FIFTH AMENDMENT TO FUND PARTICIPATION AND SERVICE AGREEMENT Regarding SERIES SHAREHOLDER REPORTS AND OTHER REQUIRED MATERIALS
FIFTH AMENDMENT TO FUND PARTICIPATION AND SERVICE AGREEMENT
Regarding
SERIES SHAREHOLDER REPORTS
AND OTHER REQUIRED MATERIALS
Equitable Financial Life Insurance Company, formerly known as AXA Equitable Life Insurance Company, a New York life insurance company, and Equitable Financial Life Insurance Company of America, formerly known as MONY Life Insurance Company of America, an Arizona stock life insurance company (collectively “Company”), American Funds Distributors, Inc. (the “Distributor”), American Funds Services Company (the “Transfer Agent”), Capital Research and Management Company (the “Advisor”) and the American Funds Insurance Series (the “Series”), an open-end investment company for which the Distributor, the Advisor and the Transfer Agent provide services and which is divided into funds (collectively called the “Funds” and individually, a “Fund”), entered into a certain fund participation and service agreement dated January 2, 2013 (the “Participation Agreement”). This Amendment (the “Amendment”) to the Participation Agreement is entered into as of February 5, 2021, by and among the Company, on its own behalf and on behalf of each separate account of the Company as set forth in the Participation Agreement, as may be amended from time to time (individually and collectively the “Accounts”), the Distributor, the Advisor, the Transfer Agent and the Series (collectively, the “Parties”).
RECITALS
WHEREAS, the name of the Company changed from AXA Equitable Life Insurance Company to Equitable Financial Life Insurance Company and MONY Life Insurance Company of America to Equitable Financial Life Insurance Company of America;
WHEREAS, pursuant to the Participation Agreement among the Parties, the Company invests in shares of certain of the portfolios of the Fund (the “Portfolios”) as a funding vehicle for the Accounts that issue variable annuity and/or life insurance contracts (the “Variable Contracts”) to persons that are registered owners of such Variable Contracts on the books and records of the Company (the “Contract Owners”);
WHEREAS, the Accounts are registered as unit investment trusts under the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the Company, on behalf of the Accounts, has certain obligations pursuant to Rule 30e-2 under the 1940 Act to deliver Fund shareholder reports to Contract Owners, which obligations may be satisfied by compliance with Rule 30e-3 under the 1940 Act (“Rule 30e-3”);
WHEREAS, the Company intends to comply with the requirements, terms and conditions of Rule 30e-3 to satisfy its obligation to deliver Fund shareholder reports to Contract Owners, including hosting the website of certain Fund materials required by Rule 30e-3; and
WHEREAS, Section 5(b)(2) of the Securities Act of 1933, as amended (the “1933 Act”) may require that a Statutory Prospectus (as defined in Rule 498A under the 1933 Act; “Rule 498A”) for the Portfolios be delivered to Contract Owners under certain circumstances;
WHEREAS, the Parties intend to meet any such Portfolio Statutory Prospectus delivery requirement by relying on and complying with the requirements, terms and conditions of paragraph (j) of Rule 498A for “on-line” delivery;
WHEREAS, paragraph (j) of Rule 498A requires, inter alia, that some of the Fund Documents (defined below) be posted and maintained on a website specified on the cover page of the Summary Prospectus for the Variable Contracts, and the Company intends to host said website; and
WHEREAS, the Company cannot host such website in compliance with Rules 30e-3 and 498A unless the Fund prepares and provides the Fund Documents that are specified in Rules 30e-3 and 498A;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which consideration is full and complete, the Company, the Distributor, the Advisor, the Transfer Agent and the Fund hereby agree to supplement and amend the Participation Agreement as follows:
| 1. | Provision of Fund Documents; Website Posting. |
| (a) | Fund Documents. The Series and the Distributor are responsible for preparing and providing the following “Fund Documents,” as specified in paragraph (b)(1) of Rule 30e-3 and paragraph (j)(1)(iii) of Rule 498A: |
