PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into as of
this 1st day of
October, 2008 among Sun Life Assurance Company of Canada (U.S.), (hereinafter
"Sun Life (U.S.)"), a life insurance company organized under the laws of the
State of Delaware, on behalf of itself and certain of its separate accounts,;
Sun Life Insurance and Annuity Company of New York, (hereinafter "Sun Life
(N.Y.)"), a life insurance company organized under the laws of the State of New
York, on behalf of itself and certain of its separate accounts, as set forth on
Attachment B, as may be amended from time to time; AMERICAN FUNDS INSURANCE
SERIES (“Series”), an open-end management investment company organized under the
laws of the Commonwealth of Massachusetts, and CAPITAL RESEARCH AND MANAGEMENT
COMPANY (“CRMC”), a corporation organized under the laws of the State of
Delaware.
WITNESSETH:
WHEREAS, Sun Life (U.S.) and Sun Life
(N.Y.) propose to issue certain multi-manager variable life insurance policies
and/or variable annuity contracts that provide certain funds (“Funds”) of the
Series as investment options (the “Contracts”);
WHEREAS, Sun Life (U.S.) and Sun Life
(N.Y.) have established pursuant to Delaware and New York insurance law,
respectively, one or more separate accounts (each, an “Account”) for purposes of
issuing the Contracts and has or will register each Account (unless the Account
is exempt from such registration) with the United States Securities and Exchange
Commission (the “Commission”) as a unit investment trust under the Securities
Act of 1933 (the “1933 Act”) and the Investment Company Act of 1940 (the “1940
Act”);
WHEREAS, Sun Life (U.S.) and Sun Life
(N.Y.) have registered or will register the Contracts (unless the Contracts are
exempt from such registration) with the Commission under the 1933 Act for offer
and sale, will be in compliance with all applicable laws prior to being offered
for sale;
WHEREAS, the Series is registered as an
open-end management investment company under the 1940 Act and its shares are
registered under the Securities Act of 1933, as amended;
WHEREAS, the Series has received a
“Mixed and Shared Funding Order” from the Commission granting relief from
certain provisions of the 1940 Act and the rules thereunder to the extent
necessary to permit shares of the Series to be sold to variable annuity and life
insurance separate accounts of unaffiliated insurance companies;
WHEREAS,
the Series is divided into various Funds, each Fund being subject to certain
fundamental investment policies which may not be changed without a majority vote
of the shareholders of such Fund;
WHEREAS,
certain Funds listed in Attachment A to this
Agreement will serve as certain of the underlying investment mediums for the
Contracts; and
WHEREAS,
CRMC is the investment adviser for the Series.
NOW,
THEREFORE, in consideration of the foregoing and of mutual covenants and
conditions set forth herein and for other good and valuable consideration, Sun
Life (U.S.) and Sun Life (N.Y.), the Series and CRMC hereby agree as
follows:
1. The
Series and CRMC each represents and warrants to Sun Life (U.S.) and Sun Life
(N.Y.) that: (a) a registration statement under the 1933 Act and
under the 1940 Act with respect to the Series has been filed with the Commission
in the form previously delivered to Sun Life (U.S.) and Sun Life (N.Y.) , and
copies of any and all amendments thereto will be forwarded to Sun Life (U.S.)
and Sun Life (N.Y.) at the time that they are filed with the Commission; (b) the
Series is, and shall be at all times while this Agreement is in force, lawfully
organized, validly existing, and properly qualified as an open-end management
investment company in accordance with the laws of the Commonwealth of
Massachusetts; and (c) the Series’ registration statement and any further
amendments thereto will, when they become effective, and all definitive
prospectuses and statements of additional information and any further
supplements thereto (the “Prospectus”) shall, conform in all material respects
to the requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder, and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statement therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Series by Sun Life (U.S.) and Sun Life (N.Y.)
expressly for use therein.
