Obligations of the Parties Sample Clauses: 5k Samples

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 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 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 statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. 2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners

Appears in 9 contracts

Sources: Fund Participation Agreement (Minnesota Life Individual Variable Universal Life Account), Fund Participation Agreement (Minnesota Life Individual Variable Universal Life Account), Fund Participation Agreement (Variable Annuity Account)

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 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies (or a PDF if requested by the Company) of any supplement to the current prospectus of the relevant Portfolio(s~~) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company~~) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company or its designee shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with invoices and supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use ~~its best~~ reasonable efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 ~~The~~ Upon the request of the Fund or its designee, 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least ~~fifteen~~ five (5) Business Days prior to the filing of such document with the SEC. ~~The~~ Other than with respect to the Contract prospectuses and statements of additional information, 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least ~~fifteen~~ ten (10) Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within ~~fifteen~~ five (5) Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company ~~Materials~~Materials if the use of the Marks or any information regarding Fund Parties or any of their affiliates therein is inaccurate or misleading or the Fund or its designee has another reasonable basis for determining that such use should not continue. No Company Materials or Updated Company Materials shall be used if within a reasonable time after the Fund or its designee so objects. 2.7 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~~ one copy of the following reports: (a) the Company’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) ~~the Company’s quarterly statements, if any; (c)~~ any financial ~~statement,~~ statement or proxy ~~statement, notice or report~~ statement of the Company sent to ~~policyholders~~Contract Owners invested in Portfolio Shares; and (dc) any registration statement (without exhibits) and annual and quarterly NAIC statutory financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. The Fund and BRIL or its designee shall respond to any request for permission on a prompt basis. Notwithstanding the foregoing, the Company may use the Fund’s and Portfolio’s names for the limited purpose of including them among a list of fund options available in the Contracts and Accounts as also specified in Section 2.6. 2.9 Fund Parties will furnish, or will cause to be furnished, to the Company, each piece of sales literature or other promotional material in which the Company or the Account is named, at least ten (10) Business Days prior to its use. No such material will be used if the Company or its designee reasonably objects to such use within ten (10) Business Days after receipt of such material. Notwithstanding the foregoing, Fund Parties are hereby authorized to use the names of the Company or the Accounts for internal use and may use the name of the Company in list(s) of service organizations performing services for Fund Parties in the Fund’s regulatory filings (including its Prospectus) as required by Applicable Law without any further permission. Neither the Fund nor ~~the Underwriter~~ BAL shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. The Company shall respond to any such request for permission within ten (10) Business Days after receipt of the request. 2.10 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. 2.11 Fund Parties will provide the Company with notice of any material change to the Fund’s registration statement in the same manner and timeframe as they provide notice to other Participating Insurance Companies which sign up for Back-Office Communications. Fund Parties will provide the Company with notice of any proxy solicitation for any Portfolio in a mutually agreed-upon manner. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 all applicable laws and rules and ~~regulations. All applicable laws, rules and regulations including, without limitation, the rules and~~ regulations of ~~any~~ applicable regulatory ~~or self-regulatory authority with jurisdiction over a party are collectively referred to herein as~~ authorities (“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. ~~2.11~~ 2.12 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the~~ The Underwriter or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund in connection with variable products, which is currently the Administrative Services Agreement dated October 22, 2018 between the Company and BAL (the “Related Agreements”) as ~~many printed~~ it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors of the Fund (the “Directors”) concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law. (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records. Without limiting the ~~Fund’s current shareholder report as~~ generality of the foregoing, the Company ~~may reasonably request. If requested~~ shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided by the Company, the ~~Fund shall also provide an electronic copy containing~~ fees charged by the ~~Fund’s shareholder reports~~Company, compliance with the terms of the Agreement, and ~~such other assistance as is reasonably necessary in order for~~ the internal controls over services provided by the Company ~~twice each year (once for~~ as well as written communications regarding the ~~Fund’s semi-annual report and once for~~ Fund to or from the ~~Fund’s annual report) to distribute the reports to~~ Existing Contract ~~Owners~~Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. (e) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls. (a) The Company represents and warrants that, to the best of its knowledge, the various procedures and systems which the Company has implemented with regard to safeguarding the records and other data from loss or damage attributable to fire, theft or any other cause and its records, data, equipment, facilities and other property used in the performance of the Company’s obligations hereunder

Appears in 6 contracts

Sources: Fund Participation Agreement (State Farm Life Insurance Co Variable Annuity Separate Act), Fund Participation Agreement (State Farm Life & Accident Assur Co Var Life Sep Acct), Fund Participation Agreement (State Farm Life & Accident Ass Co Var Ann Sep Acct)

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~~ 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company~~. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information~~. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 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 statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. 2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners

