EXHIBIT (3)(c)
Filed with the Post-Effective Amendment No. 11 to this
Registration Statement on Form N-4 on March 1, 1991.
1.0 SHARED FUNDING AGREEMENT
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1.1 This Agreement, effective June 5, 1990, by and between Metropolitan
Life, a life insurance corporation with principal offices at Xxx
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("MET"), and Xxxxxxx Securities
Corporation, with principal offices at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("Xxxxxxx"), which serves as principal
underwriter to Acacia Capital Corporation, a registered investment
company (the "Fund").
1.2 In consideration of the promises, representations, warranties,
covenants, agreements and conditions contained herein, and in order to
set forth the terms and conditions of the transactions contemplated
hereby and the mode of carrying the same into effect, and intending to
be legally bound, the parties hereto agree to the provisions set forth
below.
2.0 THE VARIABLE ANNUITY CONTRACT AND THE SEPARATE ACCOUNT
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2.1 MET shall maintain a multi-funded annuity contract (the "Contract")
designed to provide, under current law, the benefits of a tax-deferred
accumulation of income for retirement and other purposes under the
Internal Revenue Code, as amended ("Code"). Individuals who make
payments pursuant to the Contracts are participants, owners, or
certificate holders ("investors").
2.2 Purchase payments for the Contracts shall be invested by MET in a
separate account or accounts. Such payments will constitute a portion
of the assets of the separate account and shall be invested, as
directed by Investors, in certain open-end management companies
registered under the Investment Company Act of 1940 ("1940 Act").
2.3 One of the open-end management companies is the Fund, an open-end
diversified management investment company with eight separate series,
registered under the 1940 Act. Each series is a separate investment
portfolio with distinct investment objectives. One of the series is
Xxxxxxx Socially Responsible Series (the "Series").
2.4 MET will offer one or more of the series of the Fund, including the
Series, through the separate accounts to Investors. MET will determine
in its discretion which separate account or accounts will offer the
Series and which of the Contracts and Investors will be offered the
Series. This agreement will only be binding upon MET insofar as it
relates to those Contracts and issues pertaining to those Contracts
and those Investors to whom the Series is offered.
2.5 MET will use the name "Xxxxxxx Socially Responsible Series" in its
marketing and sales literature when referring to the Series.
2.5.1 MET will use its efforts to market and promote the best
Contracts. MET will give the same emphasis and promotion to
shares of the Series, and shares of any other series of the
Fund that MET and Xxxxxxx may agree to offer, as are given to
any other underlying investment media available to Investors.
2.5.2 In marketing the Contracts, MET will comply with all applicable
state and federal laws. MET and its agents shall make no
representations or warranties concerning the Fund or Series
shares except those contained in the then current prospectuses
of the Fund and in the Fund's current printed sales literature.
Copies of all advertising and sales literature describing or
concerning the Fund which is prepared by MET or its agents for
use in marketing the Contracts will be sent to Xxxxxxx for
approval prior to use. Xxxxxxx agrees to respond with written
(telecopy) comments or approval within 10 business days of
receipt of such sales material. MET shall be responsible for
compliance with any state or federal filing or review
requirements concerning advertising and sales literature.
2.5.3 MET and its agents will not oppose voting recommendations from
Xxxxxxx or the Fund's Board of Directors or interfere with the
solicitation of proxies for the Fund shares held for MET
Investors. MET agrees to provide pass-through voting privileges
to all MET Investors and to assure that each of its separate
accounts participating in the Fund calculates voting privileges
in a manner consistent with all other separate accounts of any
insurance company investing in the Fund, as required by the
exemptive order referenced in Section 3.2.3 of this Agreement.
2.5.4 MET will be responsible for reporting to the Fund's Board of
Directors any potential or existing conflicts among the
interests of the Investors or contract owners of all separate
accounts investing in the Fund, and to assist the Board by
providing it with all information reasonably necessary for the
Board to consider any issues raised. MET and the other relevant
insurance companies will be responsible for taking remedial
action in the event of a Board determination of an
irreconcilable material conflict and to bear the cost of such
remedial action.
2.6 MET will bear the costs of, and have the primary responsibility for:
2.6.1 If required, registering the Contracts and the separate account
with the SEC, including any Application for Exemptive Relief
necessary for the separate account to buy Fund shares;
2.6.2 Developing all policy forms, application forms, confirmations
and other administrative forms or documents and filing such of
these as are necessary to comply with the requirements of all
insurance laws and regulations in each state in which the
Contracts are offered;
2.6.3 Administration of the Contracts and the separate accounts,
including all Investor service and communication activities
except for any costs incurred in connection with Section 3.2.8.
