Exhibit (h)(30)
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
AMONG
MFS VARIABLE INSURANCE TRUST
MFS VARIABLE INSURANCE TRUST II
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
AND
MFS FUND DISTRIBUTORS, INC.
THIS AGREEMENT, made and entered into this 1st day of May 2009, by and
among MFS VARIABLE INSURANCE TRUST, a Massachusetts business trust (the "Trust
I"), MFS VARIABLE INSURANCE TRUST II, a Massachusetts business trust (the "Trust
II") (Trust I and Trust II each referred to, individually, as the "Trust" and,
collectively, as the "Trusts"), NEW YORK LIFE INSURANCE AND ANNUTIY CORPORATION,
a Delaware corporation (the "Company") on its own behalf and on behalf of each
of the segregated asset accounts of the Company set forth in Schedule A hereto,
as may be amended from time to time (the "Accounts"), and MFS Fund Distributors,
Inc., a Delaware corporation ("MFD" or "Underwriter"). This Agreement shall
amend and supersede the following Participation Agreements:
- Dated May 1, 1984, as amended, by and among Trust I, the Company
and Massachusetts Financial Services Company ("MFS"), and
- Dated April 20, 2003, by and among Trust I, the Company and MFS.
WHEREAS, each Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and its shares are registered or will be registered under the Securities Act of
1933, as amended (the "1933 Act");
WHEREAS, shares of beneficial interest of each Trust are divided into
several series of shares, each representing the interests in a particular
managed pool of securities and other assets;
WHEREAS, certain series of shares of each Trust are divided into two
separate share classes, an Initial Class and a Service Class, and each Trust on
behalf of the Service Class has adopted a Rule 12b-1 plan under the 1940 Act
pursuant to which the Service Class pays a distribution fee;
WHEREAS, the series of shares of each Trust (each, a "Portfolio," and,
collectively, the "Portfolios") and the classes of shares of those Portfolios
(the "Shares") offered by each Trust to the Company and the Accounts are set
forth on Schedule A attached hereto;
WHEREAS, MFD is registered as a broker-dealer with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934, as
amended (hereinafter the "1934 Act"), and is a member in good standing of the
Financial Industry Regulatory Authority, Inc. ("FINRA");
WHEREAS, the Company will issue certain variable annuity and/or variable
life insurance contracts (individually, the "Policy" or, collectively, the
"Policies") which, if required by applicable law, will be registered under the
1933 Act;
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolution of the Board of Directors of the Company, to
set aside and invest assets attributable to the aforesaid variable annuity
and/or variable life insurance contracts that are allocated to the Accounts (the
Policies and the Accounts covered by this Agreement, and each corresponding
Portfolio covered by this Agreement in which the Accounts invest, is specified
in Schedule A attached hereto as may be modified from time to time);
WHEREAS, the Company has registered or will register the Accounts as unit
investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, NYLIFE Distributors LLC ("NYLD"), the underwriter for the
Policies, is registered as a broker-dealer with the SEC under the 1934 Act and
is a member in good standing of FINRA; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase the Shares of the Portfolios as
specified in Schedule A attached hereto on behalf of the Accounts to fund the
Policies, and the Trusts intends to sell such Shares to the Accounts at net
asset value; and
NOW, THEREFORE, in consideration of their mutual promises, each Trust, MFD,
and the Company agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. Each Trust agrees to sell to the Company those Shares which the
Accounts order (based on orders placed by Policy holders prior to the
pricing time set forth in the applicable Portfolio's prospectus, e.g., the
close of regular trading on the New York Stock Exchange, Inc. (the "NYSE")
on that Business Day, as defined below) and which are available for
purchase by such Accounts, executing such orders on a daily basis at the
net asset value next computed after receipt by such Trust or its designee
of the order for the Shares. For purposes of this Section 1.1, the Company
shall be the designee of each Trust for receipt of such orders from Policy
owners and receipt by such designee shall constitute receipt by each Trust;
provided that such Trust receives notice of such orders by 9:00 a.m. New
York time on the next following Business Day. "Business Day" shall mean any
day on which the NYSE is open for trading and on which such Trust
calculates its net asset value pursuant to the rules of the SEC. The
Company will ensure that orders for transactions in Shares by Policy owners
comply with each Portfolio's prospectus (including statement of additional
information) restrictions with respect to purchases, redemptions and
exchanges. The Company will not engage in, authorize or facilitate market
timing or late trading in Shares and has implemented controls designed to
identify and prevent market timing and late trading in Shares by Policy
holders.
1.2. Each Trust agrees to make the Shares available indefinitely for
purchase at the applicable net asset value per share by the Company and the
Accounts on those days on which the Trust calculates its net asset value
pursuant to rules of the SEC and each Trust shall calculate such net asset
value on each day which the NYSE is open for trading. Notwithstanding the
foregoing, the Board of Trustees of the relevant Trust (the "Board") may
refuse to sell any Shares to the Company
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and the Accounts, or suspend or terminate the offering of the Shares if
such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, necessary in the best interest of the Shareholders of such
Portfolio.
1.3. Each Trust and the Underwriter agree that the Shares will be sold only
to insurance companies which have entered into participation agreements
with the relevant Trust and the Underwriter or its affiliates (the
"Participating Insurance Companies") and their separate accounts, qualified
pension and retirement plans and the Underwriter or its affiliates, and any
other person or plan permitted to hold shares of such Trust pursuant to
Treasury Regulation 1.817-5 without impairing the ability of the Company,
on behalf of its separate accounts, to consider the Shares as constituting
investments of the separate accounts for the purpose of satisfying the
diversification requirements of Section 817(h). Each Trust and the
Underwriter will not sell such Trust shares to any insurance company or
separate account unless an agreement containing provisions substantially
the same as Articles II, III, VI and VII of this Agreement is in effect to
govern such sales. The Company will not resell the Shares except to such
Trust or its agents. Each Trust does not currently make its shares
available to qualified pension and retirement plans. Before making the
shares available to such plans, such Trust agrees to notify the Company and
adopt due diligence procedures consistent with IRS regulations and rulings.
1.4. Each Trust agrees to redeem for cash or, if mutually agreed upon by
the parties and to the extent permitted by applicable law, in-kind, on the
Company's request, any full or fractional Shares held by the Accounts
(based on orders placed by Policy owners prior to the close of regular
trading on the NYSE on that Business Day), executing such requests on a
daily basis at the net asset value next computed after receipt by such
Trust or its designee of the request for redemption. For purposes of this
Section 1.4, the Company shall be the designee of such Trust for receipt of
requests for redemption from Policy owners and receipt by such designee
shall constitute receipt by such Trust; provided that such Trust receives
notice of such request for redemption by 10:00 a.m. New York time on the
next following Business Day.
