933 Act (but not any other Participating Insur-ance Companies or Qualified
Plans) and any officer, trustee, director, employee or agent of the fore-going,
against any and all losses, claims, damages or liabili-ties, joint or sev-eral
(including any investigative, legal and other expenses reasonably incurred
in
con-nec--tion with, and any amounts paid with the written consent of the Company
in set-tle-ment of, any action, suit or proceeding or any claim asserted),
to
which they or any of them may become subject under any statute or regulation,
at
common law or other-wise, inso-far as such losses, claims, damages or
liabilities are related to the sale or acquisition of the Fund's shares or
the
Contracts and:
(a)
arise
out of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the private placement memorandum or other disclosure
documents for the Contracts or the Contracts themselves (or any amendment or
supplement to any of the foregoing), or the omission or the alleged omission
to
state therein a mate--rial fact required to be stated therein or necessary
to
make the statements therein not misleading in light of the circumstances in
which they were made; pro-vided that this obligation to indemnify shall not
apply if such statement or omis-sion or such alleged statement or alleged
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of the Fund or Adviser for use in
such
documents, or in the Contracts (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the Contracts
or
Fund shares; or
(b)
arise
out of any untrue statement or alleged untrue statement of a material fact
contained in the Fund Registration Statement, Fund Prospectus or sales
litera-ture or other promotional material of the Fund (or any amendment or
sup-ple-ment to any of the foregoing), or the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the state--ments therein not misleading in light of the circumstances in which
they were made, if such statement or omission was made in reliance upon and
in
conformity with information furnished in writing to the Fund or the Adviser
by
or on behalf of the Com-pany; or
(c)
arise
out of or are based upon any wrongful conduct of the Company or persons under
its control (or subject to its authorization) with respect to the sale or
distribution of the Contracts or Fund shares; or
(d)
arise
as a result of any failure by the Company to provide the services and furnish
the materials or to make any payments as required under this Agreement;
or
(e)
arise
out of any material breach by the Company of this Agreement.
This
indemnification will be in addition to any liability that the Company may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.2.
Indemnification
by the Adviser.
The
Adviser shall indemnify and hold harmless the Company and each person who
controls the Company within the meaning of such term under the 1933 Act and
any
officer, director, employee or agent of the fore-go-ing, against any and all
losses, claims, damages or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amounts paid with the written consent of the Adviser in settlement
of,
any action, suit or proceeding or any claim asserted), to which they or any
of
them may become subject under any statute or regu-la-tion, at com-mon law or
otherwise, insofar as such losses, claims, damages or liabilities are related
to
the sale or acquisition of the Fund's shares or the Contract and:
(a)
arise
out of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the Fund Registration Statement, Fund Prospectus
or
sales literature or other promotional material of the Fund (or any amendment
or
supplement to any of the foregoing), or the omission or the alleged omission
to
state therein a material fact required to be stated there-in or necessary to
make the state-ments therein not misleading in light of the cir--cum-stances
in
which they were made; provided that this obligation to indemnify shall not
apply
if such statement or omission or alleged state-ment or alleged omis-sion was
made in reliance upon and in conformity with information furnished in writ---ing
by or on behalf of the Company to the Fund or the Adviser for use in the Fund
Registration Statement, Fund Prospectus or sales literature or promotional
material for the Fund (or any amendment or supplement to any of the foregoing);
or
(b)
arise
out of any untrue statement or alleged untrue statement of a material fact
contained in private placement memorandum or other disclosure documents for
the
Contracts (or any amend--ment or supplement to any of the foregoing), or the
omission or alleged omis--sion to state therein a material fact required to
be
stated therein or necessary to make the state-ments therein not misleading
in
light of the circumstances in which they were made, if such statement or
omission was made in reliance upon infor-mation furnished in writing by or
on
behalf of the Adviser to the Company; or
(c)
arise
out of or are based upon wrongful conduct of the Fund or the Adviser with
respect to the sale of Fund shares; or
(d)
arise
as a result of any failure by the Fund or the Adviser to provide the services
and furnish the materials required under the terms of this Agreement;
or
(e) arise
out
of any material breach by the Fund or the Adviser of this
Agreement;
(f) arise
from any incorrect calculation of net asset value (åNAVæ) by the Fund or the
Adviser, which differs by no less than 50 basis points from the accurate NAV
calculation.
