FIRST AMENDMENT TO PARTICIPATION AGREEMENT Regarding PORTFOLIO SHAREHOLDER REPORTS AND OTHER REQUIRED MATERIALS
FIRST AMENDMENT TO PARTICIPATION AGREEMENT
Regarding
PORTFOLIO SHAREHOLDER REPORTS
AND OTHER REQUIRED MATERIALS
Equitable Financial Life Insurance Company, formerly known as AXA Equitable Life Insurance Company (the “Company”), a New York life insurance company, and Guggenheim Distributors, LLC (the “Distributor”), a Kansas limited liability company, entered into a certain participation agreement dated September 1, 2010 (the “Participation Agreement”). This Amendment (the “Amendment”) to the Participation Agreement is entered into as of June 1, 2021, by and among the Company, on its own behalf and on behalf of each separate account of the Company as set forth in the Participation Agreement, as may be amended from time to time (individually and collectively the “Accounts”) and the Distributor (collectively, the “Parties”).
RECITALS
WHEREAS, the name of the Company changed from AXA Equitable Life Insurance Company to Equitable Financial Life Insurance Company;
WHEREAS, the name of the Distributor changed from Guggenheim Distributors, LLC to Guggenheim Funds Distributors, LLC;
WHEREAS, pursuant to the Participation Agreement among the Parties, the Company invests in shares of certain of the portfolios of Guggenheim Variable Funds Trust (the “Portfolios”) as a funding vehicle for the Accounts that issue variable annuity and/or life insurance contracts (the “Variable Contracts”) to persons that are registered owners of such Variable Contracts on the books and records of the Company (the “Contract Owners”);
WHEREAS, the Accounts are registered as unit investment trusts under the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the Company, on behalf of the Accounts, has certain obligations pursuant to Rule 30e-2 under the 1940 Act to transmit Portfolio shareholder reports to Contract Owners, which obligations may be satisfied by compliance with Rule 30e-3 under the 1940 Act (“Rule 30e-3”);
WHEREAS, the Company intends to comply with the requirements, terms and conditions of Rule 30e-3 to satisfy its obligation to transmit Portfolio shareholder reports to Contract Owners, including hosting the website of certain Portfolio materials in conformity with applicable provisions of Rule 30e-3; and
WHEREAS, Section 5(b)(2) of the Securities Act of 1933, as amended (the “1933 Act”) may require that a Statutory Prospectus (as defined in Rule 498A under the 1933 Act; “Rule 498A”) for the Portfolios be delivered to Contract Owners under certain circumstances;
WHEREAS, the Parties intend to meet any such Portfolio Statutory Prospectus delivery requirement by relying on and complying with the requirements, terms and conditions of paragraph (j) of Rule 498A for “on-line” delivery;
WHEREAS, paragraph (j) of Rule 498A requires, inter alia, that some of the Portfolio Documents (defined below) be posted and maintained on a website specified on the cover page of the Summary Prospectus for the Variable Contracts, and the Company intends to host said website in conformity with applicable provisions of Rule 498A; and
WHEREAS, the Company cannot host such website in compliance with Rules 30e-3 and 498A unless the Portfolio prepares and provides the Portfolio Documents that are specified in Rules 30e-3 and 498A;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which consideration is full and complete, the Company and the Distributor hereby agree to supplement and amend the Participation Agreement as follows:
| 1. | Provision of Portfolio Documents; Website Posting. |
| (a) | Portfolio Documents. The Distributor is responsible for preparing and providing the following “Portfolio Documents,” as specified in paragraph (b)(1) of Rule 30e-3 and paragraph (j)(1)(iii) of Rule 498A: |
| (i) | Summary Prospectus for the Portfolios; |
| (ii) | Statutory Prospectus for the Portfolios; |
| (iii) | Statement of Additional Information (“SAI”) for the Portfolios; and |
| (iv) | Most Recent Annual and Semi-Annual Reports to Shareholders (under Rule 30e-1 under the 0000 Xxx) for the Portfolios (together, the “Shareholder Reports”) (referred to in Rule 30e-3 as the “Current” and “Prior” Report to Shareholders). |
| (v) | Complete Portfolio Holdings From Shareholder Reports Containing a Summary Schedule of Investments, if required by Rule 30e-3; and |
| (vi) | Portfolio Holdings For Most Recent First and Third Fiscal Quarters (together with the complete portfolio holdings specified in (v) above, the “Portfolio Holdings”). |
| (b) | Deadline for Providing, and Currentness of, Portfolio Documents. |
