Exhibit (8)(b)(b)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is executed as of March 25, 2011, and effective as of May 1
2011, by and among BLACKROCK VARIABLE SERIES FUNDS, INC. an open-end management
investment company organized as a Maryland corporation (the "Fund"), BLACKROCK
INVESTMENTS, LLC ("BRIL"), a broker-dealer registered as such under the
Securities Exchange Act of 1934, as amended (the "Underwriter"), and NEW YORK
LIFE INSURANCE AND ANNUITY CORPORATION, a life insurance company organized under
the laws of the state of Delaware ("Company"), on its own behalf and on behalf
of each separate account of the Company set forth on Schedule A, as may be
amended from time to time (the "Accounts").
W I T N E S S E T H:
WHEREAS, the Fund has filed a registration statement with the Securities
and Exchange Commission ("SEC") to register itself as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), and to register the offer and sale of its shares under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Fund desires to act as an investment vehicle for separate
accounts established for variable universal life insurance policies and variable
annuity contracts to be offered by insurance companies that have entered into
participation agreements with the Fund (the "Participating Insurance
Companies"); and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), is a
member in good standing of the Financial Industry Regulatory Authority ("FINRA")
and acts as principal underwriter of the shares of the Fund; and
WHEREAS, the capital stock of the Fund is divided into several series of
shares, each series representing an interest in a particular managed portfolio
of securities and other assets; and
WHEREAS, the several series of shares of the Fund offered by the Fund to
the Company and the Accounts are set forth on Schedule B attached hereto (each,
a "Portfolio," and, collectively, the "Portfolios"); and
WHEREAS, the Fund has received an order from the SEC granting Participating
Insurance Companies and their separate accounts exemptions 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 variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance companies
(the "Shared Fund Exemptive Order"); and
WHEREAS, BlackRock Advisors, LLC ("BAL") is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as amended, and is
the Funds' investment adviser; and
WHEREAS, the Company has registered or will register under the 1933 Act
certain variable universal life insurance policies and/or variable annuity
contracts funded or to be funded through one or more of the Accounts (the
"Contracts"); and
WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act; and
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WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in one or more of the
Portfolios (the "Shares") on behalf of the Accounts to fund the Contracts, and
the Fund intends to sell such Shares to the relevant Accounts at such Shares'
net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE 1
SALE OF THE FUND SHARES
1.1 Subject to Section 1.3, the Fund shall make shares of the Portfolios
available to the Accounts at the most recent net asset value provided to the
Company prior to receipt of such purchase order by the Fund (or the Fund's
transfer agent), in accordance with the operational procedures mutually agreed
to by the Fund and the Company from time to time. Shares of a particular
Portfolio of the Fund shall be ordered in such quantities and at such times as
determined by the Company to be necessary to meet the requirements of the
Contracts. The Directors of the Fund (the "Directors") may refuse to sell shares
of any Portfolio to any person (including the Company and the Accounts), or
suspend or terminate the offering of shares of any Portfolio, if such action is
required by law or by regulatory authorities having jurisdiction in their sole
discretion when acting in good faith and in light of their fiduciary duties
under federal and any applicable state laws, if they deem such actions necessary
in the best interests of the shareholders of such Portfolio.
1.12 NSCC FUND/SERV SYSTEM OR MANUAL TRANSACTIONS:
Fund/SERV Transactions. If the parties choose to use the National
Securities Clearing Corporation's Mutual Fund Settlement, Entry and Registration
Verification ("Fund/SERV") system, any corrections to a Fund's prices for the
prior trade date will be submitted through the Mutual Fund Profile with the
correct prices and applicable date. If the corrections are dated later than
trade date plus one, a facsimile should be sent in addition to the Mutual Fund
Profile submission; or
Manual Transactions. If the parties choose not to use Fund/SERV, if
there are technical problems with Fund/SERV, or if the parties are not able to
transmit or receive information through Fund/SERV, any corrections to a Fund's
prices should be communicated by facsimile or by electronic transmission, and
will include for each day on which an adjustment has occurred the incorrect Fund
price, the correct price, and, to the extent communicated to Fund shareholders,
the reason for the adjustment.
Purchases and Redemption Orders; Settlement of Transactions and Method
of Communication.
FUND/SERV TRANSACTIONS. If the parties choose to use Fund/SERV, the
following provisions shall apply:
The Company and the Fund or its designee will be bound by the rules of the
NSCC. Without limiting the generality of the following provisions of this
section, the Company and the Fund or its designee each will perform any and all
duties, functions, procedures and responsibilities assigned to it and as
otherwise established by the NSCC applicable to Fund/SERV and the Networking
Matrix Level utilized.
Any information transmitted through NSCC's Networking system by any party
to the other and pursuant to this amendment will be accurate, complete, and in
the format prescribed by the NSCC. Each party will adopt, implement and maintain
procedures reasonably designed to ensure the
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accuracy of all transmissions through Networking and to limit the access to, and
the inputting of data into, Networking to persons specifically authorized by
such party.
On each Business Day, the Company shall aggregate and calculate the net
purchase and redemption orders for each Account received by the Company prior to
the Close of Trading (normally 4:00 p.m. Eastern Time, the "Close of Trading")
on each Business Day. The Company shall communicate to the Fund or its designee
for that Business Day, by Fund/SERV, the net aggregate purchase or redemption
orders (if any) for each Account received by the Close of Trading on such
Business Day (the "Trade Date") no later than 5:00 a.m. Eastern Time on the
Business Day following the Trade Date. All orders received by the Company after
the Close of Trading on a Business Day shall not be transmitted to NSCC prior to
the following Business Day. The Fund or its designee shall treat all trades
communicated to the Fund or its designee in accordance with this provision as if
received prior to the Close of Trading on the Trade Date.