Appears in 4 contracts

Sources: Fund Participation Agreement (First MetLife Investors Variable Annuity Account One), Fund Participation Agreement (Metropolitan Life Separate Account E), Fund Participation Agreement (Metropolitan Life Separate Account E)

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~~ 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio~~’s “~~'s "prospectus” " shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s 's expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s 's proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL ("Fund Parties") or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. The Company shall furnish, or shall cause to be furnished, to the Fund or its designee, each piece of ~~sales~~ sates literature or other promotional material in which the Fund, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “"Company Materials”"), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“"Updated Company Materials”") unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or ~~its~~ its. designee so objects. The requirement to furnish sales literature and promotional materials under this provision shall not include literature or materials that simply list one or more of the underlying fund names, logo or underlying fund performance. ~~2.7~~ 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,~~ practical to the Fund or its designee copies of the following reports: (a) the Company’s 's annual financial ~~statements~~ report (prepared under generally accepted accounting principles s (~~“GAAP”))~~"GMP", if any); (b) the Company’s 's quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, 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~~Shares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, ~~Fund-~~Fund sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or ~~Underwriter (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.10 Solely with respect to Contracts and Accounts that are subject to the 1940 Act, so long ~~as,~~ as1 and to the extent that the SEC interprets the 1940 Act to require pass-through voting privileges for variable Contract ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in good faith. (a) The Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund~~’s sole discretion~~) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the "Related Agreements") as it may reasonably request (including, without limitation, periodic certifications confirming the Company's provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law. ~~2.12~~ (b) The ~~Underwriter~~ Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its ~~designee~~designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, ~~shall~~ a party will provide ~~the Company with as many printed~~ copies of historical records relating to transactions between the ~~Fund’s current shareholder report as~~ Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party's or parties' performance or perform general customer supervision. The Company ~~may reasonably request. If requested~~ shalt also maintain and preserve all records which would enable the Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund ~~shall also provide an electronic copy containing~~ or its designee. Upon reasonable request, the ~~Fund’s shareholder reports~~Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such ~~other assistance as is reasonably necessary~~ due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report ("SSAE 16") and its Financial Intermediary Controls and Compliance Assessment. (e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company's performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit and Fund or its designee will perform the audit in ~~order~~ a manner that minimizes, to the extent possible, the number of Company’s personnel and the Company's resources utilized for the audit. The Company ~~twice each year~~ is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require. (~~once for~~ f) Nothing in this Agreement will impose upon the ~~Fund’s semi-annual report~~ Fund or its designee the obligation to review the Company's practices, procedures and ~~once for the Fund’s annual report) to distribute the reports to Existing Contract Owners~~controls.

Appears in 2 contracts

Sources: Fund Participation Agreement (Principal Life Insurance Co Separate Account B), Fund Participation Agreement (Principal Life Insurance Co Separate Account B)

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~~ 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~~ The Underwriter or its designee shall promptly provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company or its delegate (suitable for duplication by the Company or its delegate at the Company’s expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company or its delegate free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL (“Fund Parties”) or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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 ~~statements~~ report (prepared under ~~generally accepted~~ statutory accounting ~~principles (“GAAP”)), if any~~principles; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, the Company or its delegate 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company or its delegate shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company or its ~~designee~~delegate will furnish the Fund or its designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as ~~many printed~~ well as any other reports or filings that may be required by law. (b) The Company or its delegate and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the ~~Fund~~Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s ~~current shareholder report as~~ or parties’ performance or perform general customer supervision. The Company and its delegate shall also maintain and preserve all records which would enable the ~~Company may reasonably request. If requested~~ Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund ~~shall also provide an electronic copy containing~~ or its designee. Upon reasonable request, the ~~Fund’s shareholder reports~~Company agrees that it or its delegate will make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and ~~such other assistance as is reasonably necessary in order for~~ the Company ~~twice each~~ shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”) and its Financial Intermediary Controls and Compliance Assessment. (e) The Company and its delegate shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company or its delegate with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company and its delegate shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its delegate or its systems during the audit. The Company or its delegate is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company or its delegate may require. (~~once for~~ f) Nothing in this Agreement will impose upon the ~~Fund~~Fund or its designee the obligation to review the Company’s ~~semi-annual report~~ or its delegate’s practices, procedures and ~~once for the Fund’s annual report) to distribute the reports to Existing Contract Owners~~controls.