2.6.4 Preparing and approving all marketing and sales literature
involving the sale of Fund shares to MET's separate accounts;
2.6.5 If required by federal or state law, printing and distribution
to MET Investors copies of the current prospectuses, statements
of additional information (as requested by Investors) and
periodic reports for the separate accounts and the Fund;
2.6.6 Preparing and filing any reports or other filings as may be
required under state insurance laws or regulations with respect
to the Contracts or the separate accounts; and
2.6.7 Reimbursing the Fund for the cost of obtaining a separate audit
opinion for the Series, distinct from the Fund's other seven
series.
2.6.8 Indemnifying Xxxxxxx, the Fund, their respective officers,
directors, trustees, employees and agents from any loss,
including reasonable attorney's fees and expenses, arising from
MET's failure to deliver a Fund prospectus to Investors when
legally required to do so.
3.0 THE SERIES
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3.1 The Fund and Xxxxxxx shall make available shares of the Series as the
underlying investment media for MET Investors.
3.2 Xxxxxxx or the Fund shall bear the costs of, and Xxxxxxx shall have,
or shall cause the Fund and the Series to assume, the primary
responsibility for:
3.2.1 Registering the Fund with the SEC including a separate
prospectus for the Series which does not reference the other
seven series of the Fund. The costs of printing and
distributing such prospectus to MET Investors shall be borne by
MET as provided in Section 2.6.5 above.
3.2.2 Preparing, producing and maintaining the effectiveness of such
registration statements for the Fund as are required under
federal and state securities laws, and clearing such
registration statements through the SEC and pursuant to the
securities laws and regulations in each state in which the
Contracts are offered;
3.2.3 Preparing and filing an Application for Exemptive Relief, if
necessary, requesting appropriate exemptive relief from the
relevant provisions of the 1940 Act ("Application") and
clearing such Application through the SEC, thereby permitting
the Contracts to use the Fund as an underlying investment
alternative.
3.2.4 Operating and maintaining the Fund in accordance with
applicable law, including the diversification standards of the
Code applicable to variable annuity contracts;
3.2.5 Preparing and filing any reports or other filings as may be
required with respect to the Fund under federal or state
securities laws;
3.2.6 Using its best efforts to provide MET with the daily net asset
values of the Fund by 5:00 p.m. E.S.T. on each day the New York
Stock Exchange is open;
3.2.7 Notifying MET as soon as possible of any administrative
problems which would prevent or hinder the Fund's ability to
provide net asset values of the Fund to MET as required by
Section 3.2.6; and
3.2.8 Reimbursing MET for any documented costs resulting from the
Fund's having provided MET, pursuant to Section 3.2.6,
incorrect net asset values. Any gain to MET attributable to the
Fund's incorrect reporting of the daily net asset values shall
be immediately returned to the Fund.
3.3 The Fund or Xxxxxxx shall maintain records in accordance with the
Investment Company Act of 1940 or other statutes, rules and
regulations applicable to the Fund's operation in connection with the
performance of its duties. MET shall have the right to access such
records, upon reasonable notice and during business hours, in order to
respond to regulatory requirements, inquiries, complaints or judicial
proceedings. Records of all transactions with respect to the Contract
shall be retained for a period of not less than six (6) years from
each transaction.
3.4 The parties or their duly authorized independent auditors have the
right under this Agreement to perform on-site audits of records
pertaining to the Contract and the Fund, at such frequencies as each
shall determine, upon reasonable notice and during normal business
hours. At the request of the other, each will make available to the
other's auditors and/or representatives of the appropriate regulatory
agencies, all requested records, data, and access to operating
procedures that pertain to this Agreement. The Fund or Xxxxxxx shall
promptly notify MET if either the Fund or Xxxxxxx is inspected by any
appropriate regulatory agency and the results of such inspection.
4.0 COST AND EXPENSE
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4.1 Except as otherwise agreed by the parties in specific instances or, as
set forth herein, the parties shall each pay their respective costs
and expenses incurred by them in connection with this Agreement.
5.0 TERM OF AGREEMENT
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5.1 The term of this Agreement shall be indefinite unless terminated
pursuant to Section 6 of this Agreement.
6.0 TERMINATION
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6.1 This Agreement will terminate:
6.1.1 At the option of any party upon sixty days' prior written
notice to the other parties, but no party may terminate this
Agreement prior to one year after signing agreement. If a party
notifies the other parties that it intends to terminate this
Agreement, that party shall immediately file with the SEC such
documents, if any, as are necessary to permit the offering of
shares of the Series to MET Investors to be discontinued; or
6.1.2 In the event of termination of this Agreement pursuant to this
Section 6.0, the provisions of Sections 2.6.8, 3.2.8, 4.O, and
7.0 shall survive such termination.
6.2 This provision is applicable only to the purchase of additional Fund
shares, not to existing Fund shares owned by the separate accounts.
7.0 GENERAL PROVISIONS
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7.1 This Agreement is the complete and exclusive statement of the
agreement between the parties as to the subject matter hereof which
supersedes all proposals or agreements, oral or written, and all other
communications between the parties related to the subject matter of
this Agreement.
