Exhibit (h)(23)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, effective as of February 14, 2011 by and between The Merger
Fund VL, an open-end management investment company organized as a statutory
trust under the laws of the State of Delaware (the "Fund"), Westchester Capital
Management, LLC, a limited liability company organized under the laws of the
State of Delaware and investment adviser to the Fund (the "Adviser"), and New
York Life Insurance and Annuity Corporation (the "Life Company"), a life
insurance company organized under the laws of the State of Delaware, on its own
behalf and on behalf of each separate account of the Life Company named in
Schedule A to this Agreement, as may be amended from time to time (the "Separate
Accounts").
WHEREAS, the Fund is registered with the Securities and Exchange Commission
(the "SEC") as a registered investment company under the Investment Company Act
of 1940, as amended (the "1940 Act") ;
WHEREAS, the Fund engages in business as an open-end management investment
company and was organized to act as the funding vehicle for separate accounts
established for certain variable life insurance contracts and variable annuity
contracts offered by life insurance companies which have entered into
participation agreements substantially similar to this Agreement (the
"Participating Insurance Companies");
WHEREAS, the Fund intends to make available shares of the Fund (the
"Shares") to the Separate Accounts;
WHEREAS, the Fund has received an order from the SEC granting participating
insurance companies as described therein and variable annuity separate accounts
and variable life insurance separate accounts relief from the provisions of
Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund
to be sold to and held by: (a) separate accounts funding variable annuity and
variable life insurance contracts issued by both affiliated and unaffiliated
life insurance companies; (b) qualified pension and retirement plans outside of
the separate account context; (c) separate accounts that are not registered as
investment companies under the 1940 Act pursuant to exemptions from registration
under Section 3(c) of the 1940 Act; (d) the Adviser; and (e) any other person
permitted to hold shares of the Fund pursuant to Treasury Regulation Section
1.817-5, including the general account of any life insurance company, or certain
related corporations, whose separate account holds, or will hold, shares of the
Fund (the "Mixed and Shared Funding Exemptive Order");
WHEREAS, the Adviser is registered with the SEC as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers Act") and
serves as the investment adviser to the Fund;
WHEREAS, the Life Company, as depositor, has established, or will
establish, one or more Separate Accounts to serve as investment vehicles for
certain variable universal life insurance policies and variable annuity
contracts that are offered by the Life Company (the "Variable Contracts");
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established pursuant to the authority of the Board of
Directors of the Life Company under the
insurance laws of the State of Delaware, to set aside and invest assets
attributable to the Variable Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Life Company intends to purchase the Shares on behalf of the
Separate Accounts to fund the Variable Contracts and the Fund is authorized to
sell the Shares to the Life Company at net asset value as calculated pursuant to
the rules of the SEC (the "NAV").
NOW, THEREFORE, in consideration of their mutual promises, the parties
hereto agree as follows:
ARTICLE I: SALE OF FUND SHARES
1.1. The Fund agrees to make the Shares continuously available to the
Separate Accounts for investment of proceeds from the Variable Contracts
allocated to such Separate Accounts at the applicable NAV per share on those
days on which the Fund calculates its NAV, such shares to be offered as provided
in the Fund's Prospectus.
1.2. The Fund agrees to sell to the Life Company the Shares that the Life
Company orders, executing such order on a daily basis at the NAV next computed
after receipt by the Fund (or its designee) of such order. For purposes of this
Section 1.2, the Life Company shall be the designee of the Fund for receipt of
such orders from the Separate Accounts and receipt by such designee shall
constitute receipt by the Fund; provided that the Fund receives notice of each
order by 8:30 a.m. (Eastern time) on the next following Business Day. "Business
Day" shall mean any day on which the New York Stock Exchange is open for trading
and on which the Fund calculates its NAV.
1.3. The Fund agrees to redeem for cash, at the Life Company's request, any
full or fractional Shares held by the Life Company, executing such requests on a
daily basis at the NAV next computed after receipt by the Fund or its designee
of the request for redemption. For purposes of this Section 1.3, the Life
Company will be the designee of the Fund for receipt of requests for redemption
from the Separate Accounts and receipt by such designee shall constitute receipt
by the Fund; provided that the Fund receives notice of such request for
redemption by 8:30 a.m. (Eastern time) on the next following Business Day.
1.4. The Fund shall furnish, on or before the ex dividend date, same-day
notice to the Life Company of the declaration of any income dividends or capital
gain distributions payable on the Shares. Such notice shall be furnished not
later than 6:30 p.m. (Eastern time) on the declaration date (by facsimile or
telephone, followed by written confirmation). The Life Company hereby elects to
receive all such dividends and distributions as are payable on the Shares at the
NAV on the ex dividend date in Shares. The Fund shall notify the Life Company in
writing of the number of the Shares so issued as payment of such dividends and
distributions. The Life Company reserves the right to revoke this election by
written notice to the Fund and receive all such dividends and distributions in
cash.
1.5. The Fund shall make the NAV per share of the Shares available to the
Life Company on a daily basis as soon as reasonably practicable after the NAV
per share is calculated and shall use its best efforts to make such NAV
available by 6:30 p.m. (Eastern time) on each Business Day. Information
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specified in this Section and Section 1.4 will be substantially in the form as
set forth in Schedule C attached hereto.
(a) In the event of any material error in the computation or reporting of
the NAV for the Fund or of any dividend or capital gain distribution
(each, a "material pricing error"), the Fund shall promptly notify the
Life Company after discovery of such error. This notification may be
verbal, but shall be confirmed promptly in writing. If a material
pricing error has caused the owners of the Variable Contracts to
receive less than the amount to which they are entitled, the units of
interest applicable to such owners of the Variable Contracts shall be
promptly adjusted, and the amount of any underpayments shall be
promptly credited, by the Fund to the Life Company so that such
amounts may be credited to the applicable accounts of the owners of
the Variable Contracts. Upon notification by the Fund of any
overpayment due to a material pricing error, the Life Company shall
promptly remit to the Fund any overpayment that has not been paid to
the owners of the Variable Contracts. The Fund acknowledges that the
Life Company does not intend to seek additional payments from any
owners of the Variable Contracts who, because of a material pricing
error, may have underpaid for units of interest credited to his/her
account. In no event shall the Life Company be liable to owners of the
Variable Contracts for any such adjustments or underpayment amounts.