Appears in 2 contracts

Sources: Fund Participation Agreement, Fund Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4)

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 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies (or a PDF if requested by the Company) of any supplement to the current prospectus of the relevant Portfolio(s~~) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company~~) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company or its designee shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with invoices and supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use ~~its best~~ reasonable efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 ~~The~~ Upon the request of the Fund or its designee, 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least ~~fifteen~~ five (5) Business Days prior to the filing of such document with the SEC. ~~The~~ Other than with respect to the Contract prospectuses and statements of additional information, 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least ~~fifteen~~ ten (10) Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within ~~fifteen~~ five (5) Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company ~~Materials~~Materials if the use of the Marks or any information regarding Fund Parties or any of their affiliates therein is inaccurate or misleading or the Fund or its designee has another reasonable basis for determining that such use should not continue. No Company Materials or Updated Company Materials shall be used if within a reasonable time after the Fund or its designee so objects. 2.7 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~~ one copy of the following reports: (a) the Company’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) ~~the Company’s quarterly statements, if any; (c)~~ any financial ~~statement,~~ statement or proxy ~~statement, notice or report~~ statement of the Company sent to ~~policyholders~~Contract Owners invested in Portfolio Shares; and (dc) any registration statement (without exhibits) and annual and quarterly NAIC statutory financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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~~Shares (as such registration statement and Prospectus may be amended or supplemented from time to time), reports of the Fund, ~~Fund-~~Fund- sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or ~~Underwriter (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. The Fund and BRIL or its designee shall respond to any request for permission on a prompt basis. Notwithstanding the foregoing, the Company may use the Fund’s and Portfolio’s names for the limited purpose of including them among a list of fund options available in the Contracts and Accounts as also specified in Section 2.6. 2.9 Fund Parties will furnish, or will cause to be furnished, to the Company, each piece of sales literature or other promotional material in which the Company or the Account is named, at least ten (10) Business Days prior to its use. No such material will be used if the Company or its designee reasonably objects to such use within ten (10) Business Days after receipt of such material. Notwithstanding the foregoing, Fund Parties are hereby authorized to use the names of the Company or the Accounts for internal use and may use the name of the Company in list(s) of service organizations performing services for Fund Parties in the Fund’s regulatory filings (including its Prospectus) as required by Applicable Law without any further permission. Neither the Fund nor ~~the Underwriter~~ BAL shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. The Company shall respond to any such request for permission within ten (10) Business Days after receipt of the request. 2.10 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. 2.11 Fund Parties will provide the Company with notice of any material change to the Fund’s registration statement in the same manner and timeframe as they provide notice to other Participating Insurance Companies which sign up for Back-Office Communications. Fund Parties will provide the Company with notice of any proxy solicitation for any Portfolio in a mutually agreed-upon manner. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 all applicable laws and rules and ~~regulations. All applicable laws, rules and regulations including, without limitation, the rules and~~ regulations of ~~any~~ applicable regulatory ~~or self-regulatory authority with jurisdiction over a party are collectively referred to herein as~~ authorities (“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. ~~2.11~~ 2.12 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the~~ The Underwriter or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund in connection with variable products, which is currently the Administrative Services Agreement dated October 22, 2018 between the Company and BAL (the “Related Agreements”) as ~~many printed~~ it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors of the Fund (the “Directors”) concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law. (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records. Without limiting the ~~Fund’s current shareholder report as~~ generality of the foregoing, the Company ~~may reasonably request. If requested~~ shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided by the Company, the ~~Fund shall also provide an electronic copy containing~~ fees charged by the ~~Fund’s shareholder reports~~Company, compliance with the terms of the Agreement, and ~~such other assistance as is reasonably necessary in order for~~ the internal controls over services provided by the Company ~~twice each year (once for~~ as well as written communications regarding the ~~Fund’s semi-annual report and once for~~ Fund to or from the ~~Fund’s annual report) to distribute the reports to~~ Existing Contract ~~Owners~~Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. (e) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls. (a) The Company represents and warrants that, to the best of its knowledge, the various procedures and systems which the Company has implemented with regard to safeguarding the records and other data from loss or damage attributable to fire, theft or any other cause and its records, data, equipment, facilities and other property used in the performance of the Company’s obligations hereunde

Appears in 2 contracts

Sources: Fund Participation Agreement (State Farm Life Insurance Co Variable Life Separate Account), Fund Participation Agreement (State Farm Life Insurance Co Variable Life Separate Account)

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~~ 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~~ The Underwriter or its designee shall promptly provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company or its delegate (suitable for duplication by the Company or its delegate at the Company’s expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company or its delegate free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL (“Fund Parties”) or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least ~~fifteen~~ xxx Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least ~~fifteen~~ xxx Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within ~~fifteen~~ xxx Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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 ~~statements~~ report (prepared under ~~generally accepted~~ statutory accounting ~~principles (“GAAP”)), if any~~principles; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, the Company or its delegate 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company or its delegate shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company or its ~~designee~~delegate will furnish the Fund or its designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as ~~many printed~~ well as any other reports or filings that may be required by law. (b) The Company or its delegate and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the ~~Fund~~Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s ~~current shareholder report as~~ or parties’ performance or perform general customer supervision. The Company and its delegate shall also maintain and preserve all records which would enable the ~~Company may reasonably request. If requested~~ Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund ~~shall also provide an electronic copy containing~~ or its designee. Upon reasonable request, the ~~Fund’s shareholder reports~~Company agrees that it or its delegate will make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and ~~such other assistance as is reasonably necessary in order for~~ the Company ~~twice each~~ or its delegate shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company or its delegate shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”). (e) The Company and its delegate shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company or its delegate with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company and its delegate shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its delegate or its systems during the audit. The Company or its delegate is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company or its delegate may require. (~~once for~~ f) Nothing in this Agreement will impose upon the ~~Fund~~Fund or its designee the obligation to review the Company’s ~~semi-annual report~~ or its delegate’s practices, procedures and ~~once for the Fund’s annual report) to distribute the reports to Existing Contract Owners~~controls.