This
indemnification will be in addition to any liability that the Adviser may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.4.
Indemnification
Procedures.
After
receipt by a party entitled to indemni-fi-cation ("indemnified party") under
this Article VIII of notice of the com-mence-ment of any action, if a claim
in
respect thereof is to be made by the indemnified party against any person
obl-igated to provide indemnifi-cation under this Article VIII
("in-dem-ni-fy-ing party"), such indemnified party will notify the indemnifying
party in writing of the commencement thereof as soon as practicable thereafter,
provided that the omission to so notify the indem-nifying party will not relieve
it from any liability under this Article VIII, except to the extent that
the omission results in a failure of actual notice to the indem--ni-fying party
and such indemnifying party is damaged solely as a result of the fail-ure to
give such notice. The indemnifying party, upon the request of the indem-nified
party, shall retain counsel reasonably satisfac-tory to the indemnified party
to
represent the indemnified party and any others the indemnifying party may
designate in such proceed-ing and shall pay the fees and disbursements of such
counsel related to such proceed-ing. In any such proceeding, any indemnified
party shall have the right to retain its own counsel and to participate in
the
defense of such proceeding, but the fees and expenses of such counsel shall
be
at the expense of such indem-nified party unless (i) the indem--nifying
party and the indemnified party shall have mutu-ally agreed to the retention
of
such counsel or (ii) the named parties to any such pro-ceeding (including any
impleaded parties) include both the indemnifying party and the indem-nified
party and rep-re--sentation of both par-ties by the same counsel would be
inappro-priate due to actual or poten-tial differing interests between them.
The
indem-ni-fy-ing party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment against the indemnified party, the indem---nify-ing
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
A
successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
8.5 Notwithstanding
anything else to the contrary in this Article VIII, none of the parties hereto
shall be liable for any consequential, indirect or special damages under any
circumstances. This limitation applies regardless of whether such damages are
sought based upon breach of contract, breach of warranty, negligence, strict
liability, misrepresentation or other legal or equitable theory.
ARTICLE
IX. Applicable
Law
9.1.
This
Agreement shall be construed and the provi-sions hereof interpreted under and
in
accordance with the laws of the State of Maryland, without giving effect to
the
principles of conflicts of law.
9.2.
This
Agreement shall be subject to the provi-sions of the 1933 Act, 1940 Act and
Securities Exchange Act of 1934, as amended, and the rules and regula-tions
and
rulings thereunder, including such exemptions from those statutes, rules and
reg-ulations as the SEC may grant, and the terms hereof shall be limited,
interpreted and construed in accordance therewith.
ARTICLE
X. Termination
10.1
This
Agreement shall not terminate until the Fund is dissolved, liquidated, or merged
into another entity, or, as to any Series of the Fund, the Account no longer
invests in that Series. However, certain obligations of, or restrictions on,
the
par-ties to this Agreement may terminate as provided in Sections 10.2 and 10.3,
and the Com-pany may be required to redeem shares pursuant to Section 10.4
or in
the circumstances contemplated by Article VII.
10.2.
Termination
of the Fund's Obligation to Sell.
The
obligation of the Fund to sell shares to the Company pursuant to Article II
of
this Agreement shall terminate at the option of the Fund upon notice to the
Company as provided below:
(a)
the
Fund Board has terminated the offering of Fund shares or Series shares pursuant
to Section 2.1 of this Agreement; or
(b)
upon
institution of formal proceedings against the Company by the NASD, the SEC,
the
insurance commission of any state or any other regula-tory body regarding the
Company's duties under this Agreement or related to the sale of the Contracts,
the operation of the Account, the administration of the Contracts or the
purchase of Fund shares, or an expected or anticipated ruling, judg-ment or
outcome which would, in the Fund's reasonable judg-ment, materially impair
the
Company's ability to meet and per-form the Company's obligations and duties
hereunder; or
(c)
in
the event any of the Contracts are not issued or sold in accordance with
applicable federal and/or state law; or
(d)
if
either the Fund or the Adviser shall determine, in its sole judgment exercised
in good faith, that either (1) the Company shall have suf-fered a material
adverse change in its business or financial condition since the date of this
Agreement or (2) the Com-pany shall have been the subject of mate-rial adverse
publicity which is likely to have a material adverse impact upon the business
and operations of either the Fund or the Adviser; or
(e)
upon
the Company's assignment of this Agreement (in-clud-ing, without limitation,
any
transfer of any Contract or the Account to another insurance company pursuant
to
an assumption reinsurance or other agreement) unless the Fund consents thereto;
or
(f)
upon
termination pursuant to Section 10.1 or notice from the Company pursuant to
Section 10.3.
