[FOR RETAIL FUNDS]
PARTICIPATION AGREEMENT
AMONG
ML LIFE INSURANCE COMPANY OF NEW YORK,
COLUMBIA ACORN TRUST, AND
COLUMBIA FUNDS DISTRIBUTOR, INC.
THIS AGREEMENT, dated as of the 4th day of March, 2005, by and among
ML Life Insurance Company of New York (the "Company"), an New York life
insurance company, on its own behalf and on behalf of each segregated asset
account of the Company set forth on Schedule A hereto as may be amended from
time to time (hereinafter referred to individually and collectively as the
"Account"), Columbia Acorn Trust (the "Fund"), a Massachusetts business trust,
and Columbia Funds Distributor, Inc. (the "Underwriter"), a corporation
organized and existing under the laws of the Commonwealth of Massachusetts.
WHEREAS, the shares of beneficial interests of the Fund are divided
into several series of shares, each designated a "Portfolio" and representing
the interest in a particular managed portfolio of securities and other assets;
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended, (the "1940 Act")
and shares of the Portfolios are registered under the Securities Act of 1933, as
amended (the "1933 Act");
WHEREAS, Columbia Xxxxxx Asset Management, L.P. (the "Adviser"), a
Delaware limited partnership, which serves as investment adviser to the Fund, is
duly registered as an investment adviser under the Investment Advisers Act of
1940, as amended;
WHEREAS, the Underwriter, which serves as distributor to the Fund, is
registered as a broker-dealer with the Securities and Exchange Commission (the
"SEC") under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and is a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD");
WHEREAS, the Account is duly established and maintained as a segregated
asset account, duly established by the Company, on the date shown for such
Account on Schedule A hereto, to set aside and invest assets attributable to
variable annuity contracts set forth in Schedule A hereto, as it may be amended
from time to time by mutual written agreement (the "Contracts");
WHEREAS, each Portfolio issues shares to the general public and
pursuant to this Agreement, will issue shares to the separate accounts of
insurance companies ("Participating Insurance Companies") to fund variable
annuity contracts sold to certain qualified pension and retirement plans;
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WHEREAS, the Company intends to purchase shares of other open-end
management investment companies that offer shares to the general public to fund
the Contracts;
WHEREAS, the Fund and the Underwriter know of no reason why shares in
any Portfolio may not be sold to insurance companies to fund variable annuity
contracts sold to certain qualified pension and retirement plans; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios (and
classes thereof) listed in Schedule B hereto, as it may be amended from time to
time by mutual written agreement (the "Designated Portfolios") on behalf of the
Account to fund the aforesaid Contracts, and the Underwriter is authorized to
sell such shares in the Designated Portfolios, and classes thereof, to the
Account at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, and the Underwriter agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund has granted to the Underwriter exclusive authority to
distribute the Fund's shares, and pursuant to a written agreement between the
Fund and the Underwriter, the Underwriter is authorized to make available to the
Company for purchase on behalf of the Account, shares of the Designated
Portfolios and classes thereof listed on Schedule B to this Agreement (the
"Shares"). Pursuant to such authority and instructions, and subject to Article
IX hereof, the Underwriter agrees to make the Shares available to the Company
for purchase on behalf of the Account, such purchases to be effected at net
asset value in accordance with Section 1.3 of this Agreement. Notwithstanding
the foregoing, the Board of Trustees of the Fund (the "Board") may suspend or
terminate the offering of Shares of any Designated Portfolio or class thereof,
if such action is required by law or by regulatory authorities having
jurisdiction or if, 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,
suspension or termination is necessary in the best interests of the shareholders
of such Designated Portfolio including, but not limited to, if the Fund
determines that trading activity represents market timing or trading activity is
disruptive and may potentially harm the Fund.
1.2. The Fund shall redeem, at the Company's request, any full or
fractional Shares held by the Company on behalf of the Account, such redemptions
to be effected at net asset value in accordance with Section 1.3 of this
Agreement. Notwithstanding the foregoing, (i) the Company shall not redeem
Shares attributable to Contract owners except in the circumstances permitted in
Section 9.3 of this Agreement, and (ii) the Fund may delay redemption of Shares
of
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any Designated Portfolio to the extent permitted by the 1940 Act, and any rules,
regulations, or orders thereunder.