All orders are subject to acceptance by the Fund or its designee and become
effective only upon confirmation by the Fund or its designee. Upon confirmation,
the Fund or its designee will verify total purchases and redemptions and the
closing share position for each Account. In the case of delayed settlement, the
Fund or its designee shall make arrangements for the settlement of redemptions
by wire no later than the time permitted for settlement of redemption orders by
the Investment Company Act of 1940, as amended (the "1940 Act"). Such wires
should be sent to:
Bank of New York
ABA ▇▇▇▇▇▇▇▇▇
Account # 8900214112
Account Name NYLIAC
Ref: Fund
MANUAL TRANSACTIONS. If the parties choose not to use Fund/SERV, if
there are technical problems with Fund/SERV, or if the parties are not able to
transmit or receive information through Fund/SERV, the following provisions
shall apply:
Next Day Transmission of Orders. On each Business Day, the Company shall
aggregate and calculate the net purchase and redemption orders for each Account
received by the Company prior to the Close of Trading on such Business Day.
Prior to 8:30 a.m. Eastern Time (or such other time as may be agreed by the
parties from time to time) on the following Business Day, the Company shall
communicate to the Fund or its designee by facsimile or, in the Company's
discretion, by telephone or any other method agreed upon by the parties, the net
aggregate purchase or redemption orders (if any) for each Account received by
the Close of Trading on the prior Business Day (the "Trade Date"). All orders
communicated to the Fund or its designee by the 8:30 a.m. deadline (or such
other time as may be agreed by the parties from time to time) shall be treated
by the Fund or its designee as if received prior to the Close of Trading on the
Trade Date.
Purchases. The Company will use its best efforts to transmit each
purchase order to the Fund or its designee in accordance with written
instructions previously provided by the Fund or its designee to the Company. The
Company will use its best efforts to initiate by wire transfer to BDI or its
designee purchase amounts prior to 1:00 p.m. Eastern Time on the next Business
Day following the Trade Date.
Redemptions. With respect to redemption orders placed by the Company by
8:30 a.m. Eastern Time (or such other time as may be agreed by the parties from
time to time) on the first Business Day following the Trade Date, the Fund or
its designee will use its best efforts to initiate by
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wire transfer to the Company proceeds of such redemptions by 1:00 p.m. Eastern
Time on the next Business Day following the Trade Date.
Unless otherwise informed in writing, redemption wires should be sent
to:
Bank of New York
ABA ▇▇▇▇▇▇▇▇▇
Account # 8900214112
Account Name NYLIAC
Ref: Fund
1.2 Subject to Section 1.3, the Fund will redeem any full or fractional
shares of any Portfolio in cash when requested by the Company on behalf of an
Account at the most recent net asset value provided to the Company prior to
receipt by the Fund (or the Fund's transfer agent) of the request for
redemption, as established in accordance with the operational procedures
mutually agreed to by the Fund and the Company from time to time. The Fund shall
make payment for such shares in accordance with Section 1.4, but in no event
shall payment be delayed for a greater period than is permitted by the 1940 Act
(including any Rule or order of the SEC thereunder).
1.3 (a) The Company will not aggregate orders received from its Contract
holders after close of the New York Stock Exchange (generally, 4:00 p.m. Eastern
Time) ("Market Close") with orders received before Market Close, and warrants
that its internal control structure concerning the processing and transmission
of orders is suitably designed to prevent or detect on a timely basis orders
received after Market Close from being aggregated with orders received before
Market Close and to minimize errors that could result in late transmission of
orders. Orders received by Company before Market Close will receive that day's
net asset value and Orders received by Company after Market Close will receive
the next day's net asset value.
(b) The Fund shall accept purchase and redemption orders resulting from
investment in and payments under the Contracts on each Business Day, provided
that such orders are received prior to 9:00 a.m. Eastern Time and reflect
instructions received by the Company from Contract holders in good order prior
to the time the net asset value of each Portfolio is priced in accordance with
the preceding paragraph on the prior 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 net asset value pursuant to the rules of the SEC. Purchase
and redemption orders shall be provided by the Company in such written or
electronic form (including, without limitation, facsimile) as may be mutually
acceptable to the Company and the Fund. The Fund may reject purchase and
redemption orders which are not in the form prescribed in this Agreement. The
Fund and its agents or designees shall be entitled to rely upon, and shall be
fully protected from all liability in acting upon, the instructions of the
authorized individuals.
1.4 Purchase orders that are transmitted to the Fund or its designee in
accordance with Section 1.3 shall be paid for no later than the end of the
Business Day after the Fund or its designee receives notice of the order.
Payments shall be made in federal funds transmitted by wire. In the event that
the Company shall fail to pay in a timely manner for any purchase order validly
received by the Fund or its designee pursuant to Section 1.3, the Company shall
hold the Fund or its designee harmless from any losses reasonably sustained by
the Fund or its designee as the result of acting in reliance on such purchase
order. Redemption orders that are transmitted to the Fund or its designee in
accordance with Section 1.3 shall be paid for no later than the end of the
Business Day after the Fund receives notice of the order. Payments shall be made
in federal funds transmitted by wire. In the event that the Fund or its designee
shall fail to pay in a timely manner for any redemption order pursuant to
Section 1.3, the Fund or its designee shall hold the Company harmless from any
losses reasonably sustained by the Company as the result of acting in reliance
on such redemption order.
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1.5 Issuance and transfer of shares of the Portfolios will be by book entry
only. Share certificates will not be issued to the Company or the Account.
Shares ordered from the Fund will be recorded in the appropriate title for each
Account or the appropriate sub-account of each Account.
1.6 The Fund or its designee shall furnish prompt written notice to the
Company of any income, dividends or capital gain distribution payable on Shares.
The Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio's Shares in additional Shares of
that Portfolio. The Fund shall notify the Company in writing of the number of
Shares so issued as payment of such dividends and distributions.
1.7 The Fund shall make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 7:00 p.m. Eastern Time. If the
Fund provides materially incorrect share net asset value information, it shall
make an adjustment to the number of shares purchased or redeemed for any
affected Account to reflect the correct net asset value per share. Any material
error in the calculation or reporting of net asset value per share, dividend or
capital gains information shall be reported promptly in writing upon discovery
to the Company.