1.5. Each purchase, redemption and exchange order placed by the Company
shall be placed separately for each Portfolio and shall not be netted with
respect to any Portfolio. However, with respect to payment of the purchase
price by the Company and of redemption proceeds by the Trusts, the Company
and the relevant Trust shall net purchase and redemption orders with
respect to each Portfolio and shall transmit one net payment for all of the
Portfolios in accordance with Section 1.6 hereof.
1.6. In the event of net purchases, the Company shall pay for the Shares by
close of business (5:00 p.m.). New York time on the next Business Day after
an order to purchase the Shares is made in accordance with the provisions
of Section 1.1. hereof. In the event of net redemptions, each Trust shall
pay the redemption proceeds by close of business (5:00 p.m.) New York time
on the next Business Day after an order to redeem the shares is made in
accordance with the provisions of Section 1.4. hereof. All such payments
shall be in federal funds transmitted by wire.
1.7. Issuance and transfer of the Shares will be by book entry only. Stock
certificates will not be issued to the Company or the Accounts. The Shares
ordered from each Trust will be recorded in an appropriate title for the
Accounts or the appropriate subaccounts of the Accounts.
1.8. Each Trust shall furnish same day notice (by wire or telephone
followed by written confirmation) to the Company of any dividends or
capital gain distributions payable on the Shares.
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The Company hereby elects to receive all such dividends and distributions
as are payable on a Portfolio's Shares in additional Shares of that
Portfolio. Each Trust shall notify the Company of the number of Shares so
issued as payment of such dividends and distributions.
1.9. Each Trust or its custodian shall make the net asset value per share
for each Portfolio available to the Company on each Business Day as soon as
reasonably practical after the net asset value per share is calculated and
shall use its best efforts to make such net asset value per share available
by 6:30 p.m. New York time. In the event that such Trust is unable to meet
the 6:30 p.m. time stated herein, it shall provide additional time for the
Company to place orders for the purchase and redemption of Shares. Such
additional time shall be equal to the additional time which such Trust
takes to make the net asset value available to the Company. If such Trust
provides materially incorrect share net asset value information, such Trust
shall make an adjustment to the number of shares purchased or redeemed for
the Accounts to reflect the correct net asset value per share and such
Trust shall bear the cost of adjusting the error. Any material error in the
calculation or reporting of net asset value per share, dividend or capital
gains information shall be reported promptly upon discovery to the Company.
1.10 Each party or its designee shall maintain and preserve all records as
required by law to be maintained and preserved in connection with providing
the services hereunder and in making Shares available to the Policy
holders. Upon the request of the Underwriter or a Trust, the Company shall
provide copies of all the historical records relating to transactions
between the Portfolios and the Policy holders, written communications
regarding the Portfolios to or from such Policy holders' accounts and other
materials, in each case to the extent necessary for the Underwriter or such
Trust to meet its recordkeeping obligations under applicable law or
regulation, including to comply with any request of a governmental body or
self-regulatory organization.
ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. The Company represents and warrants that the Policies are or will be
registered under the 1933 Act or are exempt from or not subject to
registration thereunder, and that the Policies will be issued, sold, and
distributed in compliance in all material respects with all applicable
state and federal laws, including without limitation the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the 1940
Act. The Company further represents and warrants that it is an insurance
company duly organized and in good standing under applicable law and that
it has legally and validly established the Account as a segregated asset
account under applicable law and has registered or, prior to any issuance
or sale of the Policies, will register the Accounts as unit investment
trusts in accordance with the provisions of the 1940 Act (unless exempt
therefrom) to serve as segregated investment accounts for the Policies, and
that it will maintain such registration for so long as any Policies are
outstanding. The Company shall amend the registration statements under the
1933 Act for the Policies and the registration statements under the 1940
Act for the Accounts from time to time as required in order to effect the
continuous offering of the Policies or as may otherwise be required by
applicable law. The Company shall register and qualify the Policies for
sales in accordance with the securities laws of the various states only if
and to the extent deemed necessary by the Company.
2.2. The Company represents and warrants that the Policies are currently
and at the time of issuance will be treated as life insurance, endowment or
annuity contracts under applicable provisions of the Internal Revenue Code
of 1986, as amended (the "Code"), that it will maintain such treatment and
that it will notify the Trusts or the Underwriter immediately upon having a
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reasonable basis for believing that the Policies have ceased to be so
treated or that they might not be so treated in the future.
2.3. The Company represents and warrants that NYLD, the underwriter for the
individual variable annuity and the variable life policies, is a member in
good standing of FINRA and is a registered broker-dealer with the SEC. The
Company represents and warrants that the Company and NYLD will sell and
distribute such policies in accordance in all material respects with all
applicable state and federal securities laws, including without limitation
the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.4. Each Trust and the Underwriter represent and warrant that the Shares
sold pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for issuance and sold in compliance with the laws of The
Commonwealth of Massachusetts and all applicable federal and state
securities laws and that such Trust is and shall remain registered under
the 1940 Act. Each Trust shall amend the registration statement for its
Shares under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of its Shares. Each Trust shall
register and qualify the Shares for sale in accordance with the laws of the
various states only if and to the extent deemed necessary by such Trust.
2.5. The Underwriter represents and warrants that it is a member in good
standing of FINRA and is registered as a broker-dealer with the SEC. Each
Trust and the Underwriter represent that such Trust and the Underwriter
will sell and distribute the Shares in accordance in all material respects
with all applicable state and federal securities laws, including without
limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.6. Each Trust represents that it is lawfully organized and validly
existing under the laws of The Commonwealth of Massachusetts and that it
does and will comply in all material respects with the 1940 Act and any
applicable regulations thereunder.
2.7. The Underwriter represents and warrants that it is and shall remain
duly registered under all applicable federal securities laws and that it
shall perform its obligations for the Trusts in compliance in all material
respects with any applicable federal securities laws and with the
securities laws of The Commonwealth of Massachusetts. The Underwriter
represents and warrants that it is not subject to state securities laws
other than the securities laws of The Commonwealth of Massachusetts and
that it is exempt from registration as an investment adviser under the
securities laws of The Commonwealth of Massachusetts.
2.8. No less frequently than annually, the Company shall submit to each
Board such reports, material or data as such Board may reasonably request
so that it may carry out fully the obligations imposed upon it by the
conditions contained in the exemptive application pursuant to which the SEC
has granted exemptive relief to permit mixed and shared funding (the "Mixed
and Shared Funding Exemptive Order").
2.9. The Company acknowledges that, with respect to Service Class Shares of
a Portfolio, it or its affiliate(s) may receive payments under a Trust's
Rule 12b-l plan. The Company, and not the relevant Trust, nor the
Underwriter, is responsible for providing any disclosures relating to this
Agreement and/or payments made to the Company to Policy owners.