1.3. Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as an agent of the Fund
for the limited purpose of receiving purchase and redemption requests on behalf
of the Account (but not with respect to any Fund shares that may be held in the
general account of the Company) for the Shares made available hereunder, based
on allocations of amounts to the Account or subaccounts thereof under the
Contracts and other transactions relating to the Contracts or the Account. All
transactions in Account shares shall be executed through the Omnibus Accounts of
Company's affiliate Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc. ("Omnibus
Accounts"). Receipt of any such request (or relevant transactional information
therefor) on any day the New York Stock Exchange (the "Exchange") is open for
regular session trading and on which the Fund calculates its net asset value
pursuant to the rules of the SEC (a "Business Day") by the Company as such
limited agent of the Fund prior to the time that the Fund ordinarily calculates
its net asset value as described from time to time in the Fund Prospectus (which
as of the date of execution of this Agreement is 4:00 p.m. Eastern Time) shall
constitute receipt by the Fund on that same Business Day, provided that the Fund
receives notice of such request by 10 a.m. Eastern Time on the next following
Business Day, or in the event of systems issues necessitating later delivery of
such purchase and redemption requests, by 11 a.m. Eastern Time on the next
following Business Day. Company and Fund understand that it is the intent of the
parties that Fund receive such purchase and redemption requests from Company on
behalf of the Account by 9:00 a.m. Eastern Time on the next following Business
Day. Company will provide to the Transfer Agent or its designee via the NSCC
Fund SERV DCC&S platform (which utilizes the "as of" record layout within
Fund/SERV) one or more files detailing the instructions received with respect to
each contract prior to 4:00 p.m. Eastern Time on the prior Business Day for each
of the Funds. If for any reason Xxxxxxx Xxxxx is unable to transmit the file(s)
with respect to any Business Day, Xxxxxxx Xxxxx will notify the Transfer Agent
or its designee by 11:00 a.m. Eastern Time on the next following Business Day.
(b)The Company shall pay for Shares on the same day that it
notifies the Fund of a purchase request for such Shares. Payment for Shares
shall be made in federal funds transmitted to the Fund via the NSCC Fund/SERV
DCC&S platform to be received by the Fund by 6:30 p.m. Eastern Time on the day
the Fund is notified of the purchase request for Shares (unless the Fund
determines and so advises the Company that sufficient proceeds are available
from redemption of Shares of other Designated Portfolios effected pursuant to
redemption requests tendered by the Company on behalf of the Account). Upon
receipt of federal funds transmitted via the NSCC Fund/SERV DCC&S platform, such
funds shall cease to be the responsibility of the Company and shall become the
responsibility of the Fund. Notwithstanding any provision of this Agreement to
the contrary, for purchase and redemption instructions with respect to any
Shares, Company and the Fund will settle the purchase and redemption
transactions referred to herein, via the NSCC Fund/SERV platform settlement
process on the next Business Day following the effective trade date. The Fund
will provide to Company a daily
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transmission of positions and trading activity taking place in the Omnibus
Accounts using Company's affiliate's proprietary Inventory Control System
("ICS").
(c) Payment for Shares redeemed by the Account or the Company
shall be made in federal funds transmitted via the NSCC Fund/SERV DCC&S platform
to the Company on the next Business Day after the Fund is properly notified of
the redemption order of such Shares (unless redemption proceeds are to be
applied to the purchase of Shares of other Designated Portfolios in accordance
with Section 1.3(b) of this Agreement), except that the Fund reserves the right
to redeem Shares in assets other than cash and to delay payment of redemption
proceeds to the extent permitted under Section 22(e) of the 1940 Act and any
Rules thereunder, and in accordance with the procedures and policies of the Fund
as described in the then current prospectus. The Fund shall not bear any
responsibility whatsoever for the proper disbursement or crediting of redemption
proceeds by the Company; the Company alone shall be responsible for such action.
(d) Any purchase or redemption request for Shares held or to
be held in the Company's general account shall be effected at the closing net
asset value per share next determined after the Fund's receipt of such request
as set forth in Section 1.3(a) herein.
1.4. The Fund shall use its best efforts to make the closing net asset
value per Share for each Designated Portfolio available to the Company by 6:30
p.m. Eastern Time each Business Day via the NSCC Profile 1 platform, and in any
event, as soon as reasonably practicable after the closing net asset value per
Share for such Designated Portfolio is calculated, and shall calculate such
closing net asset value, including any applicable daily dividend factor, in
accordance with the Fund's Prospectus. In the event the Fund is unable to make
the 6:30 p.m. deadline stated herein, transactions shall be held until it is
administratively feasible for the Company to update these transactions in the
next nightly cycle following receipt of information regarding the Fund's net
asset value per share. Held transactions processed the following nightly cycle
shall then be processed "as of" the original trade date and Columbia Funds
Services, Inc. shall bear any loss resulting from such "as of" processing.