1.8 The Company agrees that it will not take any action to operate an
Account as a management investment company under the 1940 Act without the Fund's
and the Underwriter's prior written consent.
1.9 The Fund agrees that its Shares will be sold only to Participating
Insurance Companies and their separate accounts. No Shares of any Portfolio will
be sold directly to the general public. The Company agrees that Shares will be
used only for the purposes of funding the Contracts and Accounts listed in
Schedule A, as amended from time to time.
1.10 The Fund agrees that all Participating Insurance Companies shall have
the obligations and responsibilities regarding conflicts of interest
corresponding to those contained in Article 4 of this Agreement.
1.11 The Fund reserves the right to reject any purchase orders, including
exchanges, for any reason, including if the Fund, in its sole opinion, believes
the Company's Contract holder(s) is engaging in short-term or excessive trading
into and out of a Portfolio or otherwise engaging in trading that may be
disruptive to a Portfolio ("Market Timing"). The Company agrees to cooperate
with the Underwriter and the Fund to monitor for Market Timing by its Contract
holders, to provide such relevant information about Market Timers to the Fund as
it may reasonably request, including but not limited to such Contract holder's
identity, and to prevent Market Timing from occurring by or because of Contract
holders. Failure of the Fund to reject any purchase orders that might be deemed
to be Market Timing shall not constitute a waiver of the Fund's rights under
this section. Pursuant to Rule 22c-2 of the 1940 Act, on behalf of the Fund, the
Underwriter and the Company agree to comply with the terms included in the
attached Schedule C as of the effective date of this Agreement.
1.12 Should the board of directors of the Fund approve any changes to the
prospectus or SAI governing any of the offering terms requiring the filing of an
update pursuant to Rule 497 of the Securities Act of 1933 as amended, The Fund
shall provide notice to Company on the same terms as all of the other
intermediary companies offering the Funds for sale with the same period of time
to adapt to any changes required to the operational requirements contemplated
herein.
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ARTICLE 2
OBLIGATIONS OF THE PARTIES
2.1 The Fund shall prepare and be responsible for filing with the SEC and
any state securities regulators requiring such filing, all shareholder reports,
notices, proxy materials (or similar materials such as voting instruction
solicitation materials), prospectuses and statements of additional information
of the Fund required to be so filed. The Fund shall bear the costs of
registration and qualification of its Shares, preparation and filing of the
documents listed in this Section 2.1 and all taxes to which an issuer is subject
on the issuance and transfer of its Shares.
2.2 At least annually, the Underwriter or its designee shall provide the
Company, free of charge, with as many copies of the current prospectus
(describing only the Portfolios listed in Schedule B hereto) for the Shares as
the Company may reasonably request for distribution to existing Contract owners
whose Contracts are funded by such Shares. The Underwriter or its designee shall
provide the Company, at the Company's expense, with as many copies of the
current prospectus for the Shares as the Company may reasonably require for
distribution to prospective purchasers of Contracts. If requested by the Company
in lieu thereof, the Underwriter or its designee shall provide such
documentation (including a soft copy of the new prospectus as set in type or, at
the request of the Company, a diskette in the form sent to the financial
printer) and other assistance as is reasonably necessary in order for the
parties hereto once each year (or more frequently if the prospectus for the
Shares is supplemented or amended) to have the prospectus for the Shares conform
to the Company's Contract prospectuses or related materials; the expenses of
such printing to be borne by the Company. In the event that the Company requests
that the Underwriter or its designee provide the prospectus in a soft copy or
diskette format, the Underwriter shall be responsible solely for providing the
prospectus in the format in which it is accustomed to formatting prospectuses
and shall bear the expense of providing the prospectus in such format, and the
Company shall bear the expense of adjusting or changing the format to conform
with any of its Contract prospectuses or related materials.
2.3 The prospectus for the Shares shall state that the statement of
additional information for the Shares is available from the Fund or its
designee. The Fund or its designee, at its expense, shall print and provide such
statement of additional information to the Company (or a master of such
statement suitable for duplication by the Company) for distribution to any owner
of a Contract funded by the Shares. The Fund or its designee, at the Company's
expense, shall print and provide such statement to the Company (or a master of
such statement suitable for duplication by the Company) for distribution to a
prospective purchaser who requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of
charge copies, if and to the extent applicable to the Shares, of the Fund's
proxy materials, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably request for
distribution to Contract owners.
2.5 The Company shall furnish, or cause to be furnished, to the Fund or its
designee, a copy of language that would be used in any prospectus for the
Contracts or statement of additional information for the Contracts in which the
Fund, the Underwriter or BAL ("Fund Parties") is named prior to the filing of
such document with the SEC. Upon request, the Company shall furnish, or shall
cause to be furnished, to the Fund or its designee, each piece of sales
literature or other promotional material in which the Fund, the Underwriter or
BAL is named, at least ten Business Days prior to its use. No such prospectus,
statement of additional information or material shall be used if any of the Fund
Parties reasonably objects to such use.
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2.6 At the reasonable request of the Fund or its designee, the Company
shall furnish, or shall cause to be furnished, as soon as practical, to the Fund
or its designee copies of the following reports:
(a) the Company's annual financial report (prepared under generally
accepted accounting principles ("GAAP", if any);
(b) the Company's quarterly statements, if any; and any financial
statement, proxy statement, notice or report of the Company sent to
policyholders; and
2.7 The Company shall not give any information or make any representations
or statements on behalf of the Fund or Underwriter or concerning the Fund, the
Underwriter or BAL in connection with the Contracts other than information or
representations contained in and accurately derived from the registration
statement or prospectus for the Shares (as such registration statement and
prospectus may be amended or supplemented from time to time), reports of the
Fund, Fund-sponsored proxy statements, or in sales literature or other
promotional material approved by the Fund or Underwriter, except with the
written permission of the Fund or Underwriter.