The standards set forth in this Section 1.5 are based on the parties'
understanding of the views expressed by the staff of the SEC as of the
date of this Agreement. In the event the views of the SEC staff are
later modified or superseded by SEC or judicial interpretation, the
parties shall amend the foregoing provisions of this Agreement to
comport with the appropriate applicable standards, on terms mutually
satisfactory to all parties.
1.6. At the end of each Business Day, the Life Company shall use the NAV to
calculate Separate Account unit values for that Business Day. Using these unit
values, the Life Company shall process the Separate Account transactions for
each such Business Day (based on requests and premiums that it has received from
the owners of the Variable Contracts) to determine the net dollar amount of the
Shares that it shall order to be purchased or redeemed at the NAV for that
Business Day (the "Net Daily Order"). The Net Daily Order shall be transmitted
to the Fund by the Life Company by 8:30 a.m. (Eastern time) on the Business Day
next following the receipt by the Life Company of such requests and premiums
from the owners of the Variable Contracts.
1.7. If the Net Daily Order transmitted by the Life Company requests the
net purchase of Shares, the Life Company shall pay for such purchase by wiring
federal funds to the Fund, or its designated custodial account, by 3:00 p.m.
(Eastern time) on the Business Day on which such order is actually transmitted.
If the Net Daily Order transmitted by the Life Company requests a net redemption
of Shares that will result in a payment of redemption proceeds to the Life
Company, the Fund shall wire such redemption proceeds to the Life Company by
3:00 p.m. (Eastern time) on the Business Day on which such order is actually
transmitted by the Life Company.
1.8. Notwithstanding Section 1.7, the Fund reserves the right to suspend
the right of redemption or to postpone the date of payment or satisfaction upon
redemption consistent with Section 22(e) of the 1940 Act and any rules
thereunder.
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1.9. The Fund agrees that the Shares shall be sold only to Participating
Insurance Companies which have agreed to purchase such shares to fund their
Separate Accounts and/or to certain qualified pension and other retirement
plans, all in accordance with the requirements of Section 817(h)(4) of the
Internal Revenue Code of 1986 (the "Code") and Treasury Regulation 1.817-5, the
sale to which will not impair the tax treatment currently afforded the Variable
Contracts. The Shares will not be sold directly to the general public.
1.10. The Fund may refuse to sell the Shares to any person, 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 of Trustees of the Fund, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, deemed necessary
and in the best interests of the shareholders of the Fund.
1.11. For purposes of this Article I, the Life Company shall be the agent
of the Fund for receipt of purchase orders and redemptions requests, including
the Net Daily Order, from the Separate Accounts and receipt by the Life Company,
as agent for the Fund, of such orders and requests by the earlier of 4:00 p.m.
(Eastern time) or the close of regular trading on the New York Stock Exchange
(or by such other time that the Fund determines the NAV, as set forth in the
prospectus for the Fund) on a Business Day shall constitute receipt by the Fund
on that Business Day, provided that the Fund or the Fund's agent receives notice
of the Net Daily Order by 8:30 a.m. (Eastern time) on the next following
Business Day or such later time as permitted by Article I.
ARTICLE II: REPRESENTATIONS AND WARRANTIES
2.1. The Life Company represents and warrants the following to the Fund and
the Adviser:
(a) It is an insurance company duly organized and in good standing under
the laws of the State of Delaware and that it has legally and validly
established each Separate Account as a segregated asset account under
such laws.
(b) It has registered each Separate Account as a unit investment trust in
accordance with the provisions of the 1940 Act and will cause each
Separate Account to remain so registered to serve as a segregated
asset account for the Variable Contracts, unless an exemption from
registration is available.
(c) Interests in the Separate Account under the Variable Contracts will be
registered under the Securities Act of 1933, as amended ("1933 Act")
unless an exemption from registration is available prior to any
issuance or sale of the Variable Contracts and that the Variable
Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws.
(d) It will amend its registration statement under the 1933 Act for the
Variable Contracts and under the 1940 Act for the Separate Accounts
from time to time as required in order to effect the continuous
offering of the Variable Contracts or as may otherwise be required by
applicable law.
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(e) The Variable Contracts are currently, and at the time of issuance will
be, treated as life insurance contracts or annuity contracts (as
applicable) under applicable provisions of the Code, and that the Life
Company will make every reasonable effort to maintain such treatment;
and that the Life Company will notify the Fund and the Adviser
promptly upon having a reasonable basis for believing that the
Variable Contracts have ceased to be so treated or that they might not
be so treated in the future.
(f) It will deliver such prospectuses, statements of additional
information, proxy statements, and periodic reports of the Fund as are
required to be delivered under applicable federal or state law in
connection with the offer, sale, or acquisition of the Variable
Contracts.
(g) All orders for the purchase and sale of the Shares submitted to the
Fund as part of the Net Daily Order will have been received in good
order by the Life Company prior to the time as of which the Fund
calculates its NAV on that Business Day, as disclosed in the
prospectus for the Fund (the "trading deadline"), in accordance with
Rule 22c-1 under the 1940 Act (subject only to exceptions as permitted
under Rule 22c-1(c) under the 1940 Act, respecting initial purchase
payments on variable annuity contracts, and to the established
administrative procedures of the Life Company as described under Rule
6e-3(T)(b)(12)(iii) under the 1940 Act respecting premium processing
for variable life insurance contracts).
(h) All of its directors, officers and employees having access to the
money and/or the securities of the Fund are, and will continue to be
at all times, covered by a blanket fidelity bond or similar coverage
and that the aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company.
(i) It is currently in compliance, and will remain in compliance, with all
applicable anti-money laundering laws, regulations and requirements,
including, but not limited to, its obligations under the U.S. Bank
Secrecy Act of 1970, and the rules and regulations thereunder.
2.2. The Fund and the Adviser represent and warrant the following to the
Life Company:
(a) The Fund is lawfully organized and validly existing under the laws of
the State of Delaware and that it does, and shall continue to, comply
in all material respects with applicable provisions of the 0000 Xxx.
(b) The Adviser is lawfully organized and validly existing under the laws
of the State of Delaware and that it does, and shall continue to,
comply in all material respects with applicable provisions of the
Advisers Act.