2. The
Series will furnish to Sun Life (U.S.) and Sun Life (N.Y.) such information with
respect to the Series in such form and signed by such of its officers as Sun
Life (U.S.) and Sun Life (N.Y.) may reasonably request, and will warrant that
the statements therein contained when so signed will be true and
correct. The Series will advise Sun Life (U.S.) and Sun Life
(N.Y.) immediately of: (a) the issuance by the Commission
of any stop order suspending the effectiveness of the registration statement of
the Series or the initiation of any proceeding for that purpose; (b) the
institution of any proceeding, investigation or hearing involving the offer or
sale of the Contracts or the Series of which it becomes aware; or (c) the
happening of any material event, if known, which makes untrue any statement made
in the registration statement of the Series or which requires the making of a
change therein in order to make any statement made therein not
misleading.
3. The
Series will use best efforts to register for sale under the 1933 Act and, if
required, under state securities laws, such additional shares of the Series as
may reasonably be necessary for use as the funding vehicle for the
Contracts.
4. The
Series agrees to make shares of the Funds listed on Attachment A hereto
available to the Contracts. Fund shares to be made available to
Accounts for the Contracts shall be sold by the Series and purchased by Sun Life
(U.S.) and Sun Life (N.Y.) for a given Account at the net asset value of the
respective class of the respective Fund (without the imposition of a sales load)
next computed after receipt of each order by the Series or its designee, as
established in accordance with the provisions of the then current Prospectus of
the Series. All transactions in Account shares shall be executed
through the Omnibus Accounts of Sun Life (U.S.) and Sun Life (N.Y.) (“Omnibus
Accounts”). For purposes of this Paragraph 4, Sun Life (U.S.) and Sun
Life (N.Y.) shall be a designee of the Series for receipt of such orders from
each Account (but not with respect to any Fund shares that may be held in the
general account of each of the Companies), and receipt by such designee by 4:00
p.m. Eastern time (or other such time the Board of Trustees of the Series shall
so designate) shall constitute receipt by the Series; provided that the Series
receives notice of such order by 8:30 a.m. Eastern time on the
following Business Day (“Next Business Day”). “Business Day” shall
mean any day on which the New York Stock Exchange (“NYSE”) is open for trading
and on which the Series calculates the net asset values of each class of shares
of each Fund pursuant to the rules of the Commission. The Series will
make the shares of each class of each Fund available indefinitely for purchase
at the applicable net asset value per share by Sun Life (U.S.) and Sun Life
(N.Y.) and their Accounts on those days on which the Series calculates the net
asset values of each such class pursuant to the rules of the Commission, and the
Series shall use its best efforts to calculate such net asset values on each day
on which the NYSE is open for trading. The Series shall make the net
asset value per share for each class of each Fund available to Sun Life (U.S.)
and Sun Life (N.Y.) on a daily basis as soon as reasonably practical after the
Series calculates such net asset values per share, and the Series shall use its
best efforts to make such net asset values per share available to State Street
Bank, the transfer agent for Sun Life (U.S.) and Sun Life (N.Y.), by 6:30 p.m.
Eastern time, or in such other manner mutually agreed upon by the parties. In the event the Series
is unable to make the 6:30 p.m. deadline stated herein, it shall provide
additional time for Sun Life (U.S.) and Sun Life (N.Y.) to place orders for the
purchase and redemption of shares. Such additional time shall be
equal to the additional time which the Series takes to make the closing net
asset value available to Sun Life (U.S.) and Sun Life (N.Y.). CRMC
and the Series shall report to Sun Life (U.S.) and Sun Life (N.Y.) any material
error in the calculation or reporting of the net asset values, dividends or
capital gain information as soon as practicable upon discovery. If CRMC and the
Series provide materially incorrect share net asset values, the Accounts shall
be entitled to an adjustment with respect to the Fund shares purchased or
redeemed to reflect the correct net asset values. The Series and CRMC are
responsible for calculating and maintaining net asset values for each class of
each Fund in accordance with the requirements of the 1940 Act and the Series’
then current Prospectus. Payments for shares purchased and redeemed
will be made in federal funds transmitted via Fed wire (or as otherwise mutually
agreed upon by the parties) to Sun Life (U.S.) and Sun Life (N.Y.) on
the Next Business Day following receipt by Sun Life (U.S.) and Sun Life (N.Y.)