Termination
of the Fund's obligation shall take effect immediately upon the giving of such
notice upon the occurrence of an event described in clauses (b) or (c) above,
and 10 (ten) days after the giving of such notice in all other cases. In
exercising its option to termi--nate its obligation to sell shares to the
Company, the Fund will continue to make Fund shares available to the extent
necessary to permit owners of Contracts in effect on the effec---tive date
of
such termination (hereinafter referred to as "Existing Contracts") to
real-lo-cate investments in the Fund, redeem investments in the Fund and/or
invest in the Fund upon the making of additional purchase pay-ments under the
Existing Contracts, unless the Existing Contracts are the basis for the
termination. In that case, the Fund may nonetheless elect to continue to make
Fund shares available for Existing Contracts and if it so elects, shall promptly
notify the Company whether the Fund is electing to make Fund shares available
after termination.
10.3.
As
to
the Company.
The
restrictions on the Company under Section 2.7(a) of this Agreement shall
terminate at the option of the Company upon 10 days' notice to the
Fund:
(a)
if
shares of any Series are not reasonably available to meet the requirements
of
the Contracts as determined by the Company, and the Fund, after receiv-ing
written notice from the Company of such non-availability, fails to make
avail-able a sufficient number of Fund shares to meet the requirements of the
Contracts within 10 days after receipt thereof; or
(b)
upon
institu-tion of formal proceedings against the Fund by the NASD, the SEC or
any
state securities or insurance commission or any other regulatory body;
or
(c)
if
the Fund ceases to qualify as a regulated investment company under Sub-chapter
M
of the Code, or under any successor or similar provi-sion, or if the Company
reasonably believes the Fund may fail to so qualify, and the Fund, upon written
request, fails to provide reasonable assurance that it will take action to
cure
or correct such failure; or
(d)
if
the Fund fails to meet the diversification requirements specified in Section
817(h) of the Code and any regulations thereunder, and the Fund, upon written
request, fails to provide reasonable assurance that it will take action to
cure
or correct such failure; or
(e)
if
the Fund informs the Company pursuant to Section 4.4 that the Fund will not
comply with investment restrictions as requested by the Company, and the Fund
and the Company are unable to agree upon any reasonable alternative
accommodations; or
(f)
upon
receipt by the Company of any necessary regulatory approv-als and the vote
of
the Contract Owners having an interest in the Account (or any subaccount) to
substitute the shares of another investment company for the corresponding
Portfolio shares of the Fund in accordance with the terms of the Contracts
for
which those Portfolio shares had been selected to serve as the underlying
investment media. The Company will give 30 days' prior written notice to the
Fund of the date of any proposed vote or other action taken to replace the
Fund's shares; or
(g)
upon
a material breach of any provision of this Agreement by either the Fund or
the
Adviser; or
(h)
if
the Company determines in its sole judgment exercised in good faith, that either
the Fund or the Adviser has suffered a material adverse change in its business,
operations, or financial conditions since the date of this Agree-ment or is
the
subject of material adverse publicity which is likely to have a material adverse
impact upon the business and operations of the Company.
10.4.
Company
Required to Redeem.