| (i) | Summary Prospectus for the Portfolios; |
| (ii) | Statutory Prospectus for the Portfolios; |
| (iii) | Statement of Additional Information (“SAI”) for the Portfolios; |
| (iv) | Most Recent Annual and Semi-Annual Reports to Shareholders (under Rule 30e-1 under the 0000 Xxx) for the Portfolios (together, the “Shareholder Reports”) (referred to in Rule 30e-3 as the “Current” and “Prior” Report to Shareholders); |
| (v) | Complete Portfolio Holdings From Shareholder Reports Containing a Summary Schedule of Investments; and |
| (vi) | Portfolio Holdings For Most Recent First and Third Fiscal Quarters (together with the complete portfolio holdings specified in (v) above, the “Portfolio Holdings”). |
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| (b) | Deadline for Providing, and Currentness of, Fund Documents. |
| (i) | The Series and the Distributor shall provide the Summary Prospectus, Statutory Prospectus, and SAI for the Portfolios to the Company (or its designee) on a timely basis (to facilitate the required website posting) and provide updated versions as necessary, in order to facilitate a continuous offering of the Fund’s securities and the Variable Contracts. |
| (ii) | The Series and the Distributor shall provide the Shareholder Reports and Portfolio Holdings on a timely basis (to facilitate the required website posting) but no later than five (5) days before the date each time that the Required Materials are required to be posted by Rule 30e-3. |
| (c) | Format of Fund Documents. The Series and the Distributor shall provide the Fund Documents to the Company (or its designee) in an electronic format that is suitable for website posting, and in a format, or formats, that: |
| (i) | are both human-readable and capable of being printed on paper in human-readable format (in accordance with paragraph (b)(3) of Rule 30e-3 and paragraph (h)(2)(i) of Rule 498A); and |
| (ii) | permit persons accessing the Statutory Prospectus and SAI to move directly back and forth between each section heading in a table of contents of such document and the section of the document referenced in that section heading (that is, these documents must include linking, in accordance with paragraph (h)(2)(ii) of Rule 498A); and |
| (iii) | permit persons accessing the Fund Documents to permanently retain, free of charge, an electronic version of such materials that meet the requirements of subparagraphs (h)(2)(i) and (ii) of Rule 498A (in accordance with paragraph (h)(3) of Rule 498A). |
| (d) | Website Hosting. The Company shall, at its sole cost and expense, host and maintain the website specified in paragraph (j)(1)(iii) of Rule 498A (the “Specified Website”), so that the Fund Documents are publicly accessible, free of charge, at that Specified Website, in accordance with the conditions set forth in that paragraph, provided that the Series and the Distributor fulfill their obligations under this Amendment. In so doing, the Company shall ensure that persons accessing the Fund Documents are able to permanently retain, free of charge, an electronic version of such materials. |
| (e) | Paper Notice to Contract Owners. The Company shall provide a paper notice to its Contract Owners if and to the extent such notice is required by paragraph (c) of Rule 30e-3. |
| (f) | Delivery of Paper Copy Upon Ad Hoc Request. The Company shall fulfill ad hoc requests from Contract Owners for a paper copy of any of the Fund Documents, if and to the extent required by paragraph (e) of Rule 30e-3. |
| (g) | Investor Elections to Receive Future Shareholder Reports in Paper. The Company shall fulfill Contract Owner elections to receive future Shareholder Reports (with respect to the Portfolios) in paper if and to the extent required by paragraph (f) of Rule 30e-3. |
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| (h) | Expense Allocation. The Series shall reimburse the Company for the costs of printing and/or mailing the Fund Documents to Contract Owners in accordance with the expense allocation provisions of Section 11 of the Participation Agreement. For the avoidance of doubt, the costs of printing and mailing paper notices to Contract Owners and paper copies of any Fund Documents upon ad hoc request in accordance with Sections 1(e) and 1(f) above, respectively, shall be subject to the expense allocation provisions of Section 11 of the Participation Agreement. |