of the order (unless the Series determines and so advises Sun Life (U.S.) and
Sun Life (N.Y.) that payment for shares purchased is unnecessary as sufficient
proceeds are available from redemption of shares of other Funds effected
pursuant to redemption requests tendered by Sun Life (U.S.) and Sun Life
(N.Y.)), and Sun Life (U.S.) and Sun Life (N.Y.) and the Fund shall each use
commercially reasonable efforts to transmit (or cause to be transmitted) funds
to the other, for the purpose of settling net purchase orders or orders of
redemption, by 3:00 p.m. Eastern time on such Business
Day. Upon receipt of federal funds, such funds shall cease to be the
responsibility of the sender and shall become the responsibility of the
recipient. Notwithstanding any provision of this Agreement to the
contrary, for purchase and redemption instructions with respect to any shares,
Sun Life (U.S.) or Sun Life (N.Y.) and the Series will settle the purchase and
redemption transactions referred to herein via the NSCC Fund/SERV platform
settlement process (or as otherwise agreed upon by the parties) on the next
Business Day following the effective trade date. The Series will
provide to Sun Life (U.S.) or Sun Life (N.Y.) a daily transmission of positions
and trading activity taking place in the Omnibus Accounts using Sun Life (U.S.)
or Sun Life (N.Y.) affiliate’s proprietary Inventory Control System
(“ICS”).
Any
purchase or redemption request for Fund shares held or to be held in the general
account of Sun Life (U.S.) or Sun Life (N.Y.) shall be effected at the closing
net asset value per share next determined after the Fund’s receipt of such
request, provided that, in the case of a purchase request, payment for Fund
shares so requested is received by the Series in federal funds prior to close of
business for determination of such value, as defined from time to time in the
Series Prospectus.
The
Series reserves the right to temporarily suspend sales if the Board of Trustees
of the Series, acting in good faith and in light of its fiduciary duties under
federal and any applicable state laws, deems it appropriate and in the best
interests of shareholders or in response to the order of an appropriate
regulatory authority.
5. The
Contracts funded through each Account will provide for the allocation of net
amounts among certain Subaccounts for investment in shares of a class of the
Funds as may be offered from time to time in the Contracts. The
selection of the particular Subaccount is to be made by the Contract owner and
such selection may be changed in accordance with the terms of the
Contracts.
6. Transfer
of the Series’ shares will be by book entry only. No stock
certificates will be issued to the Account. Shares ordered from a
particular Fund will be recorded by the Series as instructed by Sun Life (U.S.)
and Sun Life (N.Y.) in an appropriate title for the corresponding Account or
Subaccount.
7. The
Series shall furnish notice promptly to Sun Life (U.S.) and Sun Life
(N.Y.) of any dividend or distribution payable on any shares
underlying Subaccounts. Sun Life (U.S.) and Sun Life
(N.Y.) hereby elect to receive all such dividends and distributions
as are payable on shares of a Fund recorded in the title for the corresponding
Subaccount in additional shares of that Fund. The Series shall notify
Sun Life (U.S.) and Sun Life (N.Y.) of the number of shares so
issued. Sun Life (U.S.) and Sun Life (N.Y.) reserve the right to
revoke this election and to receive all such income dividends and capital gain
distributions in cash.
8. The
Series shall redeem its shares in accordance with the terms of its then current
Prospectus. For purposes of this Paragraph 8, Sun Life (U.S.) and Sun
Life (N.Y.) shall be a designee of the Series for receipt of requests for
redemption from each Account, and receipt by such designee by the close of the
NYSE which is 4:00 p.m. Eastern time (or other such time the Board of Trustees
of the Series shall so designate) shall constitute receipt by the Series;
provided that the Series receives notice of such request for redemption by 10:00
a.m. Eastern time on the Next Business Day. Sun Life (U.S.) and Sun
Life (N.Y.) shall purchase and redeem the shares of Funds offered by the then
current Prospectus of the Series in accordance with the provisions of such
Prospectus.