Appears in 2 contracts

Sources: Fund Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4), Fund Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4)

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~~ 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio~~’s “~~'s "prospectus” " shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s 's expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s 's proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL ("Fund Parties") or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “"Company Materials”"), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“"Updated Company Materials”") unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. , No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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 's annual financial ~~statements~~ report (prepared under generally accepted accounting principles (“"GAAP~~”))~~", if any); (b) the Company’s 's quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s 's sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the "Related Agreements") as it may reasonably request (including, without limitation, periodic certifications confirming the Company's provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and /or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as ~~many printed~~ well as any other reports or filings that may be required by law. (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the ~~Fund’s current shareholder report as~~ Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party's or parties' performance or perform general customer supervision. The Company ~~may reasonably request. If requested~~ shall also maintain and preserve all records which would enable the Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund ~~shall also provide an electronic copy containing~~ or its designee. Upon reasonable request, the ~~Fund’s shareholder reports~~Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and ~~such other assistance as is reasonably necessary in order for~~ the Company ~~twice each~~ shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report ("SSAE 16") and its Financial Intermediary Controls and Compliance Assessment. (e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company's performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity of the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require. (~~once for~~ f) Nothing in this Agreement will impose upon the ~~Fund’s semi-annual report~~ Fund or its designee the obligation to review the Company's practices, procedures and ~~once for the Fund’s annual report) to distribute the reports to Existing Contract Owners~~controls.

Appears in 2 contracts

Sources: Fund Participation Agreement (Horace Mann Life Insurance Co Separate Account), Fund Participation and Service Agreement (Horace Mann Life Insurance Co Separate Account)

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 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~~ Fund or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing both statutory and summary prospectuses for Prospective Purchasers. The ~~Underwriter~~ Fund or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the ~~Underwriter~~ Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the ~~Underwriter~~ Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional ~~information.~~information and include the summary prospectus for the Fund. The Fund agrees that the hosting of current summary prospectuses and other current documents required by Rule 498(e)(1) (“Fund Documents”), at the website address designated by the Fund on each summary prospectus (“Fund Documents Site”), is designed to lead directly to the Fund Documents Site and complies with all applicable requirements of Rule 498(e) and (f)(3). The Fund also agrees to be responsible for compliance with the provisions of Rule 498 (f)(1) involving requests for additional Fund Documents made directly to the Fund. The Fund shall ensure that a summary prospectus is used for the Portfolios, in accordance with paragraph (j)(1)(ii) of Rule 498A. 2.3 The ~~Underwriter~~ Fund or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The ~~Underwriter~~ Fund or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the ~~Underwriter~~ Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the ~~Underwriter~~ Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the ~~Underwriter~~ Fund or its designee with supporting documentation which is sufficient in the reasonable opinion of the ~~Underwriter~~ Fund or its designee to enable the ~~Underwriter~~ Fund or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, ~~BRIL~~DIST, ~~BAL~~ Cboe Vest or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. The Fund shall furnish, or shall cause to be furnished, to the Company, each piece of sales literature or other promotional material in which the name, logos, trademarks or service marks of the Company or its affiliates are used, at least fifteen Business Days prior to its use. No sales literature or other promotional material shall be used if the Company reasonably objects to such use within fifteen Business Days after receipt of such material. 2.7 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 statements (prepared under ~~generally accepted~~ statutory accounting ~~principles (“GAAP”)~~practices), if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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~~ Cboe Vest in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The ~~Underwriter~~ Fund or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter~~ The Fund or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law, including at the request of a regulatory or self-regulatory authority (including, without limitation, the SEC, FINRA and state insurance regulators). (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records, including without limitation, copies of historical records relating to the transactions effected pursuant to this Agreement. Without limiting the generality of the foregoing, the Company shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided and fees charged by the Company, compliance with the terms of the Agreement, and the internal controls over services provided by the Company as well as written communications regarding the Fund to or from the Existing Contract Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. (e) The Company shall permit the Fund or its designee to conduct one physical on-site due diligence review per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee will provide the Company with reasonable notice of its intention to conduct such a review. For purposes of these review privileges, the Company shall permit the authorized personnel of the Fund or its designees to have access to its books, records, information, systems, employees and agents pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all review activity of the Fund or its designee, ~~shall provide~~ and the ~~Company with as many printed copies of the Fund’s current shareholder report~~ review will be subject to such reasonable security and confidentiality measures as the Company may ~~reasonably request. If requested by~~ require. (f) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls. (a) The Company represents and warrants that, to the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownersbest of its knowled