The
parties understand and acknowl-edge that it is essential for compliance with
Section 817(h) of the Code that the Con-tracts qualify as annuity contracts
or
life insurance policies, as applicable, under the Code. Accordingly, if any
of
the Contracts cease to qualify as annuity contracts or life insur--ance
policies, as applicable, under the Code, the Fund shall have the right to
require the Com--pany to redeem Shares attributable to such Contracts upon
ten
(10) days written notice to the Company and the Company shall so redeem such
Shares in order to ensure that the Fund complies with the provisions of Section
817(h) of the Code applicable to own--ership of Fund Shares. Notice to the
Company shall specify the period of time the Com--pany has to redeem the Shares
or to make other arrangements satisfactory to the Fund and its counsel, such
period of time to be determined with reference to the require-ments of Section
817(h) of the Code. In addition, the Company may be required to redeem Shares
pursuant to action taken or request made by the Fund Board in accor-dance with
an order of the SEC as described in Article VII, or other SEC rule, regulation
or order that may be adopted after the date hereof. The Company agrees to redeem
Shares in such circumstances and to comply with applicable terms and
provisions.
ARTICLE
XI. Applicability
to New Accounts and New Contracts
The
parties to this Agreement may amend the schedules to this Agreement in writing
from time to time to reflect, as appropriate, changes in or relating to the
Contracts, or Series or funding vehicles thereof, additions of new classes
of
Contracts to be issued by the Company and separate accounts therefore investing
in the Fund. The provisions of this Agreement shall be equally appli-ca-ble
to
each such class of Contracts, Series and Accounts, effective as of the date
of
amendment of such Schedule, unless the context otherwise requires.
ARTICLE
XII. Notice,
Request or Consent
Any
notice, request or consent to be provided pursuant to this Agreement is to
be
made in writing and shall be given:
If
to the
Fund:
M
Fund,
Inc.
M
Financial Group
0000
XX
Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxx 00000
Attn:
President
If
to the
Adviser:
M
Financial Investment Advisers, Inc.
M
Financial Group
0000
XX
Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxx 00000
Attn:
President
If
to the
Company:
Sun
Life
Assurance Company of Canada (U.S.)
One
Sun
Life Executive Park, SC1335
Xxxxxxxxx
Xxxxx, XX 00000-0000
Attn:
General Counsel
or
at
such other address as such party may from time to time specify in writing to
the
other party. Each such notice, request or consent to a party shall be sent
by
registered or certified United States mail with return receipt requested, by
overnight delivery with a nation-ally recognized courier or by electronically
transmitted facsimile, and shall be effective upon receipt or three days after
mailing.
ARTICLE
XIII. Dispute
Resolution
All
disputes arising under or relating to this Agreement shall be subject to
negotiation and binding arbitration as set forth in this Article
13.
13.1. Negotiation.
The
affected parties shall in good faith attempt promptly to resolve any dispute
arising under or relating to this Agreement by negotiations between executives
who have authority to settle the controversy. A party may give the other party
or parties written notice of any dispute not resolved in the ordinary course
of
business. Within 20 days of the delivery of such notice, executives of the
affected parties shall meet, in person or by telephone conference, and
thereafter as often as they reasonably deem necessary, to exchange information
and attempt to resolve the dispute. If a negotiator intends to be accompanied
by
an attorney, he shall provide all other parties at least five days notice of
such fact, and the negotiators for such parties shall be entitled to be
accompanied by an attorney without further notice. If the parties have failed
to
meet within 20 days of the notice, or if the matter has not been resolved within
50 days of the notice, then either party may request arbitration as provided
in
Article 13.2.
13.2 Arbitration.
(a) Any
and
all disputes between parties arising under or relating to this Agreement,
whether sounding in contract or tort and whether arising during or after
termination of this Agreement, and including disputed claims for indemnification
or contribution, shall be submitted to the decision of an arbitration panel
composed of two arbiters and an umpire, meeting at a location mutually agreeable
to the Fund and the Adviser on the one hand and the Company on the other hand.
Notice requesting arbitration will be sent by Certified or Registered Mail,
return-receipt requested.