9. The
Series shall pay all expenses incidental to its performance under this
Agreement. The Series shall see to it that all of its shares are
registered and authorized for issue in accordance with applicable federal and
state laws prior to their purchase for the Account. The Series shall
bear the expenses for the cost of registration of its shares, preparation of
prospectuses and statements of additional information to be sent to existing
Contract owners (upon request in the case of the statement of additional
information), proxy statements and related materials and annual and semi-annual
shareholder reports, the printing and distribution of such items to each
Contract owner who has allocated net amounts to any Subaccount, the preparation
of all statements and notices required from it by any federal or state law, and
taxes on the issue or transfer of the Series’ shares subject to this
Agreement. The Series will provide Sun Life (U.S.) and Sun Life
(N.Y.), at least once a year, with enough copies of its Statement of Additional
Information to be able to distribute one to each Contract owner or prospective
Contract owner who requests such Statement of Additional
Information.
10. Sun
Life (U.S.) and Sun Life (N.Y.) shall bear the expenses for the cost of
preparation and delivery of Series prospectuses (and supplements thereto) to be
sent to prospective Contract owners. The Series shall provide, at its
expense, such documentation (in camera-ready or other mutually agreeable form)
and other assistance as is reasonably necessary in order for Sun Life (U.S.) and
Sun Life (N.Y.) once each year (or more frequently if the prospectus for the
Series is amended), and twice each year in the case of the annual and
semi-annual shareholder reports, to have the prospectus or prospectuses, and the
annual and semi-annual shareholder reports for the Contracts and the Series,
printed together in one or more documents (such printing to be done at ’ the
expense of Sun Life (U.S.) and Sun Life (N.Y.) with respect to prospective
investors).
11. Sun
Life (U.S.) and Sun Life (N.Y.) represent and warrant to the Series that any
information furnished in writing by Sun Life (U.S.) and Sun Life (N.Y.) to the
Series for use in the registration statement of the Series will not result in
the registration statement’s failing to conform in all respects to the
requirements of the 1933 Act and the 1940 Act and the rules and regulations
thereunder or containing any untrue statement of a material fact or omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
12. Sun
Life (U.S.) and Sun Life (N.Y.) and their affiliates shall make no
representations concerning the Series’ shares except those contained in the then
current Prospectus of the Series, in such printed information subsequently
issued on behalf of the Series or other funds managed by CRMC as supplemental to
the Series’ Prospectus, in information published on the Series’ or CRMC’s
internet site, or in materials approved by AFD, as provided in the Business
Agreement in effect among Sun Life (U.S.) and Sun Life (N.Y.), AFD, and CRMC
dated as of _________, 2008 (the “Business Agreement”).
13. Shares
of the Series may be offered to separate accounts of various insurance companies
in addition to Sun Life (U.S.) and Sun Life (N.Y.). The Series, Sun
Life (U.S.) and Sun Life (N.Y.) each represents, warrants and covenants that no
shares of the Series shall be sold to the general public in contravention of
Section 817 of the Internal Revenue Code of 1986 as amended and the regulations
thereunder (the “Code”) (“Section 817”). The Series agrees that each
Fund will comply with the diversification requirements of Section
817. The Series also agrees to maintain each Fund’s qualification as
a “regulated investment company” (“RIC”) under the Code. The Series
will provide Sun Life (U.S.) and Sun Life (N.Y.) with securities holdings
reports for each Fund within ten days after each calendar quarter.
14. The
parties to this Agreement recognize that due to differences in tax treatment or
other considerations, the interests of various Contract owners participating in
one or more Funds might, at some time, be in conflict. Each party
shall report to the other party any potential or existing conflict of which it
becomes aware. The Board of Trustees of the Series shall promptly
notify Sun Life (U.S.) and Sun Life (N.Y.) of the existence of irreconcilable
material conflict and its implications. If such a conflict exists,
Sun Life (U.S.) and Sun Life (N.Y.) will, at their own expense, take whatever
action it deems necessary to remedy such conflict; in any case, Contract owners
will not be required to bear such expenses.