2.10 The Trusts and the Underwriter will use reasonable best efforts to
prevent any Portfolio of such Trust in which the Company invests from
engaging, directly or indirectly, in a "listed
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transaction" as defined in Treas. Regs. Section 1.601l-4(b)(2) or
successor provision (a "Listed Transaction"). If such Trust or the
Underwriter reasonably determines that a Portfolio of such Trust in which
the Company invests has engaged in a Listed Transaction, it will, upon the
Company's request, provide all information relating to such Listed
Transaction which the Company would need in order to comply with its
disclosure obligations under applicable state and Federal rules, provided,
however, that the Underwriter shall be entitled to consult with counsel
before providing such information and shall not be required to provide such
information if and to the extent that it has been advised by counsel that
providing such information shall cause the Underwriter, the Trusts or any
of their affiliates to violate any applicable law. In addition, the Trusts
or the Underwriter will, upon the Company's request, notify the Company of
any required filings by the Portfolio of IRS Form 8886, (Reportable
Transaction Disclosure Statement), or any successor form.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. At least annually, each Trust or its designee shall provide the
Company, free of charge, with as many copies of the current prospectus and
supplements thereto (describing only the Portfolios listed in Schedule A
hereto) for the Shares as the Company may reasonably request for
distribution to existing Policy owners whose Policies are funded by such
Shares. Each Trust or its designee shall provide the Company, at the
Company's expense, with as many copies of the current prospectus and
supplements thereto for the Shares as the Company may reasonably request
for distribution to prospective purchasers of Policies. If requested by the
Company in lieu thereof, a Trust or its designee shall provide such
documentation (including a "camera ready" copy of the new prospectus as set
in type or, at the request of the Company, as a diskette in the form sent
to the financial printer) and other assistance as is reasonably necessary
in order for the parties hereto once each year (or more frequently if the
prospectus for the Shares is supplemented or amended) to have the
prospectus for the Policies and the prospectus for the Shares printed
together in one document; the expenses of such printing to be apportioned
between (a) the Company and (b) the relevant Trust(s) or its designee in
proportion to the number of pages of the Policy and Shares' prospectuses,
taking account of other relevant factors affecting the expense of printing,
such as covers, columns, graphs and charts; such Trust or its designee to
bear the cost of printing the Shares' prospectus portion of such document
for distribution to owners of existing Policies funded by the Shares and
the Company to bear the expenses of printing the portion of such document
relating to the Accounts; provided, however, that the Company shall bear
all printing expenses of such combined documents where used for
distribution to prospective purchasers or to owners of existing Policies
not funded by the Shares. In the event that the Company requests that a
Trust or its designee provides such Trust's prospectus in a "camera ready"
electronic file format, such Trust shall be responsible for providing the
prospectus in the format in which it or the Underwriter is accustomed to
formatting prospectuses and shall bear the expense of providing the
prospectus in such format (e.g., typesetting expenses), and the Company
shall bear the expense of adjusting or changing the format to conform with
any of its prospectuses.
3.2. The prospectus for the Shares shall state that the statement of
additional information for the Shares is available from the relevant Trust
or its designee. Each Trust or its designee, at its expense, shall print
and provide such statement of additional information and supplements
thereto to the Company (or a master of such statement suitable for
duplication by the Company) for distribution to any owner of a Policy
funded by the Shares. Each Trust or its designee, at the Company's expense,
shall print and provide such statement and supplements thereto to the
Company (or a master of such statement suitable for duplication by the
Company) for distribution
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to a prospective purchaser who requests such statement or to an owner of a
Policy not funded by the Shares.
3.3. Each Trust or its designee shall provide the Company free of charge
copies, if and to the extent applicable to the Shares, of such Trust's
proxy materials, reports to Shareholders and other communications to
Shareholders in such quantity as the Company shall reasonably require for
distribution to Policy owners.
3.4. Notwithstanding the provisions of Sections 3.1, 3.2, and 3.3 above, or
of Article V below, the Company shall pay the expense of printing or
providing documents to the extent such cost is considered a distribution
expense. Distribution expenses would include by way of illustration, but
are not limited to, the printing of the Shares' prospectus or prospectuses
for distribution to prospective purchasers or to owners of existing
Policies not funded by such Shares.
3.5. Each Trust hereby notifies the Company that it may be appropriate to
include in the prospectus pursuant to which a Policy is offered disclosure
regarding the potential risks of mixed and shared funding.
3.6. If and to the extent required by the 1940 Act or other applicable law,
the Company shall:
(a) solicit voting instructions from Policy owners;
(b) vote the Shares in accordance with instructions received from
Policy owners; and
(c) vote the Shares for which no instructions have been received in
the same proportion as the Shares of such Portfolio for which
instructions have been received from Policy owners;
so long as and to the extent that the SEC continues to interpret the 1940
Act to require pass through voting privileges for variable contract owners.
The Company will in no way recommend action in connection with or oppose or
interfere with the solicitation of proxies for the Shares held for such
Policy owners. The Company reserves the right to vote shares held in any
segregated asset account in its own right, to the extent permitted by law.
Participating Insurance Companies shall be responsible for assuring that
each of their separate accounts holding Shares calculates voting privileges
in the manner required by the Mixed and Shared Funding Exemptive Order and
the Trust shall provide reasonable assistance in connection with this. Each
Trust and MFD will notify the Company of any changes of interpretations or
amendments to the Mixed and Shared Funding Exemptive Order.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to each
Trust or its designee, each piece of sales literature or other promotional
material in which such Trust, the Underwriter, any other investment adviser
to such Trust, or any affiliate of the Underwriter is named, at least three
(3) Business Days prior to its use. No such material shall be used if such
Trust, the Underwriter, or their respective designees reasonably objects to
such use within three (3) Business Days after receipt of such material.
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4.2. The Company shall not give any information or make any representations
or statement on behalf of any Trust, the Underwriter, any other investment
adviser to any Trust, or any affiliate of the Underwriter or concerning
such Trust or any other such entity in connection with the sale of the
Policies other than the information or representations contained in the
registration statement, prospectus or statement of additional information
for the Shares, as such registration statement, prospectus and statement of
additional information may be amended or supplemented from time to time, or
in reports or proxy statements for such Trust, or in sales literature or
other promotional material approved by such Trust, the Underwriter or their
respective designees, except with the permission of such Trust, the
Underwriter or their respective designees. Each Trust, the Underwriter or
their respective designees each agrees to respond to any request for
approval on a prompt and timely basis. The Company shall adopt and
implement procedures reasonably designed to ensure that information
concerning a Trust, the Underwriter or any of their affiliates which is
intended for use only by brokers or agents selling the Policies (i.e.,
information that is not intended for distribution to Policy owners or
prospective Policy owners) is so used, and neither the Trusts, the
Underwriter nor any of their affiliates shall be liable for any losses,
damages or expenses relating to the improper use of such broker only
materials.
4.3. Each Trust or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature
or other promotional material in which the Company and/or the Accounts is
named, at least three (3) Business Days prior to its use. No such material
shall be used if the Company or its designee reasonably objects to such use
within three (3) Business Days after receipt of such material.