(c) The Shares offered and sold pursuant to this Agreement will be
registered under the 1933 Act and shall be duly authorized for
issuance and sold in accordance with all applicable federal and state
laws; the Fund is and shall remain registered as an open-end
management investment company under the 1940 Act prior to and at the
time of any issuance or sale of such Shares; and that the Fund shall
amend its registration statement under the
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1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of the Shares or as may otherwise be
required by applicable law.
(d) The Fund shall use its best efforts to comply with any applicable
state insurance laws or regulations as they may apply to the
investment objectives, policies and restrictions of the Fund. If the
Fund cannot comply with such state insurance laws or regulations, it
shall promptly notify the Life Company of such in writing. Each of the
Fund and the Adviser agree that they shall furnish the information
required by state insurance laws to assist the Life Company in
obtaining the authority needed to issue the Variable Contracts in
various states.
(e) The Fund, the Adviser and each of their trustees, directors, officers,
employees, and other individuals/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 by Rule 17g-1 under the 1940 Act or related provisions as may
be promulgated from time to time. The aforesaid blanket fidelity bond
shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
(f) The Fund is currently qualified as a Regulated Investment Company
under Subchapter M of the Code, the Fund shall maintain such
qualification under Subchapter M (or any successor or similar
provisions) and the Fund shall notify the Life Company immediately
upon having a reasonable basis for believing that it has ceased to so
qualify or that it might cease to so qualify in the future.
(g) The Shares have been, and shall be, sold only to life insurance
companies and their separate accounts and to persons or plans
(collectively, "Qualified Persons") that represent and warrant to the
Fund that they qualify to purchase such shares under Section 817(h) of
the Code, and the regulations thereunder, without impairing the
ability of the Separate Accounts to consider the portfolio investments
of the Fund as constituting investments of the Separate Accounts for
the purpose of satisfying the diversification requirements of Section
817(h). The Fund and the Adviser further represent and warrant that
the Shares have neither been nor will be sold to the general public.
The Fund and the Adviser further represent and warrant that the Fund
shall not sell the Shares to any insurance company or separate account
unless an agreement with such insurance company or separate account is
in effect to govern such sales that contains language that is
substantially similar to that found in Articles I, II, V, VI, and VII
of this Agreement.
(h) The Fund has obtained the Mixed and Shared Funding Exemptive Order
that grants participating insurance companies as described therein and
variable annuity separate accounts and variable life insurance
separate accounts relief from the provisions of Sections 9(a), 13(a),
15(a) and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of
the Fund to be sold to and held by: (a) separate accounts funding
variable annuity and variable life insurance contracts issued by both
affiliated and unaffiliated life insurance companies; (b) qualified
pension and retirement plans outside of the separate account context;
(c) separate accounts that are not
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registered as investment companies under the 1940 Act pursuant to
exemptions from registration under Section 3(c) of the 1940 Act; (d)
the Adviser; and (e) any other person permitted to hold shares of the
Fund pursuant to Treasury Regulation Section 1.817-5, including the
general account of any life insurance company, or certain related
corporations, whose separate account holds, or will hold, shares of
the Fund.
(i) The Fund shall notify the Life Company of any changes or conditions to
the Mixed and Shared Funding Exemptive Order.
(j) The Adviser is registered as an investment adviser under the Advisers
Act and shall remain duly registered under all applicable federal and
state securities laws and that the Adviser shall perform its
obligations for the Fund in compliance in all material respects with
the laws of the State of Delaware and any applicable state and federal
securities laws.
(k) The Fund currently complies, and shall continue to comply, with the
diversification requirements set forth in Section 817 of the Code, and
the rules and regulations thereunder, as amended from time to time,
relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts. The Adviser and the Fund
further represent and warrant that they shall notify the Life Company
immediately upon the Fund ceasing to so comply or upon their belief
that the Fund might cease to so comply in the future and that they
shall take all steps necessary to adequately diversify the Fund to
achieve compliance with the grace period afforded by Regulation
1.817-5.
(l) The Adviser shall provide the Life Company with a certificate or
statement indicating compliance by the Fund with Section 817 of the
Code, such certificate or statement to be sent to the Life Company no
later than thirty (30) days following the end of each calendar
quarter.
(m) The Fund and the Adviser are each currently in compliance, and shall
remain in compliance, with all applicable anti-money laundering laws,
regulations and requirements, including, but not limited to, their
obligations under the U.S. Bank Secrecy Act of 1970, and the rules and
regulations thereunder.
2.3. Each of the parties represents and warrants that:
(a) The execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have been duly authorized by all
necessary corporate, partnership or trust action, as applicable, by
such parties, and when so executed and delivered, this Agreement will
be the valid and binding obligations of such parties enforceable in
accordance with its terms.
(b) It shall comply with the requirements of Rule 38a-1 of the 1940 Act.
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ARTICLE III: PROSPECTUSES, REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS; VOTING
3.1. The Fund shall provide the Life Company with as many printed copies of
the current prospectus(es), statement of additional information ("SAI"), proxy
statements, annual reports and semi-annual reports of the Fund, and any
supplements or amendments to any of the foregoing, as the Life Company may
reasonably request. If requested by the Life Company, the Fund shall provide
such documents in electronic format as the Life Company may reasonable request,
and such other assistance as is reasonably necessary in order for the Life
Company to have any of the prospectus(es) statement of additional information,
proxy statements, annual reports and semi-annual reports of the Fund, and any
supplements or amendments to any of the foregoing, printed in combination with
such documents or other fund companies' and/or such documents for the Variable
Contracts. Expenses associated with providing, printing and distributing such
documents shall be allocated in accordance with Schedule B attached to this
Agreement.
3.2. The Fund shall prepare and file with the SEC, and any state regulators
requiring such filing, all shareholder reports, notices, proxy materials (or
similar materials such as voting instructions solicitation materials),
prospectuses and statements of additional information of the Fund.
3.3. The Fund, at its own expense, shall provide the Life Company with
copies of its proxy solicitations applicable to the Shares. The Life Company
will, to the extent required by law: (a) distribute proxy material applicable to
the Shares to eligible owners of the Variable Contracts; (b) solicit voting
instructions from eligible owners of the Variable Contracts; (c) vote the Shares
in accordance with instructions received from the owners of the Variable
Contracts; and (d) if required by law, vote the Shares for which no instructions
have been received in the same proportion as the Shares for which instructions
have been received.
(i) To the extent permitted by applicable law, the Life Company reserves
the right to vote the Shares held in the Separate Accounts in its own
right, subject to the requirements of this Section.