2.8 Neither the Fund nor the Underwriter shall give any information or make
any representations or statements on behalf of, or concerning the Company or any
of its affiliates, the Accounts or the Contracts (and any documents related
thereto) other than information or representations contained in and accurately
derived from the registration statements or Contract prospectuses (as such
registration statements or Contract prospectuses may by amended or supplemented
from time to time), except with the written permission of the Company.
2.9 The Company shall register and qualify the Contracts for sale to the
extent required by applicable law. The Company shall amend the registration
statement of the Contracts under the 1933 Act and registration statement for
each Account under the 1940 Act from time to time as required in order to effect
the continuous offering of the Contracts or as may otherwise be required by
applicable law. The Company shall register and qualify the Contracts for sale to
the extent required by applicable securities laws and insurance laws of the
various states.
2.10 Solely with respect to Contracts and Accounts that are subject to the
1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to
require pass-through voting privileges for variable Contract holders: (a) the
Company will provide pass-through voting privileges to owners of Contracts whose
cash values are invested, through the Accounts, in Shares of the Fund; and (b)
with respect to each Account, the Company will vote Shares of the Fund held by
the Account and for which no timely voting instructions from Contract or
Contract holders are received, as well as Shares held by the Account that are
owned by the Company for their general accounts, in the same proportion as the
Company votes Shares held by the Account for which timely voting instructions
are received from Contract owners.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 The Company represents and warrants that it is an insurance company
duly organized and in good standing under the laws of the State of Delaware,
with full power, authority and legal right to execute, deliver and perform its
duties and comply with its obligations under this Agreement and has established
each Account as a separate account under such law and the Accounts comply in all
material respects with all applicable federal and state laws and regulations.
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3.2 The Company represents and warrants that it has registered or, prior to
any issuance or sale of the Contracts, will register each Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a
separate account for the Contracts. The Company further represents and warrants
that the Contracts will be registered under the 1933 Act prior to any issuance
or sale of the Contracts; the Contracts will be issued in compliance in all
material respects with all applicable federal and state laws.
3.3 The Company represents and warrants that the Contracts are currently
and at the time of issuance will be treated as annuity contracts or life
insurance policies, whichever is appropriate, under applicable provisions of the
Internal Revenue Code of 1986, as amended ("Code"). The Company shall make
reasonable efforts to maintain such treatment and shall notify the Fund and the
Underwriter immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not be so treated in
the future.
3.4 The Fund represents and warrants that it is duly organized and validly
existing under the laws of the State of Maryland.
3.5 The Fund represents and warrants that the Fund Shares offered and sold
pursuant to this Agreement will be registered under the 1933 Act and the Fund is
registered under the ▇▇▇▇ ▇▇▇. The Fund shall amend its registration statement
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its shares. If the Fund determines that notice
filings are appropriate, the Fund shall use its best efforts to make such notice
filings in accordance with the laws of such jurisdictions reasonably requested
by the Company.
3.6 The Fund has adopted a Distribution Plan (the "Plan") with regard to
the Class II and Class III shares of each Portfolio, pursuant to Rule 12b-1
under the Investment Company Act. The Plan permits the Underwriter to pay to
each Insurance Company that enters into an agreement with the Underwriter to
provide distribution related services to Contract owners, a fee, at the end of
each month, of up to 0.15% of the net asset value of the Class II shares and up
to 0.25% of the net asset value of Class III shares of each Portfolio held by
such Insurance Company.
3.7 The Fund represents that it will comply and maintain each Portfolio's
compliance with the diversification requirements set forth in Section 817(h) of
the Code and Section 1.817-5 of the regulations under the Code. The Fund will
notify the Company immediately upon having a reasonable basis for believing that
a Portfolio has ceased to so comply or that a Portfolio might not so comply in
the future. In the event of a breach of this Section 3.6 by the Fund, it will
take all reasonable steps to diversify the Portfolio so as to achieve compliance
within the grace period afforded by Section 1.817-5 of the regulations under the
Code.
3.8 The Fund represents and warrants that each Portfolio is currently
qualified as a regulated investment company ("RIC") under Subchapter M of the
Code, and represents that it will use its best efforts to qualify and to
maintain qualification of each Portfolio as a RIC. The Fund will notify the
Company immediately in writing upon having a reasonable basis for believing that
a Portfolio has ceased to so qualify or that it might not so qualify in the
future.
3.9 The Company hereby certifies that it has established and maintains an
anti-money laundering ("AML") program that includes written policies, procedures
and internal controls reasonably designed to identify its Contract holders and
has undertaken appropriate due diligence efforts to "know its customers" in
accordance with all applicable anti-money laundering regulations in its
jurisdiction including, but not limited to, the USA PATRIOT Act of ▇▇▇▇ (▇▇▇
"▇▇▇▇▇▇▇ ▇▇▇"). The Company further confirms that it will monitor for suspicious
activity in accordance with the requirements of the Patriot Act and any other
applicable regulations. The Company agrees to provide the Fund with such
information as it may reasonably request, including but not limited to,
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the filling out of questionnaires, attestations and other documents, to enable
the Fund to fulfill its obligations under the Patriot Act. Company and
Underwriter agree to comply with all requirements under the Patriot Act
regulations concerning the use, disclosure, and security of any information that
is shared.
3.10 The Company represents and warrants that each Account is a "segregated
asset account" and that interests in each Account are offered exclusively
through the purchase of or transfer into a "variable contract," within the
meaning of such terms under Section 817 of the Code and the regulations
thereunder. The Company will use its best efforts to continue to meet such
definitional requirements, and it will notify the Fund immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
ARTICLE 4
POTENTIAL CONFLICTS
4.1 The parties acknowledge that the Fund's Shares may be made available
for investment to other Participating Insurance Companies. In such event, the
Directors of the Fund will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. An irreconcilable material conflict may arise
for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Portfolio are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable universal life insurance contract
owners; or (f) a decision by an insurer to disregard the voting instructions of
contract owners. The Directors shall promptly inform the Company in writing if
they determine that an irreconcilable material conflict exists and the
implications thereof.