4.4. The Trusts and the Underwriter shall not give any information or make
any representations on behalf of the Company or concerning the Company, the
Accounts, or the Policies in connection with the sale of the Policies other
than the information or representations contained in a registration
statement, prospectus, or statement of additional information for the
Policies, as such registration statement, prospectus and statement of
additional information may be amended or supplemented from time to time, or
in reports for the Accounts, or in sales literature or other promotional
material approved by the Company or its designee, except with the
permission of the Company. The Company or its designee agrees to respond to
any request for approval on a prompt and timely basis. The Trusts and the
Underwriter may not alter any material so provided by the Company or its
designee (including, without limitation, presenting or delivering such
material in a different medium, e.g., electronic or internet) without the
prior written consent of the Company. The parties hereto agree that this
Section 4.4. is neither intended to designate nor otherwise imply that the
Underwriter is an underwriter or distributor of the Policies.
4.5. Upon request of the other party, the Company and each Trust (or its
designee in lieu of the Company or such Trust, as appropriate) will each
provide to the other at least one complete copy of all registration
statements, prospectuses, statements of additional information, reports,
proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Policies, or to such
Trust or its Shares, prior to or contemporaneously with the filing of such
document with the SEC or other regulatory authorities. The Company and a
Trust shall also each promptly inform the other of the results of any
examination by the SEC (or other regulatory authorities) that relates to
the Policies, such Trust or its Shares, and the party that was the subject
of the examination shall provide the other party with a copy of relevant
portions of any "deficiency letter" or other correspondence or written
report regarding any such examination. For avoidance of doubt, a "relevant
portion" of a deficiency letter is such portion of such letter that
addresses a material aspect of a Trust's operations as it pertains to the
Company or the Policies.
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4.6. No party shall use any other party's names, logos, trademarks or
service marks, whether registered or unregistered, without the prior
written consent of such other party, or after written consent therefor has
been revoked, provided that separate consent is not required under this
Section 4.6 to the extent that consent to use a party's name, logo,
trademark or service xxxx in connection with a particular piece of
advertising or sales literature has previously been given by a party under
Sections 4.2 and 4.4 of this Agreement. The Company shall not use in
advertising, publicly or otherwise the name of the Trusts, the Underwriter
or any of their affiliates nor any trade name, trademark, trade device,
servicemark, symbol or any abbreviation, contraction or simulation thereof
of the Trusts, the Underwriter, or their affiliates without the prior
written consent of the relevant Trust or the Underwriter in each instance.
The Trusts and the Underwriter shall not use in advertising, publicly or
otherwise the name of the Company or any of its affiliates nor any trade
name, trademark, trade device, servicemark, symbol or any abbreviation,
contraction or simulation thereof of the Company or its affiliates without
the prior written consent of the Company in each instance.
4.7. Each Trust and the Underwriter will provide the Company with as much
notice as is reasonably practicable of any proxy solicitation for any
Portfolio, and of any material change in such Trust's registration
statement, particularly any change resulting in change to the registration
statement or prospectus or statement of additional information for any
Account. Each Trust and the Underwriter will cooperate with the Company so
as to enable the Company to solicit proxies from Policy owners or to make
changes to its prospectus, statement of additional information or
registration statement, in an orderly manner. Each Trust and the
Underwriter will make reasonable efforts to attempt to have changes
affecting Policy prospectuses become effective simultaneously with the
annual updates for such prospectuses.
4.8. For purpose of this Article IV and Article VIII, the phrase "sales
literature or other promotional material" includes but is not limited to
advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone or
tape recording, videotape display, signs or billboards, motion pictures, or
other public media), and sales literature (such as brochures, circulars,
reprints or excerpts or any other advertisement, sales literature, or
published articles), distributed or made generally available to customers
or the public, educational or training materials or communications
distributed or made generally available to some or all agents or employees.
ARTICLE V. FEES AND EXPENSES
5.1. Each Trust shall pay no fee or other compensation to the Company under
this Agreement, and the Company shall pay no fee or other compensation to
either Trust, except that, to the extent a Trust or any Portfolio has
adopted and implemented a plan pursuant to Rule 12b-l under the 1940 Act to
finance distribution and for Shareholder servicing expenses, then such
Trust may make payments to the Company or to the underwriter for the
Policies in accordance with such plan. Each party, however, shall, in
accordance with the allocation of expenses specified in Articles III and V
hereof, reimburse other parties for expenses initially paid by one party
but allocated to another party. In addition, nothing herein shall prevent
the parties hereto from otherwise agreeing to perform, and arranging for
appropriate compensation for, other services relating to such Trust and/or
to the Accounts.
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5.2. Each Trust or its designee shall bear the expenses for the cost of
registration and qualification of the Shares under all applicable federal
and state laws, including preparation and filing of such Trust's
registration statement, and payment of filing fees and registration fees;
preparation and filing of such Trust's proxy materials and reports to
Shareholders; setting in type and printing its prospectus and statement of
additional information (to the extent provided by and as determined in
accordance with Article III above); setting in type and printing the proxy
materials and reports to Shareholders (to the extent provided by and as
determined in accordance with Article III above); such preparation of all
statements and notices required of such Trust by any federal or state law
with respect to its Shares; all taxes on the issuance or transfer of the
Shares; and the costs of distributing such Trust's prospectuses and proxy
materials to owners of Policies funded by the Shares and any expenses
permitted to be paid or assumed by such Trust pursuant to a plan, if any,
under Rule 12b-l under the 1940 Act. Such Trust shall not bear any expenses
of marketing the Policies.
5.3. The Company shall bear the expenses of distributing the Shares'
prospectus or prospectuses in connection with new sales of the Policies and
of distributing a Trust's Shareholder reports to Policy owners. The Company
shall bear all expenses associated with the registration, qualification,
and filing of the Policies under applicable federal securities and state
insurance laws; the cost of preparing, printing and distributing the Policy
prospectus and statement of additional information; and the cost of
preparing, printing and distributing annual individual account statements
for Policy owners as required by state insurance laws.
5.4. With respect to the Service Class Shares of a Portfolio, the relevant
Trust may make payments quarterly to the Underwriter under a Portfolio's
Rule 12b-l plan, and the Underwriter may in turn use these payments to pay
or reimburse the Company for expenses incurred or paid (as the case may be)
by the Company attributable to Policies offered by the Company, provided
that no such payment shall be made with respect to any quarterly period in
excess of an amount determined from time to time by such Trust's Board of
Trustees and disclosed in such Trust's prospectus. The Underwriter shall
not be required to provide any payment to the Company with respect to any
quarterly period pursuant to a Trust's Rule 12b-l plan unless and until the
Underwriter has received the corresponding payment from such Trust pursuant
to the Trust's Rule 12b-l plan. The Underwriter shall not be required to
provide any payment to the Company with respect to any quarterly period
pursuant to a Trust's Rule 12b-l plan if (i) such Trust's Rule 12b-l plan
is no longer in effect during such quarterly period; or (ii) regulatory
changes result in the rescission of Rule 12b-l or otherwise prohibit the
making of such payments. Each Trust's prospectus or statement of additional
information may provide further details about such payments and the
provisions and terms of such Trust's Rule 12b-l plan, and the Company
hereby agrees that neither such Trust, nor the Underwriter has made any
representations to the Company with respect to such Trust's Rule 12b-l plan
in addition to, or conflicting with, the description set forth in such
Trust's prospectus.