(ii) Unregistered separate accounts subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") will refrain from
voting the Shares for which no instructions are received if such
Shares are held subject to the provisions of ERISA.
3.4. The Fund will comply with all provisions of the 1940 Act and the rules
thereunder requiring voting by shareholders.
3.5. Upon request, the Life Company agrees that it will provide to the Fund
information regarding the Shares sold and/or redeemed and whether the Separate
Accounts are registered or unregistered under the 1940 Act and any other
information pertinent to enabling the Fund to pay registration or other fees
with respect to the Shares sold during the fiscal year in accordance with Rule
24f-2 or to register and qualify the Shares under any applicable laws, rules or
regulations in a timely manner.
3.6. Except with respect to information regarding the Life Company provided
in writing by that party, the Life Company will not be responsible for the
content of the prospectus or the SAI for the Fund. Also, except with respect to
information regarding the Fund or the Adviser provided in writing by
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the Fund or the Adviser, neither the Fund nor the Adviser is responsible for the
content of the prospectus, SAI or offering document for the Variable Contracts.
ARTICLE IV: SALES MATERIALS; PRIVACY
4.1. The Life Company shall furnish, or shall cause to be furnished, to the
Fund and the Adviser, each piece of sales literature or other promotional
material in which the Fund or the Adviser is named, at least ten (10) Business
Days prior to its intended use. No such material will be used if the Fund or the
Adviser objects to its use in writing within five (5) Business Days after
receipt of such material. However, each of the Fund and the Adviser reserves the
right to object to such use at any time and the Life Company agrees to cease use
upon receipt of such objection.
4.2. The Fund and the Adviser shall furnish, or shall cause to be
furnished, to the Life Company, each piece of sales literature or other
promotional material in which the Life Company or the Separate Accounts are
named, at least ten (10) Business Days prior to its intended use. No such
material will be used if the Life Company objects to its use in writing within
five (5) Business Days after receipt of such material. However, the Life Company
reserves the right to object to such use at any time and each of the Fund and
the Adviser agrees to cease use upon receipt of such objection.
4.3. The Life Company and its affiliates and agents shall not, without the
prior written permission of the Fund, give any information or make any
representations or statements on behalf of the Fund, or concerning the Fund or
the Adviser in connection with the sale of the Variable Contracts other than the
information or representations contained in: (a) the Fund's registration
statement, prospectus(es) or SAIs, as such registration statements,
prospectus(es) or SAI may be supplemented from time to time, (b) the Fund's
annual and semi-annual reports to shareholders; (c) proxy statements for the
Shares (d) published reports for the Fund which are in the public domain or
approved by the Fund or the Adviser for distribution, or (e) sales literature or
other educational or promotional material approved by the Fund, the Adviser or
its designee(s). The Fund agrees to respond to any request for its prior written
permission on a prompt and timely basis.
4.4. The Fund and its affiliates and agents (including the Adviser) shall
not, without the prior written permission of the Life Company, give any
information or make any representations or statements on behalf of the Life
Company or concerning the Life Company, the Separate Accounts, or the Variable
Contracts, other than the information or representations contained in: (a) the
registration statement, prospecuts(es), SAIs or offering documents for the
Variable Contracts, as such registration statements, prospectus(es), SAI and
offering documents may be supplemented from time to time; (b) reports of the
Separate Accounts; or (c) sales literature or educational or other promotional
material approved by the Life Company or its designee. The Life Company agrees
to respond to any request for its prior written permission on a prompt and
timely basis.
4.5. The Fund shall provide the Life Company with at least one complete
copy of all registration statements, prospectuses, SAIs, annual and semi-annual
reports, proxy statements, solicitations for voting instructions (if
applicable), sales literature and other promotional materials, exemptive
applications, requests for no-action letters, and all amendments or supplements
to any of the above relating to the Fund and the Shares within a reasonable time
after each such document has been filed with the SEC, the Financial Industry
Regulatory Authority ("FINRA") or other regulatory authority.
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4.6. The Life Company shall provide the Fund with at least one complete
copy of all prospectuses, SAIs, annual and semi-annual reports, solicitations
for voting instructions (if applicable), sales literature and other promotional
materials, exemptive applications, requests for no-action letters and all
amendments or supplements to any of the above that relate to a Separate Account
or the Variable Contracts after each such document has been filed with the SEC,
FINRA or other regulatory authority. Notwithstanding the foregoing, only those
materials that relate to or refer to the Fund will be provided.
4.7. Each of the Fund and the Adviser hereby consents to the Life Company's
use of the name of the Fund, in connection with marketing of the Variable
Contracts, subject to the terms of Article IV of this Agreement. Each of the
Fund and the Adviser hereby consents to the use of any trademark, trade name,
service xxxx or logo used by the Fund and/or the Adviser, subject to the prior
written approval of such use by the Fund or the Adviser and in accordance with
the reasonable requirements of the Fund or the Adviser. Such consent will
terminate following the termination of this Agreement as soon as the Shares are
no longer offered through the Variable Contracts and no Separate Account owns
any of the Shares.
4.8. The Life Company hereby consents to the use by the Fund or the Adviser
of the names of the Separate Account(s) set forth in Schedule A to this
Agreement, in connection with marketing the Fund, subject to the terms of
Article IV of this Agreement. The Life Company hereby consents to the use of any
trademark, trade name, service xxxx or logo used by the Separate Account(s) by
the Fund or the Adviser subject to the prior written approval of the Life
Company of such use and in accordance with the reasonable requirements of the
Life Company. Such consent will terminate following the termination of this
Agreement as soon as the Shares are no longer offered through the Variable
Contracts and no Separate Account owns any of the Shares.
ARTICLE V: POTENTIAL CONFLICTS
5.1. The Board of Trustees of the Fund (the "Board") will monitor the Fund
for the existence of any material irreconcilable conflict between the interests
of the owners of the variable annuity and/or variable life insurance contracts
of the separate accounts of Participating Insurance Companies (including the
owners of the Variable Contracts) investing in the Fund and other potential
conflicts. A majority of the Board will consist of persons who are not
"interested" persons of the Fund. The Board's determination of the existence of
a material irreconcilable conflict and its implications shall be made known
promptly and in writing to the Life Company.