15. Sun
Life (U.S.) and Sun Life (N.Y.) agree to indemnify and hold the Series harmless
against, any and all losses, claims, damages, liabilities or litigation
(including legal and other expenses) to which the Series may be subject under
any statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
arising as a result of Sun Life (U.S.) and Sun Life (N.Y.): (a)
making untrue statements of material facts or omitting material facts in a
Contract’s registration statement, prospectus, statement of additional
information, semi-annual or annual reports to Contract owners or sales
literature for the Contracts; (b) making untrue statements of material facts
that the Series includes in the same materials of the Series, provided that
Series relies on information supplied by Sun Life (U.S.) and Sun Life (N.Y.);
(c) unlawful conduct, bad faith, willful malfeasance, or gross negligence by Sun
Life (U.S.) and Sun Life (N.Y.) with respect to the sale of the Contracts or
Fund shares; and (d) breaching this Agreement or a representation or
warranty.
16. The
Series and CRMC each agrees to indemnify and hold Sun Life (U.S.) and Sun Life
(N.Y.) harmless against any and all losses, claims, damages, liabilities or
litigation (including legal and other expenses) which Sun Life (U.S.) and Sun
Life (N.Y.) may be subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements arising as a result of the Series’, or
CRMC’s: (a) making untrue statements of material facts or omitting
material facts in the Series’ registration statement, prospectuses or statements
of additional information, semi-annual and annual reports to shareholders, and
sales literature; (b) making untrue statements of material facts that the Series
includes in its materials, provided Sun Life (U.S.) and Sun Life (N.Y.) relies
on information supplied by the Series; (c) unlawful conduct, bad faith, willful
malfeasance, or gross negligence by the Series with respect to the sale of the
Contracts or Fund shares or the operation of the Series or a
Fund; (d) failure of the Series to comply with any Fund’s investment
objectives, policies and restrictions; (e) breaching this Agreement or a
representation or warranty, including, but not limited to, the representations,
warranties and covenants in Section 13 and (f) arise from any incorrect
calculation of net asset value by the Series or CMRC, which differs by no less
than 50 basis points from the accurate net asset value calculation.
17. Sun
Life (U.S.) and Sun Life (N.Y.) shall be responsible for assuring that the
Account calculates pass-through voting privileges of Contract owners in a manner
consistent with the method of calculating pass-through voting privileges set
forth in the current Contract.
18. The
parties understand that there is no intention to create a joint venture in the
subject matter of this Agreement. Accordingly, the right to terminate
this Agreement and to engage in any activity not inconsistent with this
Agreement is absolute. This Agreement will terminate:
(a)
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by
mutual agreement at any time; or
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(b)
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any
party at any time upon six months written notice to the other parties;
or
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(c)
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at
the option of Sun Life (U.S.) and Sun Life (N.Y.) or the Series upon ten
calendar days prior written notice to the other party if a final
non-appealable administrative or judicial decision is entered against the
other party which has a material impact on the
Contracts;
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(d)
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at
the option of Sun Life (U.S.) and Sun Life (N.Y.), upon ten calendar days
prior written notice, if shares of the Series are not reasonably
available;
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(e)
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at
the option of Sun Life (U.S.) and Sun Life (N.Y.), immediately upon
written notice, if the Series or CRMC fails to meet the requirements for
either diversification under Section 817 or RIC status under the
Code, or if the Board of the Series terminates the 12b-1 plan;
or
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(f)
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in
the event the Series’ shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such law precludes
the use of such shares as an underlying investment for the Contracts
issued or to be issued by Sun Life (U.S.) and Sun Life (N.Y.); in such
event prompt notice shall be given by Sun Life (U.S.) and Sun Life (N.Y.)
or the Series to the other party.
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The effective date for termination
pursuant to any notice given under this Paragraph shall be calculated beginning
with the date of receipt of such notice.