Neither the Fund, any Designated Portfolio, the Underwriter, nor any of their
affiliates shall be liable for any information provided to the Company pursuant
to this Agreement which information is based on incorrect information supplied
by the Company to the Fund or the Underwriter. Any material error in the
calculation or reporting of the closing net asset value, including any
applicable daily dividend factor per Share shall be reported promptly upon
discovery to the Company. In such event the Company shall be entitled to an
adjustment to the number of Shares purchased or redeemed to reflect the correct
closing net asset value, including any applicable daily dividend factor per
Share and the Company shall not bear the cost of correcting such errors. Any
error of a lesser amount shall be corrected in the next business day's net asset
value per Share.
1.5. Notwithstanding anything to the contrary contained in this
Agreement, the Fund will make available for purchase by the Company, on its
behalf and on behalf of the Account, a class of shares available at net asset
value which are not subject to a contingent deferred sales
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charge or redemption fee. The Fund shall furnish notice (via the NSCC Profile II
platform) to the Company as soon as reasonably practicable of any income
dividends or capital gain distributions payable on any Shares. The form of
payment of dividends and capital gains distributions will be determined in
accordance with the Company's operational procedures in effect at the time of
the payment of such dividend or distribution. At this time the Company, on its
behalf and on behalf of the Account, hereby elects to receive all such dividends
and distributions as are payable on any Shares in the form of additional Shares
of that Designated Portfolio. The Company will reinvest the additional Shares of
that Designated Fund through a trade processed via the NSCC platform. The
Company reserves the right, on its behalf and on behalf of the Account, to
revoke this election and to receive all such dividends and capital gain
distributions in the form of cash. The parties understand and agree that all
transactions of Account shares contemplated herein shall be executed through the
Omnibus Account and that Company's affiliate, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx, Inc. will receive all such dividends and distributions in the form of
cash which Company, in turn, will immediately reinvest in the form of additional
Shares of that Designated Portfolio. The Transfer Agent shall notify the Company
promptly of the number of Shares so issued as payment of such dividends and
distributions.
1.6. Issuance and transfer of Shares shall be by book entry only and
executed through the Omnibus Accounts. Stock certificates will not be issued to
the Company or the Account. Purchase and redemption orders for Fund shares shall
be recorded in an appropriate ledger for the Account or the appropriate
subaccount of the Account.
1.7 Fund Information.
(a) The Fund will provide (or cause to be provided) to Company the
information set forth in Schedule C hereto. In addition, notwithstanding
anything contained in this Agreement to the contrary, the Fund hereby agrees
that the Company may use such information in communications prepared for the
Contracts, including, but not limited to, application, marketing, sales and
other communications materials. The Fund will provide timely notification to
Company of any change to the information described in Part I of Schedule C
including without limitation any change to the CUSIP number or symbol
designation of a Fund. Such notification shall be given to the Company as soon
as practicable after a public announcement of such a change and prior to the
effective date of the change.
(b) Notwithstanding anything to the contrary in this Agreement, upon
request, the Fund will provide the Company with prospectuses, proxy materials,
financial statements, reports and other materials relating to each Fund in
sufficient quantity for each Contract owner invested in the Fund.
(c) With the exception of (i) listings of product offerings; (ii)
materials in the public domain (e.g., magazine articles and trade publications);
and (iii) materials used by the Company on an internal basis only, the Company
agrees not to furnish or cause to be furnished to any third parties or to
display publicly or publish any information or materials relating to the Fund or
Designated Portfolios, except such materials and information as may be
distributed to the Company by the Fund for public use or broker/dealer use only
or approved for distribution by the Fund upon the Company's request.
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1.8. The parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Fund's shares may be sold to other
investors and the cash value of the Contracts may be invested in other
investment companies. The Company acknowledges that shares of the Fund are
offered and sold directly to members of the general public, and are not and will
not be sold directly to insurance companies and their separate accounts and
certain qualified retirement plus in accordance with Section 817 (h)(4) of the
Internal Revenue Code of 1986, as amended, and Treasury Regulation 1.817-5.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts (a) are, or
prior to issuance will be, registered under the 1933 Act, or (b) are not
registered because they are properly exempt from registration under the 1933 Act
or will be offered exclusively in transactions that are properly exempt from
registration under the 1933 Act. The Company further represents and warrants
that the Contracts will be issued and sold in compliance in all material
respects with all applicable federal securities and state securities and
insurance laws and that the sale of the Contracts shall comply in all material
respects with state insurance suitability requirements. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law, that it has legally and validly established
the Account prior to any issuance or sale thereof as a segregated asset account
under New York insurance laws, and that it (a) has registered or, prior to any
issuance or sale of the Contracts, will register the Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a
segregated investment account for the Contracts, or alternatively (b) has not
registered the Account in proper reliance upon an exclusion from registration
under the 1940 Act. The Company shall register and qualify the Contracts or
interests therein as securities in accordance with the laws of the various
states only if and to the extent deemed advisable by the Company.