| (i) | Use of Summary Prospectuses. |
| (i) | The Company shall ensure that an Initial Summary Prospectus is used for each currently offered Variable Contract described under the related registration statement, in accordance with paragraph (j)(1)(i) of Rule 498A no later than May 1, 2022. |
| (ii) | The Series and the Distributor shall ensure that a summary prospectus is used for the Portfolios, in accordance with paragraph (j)(1)(ii) of Rule 498A if available. |
| 2. | Content of Fund Documents. The Series and the Distributor shall be responsible for the content and substance of the Fund Documents as provided to the Company, including, but not limited to, the accuracy and completeness of the Fund Documents. Without limiting the generality of the foregoing in any manner, the Series and the Distributor shall be responsible for ensuring that the Fund Documents as provided to the Company: |
| (a) | Meet the applicable standards of the 1933 Act, the Securities Exchange Act of 1934, as amended; the 1940 Act; and all rules and regulations under those Acts; and |
| (b) | Do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading. |
| 3. | Provision of Fund Documents for Paper Delivery. The Series and the Distributor shall: |
| (a) | If requested by the Company, the Series or its designee shall provide such electronic or other documentation (including “camera ready” copies of the current Fund Documents as set in type, or at the request of the Company, a diskette in a form suitable to be sent to a financial printer), and such other assistance as is reasonably necessary to have the then current Fund Documents printed for distribution; the reasonable costs of providing the electronic documentation and of such printing to be borne by the Series. |
| (b) | The Series or its designee shall reimburse the Company for the costs of mailing the Fund Documents to Contract Owners. |
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| 4. | Portfolio Expense and Performance Data. The Series shall provide such data regarding each Portfolio’s expense ratios and investment performance as the Company shall reasonably request, to facilitate the registration and sale of the Variable Contracts. Without limiting the generality of the forgoing, the Series shall provide the following Portfolio expense and performance data on a timely basis to facilitate the Company’s preparation of its annually updated registration statement for the Variable Contracts (and as otherwise reasonably requested by the Company), but in no event later than 75 calendar days after the close of each Portfolio’s fiscal year: |
| (a) | the gross “Annual Portfolio Company Expenses” for each Portfolio calculated in accordance with Item 3 of Form N-1A, before any expense reimbursements or fee waiver arrangements (and in accordance with (i) Instruction 16 to Item 4 of Form N-4, and (ii) Instruction 4(a) to Item 4 of Form N-6) ; and |
| (b) | the net “Annual Portfolio Company Expenses” (aka “Total Annual Fund Operating Expenses”) for each Portfolio calculated in accordance with Item 3 of Form N-1A, that include any expense reimbursements or fee waiver arrangements (and in accordance with (i) Instruction 17 to Item 4 of Form N-4, and (ii) Instruction 4 to Item 17 of Form N-4, and (iii) Instruction 4(b) to Item 4 of Form N-6, and (iv) Instruction 4 to Item 18 of Form N-6), and the period for which the expense reimbursements or fee waiver arrangement is expected to continue and whether it can be terminated by the Portfolio (or Series); and |
| (c) | the “Average Annual Total Returns” for each Portfolio (before taxes) as calculated pursuant to Item 4(b)(2)(iii) of Form N-1A (for the 1, 5, and 10 year periods, and in accordance with (i) Instruction 7 to Item 17 of Form N-4, and (ii) Instruction 7 to Item 18 of Form N-6). |
| 5. | Construction of this Amendment; Participation Agreement. |
| (a) | This Amendment shall be interpreted to be consistent with, and to facilitate compliance with and reliance on, Rule 30e-3 under the 1940 Act and Rule 498A (including paragraph (j) thereof) under the 1933 Act and any interpretations of those Rules by the Securities and Exchange Commission, its staff, courts, or other appropriate legal authorities. |