7.2 This Agreement can only be modified by a written agreement duly signed
by the persons authorized to sign agreements on behalf of the
respective party.
7.3 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or be impaired thereby.
7.4 This Agreement and the rights, duties and obligations of the parties
hereto shall not be assignable by either party hereto without the
prior written consent of the other.
7.5 Xxxxxxx agrees to indemnify and hold MET harmless and each officer,
director, employee or agent of MET against any loss, damage or expense
reasonably incurred by any of them in connection with any claim or in
connection with any action, suit or proceeding to which any of them
may be a party, which arises out of or is alleged to arise out of or
is based upon any untrue or alleged untrue statement of material fact,
or the omission or alleged omission to state a material fact necessary
to make the statements therein not misleading, contained in a
registration statement or Prospectus of the Fund, or any amendment or
supplement thereto, unless such statement or omission was made in
reliance upon written information furnished by MET. The foregoing
rights of indemnification shall be in addition to any other rights to
which MET may be entitled as a matter of law. Nothing contained herein
shall relieve MET of any liability to the Fund or Xxxxxxx to which MET
would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of MET's duties or reckless
disregard of MET's obligations and duties hereunder.
7.6 No waiver by either party of any default by the other in the
performance of any promise, term or condition of this Agreement shall
be construed to be a waiver by such party of any other or subsequent
default in performance of the same or any other covenant, promise,
term or condition of this Agreement. No prior transactions or dealing
between the parties shall be deemed to establish any custom or usage
waiving or modifying any provision hereof.
7.7 No liability shall result to any party, nor shall any party be deemed
to be in default hereunder, as the result of delay in its performance
or from its non-performance hereunder caused by circumstances beyond
its control, including but not limited to: act of God, act of war,
riot, epidemic; fire; flood or other disaster; or act of government.
Nevertheless, the party shall be required to be diligent in attempting
to remove such cause or causes.
7.8 Each of the parties will act as an independent contractor under the
terms of this Agreement and neither is now, or in the future, an agent
or a legal representative of the other for any purpose. Neither party
has any right or authority to supervise or control the activities of
the other party's employees in connection with the performance of this
Agreement or to assign or create any application of any kind, express
or implied, on behalf of the other party or to bind it in any way, to
accept any service of process upon it or to receive any notice of any
nature whatsoever on its behalf.
7.9 This Agreement shall be governed by and interpreted in accordance with
the law of the State of New York.
7.10 Nothing herein shall prevent either party from participating in any
administrative proceeding before any regulatory authority having
jurisdiction over any matter relating to this Agreement, the
Contracts, the separate accounts or the Fund which may affect the
parties to it. The parties shall each give the others prompt notice of
any such proceeding.
7.11 In all matters relating to the preparation, review, prior approval and
filing of documents, the parties shall cooperate in good faith.
Neither party shall unreasonably withhold its consent with respect to
the filing of any document with any federal or state regulatory
authority having jurisdiction over the Contracts, the separate
accounts or the Fund.
7.12 Captions contained in this Agreement are for reference purposes only
and do not constitute part of this Agreement.
7.13 All notices which are required to be given or submitted pursuant to
this Agreement shall be in writing and shall be sent by registered or
certified mail, return receipt requested, to the addresses set forth
below:
Xxxx Xxxx, Esq.
Metropolitan Life Ins. Co. General Counsel
Attn. Law Department Xxxxxxx Group, Ltd.
One Madison Avenue 4550 Xxxxxxxxxx Avenue
Area 7-D Suite 1OOON
New York, New York 10010 Xxxxxxxx, XX 00000
or to such other address as the parties may from time to time
designate. Any notice of one party refused by the other shall be
deemed received as of the date of said refusal.
7.14 Each party hereto shall promptly notify the other in writing of any
claims, demands or actions having any bearing on this Agreement.
7.15 Each party agrees to perform its obligations hereunder in accordance
with all applicable laws, rules and regulations now or hereafter in
effect.
7.16 If this Agreement is terminated for other than default, it is
specifically agreed that neither party shall be entitled to
compensation of any kind except as specifically set forth herein.
7.17 In any litigation between the parties, the prevailing party shall be
entitled to reasonable attorney's fees and all costs of proceedings
incurred in enforcing this Agreement.
7.18 This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and permitted assigns.
7.19 Each party represents that it has full power and authority to enter
into and perform this Agreement, and the person signing this
Agreement on behalf of it has been properly authorized and empowered
to enter into this Agreement. Each party further acknowledges that it
has read this Agreement, understands it, and agrees to be bound by
it.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
XXXXXXX SECURITIES- CORPORATION METROPOLITAN LIFE INSURANCE COMPANY
BY: [SIGNATURE ILLEGIBLE] BY: [SIGNATURE ILLEGIBLE]
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MC:kt 6/12/90 6/4/90