4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Directors. The Company will assist the
Directors in carrying out their responsibilities under the Shared Fund Exemptive
Order by providing the Directors with all information reasonably necessary for
them to consider any issues raised including, but not limited to, information as
to a decision by the Company to disregard Contract owner voting instructions.
4.3 If it is determined by a majority of the Directors, or a majority of
the Fund's Directors who are not affiliated with the Adviser or the Underwriter
(the "Disinterested Directors"), that a material irreconcilable conflict exists
that affects the interests of Contract owners, the Company shall, in cooperation
with other Participating Insurance Companies whose contract owners are also
affected, at its expense and to the extent reasonably practicable (as determined
by the Directors) take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, which steps could include: (a) withdrawing the
assets allocable to some or all of the Accounts from the Fund or any Portfolio
and reinvesting such assets in a different investment medium, including (but not
limited to) another Portfolio of the Fund, or submitting the question of whether
or not such segregation should be implemented to a vote of all affected
Contracts owners and, as appropriate, segregating the assets of any appropriate
group (i.e., annuity contract owners, life insurance contract owners, or
variable contract owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected Contract owners
the option of making such a change; and (b) establishing a new registered
management investment company or managed separate account.
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4.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such
Account; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the Disinterested Directors. Any such withdrawal
and termination must take place within six months after the Fund gives written
notice that this provision is being implemented, subject to applicable law but
in any event consistent with the terms of the Shared Fund Exemptive Order.
Subject to applicable law, until the end of such six month period, the Fund
shall continue to accept and implement orders by the Company for the purchase
and redemption of Shares.
4.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account within six months after the Fund informs the Company in writing
that it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the Disinterested Directors. Subject to
applicable law, until the end of such six month period, the Fund shall continue
to accept and implement orders by the Company for the purchase and redemption of
shares of the Fund.
4.6 For purposes of section 4.3 through 4.6 of this Agreement, a majority
of the Disinterested Directors shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Company be required to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Directors determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Fund and terminate this Agreement within 30 days
after the Directors inform the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as
determined by a majority of the Disinterested Directors.
4.7 Upon request, the Company shall submit to the Directors such reports,
materials or data as the Directors may reasonably request so that the Directors
may fully carry out the duties imposed upon them by the Shared Fund Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Directors.
4.8 If and to the extent that (a) Rule 6e-2 and Rule 6e-3 (T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the application for the Shared Fund Exemptive Order) on
terms and conditions materially different from those contained in the
application for the Shared Fund Exemptive Order, or (b) the Shared Fund
Exemptive Order is granted on terms and conditions that differ from those set
forth in this Article 4, then the Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary (a) 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, or (b) to conform this Article 4 to the
terms and conditions contained in the Shared Fund Exemptive Order, as the case
may be.
10
ARTICLE 5
INDEMNIFICATION
5.1 The Company agrees to indemnify and hold harmless the Fund Parties and
each of their respective Directors, officers, employees and agents and each
person, if any, who controls a Fund Party within the meaning of Section 15 of
the 1933 Act (collectively the "Indemnified Parties" for purposes of this
Article 5) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or expenses
(including the reasonable costs of investigating or defending any loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Indemnified Parties
may become subject under any statute or regulation, or common law or otherwise,
insofar as such Losses:
(a) arise out of or are based upon any untrue statements of any
material fact contained in the prospectuses for the Contracts or in the
Contracts themselves or in sales literature generated or approved by the
Company on behalf of the Contracts or Accounts (or any amendment or
supplement to any of the foregoing) (collectively, "Company Documents" for
the purposes of this Article 5), or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
indemnity shall not apply as to any Indemnified Party if such statement or
omission was made in reliance upon and was accurately derived from written
information furnished to the Company by or on behalf of the Fund or
Underwriter for use in Company Documents or otherwise for use in connection
with the sale of the Contracts or Shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Fund Documents as defined in Section 5.2(a)) or wrongful conduct of the
Company or persons under its control, with respect to the sale or
acquisition of the Contracts or Shares; or
(c) arise out of or result from any untrue statement of a material
fact contained in Fund Documents as defined in Section 5.2(a) or the
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 or Underwriter by or on behalf of the
Company; or
(d) arise out of or result from any failure by the Company to provide
the services or furnish the materials required under the terms of this
Agreement; or
(e) 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.
5.2 The Underwriter and each Fund agree severally to indemnify and hold
harmless the Company and each of its directors, officers, employees and 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
Article 5) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Fund Parties) or
expenses (including the reasonable costs of investigating or defending any loss,
claim, damage liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively,
11
"Losses"), to which the Indemnified Parties may become subject under any statute
or regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements of any
material fact contained in the registration statement or prospectus for the
Fund (or any amendment or supplement thereto) (collectively, "Fund
Documents" for the purposes of this Article 5), or arise out of or are
based upon the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that this indemnity shall not apply as to any Indemnified Party if
such statement or omission was made in reliance upon and was accurately
derived from written information furnished to the Fund Parties by or on
behalf of the Company for use in Fund Documents or otherwise for use in
connection with the sale of the Contracts or Shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Company Documents) or wrongful conduct of a Fund Party or persons under its
respective control, with respect to the sale or acquisition of the
Contracts or Shares; or
(c) arise out of or result from any untrue statement of a material
fact contained in Company Documents or the 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 Company by or on behalf of the Fund Parties; or
(d) arise out of or result from any failure by the Underwriter or the
Fund to provide the services or furnish the materials required under the
terms of this Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Fund in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Underwriter or the Fund.