2.2 The Company agrees to purchase and redeem the shares of the
Designated Portfolios offered by the then current prospectus and statement of
additional information of the Designated Portfolios in accordance with the
provisions of such current prospectus and statement of additional information,
including the policy on trading shares. The Company shall not permit any person
other than a Contract owner or his/her agent to give instructions to the Company
that would require the Company to redeem or exchange shares of the Designated
Portfolios.
2.3. The Fund represents and warrants that Shares sold pursuant to this
Agreement shall be registered under the 1933 Act and, duly authorized for
issuance and sold in compliance with applicable state and federal securities
laws. and that the Fund is and shall remain registered under the 0000 Xxx. The
Fund 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
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offering of its shares. The Fund shall register and qualify the shares for sale
in accordance with the laws of the various states only if and to the extent
deemed advisable by the Fund, the Adviser, or the Underwriter.
2.4. The Fund makes no representations as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies, objectives and restrictions) complies with the insurance laws and
regulations of any state. The Fund agrees that it will reasonably cooperate with
the Company and furnish to the Company upon written request any specified
information required by state insurance laws or otherwise so that the Company
can obtain the authority needed to issue the Contracts in the various states.
2.5. The Fund 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.
2.6. The Underwriter represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in compliance with all material respects with any applicable state and federal
securities laws.
2.7. The Fund represents and warrants that all of its
trustees/directors, officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimum coverage as required currently by Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
2.8 The Company represents and warrants that it has adopted and
implemented policies and procedures reasonably designed to ensure that all
orders received by the Company at or after the close of the Exchange on each
Business Day will not be aggregated with orders received by the Company before
the close of the Exchange on such Business Day.
2.9 The Company represents and warrants that it has adopted policies
and procedures ("Disruptive Trading Procedures") which are designed to detect
contractowners engaging in disruptive trading activities, including frequent or
short-term transfers, and imposing transfer restrictions on such contractowners.
2.10 Each party to this Agreement agrees to cooperate fully with any
and all efforts by any party to assure any party that the it has implemented
effective compliance policies and procedures administered by qualified personnel
as required by and in accordance with any and all applicable laws, rules and
regulations.
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ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company with as many copies of
the Fund's current prospectus as the Company may reasonably request. The Fund or
the Underwriter shall bear the expense of printing copies of the current
prospectus and profiles for the Fund that will be distributed to existing
Contract owners whose contracts are funded by the Fund's shares, and the Company
shall bear the expense of printing copies of the Fund's prospectus and profiles
that are used in connection with offering the Contracts issued by the Company.
If requested by the Company in lieu thereof, the Fund shall provide such
documentation (including a final copy of the new prospectus on diskette at the
Fund's or Underwriter's expense) and other assistance as is reasonably necessary
in order for the Company once each year (or more frequently if the prospectus
for the Fund is amended) to have the prospectus for the Contracts and the Fund's
prospectus printed together in one document (such printing of the Fund's
prospectus and profiles for existing Contract owners whose contracts are funded
by the Fund's shares to be at the Fund's or Underwriter's expense).
3.2. The Fund's prospectus shall state that the current Statement of
Additional Information ("SAI") for the Fund is available, and the Underwriter
(or the Fund), at its expense, shall provide a reasonable number of copies of
such SAI free of charge to the Company for itself and for any owner of a
Contract who requests such SAI.
3.3. Upon the reasonable request of the Company, the Fund shall provide
the Company with information regarding the Fund's expenses, which information
may include a table of fees and related narrative disclosure for use in any
prospectus or other descriptive document relating to a Contract.
3.4. The Fund, at its or the Underwriter's expense, shall provide the
Company with copies of its proxy material, reports to shareholders, and other
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
3.5. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Shares in accordance with instructions
received from Contract owners; and
(iii) vote Shares for which no instructions have been
received in the same proportion as Shares of such
portfolio for which instructions have been received,
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 or to the
extent otherwise required by law.