5.5. In calculating the payments due under this Agreement, the Company
agrees that it will permit the Underwriter or its representatives to have
reasonable access to its employees and records for the purposes of
monitoring of the quality of the services provided hereunder, verifying the
Company's compliance with the terms of this Agreement and verifying the
accuracy of any information provided by the Company that forms the basis of
the fee calculations. In addition, if requested by the Underwriter, the
Company will provide a certification (which may take the form of a control
report or set of agreed upon standards) satisfactory to the Underwriter
that certifies the performance of the services by the Company and the
accuracy of information provided by the Company.
-10-
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1. Each Trust represents and warrants that, subject to compliance by the
Company with its representations in Section 2.2, each Portfolio: (i)
qualifies as a look-through entity within the meaning of Treas. Reg.
section 1.817-5(f), and (ii) shall at all times invest money from the
Contracts and conduct its operations to ensure that: (a) the assets of the
Portfolio are diversified within the meaning of Treas. Reg. section
1.817-5(b); (b) the Contracts shall be treated as variable contracts under
the Code and the regulations issued there under; and (c) no Contract owner
shall be treated as the owner of the assets of an Account solely due to
purchase of shares of a Portfolio by an Account. Each Trust will notify the
Company immediately upon having a reasonable basis for believing that a
Portfolio is in breach of the foregoing representation and warranty or that
a Portfolio might be in breach in the future. In addition, each Trust will
immediately take all steps necessary to cure any breach to achieve
compliance with the foregoing representations and warranties.
6.2. Each Trust and the Underwriter represent that each Portfolio will
elect to be qualified as a Regulated Investment Company under Subchapter M
of the Code and that they will maintain such qualification (under
Subchapter M or any successor or similar provision).
ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1. Each Trust agrees that the relevant Board, constituted with a majority
of disinterested trustees, will monitor each Portfolio of such Trust for
the existence of any material irreconcilable conflict between the interests
of the variable annuity and the variable life insurance Policy owners of
the Company and/or affiliated companies ("Policy owners") investing in such
Trust. The relevant Board shall have the sole authority to determine if a
material irreconcilable conflict exists, and such determination shall be
binding on the Company only if approved in the form of a resolution by a
majority of the relevant Board, or a majority of the disinterested trustees
of the relevant Board. The relevant Board will give prompt notice of any
such determination to the Company.
7.2. The Company agrees that it will be responsible for assisting each
Board in carrying out its responsibilities under the conditions set forth
in the Trusts' exemptive application pursuant to which the SEC has granted
the Mixed and Shared Funding Exemptive Order by providing each Board, as it
may reasonably request, with all information necessary for such Board to
consider any issues raised and agrees that it will be responsible for
promptly reporting any potential or existing conflicts of which it is aware
to such Board including, but not limited to, an obligation by the Company
to inform such Board whenever Policy owner voting instructions are
disregarded. The Company also agrees that, if a material irreconcilable
conflict arises, it will at its own cost remedy such conflict up to and
including (a) withdrawing the assets allocable to some or all of the
Accounts from the relevant Trust(s) or any Portfolio and reinvesting such
assets in a different investment medium, including (but not limited to)
another Portfolio of a Trust, or submitting to a vote of all affected
Policy owners whether to withdraw assets from a Trust or any Portfolio and
reinvesting such assets in a different investment medium and, as
appropriate, segregating the assets attributable to any appropriate group
of Policy owners that votes in favor of such segregation, or offering to
any of the affected Policy owners the option of segregating the assets
attributable to their Policies, and (b) establishing a new registered
management investment company and
-11-
segregating the assets underlying the Policies, unless a majority of Policy
owners materially adversely affected by the conflict have voted to decline
the offer to establish a new registered management investment company.
7.3. A majority of the disinterested trustees of the relevant Board shall
determine whether any proposed action by the Company adequately remedies
any material irreconcilable conflict. In the event that a Board determines
that any proposed action does not adequately remedy any material
irreconcilable conflict, the Company will withdraw from investment in the
relevant Trust each of the Accounts designated by the disinterested
trustees and terminate this Agreement within six (6) months after the
relevant Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination
shall be limited to the extent required to remedy any such material
irreconcilable conflict as determined by a majority of the disinterested
trustees of the relevant Board.
7.4. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Exemptive Order)
on terms and conditions materially different from those contained in the
Mixed and Shared Funding Exemptive Order, then (a) the Trusts and/or the
Participating Insurance Companies, as appropriate, shall take such steps as
may be necessary to comply with Rule 6e-2 and 6e-3(T), as amended, and Rule
6e-3, as adopted, to the extent such rules are applicable; and (b) Sections
3.5, 7.1, 7.2, 7.3 and 7.4 of this Agreement shall continue in effect only
to the extent that terms and conditions substantially identical to such
Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless each Trust, the
Underwriter, any affiliates of the Underwriter, and each of their
respective directors/trustees, officers and each person, if any, who
controls each Trust or the Underwriter within the meaning of Section 15 of
the 1933 Act, and any agents or employees of the foregoing (each an
"Indemnified Party," or collectively, the "Indemnified Parties" for
purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Company) or expenses (including reasonable counsel fees) to which
any Indemnified Party may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the Shares or the Policies and:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of additional
information, periodic reports or proxy materials for the Policies
or contained in the Policies or sales literature or other
promotional material for the Policies (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or
-12-
omission was made in reasonable reliance upon and in conformity
with information furnished to the Company or its designee by or
on behalf of the relevant Trust or the Underwriter for use in the
registration statement, prospectus or statement of additional
information, periodic reports or proxy materials for the Policies
or in the Policies or sales literature or other promotional
material (or any amendment or supplement) or otherwise for use in
connection with the sale of the Policies or Shares; or
(b) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, statement of additional
information, periodic reports or proxy materials or sales
literature or other promotional material of relevant Trust not
supplied by the Company or its designee, or persons under its
control and on which the Company has reasonably relied) or
wrongful conduct of the Company or persons under its control,
with respect to the sale or distribution of the Policies or
Shares; or
(c) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the registration statement,
prospectus, statement of additional information, periodic reports
or proxy materials or sales literature or other promotional
literature of the relevant Trust, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished to the relevant Trust by or on behalf
of the Company; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company; or
(e) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement;
as limited by and in accordance with the provisions of this Article VIII.