5.3 Neither the Company, the Underwriter nor the Fund shall be liable under
the indemnification provisions of Section 5.1 or 5.2, as applicable, with
respect to any Losses incurred or assessed against any Indemnified Party to the
extent such Losses arise out of or result from 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 obligations or duties under this Agreement.
5.4 Neither the Company, the Underwriter nor the Fund shall be liable under
the indemnification provisions of Section 5.1 or 5.2, as applicable, with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the other party in writing within a reasonable time
after the summons, or other first written notification, giving information of
the nature of the claim shall have been served upon or otherwise received by
such Indemnified Party (or after such Indemnified Party shall have received
notice of service upon or other notification to any designated agent), but
failure to notify the party against whom indemnification is sought of any such
claim shall not relieve that party from any liability which it may have to the
Indemnified Party in the absence of Sections 5.1 and 5.2.
12
In case any such action is brought against the Indemnified Parties, the
indemnifying party shall be entitled to participate, at its own expense, in the
defense of such action. The indemnifying party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the party named in
such action. After notice from the indemnifying party to the Indemnified Party
of an election to assume such defense, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the indemnifying
party will not be liable to the Indemnified 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.
ARTICLE 6
TERMINATION
6.1 This Agreement may be terminated by either party for any reason by
sixty (60) days' advance written notice delivered to the other party.
6.2 This Agreement may be terminated at the option of either the
Underwriter or the Fund upon institution of formal proceedings against the
Company by the FINRA, the SEC, the insurance commission 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 the Account, the
administration of the Contracts or the purchase of the Shares, or an expected or
anticipated ruling, judgment or outcome which would, in the Fund's or the
Underwriter's respective reasonable judgment, materially impair the Company's
ability to meet and perform the Company's obligations and duties hereunder.
6.3 This Agreement may be terminated at the option of the Fund or the
Underwriter if the Internal Revenue Service determines that the Contracts cease
to qualify as annuity contracts or life insurance policies, as applicable, under
the Code, or if the Fund or Underwriter reasonably believes that the Contracts
may fail to so qualify or if interests in an Account under the Contracts are not
registered, where required, and, in all material respects, are not issued or
sold in accordance with any applicable federal or state law.
6.4 This Agreement may be terminated by the Fund or the Underwriter, at
either's option, if either the Fund or the Underwriter shall determine, in its
sole judgment exercised in good faith, that either (1) the Company shall have
suffered a material adverse change in its business or financial condition, (2)
the Company shall have been the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations of
either the Fund or the Underwriter, or (3) the Company breaches any obligation
under this Agreement in a material respect and such breach shall continue
unremedied for thirty (30) days after receipt by the Company of notice in
writing from the Fund or Underwriter of such breach.
6.5 This Agreement may be terminated at the option of the Company if (A)
the Internal Revenue Service determines that any Portfolio fails to qualify as a
RIC under the Code or fails to comply with the diversification requirements of
Section 817(h) of the Code and the Fund, upon written request fails to provide
reasonable assurance that it will take action to cure such failure, or (B) the
Company shall determine, in its sole judgment exercised in good faith, that
either (1) the Fund or the Underwriter shall have been the subject of material
adverse publicity which is likely to have a material adverse impact upon the
business and operations of the Company, or (2) the Fund or Underwriter breaches
any obligation under this Agreement in a material respect and such breach shall
continue unremedied for thirty (30) days after receipt of notice in writing to
the Fund or the Underwriter from the Company of such breach.
13
6.6 Notwithstanding any termination of this Agreement, the Fund will, upon
the mutual agreement of the parties hereto, continue to make available
additional shares of the Fund pursuant to the terms and conditions of this
Agreement, for all existing Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, if the Fund and Underwriter so agree to make
additional Shares available, the owners of the Existing Contracts will be
permitted to reallocate investments in the Fund (as in effect on such date),
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts.
6.7 In the event of a termination of this Agreement pursuant to this
Article 6, the Fund and the Underwriter shall promptly notify the Company in
writing whether the Underwriter and the Fund will continue to make Shares
available after such termination; if the Underwriter and the Fund will continue
to make Shares so available, the provisions of this Agreement shall remain in
effect except for Section 6.1 and thereafter either the Fund, Underwriter or the
Company may terminate the Agreement as so continued pursuant to this Section 6.7
upon prior written notice to the other parties, such notice to be for a period
that is reasonable under the circumstances but need not be greater than six
months.
6.8 The provisions of Article 5 shall survive the termination of this
Agreement, and the provisions of Articles 2 and 4 shall survive the termination
of this Agreement as long as shares of the Fund are held on behalf of Contract
owners in accordance with Section 6.7.
ARTICLE 7
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.
To the Fund: With a copy to:
BlackRock Variable Series Funds, Inc. BlackRock, Inc.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ General Counsel
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Underwriter: With a copy to:
BlackRock Investments, LLC BlackRock Investments, LLC
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇, CCO
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company:
New York Life Insurance and Annuity Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, with a copy to Office of the
General Counsel/Variable Product Attorney.
14
ARTICLE 8
MISCELLANEOUS
8.1 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.
8.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.3 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.
8.4 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of New York without reference
to the conflict of laws provisions thereof, and shall, to the extent applicable,
be subject to the provisions of the 1933, 1934, and 1940 Acts, and the rules,
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.
8.5 The parties to this Agreement acknowledge and agree that the Fund is a
Maryland corporation, and that all liabilities of the Fund arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of the relevant Portfolio(s) of the Fund and
that no Director, officer, agent or holder of Shares of the Fund shall be
personally liable for any such liabilities.
8.6 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the FINRA and
state insurance 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.
8.7 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, to which the parties hereto are entitled under state and
federal laws.
8.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
8.9 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written approval of the other
parties.
8.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
parties.
15
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.
BLACKROCK VARIABLE SERIES FUNDS, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
BLACKROCK INVESTMENTS, LLC
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
16
SCHEDULE A
Separate Accounts of NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION ("NYLIAC")
participating in Portfolios of BlackRock Variable Series Funds, Inc.