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The Company will vote Shares held in any segregated asset account for its own
account in the same proportion as Shares of such portfolio for which voting
instructions have been received from Contract owners, to the extent permitted by
law. The Company and its agents shall not oppose or interfere with the
solicitation of proxies for Fund shares held for such Contract owners.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund, the Underwriter, or their designees, each piece of sales literature or
other promotional material that the Company develops and in which the Fund (or a
Designated Portfolio thereof) or the Adviser or the Underwriter is named. No
such material shall be used until approved by the Fund, the Underwriter or their
designees. The Fund, the Underwriter, or their designees will be deemed to have
approved such sales literature or promotional material unless the Fund or its
designee objects or provides comments to the Company within ten (10) Business
Days after receipt of such material. The Fund, the Underwriter, or their
designees reserve the right to reasonably object to the continued use of any
such sales literature or other promotional material in which the Fund (or a
Designated Portfolio thereof) or the Adviser or the Underwriter is named, and no
such material shall be used if the Fund, the Underwriter or their designees so
object.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund or
the Adviser or the Underwriter in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement or profiles or prospectus or SAI for the Fund shares, as such
registration statement and profiles and prospectus or SAI may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee or by the Underwriter, except with the permission of the Fund or the
Underwriter or the designee of either.
4.3. The Fund and the Underwriter, or their designee, shall furnish, or
cause to be furnished, to the Company, each piece of sales literature or other
promotional material that it develops and in which the Company, and/or its
Account, is named. No such material shall be used until approved by the Company.
The Company will be deemed to have approved such sales literature or promotional
material unless the Company objects or provides comments to the Fund, the
Underwriter, or their designee within ten Business Days after receipt of such
material. The Company reserves the right to reasonably object to the continued
use of any such sales literature or other promotional material in which the
Company and/or its Account is named, and no such material shall be used if the
Company so objects.
4.4. The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company, the
Account, or the Contracts other than the information or representations
contained in a registration statement and prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the
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Company or interests therein are not registered under the 1933 Act), or SAI for
the Contracts, as such registration statement, prospectus, or SAI may be amended
or supplemented from time to time, or in published reports for the Account which
are in the public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other promotional material approved by the
Company or its designee, except with the permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of
all registration statements, profiles, prospectuses, SAIs, shareholder reports,
proxy statements, sales literature and other promotional materials, applications
for exemptions, requests for no-action letters, and all amendments or
supplements to any of the above, that relate to the Fund or its shares, promptly
after the filing of such document(s) with the SEC or other regulatory
authorities.
4.6. The Company will provide to the Fund or the Underwriter at least
one complete copy of all registration statements, prospectuses (which shall
include an offering memorandum, if any, if the Contracts issued by the Company
or interests therein are not registered under the 1933 Act), SAIs, reports,
solicitations for voting instructions, 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 Contracts or the Account,
promptly after the filing of such document(s) with the SEC or other regulatory
authorities. The Company shall provide to the Fund and the Underwriter any
complaints received from the Contract owners pertaining to the Fund or the
Designated Portfolio.
4.7. The Fund will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Designated Portfolio,
and of any material change in the Fund's registration statement, particularly
any change resulting in a change to the registration statement or prospectus for
any Account. The Fund will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or
registration statement, in an orderly manner.
4.8. For purposes of this Article IV, the phrase "sales literature and
other promotional materials" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: 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), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Fund.
ARTICLE V. Fees and Expenses
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5.1. All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund's shares are registered and
authorized for issuance in accordance with applicable federal law and, if and to
the extent deemed advisable by the Fund, in accordance with applicable state
laws prior to their sale. The Fund shall bear the expenses for the cost of
registration and qualification of the Fund's shares, preparation and filing of
the Fund's prospectus and registration statement, proxy materials and reports,
setting the prospectus in type, setting in type and printing the proxy materials
and reports to shareholders (including the costs of printing a prospectus that
constitutes an annual report), the preparation of all statements and notices
required by any federal or state law, and all taxes on the issuance or transfer
of the Fund's shares.
5.2. The Company shall bear the expenses of distributing the Fund's
prospectus to owners of Contracts in connection with the offer of Contracts,
issued by the Company and of distributing the Fund's proxy materials and reports
to such Contract owners.
ARTICLE VI. Qualification under Subchapter M
6.1. The Fund represents that it is or will be qualified as a Regulated
Investment Company under Subchapter M of the Code, and that it will use its best
efforts to maintain such qualification (under Subchapter M or any successor or
similar provisions) and that it will notify the Company immediately upon having
a reasonable basis for believing that it has ceased to so qualify or that it
might not so qualify in the future.