8.2. INDEMNIFICATION BY THE TRUSTS
Each Trust agrees to indemnify and hold harmless the Company and each
of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act, and any agents or
employees of the foregoing (each an "Indemnified Party," or collectively,
the "Indemnified Parties" for purposes of this Section 8.2) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of such Trust) or expenses (including
reasonable counsel fees) to which any Indemnified Party may become 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 are related to the sale or acquisition of the Shares or the
Policies and:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus, statement of additional
information, periodic reports or proxy materials or sales
literature or other promotional material of such Trust (or any
amendment or supplement to any
-13-
of the foregoing), or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statement therein
not misleading, provided that this agreement to indemnify shall
not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in
reasonable reliance upon and in conformity with information
furnished to such Trust, the Underwriter or their respective
designees by or on behalf of the Company for use in the
registration statement, prospectus or statement of additional
information, periodic reports or proxy materials for such Trust
or in sales literature or other promotional material for such
Trust (or any amendment or supplement) or otherwise for use in
connection with the sale of the Policies or Shares; or
(b) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, statement of additional
information, periodic reports or proxy materials or sales
literature or other promotional material for the Policies not
supplied by such Trust, the Underwriter or any of their
respective designees or persons under their respective control
and on which any such entity has reasonably relied) or wrongful
conduct of such Trust or persons under its control, with respect
to the sale or distribution of the Policies or Shares; or
(c) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the registration statement,
prospectus, statement of additional information, periodic reports
or proxy materials or sales literature or other promotional
literature of the Accounts or relating to the Policies, or any
amendment thereof or supplement thereto, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in
reliance upon information furnished to the Company by or on
behalf of such Trust or the Underwriter; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by such Trust in this
Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification
requirements specified in Article VI of this Agreement) or arise
out of or result from any other material breach of this Agreement
by such Trust; or
(e) arise out of or result from the materially incorrect or untimely
calculation or reporting of the daily net asset value per share
or dividend or capital gain distribution rate; or
(f) arise as a result of any failure by such Trust to provide the
services and furnish the materials under the terms of the
Agreement;
as limited by and in accordance with the provisions of this Article VIII.
8.3. In no event shall any Trust be liable under the indemnification
provisions contained in this Agreement to any individual or entity,
including without limitation, the Company, or any Participating Insurance
Company or any Policy holder, with respect to any losses, claims, damages,
liabilities or expenses that arise out of or result from (i) a breach of
any representation, warranty,
-14-
and/or covenant made by the Company hereunder or by any Participating
Insurance Company under an agreement containing substantially similar
representations, warranties and covenants; (ii) the failure by the Company
or any Participating Insurance Company to maintain its segregated asset
account (which invests in any Portfolio) as a legally and validly
established segregated asset account under applicable state law and as a
duly registered unit investment trust under the provisions of the 1940 Act
(unless exempt therefrom); or (iii) the failure by the Company or any
Participating Insurance Company to maintain its variable annuity and/or
variable life insurance contracts (with respect to which any Portfolio
serves as an underlying funding vehicle) as life insurance, endowment or
annuity contracts under applicable provisions of the Code.
8.4. Neither the Company nor any Trust shall be liable under the
indemnification provisions contained in this Agreement with respect to any
losses, claims, damages, liabilities or expenses to which an Indemnified
Party would otherwise be subject by reason of such Indemnified Party's
willful misfeasance, willful misconduct, or negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement.
8.5. Promptly after receipt by an Indemnified Party under this Section 8.5.
of notice of commencement of any action, such Indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying party under
this section, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any Indemnified Party otherwise
than under this section. In case any such action is brought against any
Indemnified Party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, assume the defense
thereof, with counsel satisfactory to such Indemnified Party. After notice
from the indemnifying party of its intention to assume the defense of an
action, the Indemnified Party shall bear the expenses of any additional
counsel obtained by it, and the indemnifying party shall not be liable to
such Indemnified Party under this section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation.
8.6. Each of the parties agrees promptly to notify the other parties of the
commencement of any litigation or proceeding against it or any of its
respective officers, directors, trustees, employees or 1933 Act control
persons in connection with the Agreement, the issuance or sale of the
Policies, the operation of the Accounts, or the sale or acquisition of
Shares.
8.7. A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
SEC may grant and the terms hereof shall be interpreted and construed in
accordance therewith.
-15-
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS
Each Trust and the Underwriter agree that each such party shall promptly
notify the other parties to this Agreement, in writing, of the institution of
any formal proceedings brought against such party or its designees by FINRA, the
SEC, or any insurance department or any other regulatory body regarding such
party's duties under this Agreement or related to the sale of the Policies, the
operation of the Accounts, or the purchase of the Shares.
ARTICLE XI. CONTROLS AND PROCEDURES
11.1. The Company has implemented controls and procedures that are
reasonably designed to ensure compliance with applicable laws and
regulations, as well as the terms of this Agreement. Without limiting the
foregoing, these controls and procedures are reasonably designed to ensure,
and the Underwriter or a Trust may request certifications on an annual
basis with respect to, each of the following:
(a) Orders for Shares received by the Company for each Portfolio
comply with the Portfolio's restrictions with respect to
purchases, transfers, redemptions and exchanges as set forth in
each Portfolio's prospectus and statement of additional
information;
(b) Orders for Shares received by the Company prior to the
Portfolio's pricing time set forth in its prospectus (e.g., the
close of the New York Stock Exchange - normally 4:00 p.m. Eastern
time) are segregated from those received by the Company at or
after such time, and are properly transmitted to the Portfolios
(or their agents) for execution at the current day's net asset
value ("NAV"); and orders received by the Company at or after
such time are properly transmitted to the Portfolios (or their
agents) for execution at the next day's NAV;
(c) Late trading in Shares by Policy holders is identified and
prevented and market timing is appropriately addressed;
(d) Compliance with applicable state securities laws, including
without limitation "blue sky" laws and related rules and
regulations;
(e) Compliance with all applicable federal, state and foreign laws,
rules and regulations regarding the detection and prevention of
money laundering activity; and
(f) Effective business continuity and disaster recovery systems with
respect to the services contemplated by the Agreement.
11.2 The Company shall use reasonable best efforts to ensure that any other
party to whom the Company assigns or delegates any services hereunder is
responsible for, and has controls and procedures that are reasonably
designed to ensure, each of the items set forth in Section 11.1 above.