5.2. The Life Company will report any potential or existing conflicts of
which it is aware promptly to the Board. The Life Company agrees to provide the
Board with all information reasonably necessary for it to consider any issues
raised. The Life Company will carry out these responsibilities with a view only
to the interests of the owners of the Variable Contracts.
5.3. If a majority of the Board or a majority of the disinterested trustees
of the Board ("Independent Trustees") determines that a material irreconcilable
conflict affecting the Life Company exists, the Life Company, may, at its own
expense and to the extent reasonably practicable, take any steps necessary to
remedy or eliminate the irreconcilable material conflict, including, without
limitation, withdrawal of the affected Separate Account investment in the Fund.
No charge or penalty will be imposed by the
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Fund on the Life Company as a result of such withdrawal and the Life Company
will carry out these responsibilities with a view only to the interests of the
owners of the Variable Contracts.
5.4. For the purposes of this Section, a majority of the Independent
Trustees shall determine whether or not any proposed action adequately remedies
any material irreconcilable conflict, but in no event will the Fund be required
to establish a new funding medium for any Variable Contract. Further, the Life
Company shall not be required by this Section to establish a new funding medium
for any Variable Contract if any offer to do so has been declined by a vote of a
majority of the owners of the Variable Contracts affected by the irreconcilable
material conflict.
5.5. 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
on terms and conditions materially different from those contained in the Mixed
and Shared Funding Exemptive Order, the (a) the Fund and the Life Company, as
appropriate, will take such steps as may be necessary to comply with Rules 6e-2
and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) the applicable Sections of the Agreement will continue in
effect only to the extent that the terms and conditions thereof are
substantially identical to such Sections that are contained in such Rule(s) as
so amended or adopted.
5.6. If and to the extent that the SEC promulgates new rules or regulations
with respect to mixed or shared funding on terms and conditions materially
different from those contained in the Mixed and Shared Funding Exemptive Order,
then (a) the Fund shall take such steps as may be necessary to comply with such
rules and regulations, as adopted to the extent such rules are applicable; and
(b) this Article V shall be deemed to incorporate such new terms and conditions,
and any term or conditions of this Article V that is inconsistent therewith,
shall be deemed to be succeeded thereby.
5.7. No less than annually, the Life Company shall submit to the Board such
reports, materials or data as the Board may reasonably request so that the Board
may fully carry out its obligations. All reports received by the Board of
potential or existing conflicts, and all Board action with regard to determining
the existence of a conflict, and determining whether any proposed action
adequately remedies a conflict, shall be properly recorded in the minutes of the
Board or other appropriate records, and such minutes or other records shall be
made available to the SEC upon request.
ARTICLE VI: INDEMNIFICATION
6.1. Indemnification by the Life Company.
(a) The Life Company agrees to indemnify and hold harmless the Fund,
and the Adviser and each of their trustees, directors, officers,
members, managers, employees, and agents, and each person, if any,
who controls, or is associated with, the Fund or Adviser within the
meaning of such terms under federal securities laws (collectively,
the "Indemnified Parties," and individually, an "Indemnified Party"
for purposes of this Section 6.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Life Company, which consent shall not be
unreasonably withheld), or expenses (including the reasonable costs
of investigating or
-11-
defending any alleged loss, claim, damage, liability or expense
and reasonable legal counsel fees incurred in connection
therewith) (collectively, "Losses" for purposes of this Section
6.1), to which the Indemnified Parties may become subject under
any statute or regulation, or at common law or otherwise, insofar
as such Losses, are related to the sale or acquisition of the
Shares or the Variable Contracts and:
1. Arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in any
disclosure document, including any prospectus, SAI or offering
document for the Separate Accounts, Variable Contracts or in the
Variable Contracts themselves or in sales literature generated or
approved by the Life Company applicable to the Variable Contracts
or Separate Accounts (or any amendment or supplement to any of
the foregoing) (collectively, "Company Documents" for the
purposes of this Article VI), 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 was accurately derived from written
information furnished to the Life Company by or on behalf of the
Fund or the Adviser for use in Company Documents or otherwise for
use in connection with the sale of the Variable Contracts or the
Shares; or
2. Arise out of or result from statements or representations by the
Life Company (other than statements or representations contained
in and accurately derived from the registration statement,
prospectus, SAI, sales literature or other written statement of
the Fund (or any amendment or supplement to any of the foregoing)
(collectively, "Fund Documents" for purposes of this Article VI))
or wrongful conduct of the Life Company or persons under its
control with respect to the sale or acquisition of the Variable
Contracts or the Shares; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in the Fund
Documents, 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 statement or
omission was made in reliance upon and accurately derived from
written information furnished to the Fund by or on behalf of the
Life Company; or
4. Arise out of or result from a failure by the Life Company to
provide the services or furnish the materials under the terms of
this Agreement; or
5. Arise out of or result from any material breach of any
representation and /or warranty made by the Life Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Life Company.
(b) The Life Company shall not be liable under this indemnification
provision with respect to any Losses which are due to an
Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties
or by reason of
-12-
such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Fund or the Adviser,
whichever is applicable.
(c) The Life 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 notified the Life
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 Life
Company of any such claim shall not relieve the Life 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 Life Company shall be entitled
to participate at its own expense in the defense of such action.
The Life Company shall be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action. After
notice from the Life Company to such party of the Life 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 Life 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.
(d) The Indemnified Parties shall promptly notify the Life Company of
the commencement of any litigation or proceedings against them or
any of their officers, directors or trustees in connection with
the issuance or sale of the Shares or the Variable Contracts or
the operation of the Fund.
(e) The indemnification provisions contained in this Section 6.1
survive the termination of this Agreement.