Appears in 1 contract

Sources: Fund Participation Agreement (C M Life Variable Life Separate Account I)

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 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~~ Fund or its designee shall provide the Company with a PDF of the current ~~prospectus~~ summary and statutory prospectuses (“Prospectuses”) of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing both statutory and summary prospectuses for Prospective Purchasers. The ~~Underwriter~~ Fund or its designee shall provide the Company free of charge with copies of any supplement to the current ~~prospectus~~ Prospectuses of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the ~~Underwriter~~ Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the ~~Underwriter~~ Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The ~~Underwriter~~ Fund or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other required communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the ~~Underwriter~~ Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the ~~Underwriter~~ Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the ~~Underwriter~~ Fund or its designee with supporting documentation which is sufficient in the reasonable opinion of the ~~Underwriter~~ Fund or its designee to enable the ~~Underwriter~~ Fund or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, ~~BRIL~~DIST, ~~BAL~~ Cboe Vest or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall cause to be furnished, if applicable, as soon as practical, to the Fund or its designee copies of the following reports: (a) the Company’s annual financial ~~statements (prepared under generally accepted accounting principles (“GAAP”))~~statements, if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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~~ Cboe Vest in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The ~~Underwriter~~ Fund or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter~~ The Fund or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as ~~many printed~~ well as any other reports or filings that may be required by law, including at the request of a regulatory or self-regulatory authority (including, without limitation, the SEC, FINRA and state insurance regulators). (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records, including without limitation, copies of historical records relating to the ~~Fund’s current shareholder report as~~ transactions effected pursuant to this Agreement. Without limiting the generality of the foregoing, the Company ~~may reasonably request. If requested~~ shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided and fees charged by the Company, compliance with the terms of the Agreement, and the internal controls over services provided by the Company as well as written communications regarding the Fund ~~shall also provide an electronic copy containing~~ to or from the ~~Fund’s shareholder reports~~Existing Contract Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. (e) The Company shall provide the Fund or its designee with periodic certifications relating to its compliance with the terms of this Agreement and the Related Agreements, and will respond to periodic due diligence questionnaires as agreed to by the Company and the Fund from time to time. (f) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls. (a) The Company and Fund each represents and warrants that, to the best of its knowledge, the various procedures and systems which the Company or Fund have implemented with regard to safeguarding its records, data, equipment, facilities and other ~~assistance~~ property used in the performance of its obligations hereunder or under the Related Agreements from loss or damage attributable to fire, theft, cyber security threat or any other cause are adequate, and the Company and Fund will make such changes therein from time to time as ~~is reasonably necessary~~ in ~~order~~ its reasonable judgment are required for the secure performance of the Company’s obligations hereunder. The parties shall review such systems and procedures on a periodic basis, and may from time to time specify the types of records to be safeguarded in accordance with this Section 2.13, provided that such request is not unreasonable. (b) The Company ~~twice each year (once~~ and Fund shall maintain a commercially reasonable disaster recovery plan that meets commercially reasonable standards for systems backup and will provide a copy of its then-current plan to the ~~Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners~~Fund or its designee upon its request.

Appears in 1 contract

Sources: Fund Participation Agreement (Guardian Separate Account R)