-16-
ARTICLE XII. TERMINATION
12.1. This Agreement shall terminate with respect to the Accounts, or one,
some, or all Portfolios:
(a) at the option of any party upon six (6) months' advance written
notice to the other parties; or
(b) at the option of the Company to the extent that the Shares of
Portfolios are not reasonably available to meet the requirements
of the Policies or are not "appropriate funding vehicles" for the
Policies, as reasonably determined by the Company. Without
limiting the generality of the foregoing, the Shares of a
Portfolio would not be "appropriate funding vehicles" if, for
example, such Shares did not meet the diversification or other
requirements referred to in Article VI hereof; or if the Company
would be permitted to disregard Policy owner voting instructions
pursuant to Rule 6e-2 or Rule 6e-3(T) under the 1940 Act. Prompt
notice of the election to terminate for such cause and an
explanation of such cause shall be furnished to the relevant
Trust(s) by the Company; or
(c) at the option of a Trust or the Underwriter upon institution of
formal proceedings against the Company by FINRA, the SEC, or any
insurance department or any other regulatory body that would have
a material adverse impact on the Company's duties under this
Agreement or related to the sale of the Policies, the operation
of the Accounts, or the purchase of the Shares; or
(d) at the option of the Company upon institution of formal
proceedings against a Trust by FINRA, the SEC, or any state
securities or insurance department or any other regulatory body
that would have a material adverse impact on such Trust's or MFD'
duties under this Agreement or related to the sale of the Shares;
or
(e) at the option of the Company, a Trust or the Underwriter upon
receipt of any necessary regulatory approvals and/or the vote of
the Policy owners having an interest in the Accounts (or any
subaccounts) to substitute the shares of another investment
company for the corresponding Portfolio Shares in accordance with
the terms of the Policies for which those Portfolio Shares had
been selected to serve as the underlying investment media. The
Company will give thirty (30) days' prior written notice to the
relevant Trust(s) of the Date of any proposed vote or other
action taken to replace the Shares; or
(f) termination by either a Trust or the Underwriter by written
notice to the Company, if either one or both of such Trust or the
Underwriter respectively, shall determine, in their sole judgment
exercised in good faith, that the Company 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
(g) termination by the Company by written notice to a Trust and the
Underwriter, if the Company shall determine, in its sole judgment
exercised in good faith, that such Trust or MFD has suffered a
material adverse change in this business,
-17-
operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity;
or
(h) at the option of any party to this Agreement, upon another
party's material breach of any provision of this Agreement; or
(i) upon assignment of this Agreement, unless made with the written
consent of the parties hereto.
(j) at the option of the Company if a Trust fails to meet the
diversification requirements specified in Article VI (other than
any failure caused by the Company's actions or omissions) or the
Company has a reasonable expectation that such Trust will fail to
meet these diversification requirements in the future.
12.2. The notice shall specify the Portfolio or Portfolios, Policies and,
if applicable, the Accounts as to which the Agreement is to be terminated.
12.3. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 12.1 (a) may be exercised for
cause or for no cause.
12.4. Except as necessary to implement Policy owner initiated transactions,
or as required by state insurance laws or regulations, the Company shall
not redeem the Shares attributable to the Policies (as opposed to the
Shares attributable to the Company's assets held in the Accounts), until
ten (10) days after the Company shall have notified the relevant Trust of
its intention to do so.
12.5. Notwithstanding any termination of this Agreement, each Trust and the
Underwriter shall, at the option of the Company, continue to make available
additional shares of the Portfolios pursuant to the terms and conditions of
this Agreement, for all Policies in effect on the effective date of
termination of this Agreement (the "Existing Policies"), except as
otherwise provided under Article VII of this Agreement. Specifically,
without limitation, the owners of the Existing Policies shall be permitted
to transfer or reallocate investment under the Policies, redeem investments
in any Portfolio and/or invest in each Trust upon the making of additional
purchase payments under the Existing Policies.
ARTICLE XIII. NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail, overnight courier or facsimile to the other party at the address of such
party set forth below or at such other address as such party may from time to
time specify in writing to the other party.
If to Trust I:
MFS VARIABLE INSURANCE TRUST
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Assistant Secretary
If to Trust II:
-18-
MFS VARIABLE INSURANCE TRUST II
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Assistant Secretary
If to the Company:
New York Life Insurance and Annuity Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
If to MFD:
MFS Fund Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
ARTICLE XIV. MISCELLANEOUS
14.1. 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 Policies and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted
by this Agreement or as otherwise required by applicable law or regulation,
shall not disclose, disseminate or utilize such names and addresses and
other confidential information without the express written consent of the
affected party until such time as it may come into the public domain.
14.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
14.3. This Agreement may be executed simultaneously in one or more
counterparts, each of which taken together shall constitute one and the
same instrument.
14.4. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
14.5. The Schedule attached hereto, as modified from time to time, is
incorporated herein by reference and is part of this Agreement.
14.6. Each party hereto shall cooperate with each other party in connection
with inquiries by appropriate governmental authorities (including without
limitation the SEC, FINRA, and state insurance regulators) relating to this
Agreement or the transactions contemplated hereby.
14.7. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
-19-
14.8. A copy of each Trust's Declaration of Trust is on file with the
Secretary of State of The Commonwealth of Massachusetts. The Company
acknowledges that the obligations of or arising out of this instrument are
not binding upon any of each Trust's trustees, officers, employees, agents
or shareholders individually, but are binding solely upon the assets and
property of the relevant Trust in accordance with its proportionate
interest hereunder. The Company further acknowledges that the assets and
liabilities of each Portfolio are separate and distinct and that the
obligations of or arising out of this instrument are binding solely upon
the assets or property of the Portfolio on whose behalf the relevant Trust
has executed this instrument. The Company also agrees that the obligations
of each Portfolio hereunder shall be several and not joint, in accordance
with its proportionate interest hereunder, and the Company agrees not to
proceed against any Portfolio for the obligations of another Portfolio.
[SIGNATURE PAGE FOLLOWS]
-20-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified above.
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By its authorized officer
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
Senior Vice President
MFS VARIABLE INSURANCE TRUST,
ON BEHALF OF THE PORTFOLIOS
By its authorized officer and not
individually,
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Assistant Secretary
MFS VARIABLE INSURANCE TRUST II,
ON BEHALF OF THE PORTFOLIOS
By its authorized officer and not
individually,
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Assistant Secretary
MFS FUND DISTRIBUTORS, INC.
By its authorized officer,
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
President
-21-
As of May lst, 2009
SCHEDULE A
ACCOUNTS, POLICIES, AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
And any other Portfolios or series of shares of the Trusts that are
available and open to new investors on or after the effective date of this
Agreement.