6.2. Indemnification by the Adviser and the Fund.
(a) The Adviser and the Fund agree to indemnify and hold harmless the
Life Company and each of its directors, officers, employees, and
agents and each person, if any, who controls, or is associated
with, the Life Company within the meaning of such terms under
federal securities laws (collectively, the "Indemnified Parties"
and individually, an "Indemnified Party" for purposes of this
Section 6.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Adviser and/or the Fund, which consent
shall not be unreasonably withheld), or expenses (including the
reasonable costs of investigating or defending any alleged loss,
claim, damage, liability or expense and reasonable legal counsel
fees incurred in connection therewith) (collectively, "Losses"
for purposes of this Section 6.2), to which the Indemnified
Parties may become subject under any statute or regulation, or at
common law or otherwise, insofar as such Losses are related to
the sale or acquisition of the Shares or the Variable Contracts
and:
-13-
1. Arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in any Fund
Document, 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 was accurately derived from written information furnished to
the Adviser or the Fund by or on behalf of the Life Company for
use in Fund Documents, or otherwise for use in connection with
the sale of the Variable Contracts or the Shares; or
2. Arise out of or result from statements or representations made by
or on behalf of the Adviser or the Fund (other than statements or
representations contained in and accurately derived from Company
Documents) or wrongful conduct of the Fund or the Adviser or
persons under their respective control, with respect to the sale
or distribution of the Variable Contracts or the Shares; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Company
Documents, 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 statement or
omission was made in reliance upon and accurately derived from
written information furnished to the Life Company by or on behalf
of the Adviser or the Fund; or
4. Arise out of or result from a failure by the Adviser or the Fund
to provide the services or furnish the materials under the terms
of this Agreement; or
5. Arise out of or result from any material breach of any
representation and /or warranty made by the Adviser or the Fund
in this Agreement or arise out of or result from any other
material breach of this Agreement by the Adviser or the Fund.
(b) The Adviser or the Fund shall not be liable under this
indemnification provision with respect to any Losses which are
due to an 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 obligations and duties under this Agreement, or to
the Life Company or the Separate Accounts, whichever is
applicable.
(c) The Adviser or the Fund 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 Adviser or the Fund, as appropriate, 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 Adviser or the
Fund, as appropriate, of any such claim shall not relieve each of
the Adviser and the Fund 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 Parties,
the Adviser
-14-
or the Fund, as appropriate, shall be entitled to participate at
its own expense in the defense of such action. The Adviser or the
Fund, as appropriate, shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the
action. After notice from the Adviser or the Fund, as
appropriate, to such party of the Adviser's or the Fund'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 Adviser or the Fund 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.
(d) The Indemnified Parties shall promptly notify the Adviser or the
Fund, as appropriate, of the commencement of any litigation or
proceedings against them or any of their officers, directors or
trustees in connection with the issuance or sale of the Shares or
the Variable Contracts or the operation of the Separate Accounts.
(e) The indemnification provisions contained in this Section 6.2
survive the termination of this Agreement.
6.3. Indemnification Procedures.
(a) With respect to any claim, the parties each shall give the others
reasonable access during normal business hours to its books,
records and employees and those books, records, and employees
within its control pertaining to such claim, and shall otherwise
cooperate with one another in the defense of any claim.
Regardless of which party defends a particular claim, the
defending party shall give the other parties written notice of
any significant development in the case as soon as practicable.
(b) If a party is defending a claim (each, a "Defending Party") and
indemnifying another party hereto, and: (i) a settlement proposal
is made by the claimant, or (ii) the Defending Party desires to
present a settlement proposal to the claimant, then the Defending
Party shall promptly provide written notice to the Indemnified
Party of such settlement proposal together with its counsel's
recommendation. If the Defending Party desires to enter into the
settlement and the Indemnified Party fails to consent to such
settlement within thirty (30) business days after receipt of such
notice (unless such period is extended, in writing, by mutual
agreement of such parties), then the Indemnified Party,
commencing on the earlier of the date the Indemnified Party
declined to accept the settlement or the expiration of the thirty
(30) day period, shall defend the claim and shall indemnify the
Defending Party for all costs associated with the claim that are
in excess of the proposed settlement amount.
Regardless of which party is defending the claim: (i) if a
settlement requires an admission of liability by the
non-defending party or (ii) would require the non-defending party
to either take action (other than purely ministerial action) or
refrain from taking action (due to an injunction or otherwise) (a
"Specific Performance Settlement"), the Defending Party may agree
to such settlement only after obtaining the express, written
consent of the non-defending party. If a non-defending party
fails to consent to a Specific Performance
-15-
Settlement, the consequences described in the last sentence of
the first paragraph of Section 6.3(b) shall not apply.
(c) The parties shall use good faith efforts to resolve any dispute
concerning this indemnification obligation. Should those efforts
fail to resolve the dispute, the ultimate resolution shall be
determined in a de novo proceeding, separate and apart from the
underlying matter complained of, before a court of competent
jurisdiction. Either party may initiate such proceeding with a
court of competent jurisdiction at any time following the
termination of the efforts by such parties to resolve the dispute
(termination of such efforts shall be deemed to have occurred
thirty (30) days from the commencement of the same unless such
time period is extended by the written agreement of the parties).
The prevailing party in such proceeding shall be entitled to
recover reasonable attorneys' fees, costs, and expenses.
(d) A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this
Article VI.
6.4. Indemnification for Failure to Comply with Diversification
Requirements.
The Fund and the Adviser acknowledge that any failure (whether intentional
or in good faith or otherwise) to comply with the diversification requirements
specified in Article II, Section 2.2.(k) may result in the Variable Contracts
not being treated as variable contracts for federal income tax purposes, which
would have adverse tax consequences for the owners of the Variable Contracts and
could also adversely affect the Life Company's corporate tax liability.
Accordingly, without in any way limiting the effect of Section 6.2(a) hereof and
without in any way limiting or restricting any other remedies available to the
Life Company, the Fund and the Adviser will pay all costs associated with or
arising out of any failure, or any anticipated or reasonably foreseeable
failure, of the Fund to comply with Section 2.2(k) of this Agreement, including
all costs associated with correcting or responding to any such failure; such
costs may include, but are not limited to, the costs involved in creating,
organizing, and registering a new investment company as a funding medium for the
Variable Contracts and/or the costs of obtaining whatever regulatory
authorizations are required to substitute shares of another investment company
for those of the failed Fund (including but not limited to an order pursuant to
Section 26(b) of the 1940 Act); the reasonable fees and expenses of legal
counsel and other advisors to the Life Company and any federal income taxes or
tax penalties (or "toll charges" or exactments or amounts paid in settlement)
incurred by the Life Company in connection with any such failure or any
anticipated or reasonably foreseeable failure. Such indemnification and
reimbursement obligation shall be in addition to any other indemnification and
reimbursement obligations of the Fund and/or the Adviser under this Agreement.
ARTICLE VII: FEES, COSTS AND EXPENSES
7.1. The Fund will pay no fee or other compensation to the Life Company
under this Agreement, except the Fund may pay fees to the Life Company for
administrative services provided to the owners of the Variable Contracts that
are not primarily intended to result in the sale of the Shares or of the
Variable Contracts if and in such amounts agreed to by the Fund in writing. The
Fund currently does not intend to make any payments to finance distribution
expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise.