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 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. For the avoidance of doubt, the Underwriter will pay the Company for either (a) the Company’s usual, customary and reasonable costs for printing and distributing the Funds’ prospectus for Existing Contract Owners inclusive of Fund supplements or (b) a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement but not both (a) and (b). 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs~~. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry~~. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 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 ~~statements (prepared under generally accepted accounting principles (“GAAP”))~~statements, if any; (b) the Company’s quarterly statements, if any;; and (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders~~; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator~~. 2.8 Notwithstanding anything to the contrary in this Agreement, 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 then-current registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in then-current sales literature or other promotional material approved by the Fund or Underwriter ~~(as such documents may be amended or supplemented from time to time)~~for public distribution, except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts other than information or representations contained in and accurately derived from the then-current registration statements or then-current Contract ~~prospectuses (as such registration statements or Contract prospectuses may by amended or supplemented from time to time)~~prospectuses, except with the written permission of the Company. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the~~ The Underwriter or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law, including at the request of a regulatory or self-regulatory authority (including, without limitation, the SEC, FINRA and state insurance regulators). (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund and/or its designee(s) concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records, including without limitation, historical records relating to the transactions effected pursuant to this Agreement. Without limiting the generality of the foregoing, the Company shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided and fees charged by the Company, compliance with the terms of the Agreement, and the internal controls over services provided by the Company as well as written communications regarding the Fund to or from the Existing Contract Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire to the Fund or its designee within a reasonable timeframe and promptly answer follow-up questions. (e) The Company shall make available to the Fund and/or its designee(s) all books, records, data and access to operating procedures, employees and agents pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee(s) will provide the Company with reasonable notice of its intention to conduct such a review. (f) Nothing in this Agreement will impose upon the Fund or any of its designees the obligation to review the Company’s practices, procedures or controls. (a) The Company represents and warrants that, to the best of its knowledge, the various procedures and systems which the Company has implemented with regard to safeguarding its records, data, equipment, facilities and other property used in the performance of its obligations hereunder or under the Related Agreements from loss or damage attributable to fire, theft, cyber security threat or any other cause are adequate, and the Company will make such changes therein from time to time as ~~many printed copies~~ in its reasonable judgment are required for the secure performance of the ~~Fund~~Company’s obligations hereunder. The parties shall review such systems and procedures on a periodic basis, and Fund Parties may from time to time specify the types of records to be safeguarded in accordance with this Section 2.13, provided that such request is not unreasonable. (b) The Company shall maintain a commercially reasonable disaster recovery plan that meets commercially reasonable standards for systems backup and will provide a summary of its then-current ~~shareholder report~~ plan to BRIL or its designee upon its request. 2.14 With respect to any Account that invests in a Portfolio that is an “acquiring fund,” as such term is defined by Rule 12d1-4 under the 1940 Act, the Company ~~may reasonably request. If requested~~ shall provide a certification to the applicable Fund on an annual basis that the Company has determined that the fees and expenses borne by the ~~Company~~Account, ~~the Fund shall also provide an electronic copy containing the Fund’s shareholder reports~~acquiring fund, and ~~such other assistance as is reasonably necessary~~ acquired fund(s), in ~~order for~~ the ~~Company twice each year (once for~~ aggregate, are consistent with the ~~Fund’s semi-annual report and once for~~ standard set forth in Section 26(f)(2)(A) of the ~~Fund’s annual report) to distribute the reports to Existing Contract Owners~~1940 Act.

Appears in 1 contract

Sources: Fund Participation Agreement (Northwestern Mutual Variable Life Account II)

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~~ 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above~~ Underwriter or its designee to verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any printing expenses. If the Company prints such documents, Company agrees that any printer its selects shall be a reputable printer with ~~respect to Existing Contract Owners and will not pay any costs~~ a recognized specialty in ~~connection with printing or distributing such materials to Prospective Purchasers~~financial services printing. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company ~~will provide~~ shall not make any representations regarding the Fund, the Underwriter or BAL (“Fund Parties”) or any Portfolio or its ~~designee with supporting documentation which is sufficient~~ shares except those contained in the ~~reasonable opinion~~ Fund’s then current prospectus or statement of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Ownersadditional information. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL~~ Fund Parties or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the initial filing of such document with the ~~SEC~~SEC (“Registration Materials”). The Company need not furnish, or cause to be furnished, to the Fund or its designee revisions to Registration Materials previously approved by the Fund or its designee (“Updated Registration Materials”) unless the Registration Materials have been materially changed. The Fund or its designee also reserves the right to review Registration Materials and Updated Registration Materials at any time upon request made by the Fund or its designee to the Company. 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, any of Portfolio, the ~~Marks are used (such materials together~~ Underwriter, or BAL or any entity with ~~Contract prospectuses and statements of additional information,~~ BlackRock in its name is named ( “~~Company~~ Marketing Materials”), at least ~~fifteen~~ ten Business Days prior to its first use. No ~~Company~~ Marketing Materials shall be used if any of the Fund Parties reasonably objects to such use within ~~fifteen~~ five Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to ~~Company~~ Marketing Materials previously approved by the Fund or its designee (“Updated ~~Company~~ Marketing Materials”) unless the ~~Company~~ Registration or Marketing Materials ~~on which they are based~~ have been materially changed. The Fund or its designee also reserves the right to review ~~Company~~ Marketing Materials and Updated ~~Company~~ Marketing Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any ~~Company~~ Marketing Materials or Updated ~~Company~~ Marketing Materials. No ~~Company~~ Marketing Materials or Updated ~~Company~~ Marketing Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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~~reports to assist the Fund or its designee in performing on-going due diligence: (a) the Company’s annual financial ~~statements~~ report (prepared under generally accepted accounting principles (“GAAP”)), if any); (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator; and (e) any other such documentation as the Fund or its designee may reasonably request. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as ~~many printed~~ well as any other reports or filings that may be required by law. (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the ~~Fund~~Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s ~~current shareholder report as~~ or parties’ performance or perform general customer supervision. The Company shall also maintain and preserve all records which would enable the ~~Company may reasonably request. If requested~~ Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund ~~shall also provide an electronic copy containing~~ or its designee. Upon reasonable request, the ~~Fund’s shareholder reports~~Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and ~~such other assistance as is reasonably necessary in order for~~ the Company ~~twice~~ shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee (i) a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”) and/or a Financial Intermediary Controls and Compliance Assessment (“▇▇▇▇▇”) or any successor report that is substantially similar, each issued by a recognized independent public accounting firm selected by the Company or (ii) certification that the Company’s obligations under this Agreement are being met. (e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require. (~~once for~~ f) Nothing in this Agreement will impose upon the ~~Fund~~Fund or its designee the obligation to review the Company’s ~~semi-annual report~~ practices, procedures and ~~once for the Fund’s annual report) to distribute the reports to Existing Contract Owners~~controls.