ARTICLE VII. Indemnification
7.1. Indemnification By the Company
7.1(a). The Company agrees to indemnify and hold harmless the
Fund and the Underwriter and each of its trustees/directors and officers,
employees, agents and each person, if any, who controls the Fund or the
Underwriter within the meaning of Section 15 of the 1933 Act or who is under
common control with the Underwriter (collectively, the "Indemnified Parties" for
purposes of this Section 7.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or
alleged untrue statements of any material fact contained in
the registration statement, prospectus (which shall include a
written description of a Contract that is not registered under
the 1933 Act), or SAI for the Contracts or contained in sales
literature for the Contracts (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
11
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 omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the
Fund for use in the registration statement, prospectus or SAI
for the Contracts or in the Contracts or sales literature (or
any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of conduct, statements or
representations (other than statements or representations
contained in the registration statement, prospectus, SAI, or
sales literature of the Fund not supplied by the Company or
persons under its control) or wrongful conduct of the Company
or its agents or persons under the Company's authorization or
control, with respect to the sale or distribution of the
Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, SAI, or sales literature of the Fund 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 statements therein
not misleading if such a statement or omission was made in
reliance upon information furnished to the Fund by or on
behalf of the Company; or
(iv) arise as a result of any material failure by the Company
to provide the services and furnish the materials under the
terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with
the qualification requirements specified in Section 6.1 of
this Agreement); or
(v) 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;
as limited by and in accordance with the provisions of Sections 7.1(b) and
7.1(c) hereof.
7.1(b). The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of its obligations or
duties under this Agreement.
7.1(c). The Company shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have
12
notified the Company in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but failure
to notify the Company of any such claim shall not relieve the Company from any
liability which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In case any
such action is brought against an Indemnified Party, the Company shall be
entitled to participate, at its own expense, in the defense of such action. The
Company also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Company to
such party of the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
7.1(d). The Indemnified Parties will promptly notify the
Company of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
7.2. Indemnification by the Underwriter
7.2(a). The Underwriter agrees to indemnify and hold harmless
the Company and each of its directors and officers, employees,
agents and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this
Section 7.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Underwriter) or litigation (including
legal and other expenses) to which the Indemnified Parties may
become subject under any statute or regulation, at common law
or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or
settlements:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or profile or prospectus or SAI or
sales literature of the Fund (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 omission was made in reliance upon and in conformity with
information furnished to the Underwriter or the Fund by or on
behalf of the Company for use in the registration statement,
profile, prospectus or SAI for the Fund or in sales literature
(or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
13
(ii) arise out of or as a result of conduct, statements or
representations (other than statements or representations
contained in the registration statement, prospectus, SAI or
sales literature for the Contracts not supplied by the
Underwriter or persons under their control) or wrongful
conduct of the Fund or the Underwriter or persons under their
control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, SAI or sales literature covering the
Contracts, 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 the Fund or the
Underwriter; or
(iv) arise as a result of any failure by the Fund or the
Underwriter to provide the services and furnish the materials
under the terms of this Agreement (including a failure of the
Fund, whether unintentional or in good faith or otherwise, to
comply with the qualification requirements specified in
Section 6.1 of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund or the
Underwriter in this Agreement or arise out of or result from
any other material breach of this Agreement by the Fund or the
Underwriter; or
(vi) 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;
as limited by and in accordance with the provisions of Sections 7.2(b) and
7.2(c) hereof.
7.2(b). The Underwriter shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance or such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company or the Account, whichever is applicable.
7.2(c). The Underwriter shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Underwriter in
writing within a reasonable time after the summons or other first
14
legal process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure to notify
the Underwriter of any such claim shall not relieve the Underwriter from any
liability which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In case any
such action is brought against the Indemnified Party, the Underwriter will be
entitled to participate, at its own expense, in the defense thereof. The
Underwriter also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Underwriter
to such party of the Underwriter's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Underwriter will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
7.2(d). The Indemnified Party will promptly notify the
Underwriter of the commencement of any litigation or proceedings against it or
any of its officers or directors in connection with the issuance or sale of the
Contracts or the operation of the Account.
ARTICLE VIII. Applicable Law
8.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
8.2. 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.