-16-
7.2. Except as otherwise provided in Schedule B, all expenses incident to
performance by the parties of this Agreement will be paid by each party to the
extent permitted by law.
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
without regard to conflicts of laws principles thereof.
8.2. This Agreement, its terms and definitions, shall be subject to the
provisions of the federal securities laws, including, without limitation, the
1933 Act, the Securities Exchange Act of 1934, as amended, the Advisers Act, and
the 1940 Act, and the rules and regulations thereunder and to any orders of the
SEC granting exemptive relief therefrom and the conditions of such orders.
ARTICLE IX: TERM; TERMINATION
9.1. This agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions herein.
9.2. This Agreement shall terminate in accordance with the following
provisions:
(a) Upon written agreement signed by all of the parties to this Agreement;
(b) At the option of the Life Company or the Fund at any time from the
date hereof upon six (6) months' advance written notice delivered to
the other parties, unless a shorter time is mutually agreed to by the
parties;
(c) At the option of the Life Company, upon prompt written notice to the
Fund and the Adviser, in the event the Shares are not registered,
issued, or sold in accordance with applicable state and/or federal
law, or such law precludes the use of the Shares as the underlying
investment medium of the Variable Contracts issued or to be issued by
the Life Company. Termination shall be effective immediately upon such
written notice to the Fund;
(d) At the option of the Life Company, upon prompt written notice to the
Fund, in the event that the Fund ceases to qualify as a "regulated
investment company" under Subchapter M of the Code, or under any
successor or similar provision, or if the Life Company reasonably
believes that the Fund may fail to so qualify. Termination shall be
effective immediately upon such written notice to the Fund;
(e) At the option of the Life Company, upon prompt written notice to the
Fund, in the event that the Fund fails to meet the diversification
requirements specified in Section 2.2(k) hereof or if the Life Company
reasonably believes that the Fund may fail to meet such
diversification requirements. Termination shall be effective
immediately upon such written notice to the Fund;
(f) At the option of the Life Company, upon prompt written notice to the
Fund, in the event that the Shares are not reasonably available to
meet the requirements of the Variable
-17-
Contracts. The termination will be effective ten (10) business days
after receipt of notice by the Fund unless the Fund makes available a
sufficient number of the Shares to meet the requirements of the
Variable Contracts within the ten-day period;
(g) At the option of the Life Company, upon prompt written notice to the
other parties, upon the institution of formal proceedings against the
Fund or the Adviser by the SEC, FINRA, any state securities or
insurance department or any other regulatory body, the expected or
anticipated ruling, judgment, or outcome of which the Life Company
determines in its sole judgment, exercised in good faith, would have a
material adverse effect on the Fund's or the Adviser's ability to meet
and perform their respective obligations and duties under this
Agreement. Termination shall be effective immediately upon receipt of
notice;
(h) At the option of the Life Company, upon the Fund's breach of any
material provision of this Agreement, which breach has not been cured
to the satisfaction of the Life Company within ten (10) days after
written notice of such breach is delivered to the Fund;
(i) At the option of the Fund, upon the Life Company's breach of any
material provision of this Agreement, which breach has not been cured
to the satisfaction of the Fund within ten (10) days after written
notice of such breach is delivered to the Life Company;
(j) At the option of the Fund, upon prompt written notice to the Life
Company, if the Variable Contracts are not registered, issued, or sold
in accordance with applicable federal and/or state law. Termination
shall be effective immediately upon such written notice to the Life
Company;
(k) At the option of the Fund, upon prompt written notice to the Life
Company, upon a decision by the Board to: (i) suspend or terminate the
offering of the Shares; or (ii) dissolve, reorganize, liquidate, merge
or sell all assets of the Fund;
(l) At the option of the Life Company or the Fund, upon receipt of any
necessary regulatory approvals and/or the vote of the owners of the
Variable Contracts having an interest in the Separate Accounts (or any
Investment Division (i.e., sub-account of that Separate Account) to
substitute the shares of another investment company for the
corresponding Shares in accordance with the terms of the Variable
Contract for which those Shares had been selected to serve as the
underlying portfolio. The Life Company will give sixty (60) days prior
written notice to the Fund of the date of any proposed vote or other
action taken to replace the Shares or of the filing of any required
regulatory approval(s); or
(m) In the event this Agreement is assigned without the prior written
consent of the Life Company, the Fund, and the Adviser, termination
shall be effective immediately upon such occurrence without notice.
9.3. Notwithstanding any termination of this Agreement, except a
termination under Section 9.2(j) or 9.2(k), the Fund and the Adviser shall, at
the option of the Life Company, continue to make available additional shares of
the Fund, as provided below, for so long as the Life Company desires pursuant to
the terms and conditions of this Agreement, for all Variable Contracts in effect
on the effective
-18-
date of termination of this Agreement (the "Existing Contracts"), unless such
further sale of the Shares is proscribed by law, regulation or an applicable
regulatory body. Specifically, without limitation, if the Life Company so elects
to make the Shares available, the owners of the Existing Contracts or the Life
Company, whichever shall have legal authority to do so, shall be permitted to
direct allocation and reallocation of investments in the Shares, redeem
investments in the Shares and /or invest in the Shares upon the payment of
additional premiums under the Existing Contracts. In the event of a termination
of this Agreement, the Life Company, as promptly as is practicable under the
circumstances, shall notify the Fund and the Adviser whether the Life Company
elects to continue to make shares of the Fund available after such termination.
If shares of the Fund continue to be made available after such termination, the
provisions of this Agreement shall remain in effect.
9.4. The parties to this Agreement agree to cooperate and give reasonable
assistance to one another in taking all necessary and appropriate steps for the
purpose of ensuring that the Separate Accounts own none of the Shares after the
effective date of the termination of this Agreement with respect to such shares,
or, if such ownership following termination cannot be avoided, that the duration
thereof is as brief as reasonably practicable.
Article X: NOTICES
Any notice hereunder shall be given by registered or certified mail return
receipt requested or by reputable overnight air courier 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 parties.