Appears in 1 contract

Sources: Fund Participation Agreement (MEMBERS Horizon Variable Separate Account)

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~~ 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, at the expense of the Underwriter or its designee, the Underwriter or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in ~~this~~ Article 2 as “"Existing Contract Owners”") and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing prospectuses for Existing Contract Owners, and the Underwriter or its designee will pay the Company's usual, customary and reasonable costs ~~for printing and~~ of distributing the prospectuses ~~for~~ to Existing Contract Owners. ~~The Company will bear~~ At the ~~costs~~ expense of ~~printing and distributing prospectuses for Prospective Purchasers. The~~ the Underwriter or its designee, the Underwriter or its designee shall provide the Company ~~free of charge~~ with copies ~~of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request~~ (or a PDF if requested by the Company) of any supplement to the current prospectus of the applicable Portfolio(s) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “"Combined Prospectus/Supplement”"), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the ~~Portfolio(s)’ prospectus(es~~Portfolio(s)'prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to ~~Prospective Purchasers~~Contract Owners whose Contracts are not funded by Shares of Portfolio(s) or prospective purchasers of Contracts. The Company ~~may use such PDF described above to assist~~ will provide the Underwriter or its designee with supporting documentation which is sufficient in the ~~updating of any of its Contract prospectuses or related materials in order to have the prospectuses~~ reasonable opinion of the ~~Portfolios conform~~ Underwriter or its designee to enable the ~~Company’s~~ Underwriter or its designee to verify the printing and distribution expenses for which the Company requests reimbursement in respect of Existing Contract ~~prospectuses or related materials~~Owners. The Company agrees to use its best efforts to minimize any printing and distribution expenses. If the Company prints such documents, ~~with~~ Company agrees that any printer it selects shall be a reputable printer within the industry. The Company will bear the costs of ~~such updating, including printing, to be borne by the Company~~printing and distributing prospectuses for prospective purchasers of Contracts. For purposes of this Section 2.2 only, references to a Portfolio~~’s “~~'s "prospectus” " shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s 's expense) for distribution at the Company’s 's expense to any Existing Contract Owner or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s 's reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “"Reports”") for distribution to Existing Contract Owners (in such quantity as the Company shall reasonably ~~request for distribution to Existing Contract Owners. The~~ request).The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable costs of ~~printing and~~ distributing Reports ~~for~~ to Existing Contract ~~Owners.~~ Owners If a Report is printed in combination with such documents of other fund families (a “"Combined Report”"), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s 's Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to ~~Prospective Purchasers. 2.5~~ Contract Owners whose Contracts are not funded by Shares of Portfolio(s) or prospective purchasers of Contracts. The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution ~~costs~~ expenses for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing ~~and distribution costs~~expenses. If the Company prints such documents, Company agrees that any printer it its selects shall be a reputable printer within the industry. ~~2.6~~ 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “"Marks”") are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “"Company Materials”"), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“"Updated Company Materials”") unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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 's annual financial statements (prepared under generally accepted accounting principles (“"GAAP”)"), if any; ; (b) the Company’s 's quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. 2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners

Appears in 1 contract

Sources: Fund Participation Agreement (Separate Account Vl I of Talcott Resolution Life & Annuity Insurance Co)

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 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 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 statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. 2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownersthe

Appears in 1 contract

Sources: Fund Participation Agreement (Aul American Individual Variable Life Unit Trust)

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~~ prospectuses, including summary prospectuses if available, 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer it selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company~~. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information~~. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 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 statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. 2.12 The Underwriter or its designee, shall provide the Company with as many printed copies of the Fund’s current shareholder report as the Company may reasonably request. If requested by the Company, the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Owners

Appears in 1 contract

Sources: Fund Participation Agreement (Pruco Life Inurance Co of New Jersey FLXBL Prmium Var Ann Ac)

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~~ 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL (“Fund Parties”) or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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 ~~statements~~ report (prepared under generally accepted accounting principles (“GAAP”)), if any); (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ 2.11 (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company ~~with~~ for the Fund (the “Related Agreements”) as ~~many printed copies of the Fund’s current shareholder report as the Company~~ it may reasonably ~~request. If requested by~~ request (including, without limitation, periodic certifications confirming the Company~~, the Fund shall also provide an electronic copy containing the Fund~~’s ~~shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once~~ provision of services for the Fund~~’s semi-annual report~~ ) and ~~once for~~ will cooperate with the ~~Fund’s annual report) to distribute~~ Fund or its designee in connection with the preparation of reports to ~~Existing Contract Owners~~the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law.