| (i) | The Distributor shall provide the Summary Prospectus, Statutory Prospectus, and SAI for the Portfolios to the Company (or its designee) on a timely basis (to facilitate the required website posting) and provide updated versions as necessary. |
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| (ii) | The Distributor shall provide the Shareholder Reports and Portfolio Holdings on a timely basis (to facilitate the required website posting) but no later than the date on which the Required Materials are required to be posted by Rule 30e-3. |
| (c) | Format of Portfolio Documents. The Distributor shall provide the Portfolio Documents to the Company (or its designee) in an electronic format that is suitable for website posting, and in a format, or formats, that: |
| (i) | are both human-readable and capable of being printed on paper in human-readable format (in accordance with paragraph (b)(3) of Rule 30e-3 and paragraph (h)(2)(i) of Rule 498A); and |
| (ii) | permit persons accessing the Statutory Prospectus and SAI to move directly back and forth between each section heading in a table of contents of such document and the section of the document referenced in that section heading (that is, these documents must include linking, in accordance with paragraph (h)(2)(ii) of Rule 498A); and |
| (iii) | permit persons accessing the Portfolio Documents to permanently retain, free of charge, an electronic version of such materials that meet the requirements of subparagraphs (h)(2)(i) and (ii) of Rule 498A (in accordance with paragraph (h)(3) of Rule 498A). |
| (d) | Website Hosting. The Company shall host and maintain the website specified in Rule 30e-3 and Rule 498A, so that the Portfolio Documents are publicly accessible, free of charge, at that website, in accordance with the conditions set forth in that paragraph, provided that the Distributor fulfill its obligations under this Amendment. The Company shall comply with the terms, conditions and requirements of Rule 30e-3 and Rule 498A. |
| (e) | Use of Summary Prospectuses. |
| (i) | The Company shall ensure that an Initial Summary Prospectus is used for each currently offered Variable Contract described under the related registration statement, in accordance with paragraph (j)(1)(i) of Rule 498A, no later than May 1, 2022. |
| (ii) | The Distributor shall ensure that a summary prospectus is used for the Portfolios, in accordance with paragraph (j)(1)(ii) of Rule 498A if available. |
| (f) | Notice Fee (Expense Allocation). The Distributor shall bear the costs of preparing and mailing notices of the availability of the Portfolio’s Shareholder Reports to Contract Owners (the notices required by paragraph (c) of Rule 30e-3) through the payment of a Notice Fee to the Company to be billed no more than quarterly. |
| (i) | Payment of Fee. The Distributor shall pay the Notice Fee to the Company within 15 business days after receipt of the invoice. |
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| 2. | Content of Portfolio Documents. The Distributor shall be responsible for the content and substance of the Portfolio Documents as provided to the Company, including, but not limited to, the accuracy and completeness of the Portfolio Documents. Without limiting the generality of the foregoing in any manner, the Distributor shall be responsible for ensuring that the Portfolio Documents as provided to the Company: |
| (a) | Meet the applicable standards of the 1933 Act, the Securities Exchange Act of 1934, as amended; the 1940 Act; and all rules and regulations under those Acts; and |
| (b) | Do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading. |
| 3. | Provision of Portfolio Documents for Paper Delivery. The Distributor shall: |
| (a) | At their expense, as the Company may reasonably request from time to time, provide the Company with sufficient paper copies of the then current Portfolio Documents, so that the Company may maintain a supply of such current paper documents sufficient in its reasonable judgment to meet anticipated requests from Contract Owners (see paragraphs (e) and (f) of Rule 30e-3 and paragraphs (i)(1) and (j)(3) of Rule 498A). Such Company requests shall be fulfilled reasonably promptly, but in no event more than 5 business days after the request from the Company is received by the Distributor. |