NYLIAC Variable Annuity Separate Account I
NYLIAC Variable Annuity Separate Account II
NYLIAC Variable Annuity Separate Account III
NYLIAC Variable Annuity Separate Account IV
SCHEDULE B
Portfolios and Classes of BlackRock Variable Series Funds, Inc. offered to
Separate Accounts of NEW YORK LIFE
Available share classes of:
FUND NAME CLASS CUSIP TICKER
---------------------------------------- ------ --------- -------
EQUITY FUNDS
BlackRock Balanced Capital V.I. Fund I ▇▇▇▇▇▇▇▇▇ AMBLI
BlackRock Basic Value V.I. Fund I ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BlackRock Basic Value V.I. Fund II ▇▇▇▇▇▇▇▇▇ BAVII
BlackRock Basic Value V.I. Fund III ▇▇▇▇▇▇▇▇▇ BVIII
BlackRock Capital Appreciation V.I. Fund I ▇▇▇▇▇▇▇▇▇ FDGRI
BlackRock Capital Appreciation ▇.▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BlackRock Equity Dividend V.I. Fund I ▇▇▇▇▇▇▇▇▇ UTTLI
BlackRock Equity Dividend V.I. Fund III ▇▇▇▇▇▇▇▇▇ UTIII
BlackRock Global Allocation V.I. Fund I ▇▇▇▇▇▇▇▇▇ GLALI
BlackRock Global Allocation ▇.▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BlackRock Global Allocation V.I. Fund III ▇▇▇▇▇▇▇▇▇ GAIII
BlackRock Global Opportunities V.I. Fund I ▇▇▇▇▇▇▇▇▇ GLGRI
BlackRock Global Opportunities V.I. Fund III ▇▇▇▇▇▇▇▇▇ GGIII
BlackRock International Value V.I. Fund I ▇▇▇▇▇▇▇▇▇ IVVVI
BlackRock Large Cap Core V.I. Fund I ▇▇▇▇▇▇▇▇▇ LGCCI
BlackRock Large Cap Core V.I. Fund II ▇▇▇▇▇▇▇▇▇ LGCII
BlackRock Large Cap Core ▇.▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ LCIII
BlackRock Large Cap Growth V.I. Fund I ▇▇▇▇▇▇▇▇▇ LGGGI
BlackRock Large Cap Growth ▇.▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BlackRock Large Cap Value V.I. Fund I ▇▇▇▇▇▇▇▇▇ LCATT
BlackRock Large Cap Value V.I. Fund II ▇▇▇▇▇▇▇▇▇ LCBTT
BlackRock Large Cap Value V.I. Fund III ▇▇▇▇▇▇▇▇▇ LVIII
BlackRock Value Opportunities V.I. Fund I ▇▇▇▇▇▇▇▇▇ SMCPI
BlackRock Value Opportunities V.I. Fund II ▇▇▇▇▇▇▇▇▇ SMCII
BlackRock Value Opportunities V.I. Fund III ▇▇▇▇▇▇▇▇▇ SCIII
FIXED INCOME FUNDS
BlackRock Government Income V.I. Fund I ▇▇▇▇▇▇▇▇▇ GVBDI
BlackRock High Income V.I. Fund I ▇▇▇▇▇▇▇▇▇ HICUI
BlackRock Total Return V.I. Fund I ▇▇▇▇▇▇▇▇▇ CRBDI
BlackRock Total Return V.I. Fund III ▇▇▇▇▇▇▇▇▇ CBIII
INDEX FUND
BlackRock S&P 500 Index V.I. Fund I ▇▇▇▇▇▇▇▇▇ IDXVI
BlackRock S&P 500 Index ▇.▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ IXVII
MONEY MARKET FUND
BlackRock Money Market V.I. Fund * I ▇▇▇▇▇▇▇▇▇ DMMKI
* NO FEES SHALL BE PAID FOR THE BLACKROCK MONEY MARKET V.I. FUND
SCHEDULE C
Shareholder Information Schedule entered into by and between BlackRock
Investments, LLC and its successors, assigns and designees ("BRIL") and the
Intermediary.
BRIL, the Fund and the Intermediary agree that any request made to the
Intermediary by BRIL or the Fund for shareholder transaction information, and
the Intermediary's response to such request, shall be governed by whatever
practices the Fund and the Intermediary had utilized in the absence of a formal
agreement, if any, to govern such requests.
For Schedule C, the following terms shall have the following meanings, unless a
different meaning is clearly required by the contexts:
The term "Intermediary" shall mean AN INSURANCE COMPANY SEPARATE ACCOUNT, which
is (i) a broker, dealer, bank, or other entity that holds securities of record
issued by the Fund in nominee name; (ii) in the case of a participant directed
employee benefit plan that owns securities issued by the Fund (1) a retirement
plan administrator under ERISA or (2) any entity that maintains the plan's
participant records; or (iii) an insurance company separate account.
The term "Fund" shall mean any open-ended management investment company that is
registered or required to register under Section 8 of the Investment Company Act
of 1940 and for which BRIL acts as distributor, and includes (i) an investment
adviser to or administrator for the Fund; and (ii) the transfer agent for the
Fund. The term not does include any "excepted funds" as defined in SEC Rule
22c-2(b) under the Investment Company Act of 1940.(1)
The term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the Investment Company
Act of 1940 that are held by the Intermediary.
The term "Shareholder" means the holder of interests in a variable annuity or
variable life insurance contract issued by the Intermediary ("Contract"), or a
participant in an employee benefit plan with a beneficial interest in a
contract.
The term "Shareholder-Initiated Transfer Purchase" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract to a Fund, but does not include the following: (i)
transactions that are executed automatically pursuant to a contractual or
systematic program or enrollment such as transfer of assets within a Contract to
a Fund as a result of "dollar cost averaging" programs, insurance company
approved asset allocation programs, or automatic rebalancing programs; (ii)
transactions that are executed pursuant to a Contract death benefit; (iii)
one-time step-up in Contract value pursuant to a Contract death benefit; (iv)
allocation of assets to a Fund through a Contract as a result of payments such
as loan repayments, scheduled contributions, retirement plan salary reduction
contributions, or planned premium payments to the Contract; or (v) prearranged
transfers at the conclusion of a required free look period.