ARTICLE IX. Termination
9.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party, for any reason with respect
to some or all Designated Portfolios, by three (3)
months advance written notice delivered to the other
parties; or
(b) termination by the Company upon one month advance
written notice to the Fund and the Underwriter based
upon the Company's determination that shares of the
Fund are not reasonably available to meet the
requirements of the Contracts; or
(c) termination by the Company by written notice to the
Fund and the Underwriter in the event any of the
Shares are not registered, issued, or
15
sold in accordance with applicable state and/or
federal law or such law precludes the use of such
Shares as the underlying investment media of the
Contracts issued or to be issued by the Company; or
(d) termination by the Fund or the Underwriter in the
event that formal administrative proceedings are
instituted against the Company or the
broker-dealer(s) marketing the Contracts by the NASD,
the SEC, the Insurance Commissioner, or like official
of any state or any other regulatory body regarding
the Company's duties under this Agreement or related
to the sale of the Contracts, the operation of any
Account, or the purchase of the Shares; provided,
however, that the Fund or the Underwriter determines
in its sole judgment exercised in good faith, that
any such administrative proceedings will have a
material adverse effect upon the ability of the
Company to perform its obligations under this
Agreement; or
(e) termination by the Company in the event that formal
administrative proceedings are instituted against the
Fund or the Underwriter by the NASD, the SEC, or any
state securities or insurance department, or any
other regulatory body; provided, however, that the
Company determines in its sole judgment exercised in
good faith, that any such administrative proceedings
will have a material adverse effect upon the ability
of the Fund or the Underwriter to perform its
obligations under this Agreement; or
(f) termination by the Company by written notice to the
Fund and the Underwriter with respect to any
Designated Portfolio in the event that such Portfolio
ceases to qualify as a Regulated Investment Company
under Subchapter M as specified in Section 6.1
hereof, or if the Company reasonably believes that
such Portfolio may fail to so qualify or comply; or
(g) termination by the Fund or the Underwriter by written
notice to the Company, if the Fund 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
(h) termination by the Company by written notice to the
Fund and the Underwriter, if the Company shall
determine, in its sole judgment exercised in good
faith, that the Fund, the Adviser, or the Underwriter
has suffered a material adverse change in its
business, operations, financial
16
condition, or prospects since the date of this
Agreement or is the subject of material adverse
publicity; or
(i) termination by the Company upon any substitution of
the shares of another investment company or series
thereof for Shares in accordance with the terms of
the Contracts, provided that the Company has given at
least 45 days prior written notice to the Fund and
the Underwriter of the date of substitution; or
(j) transaction by any party upon another party's failure
to cure a material breech of any provision of this
Agreement within 30 days after written notice
thereof; or
(k) termination by the Fund in the event that the Fund's
Board of Trustees determines that such termination
would be in the best interests of shareholders; or
(l) termination by any party upon assignment, unless such
assignment is made with the written consent of each
party.
9.2. (a) Notwithstanding any termination of this Agreement, the
Fund and the Underwriter shall, at the option of the Company,
continue to make available additional Shares pursuant to the
terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"), provided
the Company continues to pay the costs set forth in Section
3.1 and 5.2 and unless the Underwriter requests that the
Company seek an order pursuant to Section 26(c) of the 1940
Act to permit the substitution of other securities for the
Shares. The Underwriter agree to split the cost of seeking
such an order, and the Company agrees that it shall reasonably
cooperate with the Underwriter and seek such an order upon
request. Specifically, the owners of the Existing Contracts
may be permitted to reallocate investments in the Fund, redeem
investments in the Fund, and/or invest in the Fund upon the
making of additional purchase payments under the existing
Contracts (subject to any such election by the Underwriter).
The parties agree that this Section 9.2 shall not apply to any
terminations under Section 9.1(i) of this Agreement.
(b) In the event of a termination of this agreement pursuant to
Section 9.1 ( other than 9.1(i)), the Company shall promptly
notify the Fund and the Underwriter whether the Fund and the
Underwriter will be required to continue to make shares
available after such termination; in such circumstances, the
provisions of this Agreement shall remain in effect except for
Section 9.1 hereof, and thereafter any party may terminate the
Agreement ( the "Final Termination"), as so continued
17
pursuant this Section 9.2,upon prior written notice to the
other parties, such notice to be for a period this reasonable
under the circumstances but, if given by the Fund or the
Underwriter, need not be greater than six months.
(c) The Company, the Fund and the Underwriter agree to cooperate
in respect of the measures that are necessary or appropriate
to effect the Final Termination of this Agreement, and will
give reasonable assistance to each other in that regard,
including steps necessary or appropriate to ensure that an
Account owns no shares of the Fund after the Final Termination
of this Agreement.