| (b) | Alternatively, if requested by the Company in lieu thereof, the Distributor or its designee shall provide such electronic or other documentation (including “camera ready” copies of the current Portfolio Documents as set in type, or at the request of the Company, a diskette in a form suitable to be sent to a financial printer), and such other assistance as is reasonably necessary to have the then current Portfolio Documents printed for distribution; the reasonable costs of providing the electronic documentation and of such printing to be borne by the Distributor. |
| (c) | The Distributor shall reimburse the Company for the costs of mailing the Portfolio Documents to Contract Owners. This reimbursement is in addition to, and not part of or in lieu of, the Notice Fee specified above. |
| 4. | Portfolio Expense and Performance Data. The Portfolio shall provide such data regarding each Portfolio’s expense ratios and investment performance as the Company shall reasonably request, to facilitate the registration and sale of the Variable Contracts. Without limiting the generality of the forgoing, the Portfolio shall provide the following Portfolio expense and performance data on a timely basis to facilitate the Company’s preparation of its annually updated registration statement for the Variable Contracts (and as otherwise reasonably requested by the Company), but in no event later than 75 calendar days after the close of each Portfolio’s fiscal year: |
| (a) | the gross “Annual Portfolio Company Expenses” for each Portfolio calculated in accordance with Item 3 of Form N-1A, before any expense reimbursements or fee waiver arrangements (and in accordance with (i) Instruction 16 to Item 4 of Form N-4, and (ii) Instruction 4(a) to Item 4 of Form N-6); and |
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| (b) | the net “Annual Portfolio Company Expenses” for each Portfolio calculated in accordance with Item 3 of Form N-1A, that include any expense reimbursements or fee waiver arrangements (and in accordance with (i) Instruction 17 to Item 4 of Form N-4, and (ii) Instruction 4 to Item 17 of Form N-4, and (iii) Instruction 4(b) to Item 4 of Form N-6, and (iv) Instruction 4 to Item 18 of Form N-6), and the period for which the expense reimbursements or fee waiver arrangement is expected to continue and whether it can be terminated by the Portfolio; and |
| (c) | the “Average Annual Total Returns” for each Portfolio (before taxes) as calculated pursuant to Item 4(b)(2)(iii) of Form N-1A (for the 1, 5, and 10 calendar year periods ending on the date of the most recently completed calendar year (or for the life of the Portfolio, if shorter), and in accordance with (i) Instruction 7 to Item 17 of Form N-4, and (ii) Instruction 7 to Item 18 of Form N-6). |
| 5. | Construction of this Amendment; Participation Agreement. |
| (a) | This Amendment shall be interpreted to be consistent with, and to facilitate compliance with and reliance on, Rule 30e-3 under the 1940 Act and Rule 498A (including paragraph (j) thereof) under the 1933 Act and any interpretations of those Rules by the Securities and Exchange Commission, its staff, courts, or other appropriate legal authorities. |
| (b) | To the extent the terms of this Amendment conflict with the terms of the Participation Agreement, the terms of this Amendment shall control; otherwise, and except as otherwise specifically set forth in this Amendment, the terms of the Participation Agreement shall continue to apply, and shall apply to the duties, responsibilities, rights and obligations of the Parties under and pursuant to this Amendment. |
| 6. | Termination. This Amendment shall terminate upon the earlier of: |
| (a) | termination of the Participation Agreement; or |
| (b) | 60 days written notice from any Party to the other Parties. |
| 7. | Counterparts and Delivery. This Amendment may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one instrument. A signed copy of this Amendment delivered by facsimile or by emailing a copy in .pdf form shall be treated as an original and shall bind all Parties just as would the exchange of originally signed copies. |
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as of the date first above written.
| The Company: | ||||
| Equitable Financial Life Insurance Company, on behalf of itself and each Separate Account | ||||
| By: |
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| Print Name: Xxxxxxx Xxxxxxxxx | ||||
| Title: Managing Director | ||||
| Date: 6/2/2021 | 9:32 AM EDT | ||||
| The Distributor: | ||||
| Guggenheim Funds Distributors, LLC | ||||
| By: |
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| Print Name: Xxxxx XxXxxxxx | ||||
| Title: Vice President, GFD, LLC. | ||||
| Date: 6/1/2021 | ||||
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