The term "Shareholder-Initiated Transfer Redemption" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract out of a Fund, but does not include transactions that are
executed: (i) automatically pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Contract out of a Fund as a
result of annuity payouts, loans, systematic withdrawal programs, insurance
company approved
--------------
(1) As defined in SEC Rule 22c-2(b), term "excepted fund" means any: (1) money
market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly and prominently discloses that the
fund permits short-term trading of its securities and that such trading may
result in additional costs for the fund.
asset allocation programs and automatic rebalancing programs; (ii) as a result
of any deduction of charges or fees under a Contract; (iii) within a Contract
out of a Fund as a result of scheduled withdrawals or surrenders from a
Contract; or (iv) as a result of payment of a death benefit from a Contract.
BRIL and the Intermediary hereby agree as follows:
SHAREHOLDER INFORMATION
1. AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide the Fund or
its designee, upon written request of BRIL or the Fund, the taxpayer
identification number ("TIN"), the Individual/International Taxpayer
Identification Number ("ITIN"), or other government issued identifier ("GII")
and the Contract owner number or participant account number associated with the
Shareholder, if known, of any or all Shareholder(s) of the account, and the
amount, date, name or other identifier of any investment professional(s)
associated with the Shareholder(s) or the account (if known) and transaction
type (purchase, redemption, transfer, or exchange) of every purchase,
redemption, transfer, or exchange of Shares held through an account maintained
by the Intermediary during the period covered by the request. Unless otherwise
specifically requested by the Fund, the Intermediary shall only be required to
provide information relating to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions.
2. PERIOD COVERED BY REQUEST. Requests must set forth a specific period, which
generally will not exceed 90 days from the date of the request, for which
transaction information is sought. BRIL and/or the Fund may request transaction
information older than 90 days from the date of the request as they deem
necessary to investigate compliance with policies (including, but not limited
to, polices of the Fund regarding market-timing and the frequent purchasing and
redeeming or exchanges of Fund shares or any other inappropriate trading
activity) established or utilized by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding shares issued by the Fund.
3. FORM AND TIMING OF RESPONSE. (a) Intermediary agrees to provide, promptly
upon receipt of a request from the Fund, BRIL or their designee, the requested
information specified in Section 1. If requested by the Fund, BRIL or their
designee, Intermediary agrees to use best efforts to determine promptly whether
any specific person about whom it has received the identification and
transaction information specified in Section 1 is itself a financial
intermediary (as defined in Rule 22c-2) ("indirect intermediary") and, upon
further request of the Fund, BRIL or their designee, promptly either (i) provide
(or arrange to have provided) the information set forth in Section 1 for those
Shareholders who hold an account with an indirect intermediary or (ii) restrict
or prohibit the indirect intermediary from purchasing, in nominee name on behalf
of other persons, securities issued by the Fund. Intermediary additionally
agrees to inform the Fund whether it plans to perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing and in
a format mutually agreed upon by the Fund, BRIL or their designee and the
Intermediary; and
(c) To the extent practicable, the format for any transaction information
provided to the Fund, BRIL or their designee should be consistent with the NSCC
Standardized Data Reporting Format.
4. LIMITATIONS ON USE OF INFORMATION. BRIL and the Fund agree not to use the
information received pursuant to this Agreement for any purpose other than as
necessary to comply with the provisions of Rule 22c-2 or to fulfill other
regulatory requests or legal requirements subject to the privacy provisions of
Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (Public Law 106-102) and comparable state
laws.
5. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from BRIL or the Fund to restrict or prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by BRIL or the
Fund, in their sole discretion, as having engaged in transactions of the Fund's
Shares (directly or indirectly through the Intermediary's account) that violate
policies ( including, but not limited to, policies of the Fund regarding
market-timing and the frequent purchasing and redeeming or exchanging of Fund
Shares or any other inappropriate trading activity) established or utilized by
the Fund for the purpose of eliminating or reducing, or that would result in any
dilution of the value of the outstanding Shares issued by the Fund. Unless
otherwise directed by the Fund, any such restrictions or prohibitions shall only
apply to Shareholder-Initiated Transfer Purchases or Shareholder-Initiated
Transfer Redemptions that are effected directly or indirectly through
Intermediary. Instructions must be received by Intermediary at the following
address, or such other address that Intermediary may communicate to BRIL or the
Fund in writing from time to time, including, if applicable, an e-mail and/or
facsimile telephone number:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
New York Life Insurance Company
Individual Annuity Department
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇_▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
6. FORM OF INSTRUCTIONS. Instructions to restrict or prohibit trading must
include the TIN, ITIN, or GII and the specific individual Contract owner number
or participant account number associated with the Shareholder, if known, and the
specific restriction(s) to be executed, including how long the restriction(s)
is(are) to remain in place. If the TIN, ITIN, GII or the specific individual
Contract owner number or participant account number associated with the
Shareholder is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates.
7. TIMING OF RESPONSE. Intermediary agrees to execute instructions to restrict
or prohibit trading as soon as reasonably practicable, but not later than five
(5) business days after receipt of the instructions by the Intermediary.
8. CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to BRIL and the Fund that instructions to restrict or prohibit trading have been
executed. Intermediary agrees to provide confirmation as soon as reasonably
practicable, but not later than ten (10) business days after the instructions
have been executed.
9. CONSTRUCTION OF THE SCHEDULE; FUND PARTICIPATION AGREEMENT. This Schedule C
supplements the Fund Participation Agreement. To the extent the terms of this
Schedule C conflict with the terms of the Fund Participation Agreement, the
terms of this Schedule C shall control.