(b) The
members of the arbitration panel shall be active or retired disinterested
securities or insurance industry executives or attorneys expert in insurance
or
securities law. Each party shall appoint its arbiter, and the two arbiters
shall
choose an umpire before instituting the hearing. If the respondent fails to
appoint its arbiter within 30 days after receiving written request, the claimant
shall also appoint the second arbiter. If the two arbiters fail to agree upon
the appointment of an umpire within 30 days after notification of the
appointment of the second arbiter, the two arbiters will promptly request the
American Arbitration Association ("AAA") to appoint an umpire for the
arbitration with the qualifications set forth above in this paragraph. If the
AAA fails to name an umpire within 30 days of the arbiters request, either
party
may apply to a court of competent jurisdiction to appoint an umpire with the
above required qualifications. The umpire will promptly notify in writing all
parties to the arbitration of his selection and thereupon the arbitration panel
will notify all parties of the scheduled date of the hearing. Upon resignation
or death of any member of an arbitration panel, a replacement will be appointed
in the same fashion as the resigning or deceased member was
appointed.
(c) The
claimant shall submit its initial brief within 20 days from appointment of
the
umpire. The respondent shall submit its brief within 20 days thereafter, and
the
claimant may submit a reply brief within 10 days after filing of the respondents
brief.
(d) The
panel
shall make its decision with regard to applicable law and the custom and usage
of the securities industry. The panel shall issue its decision in writing based
upon a hearing in which evidence may be introduced without following strict
rules of evidence but in which cross-examination and rebuttal shall be allowed.
The panel shall make its decision within 60 days following the termination
of
the hearings unless the parties consent to an extension. The majority of the
panel shall be final and binding upon all parties to the proceeding. Judgment
may be entered upon the award of the panel in any court of competent
jurisdiction.
(e)
Each
party shall bear the expense of its own arbiter and shall jointly and equally
bear with the other party the expense of the umpire. The remaining costs of
the
arbitration proceedings shall be allocated by the panel.
13.3
Multiparty
Arbitration.
Unless
otherwise agreed, if the matter in dispute under this Article 13 involves more
than two parties, then within 30 days following a written request for
arbitration, the parties to the arbitration, or any one of them, will promptly
request that the AAA name a disinterested panel consisting of three arbiters
having the qualifications set forth above, one of whom shall be designated
by
the AAA as the umpire. The expenses of the arbiters and umpires shall be divided
equally among the parties unless otherwise agreed. Any vacancies occurring
on
the panel will be filled by a replacement appointed by the AAA. Unless otherwise
agreed, the arbitration shall be conducted in all other respects as set forth
in
Article 13.2.
ARTICLE
XIV. Shareholder
Information
14.1 Definitions.
For
purposes of this Article XIV, the following terms shall have the following
meanings:
(a) åSharesæ
means the interest of Contract Owners corresponding to the redeemable securities
of record issued by the Fund under the 1940 Act that are held by the Company
on
behalf of its separate accounts investing in the Series of the
Fund.
(b) åShareholder-Initiated
Transferæ means a transaction that is initiated or
directed by a Contract Owner that results in a transfer of assets within a
Contract to or out of a Series of the Fund, but does not include transactions
that are executed: (1) automatically pursuant to a contractual or systematic
program or enrollment such as a transfer of assets within a Contract to or
out
of a Series of the Fund as a result of ådollar cost averagingæ programs,
insurance company approved asset allocation programs, automatic rebalancing
programs, annuity payments, loans, systematic withdrawal programs; (2) pursuant
to a Contract death benefit; (3) one-time step-up in Contract value pursuant
to
a Contract death benefit; (4) allocation of assets to a Series of the Fund
through a Contract as a result of payments such as loan repayments, scheduled
contributions, retirement plan salary reduction contributions, or planned
premium payments to the Contract; (5) pre-arranged transfers at the conclusion
of a required free look period; (6) as a result of any deduction of charges
or
fees under a Contract; (7) within a Contract out of a Series of the Fund a
result of scheduled withdrawals or surrenders from a Contract; or (8) pursuant
to any other similar type of transaction that does not require current or
ongoing action by the Contract Owner.
(c) åwrittenæ
includes electronic writings and facsimile transmissions.
14.2 Agreement
to Provide Information.