If to the Fund: The Merger Fund VL
000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
If to the Adviser: Westchester Capital Management, LLC
000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
If to the Life Company: New York Life Insurance and Annuity Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx
With a copy to:
New York Life Insurance Company
Office of the General Counsel
51 Madison Avenue, Room 10SB
Xxx Xxxx, XX 00000
Attention: Variable Products Attorney
-19-
Notice shall be deemed given, if sent by registered or certified mail
return receipt requested, on the date of receipt by the addressee as evidenced
by the return receipt and, if sent by overnight courier, two business days after
mailing.
ARTICLE XI: MISCELLANEOUS
11.1. Each party to this Agreement acknowledges that, by reason of its
performance under this Agreement, it shall have access to, and shall receive
from the other party(ies) (and its affiliates, partners and employees), the
confidential information of the other party(ies) (and its affiliates, partners,
and employees), including but not limited to the "nonpublic personal
information" of their consumers within the meaning of SEC Regulation S-P
(collectively, "Confidential Information"). Each party shall hold all such
Confidential Information in the strictest confidence and shall use such
Confidential Information solely in connection with its performance under this
Agreement and for the business purposes set forth in this Agreement. Under no
circumstances may a party cause any Confidential Information of the other party
to be disclosed to any third party or reused or redistributed without the other
party's prior written consent. Each party shall be solely responsible for the
compliance of its officers, directors, employees, agents, independent
contractors, and any affiliated and non-affiliated third parties with all
applicable privacy-related laws and regulations including, but not limited to,
the Xxxxx-Xxxxx-Xxxxxx Act and Regulation S-P. The provisions of this Section
shall survive the termination of this Agreement.
11.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.3. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby.
11.4. Each party to this Agreement shall cooperate with each other party
and all appropriate governmental authorities (including without limitation the
SEC, FINRA, and state insurance regulators) and shall permit such authorities
reasonable access to its relevant books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
11.5. The rights, remedies, and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies, and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
11.6. No provision of this Agreement, including the Schedules hereto, may
be amended or modified in any manner except by a written agreement properly
authorized and executed by the Fund, the Adviser, and the Life Company.
11.7. 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.
11.8. This waiver of, or failure to exercise, any right provided for in
this Agreement shall not be deemed a waiver of any further or future right under
this Agreement.
11.9. Each party to this Agreement shall notify the other parties in
writing of reasonable concerns or issues it may have from time to time
concerning market-timing, excessive trading, or other
-20-
potentially detrimental trading activities that affect or may affect a Separate
Account or the Fund, and shall consult with each other party and work
cooperatively to reach a mutually satisfactory solution or action plan to
address such party's concerns or issues, it being understood and agreed to by
the parties (i) that there is no universally accepted understanding of what may
constitute market timing, excessive trading, or other detrimental trading
activity, (ii) that the state of the law regarding such trading activities is
currently uncertain, and (iii) that Congress, the SEC and other regulatory
bodies may adopt new laws or regulations that may require the parties to revise
the terms and conditions of this Agreement.
11.10. 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.
11.11. This Agreement constitutes the entire contract between the parties
relating to the subject matter hereof and supersedes any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof.
-21-
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Fund Participation Agreement as of the date and year first above
written.
THE MERGER FUND VL WESTCHESTER CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------- --------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Compliance Officer Title: Chief Compliance Officer
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: /s/Xxxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE A
SEPARATE ACCOUNTS
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED
New York Life Insurance and Annuity Corporation Variable Universal Life Separate
Account -- I , June 4, 1993
A-1
SCHEDULE B
ALLOCATION OF EXPENSES
PAID BY THE LIFE COMPANY PAID BY THE FUND
-------------------------------------------------------- -------------------------------------------------------------
Preparing and filing the Separate Account prospectus Preparing and filing the Fund's registration statement
Text composition for Separate Account prospectus and Text composition for Fund prospectus and supplements
supplements
Text alterations of Separate Account prospectus and Text alterations of Fund prospectus and supplements
supplements
Printing Separate Account prospectus and supplements for Printing Fund prospectus and supplements for use with
use with existing owners of the Variable Contracts; existing owners of the Variable Contracts; providing
Printing Separate Account prospectus and supplements for electronic document files of such documents and
use with prospective owners of the Variable Contracts printing such documents for use with existing owners of
the Variable Contracts.(1)
Text composition and printing of Fund statement of
additional information(1)
Mailing and distributing Separate Account prospectus and Mailing and distributing Fund prospectuses, supplements
supplements to existing owners of the Variable Contracts and statement of additional information to existing
as required by applicable law; Mailing and distributing owners of the Variable Contracts(1); Printing, mailing
Separate Account prospectus and supplements to prospective and distributing Fund and Separate Account supplements
owners of the Variable Contracts and other communications related to fund substitutions,
fund closings, fund mergers and other similar fund
transactions
Text composition of any annual and semi-annual reports of Text composition of any annual and semi-annual reports
the Separate Account; printing, mailing and distributing of the Fund; printing, mailing and distributing annual
any annual and semi-annual reports of the Separate Account and semi-annual reports of the Fund to existing owners
of the Variable Contracts
Text composition, printing, mailing distributing, and
tabulation of proxy statements and voting instruction
solicitation materials to owners of the Variable Contracts
with respect to proxies sponsored by the Fund
----------
(1) The Life Company may choose to print the Fund's prospectus(es), statement
of additional information and its semi-annual and annual reports, or any of
such documents, in combination with such documents of other fund companies.
In this case, the Fund's share of the total expense for printing and
delivery of the combined materials shall be determined pro-rata based upon
the page count of the Fund's documents as compared to the total page count
for the combined materials containing all other funds offered under the
Variable Contracts.
B-1
SCHEDULE C
FORMAT FOR NAV AND DIVIDEND INFORMATION
Please provide the following information when sending the nightly NAV and
Dividend Distribution Date Fax/Email:
Mutual Fund Company Name
Pricing Company Name
Fund Name (No abbreviations)
Fund Number
Ticker and/or Cusip Number
NAV
NAV Change from Prior Day
Prior Day NAV
Ordinary Dividend Distribution
Ordinary Dividend Distribution Change from Prior Day
Small Cap Gain Distribution
Small Cap Gain Distribution Change from Prior Day
Large Cap Gain Distribution
Large Cap Gain Distribution Change from Prior Day
Pricing Contract Name and Phone Number
Distribution Data Contact Name and Phone Number
Emergency after hours Name & Phone Number
C-1