19. All
notices, consents, waivers, and other communications under this Agreement must
be in writing, and will be deemed to have been duly received: (a)
when delivered by hand (with written confirmation of receipt); (b) when sent by
telecopier (with written confirmation of receipt), provided that a copy is
mailed by registered mail, return receipt requested; or (c) the day after it is
sent by a nationally recognized overnight delivery service, in each case to the
appropriate addresses and telecopier numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties):
If
to Sun Life (U.S.):
Sun
Life Assurance Company of Canada (U.S.)
One
Sun Life Executive Park
Xxxxxxxxx
Xxxxx, Xxxxxxxxxxxxx 00000
Attention:
General Counsel
If
to Sun Life (N.Y.):
Sun
Life Insurance and Annuity Company of New York
One
Sun Life Executive Park
Xxxxxxxxx
Xxxxx, Xxxxxxxxxxxxx 00000
Attention:
General Counsel
If to Series:
American Funds Insurance
Series
000
X. Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxx, Senior Vice President
Facsimile
No.: 000-000-0000
with
a copy to:
Capital
Research and Management Company
000
X. Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxxxxxx, Vice President and Senior Counsel,
Fund
Business Management Group
Facsimile
No.: 000-000-0000
If to CRMC:
Capital
Research and Management Company
000
X. Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx
X. Xxxxxx, Senior Vice President and Legal Counsel,
Fund
Business Management Group, and Secretary
Facsimile
No.: 000-000-0000
with
a copy to:
Capital
Research and Management Company
000
X. Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxxxxxx, Vice President and Senior Counsel,
Fund
Business Management Group
Facsimile
No.: 000-000-0000
20. If
this Agreement terminates, any provision of this Agreement necessary to the
orderly windup of business under it will remain in effect as to that business,
after termination.
21. If
this Agreement terminates, the Series, at option of Sun Life (U.S.)
and Sun Life (N.Y.), will continue to make additional shares of the Series
available for all existing Contracts as of the effective date of termination
(under the same terms and conditions as were in effect prior to termination of
this Agreement with respect to existing Contract owners), unless the Series
liquidates or applicable laws prohibit further sales. Sun Life (U.S.)
and Sun Life (N.Y.) agree not to redeem shares unless (i) the Agreement is
terminated pursuant to Section 18(e) or 18(f); (ii) legitimately required to do
so according to a Contract owner’s request; or (iii) under an order from the
Commission or pursuant to vote of Contract owners.
22. The
obligations of the Series under this Agreement are not binding upon any of the
Trustees, officers, employees, or shareholders (except CRMC if it is a
shareholder) of the Series individually, but bind only the Series’
assets. When seeking satisfaction for any liability of the Series in
respect of this Agreement, Sun Life (U.S.) and Sun Life (N.Y.) and the Account
agree not to seek recourse against said Trustees, officers, employees, or
shareholders, or any of them, or any of their personal assets for such
satisfaction. Notwithstanding the foregoing, if Sun Life (U.S.) and
Sun Life (N.Y.) seek satisfaction for any liability of the Series in respect of
this Agreement, Sun Life (U.S.) and Sun Life (N.Y.) (each on behalf of itself or
any Account) may seek recourse against CRMC.
23. This
Agreement shall be construed in accordance with the laws of the Commonwealth of
Massachusetts.
24. This
Agreement and the parties’ rights, duties, and obligations under this Agreement
are not transferable or assignable by any of them without the express, prior
written consent of the other party hereto. Any attempt by a party to
transfer or assign this Agreement or any of its rights, duties or obligations
under this Agreement without such consent is void; provided, however, that a
merger of, reinsurance arrangement by, or change of control of a party shall not
be deemed to be an assignment for purposes of this Agreement.
25. The
following Paragraphs shall survive any termination of this
Agreement: 4, 15, 16, 19-25.
26. Exclusively
for purposes of this section, the terms listed below shall have the following
meanings.
The
term "Funds" shall refer to the Funds on Attachment A, and includes (i) any
investment adviser to or administrator for the Funds; (ii) the principal
underwriter or distributor for the Funds; or (iii) the transfer agent for the
Funds.