NAME OF SEPARATE ACCOUNT AND
DATE ESTABLISHED BY BOARD OF POLICIES FUNDED BY
DIRECTORS SEPARATE ACCOUNT SHARE CLASS TRUST PORTFOLIOS APPLICABLE TO POLICIES
-------------------------------- --------------------------------- ------------- -------- ---------------------------------
NYLIAC Variable Universal Life Variable Universal Life #793-90 Initial Class Trust I MFS Research Series
Separate Account--I MFS Investors Trust Series
(June 4, 1993) Survivorship VUL #797-150 MFS Utilities Series
MFS New Discovery Series
Survivorship VUL #302-150
Variable Universal Life 2000
#700-90
Variable Universal Life 2000
#302-90
Single Premium Variable Universal
Life #301-95 and #302-95
Pinnacle Variable Universal Life
#300-80 and #300-82
Pinnacle Survivorship VUL
#301-81 and #300-83
Variable Universal Life Provider
#303-30 and #303-31
Variable Universal Life
Accumulator #303-30
Survivorship VUL Accumulator
#308-151
NYLIAC Corporate Sponsored Corporate Sponsored VUL #796-40 Initial Class Trust I MFS Research Series
Variable Universal Life Separate MFS Investors Trust Series
Account--I Corporate Executive Series VUL MFS Utilities Series
(May 24, 1996) (CorpExec VUL) #300-40 & #301-43 MFS New Discovery Series
MFS Value Series
NYLIAC Corporate Sponsored Corporate Sponsored VUL #796-40 Initial Class Trust II MFS Global Total Return Portfolio
Variable Universal Life Separate
Account--I Corporate Executive Series VUL
(May 24, 1996) (CorpExec VUL and CorpExec
Accumulator VUL)
#300-40 & #301-43 & #307-43
NYLIAC Variable Annuity LifeStages Flexible Premium VA Initial Class Trust I MFS Research Series
Separate Account--I (The Original) #933-190 MFS Investors Trust Series
(October 15, 1992) MFS Utilities Series
-22-
As of May lst, 2009
NAME OF SEPARATE ACCOUNT AND
DATE ESTABLISHED BY BOARD OF POLICIES FUNDED BY
DIRECTORS SEPARATE ACCOUNT SHARE CLASS TRUST PORTFOLIOS APPLICABLE TO POLICIES
-------------------------------- --------------------------------- ------------- -------- ---------------------------------
NYLIAC Variable Annuity LifeStages Flexible Premium VA Initial Class Trust I MFS Research Series
Separate Account--II (The Original) #933-190 MFS Investors Trust Series
(October 15, 1992) MFS Utilities Series
-23-
As of May lst, 2009
NAME OF SEPARATE ACCOUNT AND
DATE ESTABLISHED BY BOARD OF POLICIES FUNDED BY
DIRECTORS SEPARATE ACCOUNT SHARE CLASS TRUST PORTFOLIOS APPLICABLE TO POLICIES
-------------------------------- --------------------------------- ------------- -------- ---------------------------------
NYLIAC Variable Annuity Separate LifeStages VA #995-190 Service Class Trust I MFS Research Series
Account--III MFS Investors Trust Series
(November 30, 1994) MainStay Plus VA #999-190 MFS Utilities Series
(Supersedes #998-190)
New LifeStages Flexible Premium
VA #000-190
LifeStages Premium Plus VA
#200-195
LifeStages Access VA #200-090
MainStay Access VA #200-190
MainStay Premium Plus VA #200-190
LifeStages Select VA #202-190
MainStay Select VA #202-190
LifeStages Essentials VA #202-192
MainStay Plus II VA #202-192
LifeStages Premium Plus II VA
#203-193
MainStay Premium Plus II VA
#203-190
LifeStages Access II VA #204-191
NYLIAC Variable Annuity Separate LifeStages Elite VA #203-193 Service Class Trust I MFS Investors Trust Series
Account--IV MFS Utilities Series
(June 10, 2003) MainStay Elite VA #203-193
LifeStages Premium Plus Elite VA
#204-193
LifeStages Longevity Benefit VA
#206-193
MainStay Longevity Benefit VA
#206-592
NYLIAC Private Placement Pinnacle Private Placement Initial Class Trust I MFS Utilities Series
Variable Universal Life Variable Universal Life #301-42 MFS Total Return Series
Insurance Separate Account--I (Individual Policies) #301-41CERT
(December 10, 2001) (Group Policies)
Magnastar Private Placement
Variable Universal Life #301-11
(Individual Policies) #301-10C
(Group Policies)
-24-
As of May lst, 2009
NAME OF SEPARATE ACCOUNT AND
DATE ESTABLISHED BY BOARD OF POLICIES FUNDED BY
DIRECTORS SEPARATE ACCOUNT SHARE CLASS TRUST PORTFOLIOS APPLICABLE TO POLICIES
-------------------------------- --------------------------------- ------------- -------- ---------------------------------
Corporate Executive Series
Private Placement Variable
Universal Life #304-47
(Individual Policies) #304-46C
(Group Policies)
Magnastar Survivorship Private
Placement Variable Universal Life
#302-14 (Individual Policies)
#302-12C (Group Policies)
NYLIAC Private Placement Pinnacle Private Placement Initial Class Trust I MFS Utilities Series
Variable Universal Life Variable Universal Life #301-42 MFS Total Return Series
Insurance Separate Account--II (Individual Policies) #301-41CERT
(December 10, 2002) (Group Policies)
Magnastar Private Placement
Variable Universal Life #301-11
(Individual Policies) #301-10C
(Group Policies)
Corporate Executive Series
Private Placement Variable
Universal Life #304-47
(Individual Policies) #304-46C
(Group Policies)
Magnastar Survivorship Private
Placement Variable Universal Life
#302-14 (Individual Policies)
#302-12C (Group Policies)
Flexible Premium Private
Placement Variable Universal Life
Insurance #304-45 (Individual
Policies) #304-44C (Group
Policies)
NYLIAC Private Placement Pinnacle Private Placement Initial Class Trust II MFS Global Total Return Portfolio
Variable Universal Life Variable Universal Life #301-42
Insurance Separate Account--I (Individual Policies) #301-41CERT
(December 10, 2001) (Group Policies)
Magnastar Private Placement
Variable Universal Life #301-11
(Individual Policies) #301-10C
(Group Policies)
Corporate Executive Series
Private Placement Variable
Universal Life #304-47
(Individual Policies) #304-46C
(Group Policies)
Magnastar Survivorship Private
-25-
As of May lst, 2009
NAME OF SEPARATE ACCOUNT AND
DATE ESTABLISHED BY BOARD OF POLICIES FUNDED BY
DIRECTORS SEPARATE ACCOUNT SHARE CLASS TRUST PORTFOLIOS APPLICABLE TO POLICIES
-------------------------------- --------------------------------- ------------- -------- ---------------------------------
Placement Variable Universal Life
#302-14 (Individual Policies)
#302-12C (Group Policies)
Flexible Premium Private
Placement Variable Universal Life
Insurance #304-45 (Individual
Policies)
#304-44C (Group Policies)
NYLIAC Private Placement Pinnacle Private Placement Initial Class Trust II MFS Global Total Return Portfolio
Variable Universal Life Variable Universal Life #301-42
Insurance Separate Account--I (Individual Policies) #301-41
(December 10, 2002 CERT (Group Policies)
Magnastar Private Placement
Variable Universal Life #301-11
(Individual Policies) #301-10C
(Group Policies)
Corporate Executive Series
Private Placement Variable
Universal Life #304-47
(Individual Policies) #304-46C
(Group Policies)
Magnastar Survivorship Private
Placement Variable Universal Life
#302-14 (Individual Policies)
#302-12C (Group Policies)
Flexible Premium Private
Placement Variable Universal Life
Insurance #304-45 (Individual
Policies)
#304-44C (Group Policies
-26-