The
Company will provide the Fund or its designee, upon written request from the
Fund or the Adviser, the taxpayer identification (åTINæ), the
Individual/International Taxpayer Identification Number (åITINæ), or other
government-issued identifier (åGIIæ) and the Contract Owner number or
participant account number associated with the Contract Owner, if known, of
any
or all Contract Owner(s) of the account, and the amount, date and transaction
type (purchase, redemption, transfer, or exchange) of every purchase,
redemption, transfer or exchange of Shares held through an account maintained
by
the Company during the period covered by the request. Unless otherwise
specifically requested by the Fund, the Company shall only be required to
provide information relating to the Shareholder-Initiated
Transfers.
14.3 Period
Covered by Request.
Requests must set forth a specific period, not to exceed 90 days prior to the
date of the request, for which transaction information is sought. The Fund
or
the Adviser may request transaction information older than 90 days from the
date
of the request as it deems necessary to investigate compliance with policies
established by the fund or Company for the purpose of eliminating or reducing
any dilution of the value of the outstanding shares issued by the
Fund.
14.4 Timing
of Requests.
Request
for Contract Owner information shall be made no more frequently than quarterly,
except as the Fund or the Adviser deem necessary to investigate compliance
with
policies established by the Fund or the Company for the purpose of eliminating
or reducing any dilution of value of the outstanding shares issued by the
Fund.
14.5 Form
and Timing of Response.
(a) The
Company agrees to provide, promptly upon request of the Fund or its designee,
the requested information specified in Section 14.2. If requested by the Fund,
the Adviser or their designee, the Company will use its best efforts to
determine promptly whether any specific person about whom the Fund has received
the identification and transaction information specified in Section 14.2 is
itself a financial intermediary (as defined in Rule 22c-2 under the 1940 Act
(an
åindirect intermediaryæ) and, upon further request of the Fund, the Adviser or
their designee, promptly either (1) provide (or arrange to have provided) the
information set forth in Section 14.2 for those shareholders who hold an account
with the indirect intermediary, or (2) restrict or prohibit the indirect
intermediary from purchasing, in nominee name on behalf of other persons,
securities issued by the Fund. The Company will inform the Fund whether it
plans
to perform the actions set forth in subsection (1) or (2) above.
(b) Responses
required by this Section 14.5 must be communicated in writing and in a format
mutually agreed upon by the Fund, the Adviser or their designee and the
Company.
(c) To
the
extent practicable, the format for any transaction information provided to
the
Fund should be consistent with the NSCC Standardized Data Reporting
Format.
14.6 Limitations
on Use of Information.
The
Fund will not to use the information received pursuant to this Article XIV
for
any purpose other than as necessary to comply with the provisions of Rule 22c-2
under the 1940 Act or to fulfill other regulatory or legal requirements subject
to the privacy provisions of Title V of the Xxxxx-Xxxxx Xxxxxx Act (Public
Law
106-102) and comparable state laws.
14.7 Agreement
to Restrict Trading.
The
Company will execute written instructions from the Fund to restrict or prohibit
further purchases or exchanges of Shares by a Contract Owner that has been
identified by the Fund as having engaged in transactions of the Fund’s shares
(directly or indirectly through the Company’s account) that violate policies
established by the Fund or the Company for the purpose of eliminating or
reducing any dilution of the value of the then outstanding Shares. Unless
otherwise directed by the Fund, any such restrictions or prohibitions shall
only
apply to Shareholder-Initiated Transfers that are effected directly or
indirectly through the Company. Instructions must be sent to the Company at
the
address set forth for the Company in Article XII, or such other address that
the
Company may communicate to the Fund in writing from time to time.
14.8 Form
of Instructions.
Instructions must include the TIN, ITIN or GII and the specific individual
Contract Owner number or participant account number associated with the Contract
Owner, if known, and the specific restriction(s) to be executed, including
how
long the restriction(s) is to remain in place. If the TIN, ITIN, GII or the
specific individual Contract Owner number or participant account number
associated with the Contract Owner is not known, the instructions must include
an equivalent identifying number of the Contract Owner(s) or account(s) or
other
agreed upon information to which the instruction relates. Upon request of the
Company, the Fund will provide, along with any written instructions to prohibit
further purchases or exchanges of Shares by a Contract Owner, information
regarding those trades of the Contract Owner that violated the policies of
the
Fund of the Company relating to eliminating or reducing any dilution of the
value of the Fund’s outstanding Shares.