| (b) | To the extent the terms of this Amendment conflict with the terms of the Participation Agreement, the terms of this Amendment shall control; otherwise, and except as otherwise specifically set forth in this Amendment, the terms of the Participation Agreement shall continue to apply, and shall apply to the duties, responsibilities, rights and obligations of the Parties under and pursuant to this Amendment. |
| 6. | Reserved. |
| 7. | Indemnification. |
| (a) | The Series and/or the Advisor specifically agree to indemnify and hold harmless the Company (and its officers, directors, and employees) from any and all liability, claim, loss, demand, damages, costs and expenses (including reasonable attorney’s fees) arising from or in connection with any claim or action of any type whatsoever brought against the Company (or its officers, directors, and employees) as a result of any failure or alleged failure by the Series and/or the Advisor to provide the Fund Documents in accordance with the terms of this Amendment or any material failure or alleged material failure to fulfill any of their other duties and responsibilities under this Amendment or for any other breach of this Amendment. This indemnification shall be in addition to and not |
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| in lieu of the indemnification provided for in the Participation Agreement or any other addendums or amendments thereto, but otherwise shall be subject to and in accordance with the terms and conditions of the Participation Agreement. |
| (b) | The Company specifically agrees to indemnify and hold harmless the Series, the Distributor, the Advisor and/or the Transfer Agent (and their respective officers, directors, and employees) (collectively, the “Series Indemnified Parties”) from any and all liability, claim, loss, demand, damages, costs and expenses (including reasonable attorney’s fees) arising from or in connection with any claim or action of any type whatsoever brought against any of the Series Indemnified Parties as a result of (i) any failure or alleged failure by the Company to maintain the Specified Website in accordance with the requirements of Rule 30e-3 or (ii) any material failure or alleged material failure by the Company to fulfill any of its other duties and responsibilities under this Amendment or for any other breach of this Amendment. This indemnification shall be in addition to and not in lieu of the indemnification provided for in the Participation Agreement or any other addendums or amendments thereto, but otherwise shall be subject to and in accordance with the terms and conditions of the Participation Agreement. |
| 8. | Counterparts and Delivery. This Amendment may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one instrument. A signed copy of this Amendment delivered by facsimile or by emailing a copy in .pdf form shall be treated as an original and shall bind all Parties just as would the exchange of originally signed copies. |
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as of the date first above written.
The Company:
Equitable Financial Life Insurance Company, on behalf of itself and each Separate Account
| By: |
|
| Print Name: | Xxxxxxx Xxxxxxxxx |
| Title: | Managing Director | |
| Date: | 2/16/2021 | 5:29 PM EST |
The Company:
Equitable Financial Life Insurance Company of America, on behalf of itself and each Separate Account
| By: |
|
| Print Name: | Xxxxxxx Xxxxxxxxx |
| Title: | Senior Vice President | |
| Date: | 2/16/2021 | 5:29 PM EST |
The Distributor:
American Funds Distributors, Inc.
| By: |
|
| Print Name: | Xxxxxxx X. XxXxxx |
| Title: | Secretary | |
| Date: | 2-11-2021 |
The Advisor:
Capital Research and Management Company
| By: |
|
| Print Name: | Xxxxx Xxxxxx Xxxxxxx Xxxxxxx |
| Title: | Senior Vice President & Senior Counsel | |
| Date: | 9 February 2021 |
The Transfer Agent:
American Funds Service Company
| By: |
|
| Print Name: | Xxxxxxx X Xxxxxxxxxx |
| Title: | Chairman | |
| Date: | February 15, 2021 |
The Fund:
American Funds Insurance Series
| By: |
|
| Print Name: | Xxxxx Xxxxxx Xxxxxxx Xxxxxxx |
| Title: | Principal Executive Officer | |
| Date: | 9 February 2021 |
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