THIRD AMENDMENT TO PARTICIPATION AGREEMENT Regarding FUND SHAREHOLDER REPORTS AND OTHER REQUIRED MATERIALS
THIRD AMENDMENT TO PARTICIPATION AGREEMENT
Regarding
FUND 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, Delaware VIP Trust (the “Fund”), an open-end management investment company organized as a statutory trust under the laws of the State of Delaware, Delaware Management Company, (the “Adviser”), a series of Macquarie Investment Management Business Trust, a statutory trust organized under the laws of the State of Delaware, and Delaware Distributors, L.P. (the “Distributor”), a limited partnership organized under the laws of the State of Delaware and principal underwriter/distributor of the Fund, entered into a certain participation agreement dated July 9, 2010, (the “Participation Agreement”). This Amendment (the “Amendment”) to the Participation Agreement is entered into as of 2/8/2021 | 4:58 PM , 2021, EST 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”), the Fund, the Adviser 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 Advisor changed from Delaware Management Company, a series of Delaware Management Business Trust to Delaware Management Company, a series of Macquarie Investment Management Business Trust;
WHEREAS, pursuant to the Participation Agreement among the Parties, the Company invests in shares of certain of the portfolios of the Fund (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 deliver Fund 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 deliver Fund shareholder reports to Contract Owners, including hosting the website of certain Fund materials required by 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 Company intends 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 Fund 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; and
WHEREAS, the Company cannot host such website in compliance with Rules 30e-3 and 498A unless the Fund prepares and provides the Fund 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, the Fund, the Adviser and the Distributor hereby agree to supplement and amend the Participation Agreement as follows:
| 1. | Provision of Fund Documents; Website Posting. |
| (a) | Fund Documents. The Fund and the Distributor are responsible for preparing and providing the following “Fund 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; |
| (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; 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, Fund Documents. |
| (i) | The Fund and 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, in order to facilitate a continuous offering of the Portfolio Company’s securities and the Variable Contracts. |
2
| (ii) | The Fund and the Distributor shall provide the Shareholder Reports and Portfolio Holdings on a timely basis (to facilitate the required website posting) but no later than 5 business days before the date each time that the Required Materials are required to be posted by Rule 30e-3. |
| (c) | Format of Fund Documents. The Fund and the Distributor shall provide the Fund 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 Fund 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 paragraph (j)(1)(iii) of Rule 498A, so that the Fund Documents are publicly accessible, free of charge, at that website, in accordance with the conditions set forth in that paragraph, provided that the Fund and the Distributor fulfill their obligations under this Amendment. |
| (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 Fund and 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 Fund, the Distributor and/or the Adviser shall bear their proportional costs of the Company preparing and mailing notices of the availability of the Fund’s 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 Fund, the Distributor and/or the Adviser shall pay the Notice Fee to the Company within 15 business days after receipt of the invoice. |
| (ii) | Review and Renegotiation. Prior to the first payment of the Notice Fee and as reasonably requested thereafter, Company agrees to provide appropriate documentation to the Fund, Distributor and/or the Adviser to quantify how the Company arrived at the Notice Fee (and such documentation will also include the number of other investment companies that are being utilized by Company for its Accounts and relying on Rule 30e-3). From time to time, the Parties shall review the Notice Fee to determine whether it reasonably approximates the Company’s incurred and anticipated costs (both ‘soft’ internal costs and ‘hard’ external costs) of mailing |
3
| notices of the availability of the Fund’s Reports to Contract Owners (pursuant to paragraph (c) of Rule 30e-3). The Parties agree to negotiate in good faith any change to the Notice Fee proposed by a Party. |
| 2. | Content of Fund Documents. The Fund and the Distributor shall be responsible for the content and substance of the Fund Documents as provided to the Company, including, but not limited to, the accuracy and completeness of the Fund Documents. Without limiting the generality of the foregoing in any manner, the Fund and the Distributor shall be responsible for ensuring that the Fund 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 Fund Documents. The Fund and the Distributor shall: |
| (a) | As the Company may reasonably request from time to time, the Fund or its designee shall provide such electronic or other documentation (including “camera ready” copies of the current Fund Documents as set in type), and such other assistance as is reasonably necessary to have the then current Fund Documents printed for distribution; the reasonable costs of providing the electronic documentation and of such printing to be borne by the Fund. |
| (b) | Alternatively and at their expense, if requested by the Company periodically in lieu thereof, provide the Company with sufficient paper copies of the then current Fund 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 15 business days after the request from the Company is received by either the Fund or the Distributor. |
| (c) | The Fund, the Distributor and/or the Adviser shall reimburse the Company for the costs of mailing the Fund 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 Fund 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 Fund 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 60 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 |
4
| (b) | the net “Annual Portfolio Company Expenses” (aka “Total Annual Fund Operating 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 (or Fund); 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 year periods, 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. | Indemnification. The Fund, the Distributor and the Adviser specifically agree to indemnify and hold harmless the Company (and its officers, directors, and employees) from any and all liability, claim, loss, demand, damages, costs and expenses (including reasonable attorney’s fees) arising out of or result from any claim or action of any type whatsoever brought against the Company (or its officers, directors, and employees) as a result of any failure by the Fund, the Distributor and the Adviser to provide the Fund Documents in accordance with the terms of this Amendment or to fulfill their other duties and responsibilities under this Amendment or for any other breach of this Amendment. This indemnification shall be in addition to and not in lieu of the indemnification provided for in the Participation Agreement or any other addendums or amendments thereto, but otherwise shall be subject to and in accordance with the terms and conditions of the Participation Agreement. |
5
| 8. | 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. |
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: |
| |
| Print Name: | Xxxxxxx Xxxxxxxxx | |
| Title: | Managing Director | |
| Date: | 2/8/2021 | 4:58 PM EST |
The Fund:
Delaware VIP Trust
| By: |
| |
| Print Name: | Xxxxxx Xxxxxxx | |
| Title: | Head, U.S. Fund Administration | |
| Date: | February 8, 2021 |
The Adviser:
Delaware Management Company, a series of Macquarie Investment Management Business Trust
| By: |
| |
| Print Name: | Xxxxx Early | |
| Title: | Executive Vice President | |
| Date: | February 8, 2021 |
The Distributor:
Delaware Distributors, L.P.
| By: |
| |
| Print Name: | Xxxxx Xxxxxxxx | |
| Title: | Senior Vice President | |
| Date: | February 8, 2021 |
6