9.3 The Company shall not redeem Shares attributable to the Contracts
(as opposed to Shares attributable to the Company's assets held in the Account)
except (i) as necessary to implement Contract owner initiated or approved
transactions, (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally Required Redemption"), (iii) upon 45 days prior written notice
to the Fund and Underwriter, as permitted by an order of the SEC pursuant to
Section 26(c) of the 1940 Act, but only if a substitution of other securities
for the Shares is consistent with the terms of the Contracts, or (iv) as
permitted under the terms of the Contract. Upon request, the Company will
promptly furnish to the Fund and the Underwriter reasonable assurance that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Contacts,
the Company shall not prevent Contract owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first giving
the Fund or the Underwriter 45 days notice of its intention to do so.
9.4. Notwithstanding any termination of this Agreement, each party's
obligation under Article VII to indemnify the other parties and the Company's
obligation under Section 3.5 regarding pass-through voting shall survive.
ARTICLE X. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail 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 the Fund:
Columbia Acorn Trust
000 Xxxx Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Vice President, Secretary and Treasurer
18
If to the Company:
ML Life Insurance Company of New York
1300 Xxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
Vice President & Senior Counsel
If to the Underwriter:
Attn:
ARTICLE XI. Miscellaneous
11.1. All persons dealing with the Fund must look solely to the
property of the Fund, and in the case of a series company, the respective
Designated Portfolios listed on Schedule B hereto as though each such Designated
Portfolio had separately contracted with the Company and the Underwriter for the
enforcement of any claims against the Fund. The parties agree that neither the
Board nor any member thereof, officers, agents, or shareholders of the Fund
assume any personal liability or responsibility for obligations entered into by
or on behalf of the Fund.
11.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until such time as such information has come into the
public domain.
11.3. 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.
11.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.5. 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.
11.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance
19
regulators) and shall permit such authorities reasonable access to its books and
records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby. Notwithstanding the
generality of the foregoing, each party hereto further agrees to furnish the New
York Insurance Commissioner with any information or reports in connection with
services provided under this Agreement which such Commissioner may request in
order to ascertain whether the variable contract operations of the Company are
being conducted in a manner consistent with the New York variable annuity laws
and regulations and any other applicable law or regulations. The Company agrees
to pay the reasonable costs and expenses incurred by the Fund or the Underwriter
in connection with responding to such a request.
11.7. 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.
11.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto
11.9. A copy of the Declaration of Trust of the Fund is on file with
the Secretary of the Commonwealth of Massachusetts, and notice is hereby given
that this instrument is executed on behalf of the Fund by officers of the Fund
as officers and not individually and that the obligations of or arising out of
this instrument are not binding upon any of the trustees, officers or
shareholders individually but are binding only upon the assets of and property
of the Fund or the Designated Portfolios, as a series of the Fund.
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 below.
ML LIFE INSURANCE COMPANY OF NEW YORK:
By its authorized officer
By: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President & Senior Counsel
Date: March 3, 2005
20
COLUMBIA ACORN TRUST
By its authorized officer
/s/ Xxxxx X. Xxxxx
-------------------------
By: Xxxxx X. Xxxxx
Title: Vice President, Secretary and Treasurer
Date: March 3, 2005
COLUMBIA FUNDS DISTRIBUTOR, INC.
By its authorized officer
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Title: President
-------------------------------------
Date: March 3, 2005
-------------------------------------
21
SCHEDULE A
SEPARATE ACCOUNTS OF THE COMPANY
ML of New York Variable Annuity Separate Account X.
Xxxxxxx Xxxxx Investor Choice Annuity (XXX Series)
(Form MLNY-VA-010)
Dated: March 4, 2005
SCHEDULE B
DESIGNATED PORTFOLIOS AND CLASSES
Columbia Acorn USA - A Shares
Dated: March 4, 2005
SCHEDULE C
FUND MATERIALS
PART I. Fund Description
o The Fund will provide to Company or a common service provider
designated by Company as soon as practicable after public disclosure of
such information, the Fund's average annual returns for the 1, 5, and
10 year periods ending the current month on a Net Asset Value basis.
o The Fund will provide to Company as soon as practicable after public
disclosure of such information a description of the Fund including
holdings, portfolio composition, largest sectors and geographical
allocation and a statement of objective in a mutually acceptable
format.
PART II. Fund Information and Materials
The Fund will provide to Company the following information and
materials on an as needed basis, as requested by Company:
o A supply of materials relating to the Funds (prospectuses,
quarterly reports and other brochures) to include with
contract application sales, marketing and communication
materials.
o Specific investment performance information that may be
requested that cannot be obtained from the prospectus. This
would include specific calculations on various performance
parameters which must be provided on a time-sensitive basis
(usually within 5 business days) provided that such
information has been disclosed to the public.