The
term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Funds under the Investment Company
Act of 1940 that are held by the Company through one or more of its
Accounts.
The
term "Shareholder" means the holder of interests in a variable annuity contract
or variable life insurance policy issued by the Company ("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 (a "purchase"), but does not include transactions
that are executed: (1) 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 or similar programs, insurance
company approved asset allocation programs, or automatic rebalancing programs;
(2) pursuant to a Contract death benefit; (3) pur5suant to a step-up in Contract
value pursuant to a Contract death benefit or an automatic living benefit; (4)
as a result of payments such as loan repayments, scheduled contributions,
retirement plan salary reduction contributions, or planned premium payments to
the Contract; (5) pursuant to prearranged transfers at the conclusion of a
required free look period; or (6) pursuant to any other similar type of
transactions that does not require any current or ongoing action by the
Shareholder.
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 (a "redemption"), but does not include
transactions that are executed: (1) 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 asset allocation programs and automatic
rebalancing programs; (2) as a result of any deduction of charges or fees under
a Contract; (3) as a result of scheduled withdrawals or surrenders from a
Contract; (4) as a result of payment of a death benefit or a living benefit from
a Contract; or (5) as a result of any other similar type of transaction that
does not require any current or ongoing action by the Shareholder.
The
term "written" includes electronic writings and facsimile
transmissions.
Sun
Life (U.S.) and Sun Life (N.Y.) agree to provide the Funds or its designee,
promptly upon written request, with the following Shareholder information: (a)
the taxpayer identification number (“TIN”), the Individual Taxpayer
Identification Number (“ITIN”), or other government issued identifier (“GII”),
(b) the Contract owner number or participant account number associated with the
Shareholder, if known, of any or all Shareholder(s) of the account, and (c) the
amount, date and transaction type (purchase, redemption, transfer, or exchange)
of every purchase, redemption, transfer, or exchange of Shares held through an
account maintained by the Sun Life (U.S.) and Sun Life (N.Y.) during the period
covered by the request. Unless otherwise specifically requested by
the Funds, Sun Life (U.S.) and Sun Life (N.Y.) shall only be required to provide
information relating to Shareholder-Initiated Transfer Purchases or Shareholder-
Initiated Transfer Redemptions.
Requests
must set forth a specific period, not to exceed 90 days from the date of the
request, for which transaction information is sought. The Funds may request
transaction information older than 90 days from the date of the request as it
deems necessary to investigate compliance with policies established by the
Series for the purpose of eliminating or reducing any dilution of the value of
the outstanding shares issued by the Funds.
Funds
requests for Shareholder information shall be made no more frequently than
quarterly except as the Funds deems necessary to investigate compliance with
policies established by the Series for the purpose of eliminating or reducing
any dilution of the value of the outstanding shares issued by the
Funds.
Sun
Life (U.S.) and Sun Life (N.Y.) agree to provide, promptly upon request of the
Funds or its designee, the requested Shareholder Information. If
requested by the Funds or its designee, Sun Life (U.S.) and Sun Life (N.Y.)
agree to use their best efforts to determine promptly whether any specific
person about whom it has received the identification and transaction information
specified hereof is itself a financial intermediary (“indirect intermediary”)
and, upon further request of the Funds or its designee, promptly either (i)
provide (or arrange to have provided) the Shareholder Information 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 Funds. Sun Life (U.S.) and
Sun Life (N.Y.) additionally agree to inform the Funds whether it plans to
perform (i) or (ii). Responses required by this paragraph must be communicated
in writing and in a format mutually agreed upon by the Funds or its designee,
Sun Life (U.S.) and Sun Life (N.Y.). Unless otherwise agreed to, the format of
such responses shall be the NSCC Standardized Data Reporting Format. For
purposes of this paragraph, the Funds or its designee, Sun Life (U.S.) and Sun
Life (N.Y.) agree that "promptly" shall mean as soon as practicable in light of
all of the facts and circumstances relating to the written request, including
such facts and circumstances as the timing of the receipt of the written
request, the volume of information requested, the circumstances prompting the
written request, and the availability of the information requested in the format
agreed upon.