14.9 Timing
of Response.
The
Company will execute instructions as soon as reasonably practicable, but not
later than five business days after receipt of the instructions.
14.10 Confirmation
by the Company.
The
Company must provide written confirmation to the Fund that instructions have
been executed. The Company will provide confirmation as soon as practicable,
but
not later than ten business days after the instructions have been
executed.
ARTICLE
XV. Miscellaneous
15.1.
The
captions in this Agreement are included for convenience of reference only and
in
no way define or delineate any of the provisions hereof or otherwise affect
their construc-tion or effect.
15.2.
This Agreement may be executed simultaneously in two or more counterparts,
each
of which together shall constitute one and the same instrument.
15.3.
If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall
not
be affected thereby.
15.4.
Subject to the requirement of legal process and regulatory authority, 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 until such time as it may come into the public domain
without the express written consent of the affected party.
15.5.
The
rights, remedies, and obligations contained in this Agreement are cumulative
and
are in addition to any and all rights, remedies, and obligations, at law or
in
equity, which the parties hereto are entitled to under state and federal
laws.
15.6. The
parties acknowledge that Federal law requires that the Fund obtain, verify
and
record information that identifies each person who opens an account with the
Fund, including the Company on behalf of each Account. In connection with the
opening of an account with the Fund, the Fund will request certain identifying
information, including, but not limited to (1) the name of the account owner;
(2) the address of the account owner’s principal place of business; and (3) the
account owner’s TIN.
[Signature
Page follows.]
-
28
-
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized officer on the date
specified below.
SUN
LIFE
ASSURANCE COMPANY OF CANADA (US)
(SLUS)
Date:
_______________ By:
________________________________________________
Name:
Xxxxxxx Xxxxxxx
Title:
Vice President
Date:
_______________ By:
________________________________________________
Name:
Xxxxx Xxxxx
Title:
Senior Counsel
SUN
LIFE
INSURANCE AND ANNUITY COMPANY OF NEW YORK
(SLNY)
Date:
_______________ By:
________________________________________________
Name:
Xxxxxxx Xxxxxxx
Title:
Vice President
Date:
_______________ By:
________________________________________________
Name:
Xxxxx Xxxxx
Title:
Senior Counsel
M
FUND,
INC.
(Fund)
Date:
_______________ By:
________________________________________________
Name: Xxxxxx
Xxxxxx
Title: President
M
FINANCIAL INVESTMENT ADVISERS, INC.
(Adviser)
Date:
_______________ By:
________________________________________________
Name: Xxxxxx
Xxxxxx
Title: President
Schedule
1
Accounts
of the Company
and
Classes of Contracts
Investing
in the Fund
Effective
as of the date the Agreement was executed, the following separate accounts
of
the Company and Contracts are subject to the Agreement:
Name
of Separate Account
|
Type
of Product
Supported
by Account
|
Date
established by the Board of Directors of the Company
|
SEC
1940 Act Registration Number (if applicable)
|
Sun
Life of Canada (U.S.) Separate Account R
|
Magnastar
PPVUL
|
November
8, 2006
|
NA
|
Sun
Life of Canada (U.S.) Separate Account S
|
Magnastar
PPVUL
|
November
8, 2006
|
NA
|
Sun
Life (N.Y.) Separate Account L
|
Magnastar
PPVUL
|
November
9, 2006
|
NA
|
Sun
Life (N.Y.) Separate Account M
|
Magnastar
PPVUL
|
November
9, 2006
|
NA
|
Schedule
2
Effective
as of the date the Agreement was executed, the following M Fund Series are
available under the Contracts:
Contract
Marketing Name - Magnastar PPVUL
M
Fund
Options - 1.
Xxxxxxx International Equity Fund
2. |
Business
Opportunity Value Fund
|
3. |
Frontier
Capital Appreciation Fund
|
4. |
Xxxxxx
Core Growth Fund
|
Schedule
3
Investment
Restrictions
Applicable
to the Fund
Effective
as of the date the Agreement was executed, the following investment restrictions
are applicable to the Fund:
N/A