The
Funds 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 or legal requirements subject to the privacy
provisions of Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and
comparable state laws.
The
Fund agrees to indemnify and hold harmless Sun Life
(U.S.) and Sun Life (N.Y.) from any and all liability, claim, loss, demand,
damages, civil penalties, costs and expenses (including reasonable attorney’s
fees) arising in connection with any third party claim or action brought against
Sun Life (U.S.) and Sun Life (N.Y.) as a result of any unauthorized disclosure
of any Shareholder Information provided to the Fund in response to a written
request for such information pursuant to the terms of this Agreement.
Notwithstanding any termination of this Agreement, this paragraph regarding
indemnification shall survive.
Sun
Life (U.S.) and Sun Life (N.Y.) agree to execute written instructions from the
Funds to restrict or prohibit further purchases or exchanges of Shares by a
Shareholder that has been identified by the Funds as having engaged in
transactions of the Fund’s Shares (directly or indirectly through each Company’s
account) that violate policies established by the Funds for the purpose of
eliminating or reducing any dilution of the value of the outstanding Shares
issued by the Funds. 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 affected
directly or indirectly through Sun Life (U.S.) and Sun Life
(N.Y.). Instructions must be received by Sun Life (U.S.) and Sun Life
(N.Y.) at the following address, or such other address that Sun Life (U.S.) and
Sun Life (N.Y.) may communicate to the Funds in writing from time to time,
including, if applicable, an e-mail and/or facsimile telephone
number:
Sun
Life Financial
Operations
Control
One
Sun Life Executive Park, SC 4319
Xxxxxxxxx
Xxxxx, XX 00000
Attn: Assistant
Vice President,
Operations Control
Facsimile: 000-000-0000
With
a copy to:
Sun
Life Financial
Law
Department
One
Sun Life Executive Park, SC 2335
Xxxxxxxxx
Xxxxx, XX 00000
Attn: Assistant
Vice President,
Product Development
Facsimile: 000-000-0000
The
Funds' written instructions must include (a) the TIN, ITIN or
GII, (b) the specific individual Contract owner number or participant
account number associated with the Shareholder, if known, and (c) 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 written instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates. Upon the request of Sun Life
(U.S.) and Sun Life (N.Y.), the Fund agrees to provide to Sun Life (U.S.) and
Sun Life (N.Y.), along with any written instructions to prohibit further
purchases or exchanges of Shares by Shareholder, information regarding those
trades of the Shareholder that violated the Fund's policies relating to
eliminating or reducing any dilution of the value of the Fund's outstanding
Shares.
Sun
Life (U.S.) and Sun Life (N.Y.) agree to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by Sun Life (U.S.) and Sun Life (N.Y.).
Sun
Life (U.S.) and Sun Life (N.Y.) must provide written confirmation to the Funds
that instructions have been executed. Sun Life (U.S.) and Sun Life
(N.Y.) agree to provide confirmation as soon as reasonably practicable, but not
later than ten (10) business days after the instructions have been
executed.
To
the extent this section conflicts with any other section of this Agreement, then
this section shall control.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and attested as of the date first above written.
SUN
LIFE ASSURANCE COMPANY OF CANADA (U.S.) (on behalf of itself and each
Account)
By: _______________________________
For the President
Name:
By: _______________________________
For the Secretary
Name:
SUN
LIFE INSURANCE AND ANNUITY COMPANY OF New York (on behalf of itself and each
Account)
By: _______________________________
For the President
Name:
By: _______________________________
For the Secretary
Name:
AMERICAN
FUNDS INSURANCE SERIES
By: _______________________________
Its: President
CAPITAL
RESEARCH AND MANAGEMENT COMPANY
By: _______________________________
Its: President
Attachment
A
American
Funds Insurance Series:
[add
appropriate funds]
Attachment
B
Separate
Accounts:
[add
appropriate Separate Accounts]