Appears in 1 contract

Sources: Fund Participation Agreement (National Variable Annuity Account Ii)

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 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~~ Fund or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing both statutory and summary prospectuses for Prospective Purchasers. The ~~Underwriter~~ Fund or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the ~~Underwriter~~ Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the ~~Underwriter~~ Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional ~~information.~~information and include the summary prospectus for the Fund. The Fund agrees that the hosting of current summary prospectuses and other current documents required by Rule 498(e)(1) (“Fund Documents”), at the website address designated by the Fund on each summary prospectus (“Fund Documents Site”), is designed to lead directly to the Fund Documents Site and complies with all applicable requirements of Rule 498(e) and (f)(3). The Fund also agrees to be responsible for compliance with the provisions of Rule 498 (f)(1) involving requests for additional Fund Documents made directly to the Fund . The Fund shall ensure that a summary prospectus is used for the Portfolios, in accordance with paragraph (j)(1)(ii) of Rule 498A. 2.3 The ~~Underwriter~~ Fund or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The ~~Underwriter~~ Fund or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the ~~Underwriter~~ Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the ~~Underwriter~~ Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the ~~Underwriter~~ Fund or its designee with supporting documentation which is sufficient in the reasonable opinion of the ~~Underwriter~~ Fund or its designee to enable the ~~Underwriter~~ Fund or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, ~~BRIL~~DIST, ~~BAL~~ Cboe Vest or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. The Fund shall furnish, or shall cause to be furnished, to the Company, each piece of sales literature or other promotional material in which the name, logos, trademarks or service marks of the Company or its affiliates are used, at least fifteen Business Days prior to its use. No sales literature or other promotional material shall be used if the Company reasonably objects to such use within fifteen Business Days after receipt of such material. 2.7 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 statements (prepared under ~~generally accepted~~ statutory accounting ~~principles (“GAAP”)~~practices), if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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~~ Cboe Vest in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The ~~Underwriter~~ Fund or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter~~ The Fund or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law, including at the request of a regulatory or self-regulatory authority (including, without limitation, the SEC, FINRA and state insurance regulators). (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records, including without limitation, copies of historical records relating to the transactions effected pursuant to this Agreement. Without limiting the generality of the foregoing, the Company shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided and fees charged by the Company, compliance with the terms of the Agreement, and the internal controls over services provided by the Company as well as written communications regarding the Fund to or from the Existing Contract Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. (e) The Company shall permit the Fund or its designee to conduct one physical on-site due diligence review per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee will provide the Company with reasonable notice of its intention to conduct such a review. For purposes of these review privileges, the Company shall permit the authorized personnel of the Fund or its designees to have access to its books, records, information, systems, employees and agents pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all review activity of the Fund or its designee, ~~shall provide~~ and the ~~Company with as many printed copies of the Fund’s current shareholder report~~ review will be subject to such reasonable security and confidentiality measures as the Company may ~~reasonably request. If requested by~~ require. (f) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls. (a) The Company represents and warrants that, to the Fund shall also provide an electronic copy containing the Fund’s shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownersbest of its knowle

Appears in 1 contract

Sources: Fund Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4)

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), and Prospectuses 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within ~~fifteen~~ ten Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 At the reasonable request of a Party (the ~~Fund~~ “Requesting Party”) or its designee, another Party (the ~~Company~~ “Responding Party”) shall furnish, or shall cause to be furnished, as soon as practical, to the ~~Fund or~~ Requesting Party its designee copies of the following reports: (a) the ~~Company~~Responding Party’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) the ~~Company~~Responding Party’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the ~~Company~~ Responding Party sent to ~~policyholders~~its policyholders or shareholders, as applicable; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the ~~Company~~ Responding Party filed with any federal or state insurance or securities regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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, unless the Contracts are exempt from registration under Applicable Law. ~~The~~ To the extent required by Applicable Law, the Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the~~ The Underwriter or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law, including at the request of a regulatory or self-regulatory authority (including, without limitation, the SEC, FINRA and state insurance regulators). (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records, including without limitation, copies of historical records relating to the transactions effected pursuant to this Agreement. Without limiting the generality of the foregoing, the Company shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided and fees charged by the Company, compliance with the terms of the Agreement, and the internal controls over services provided by the Company as well as written communications regarding the Fund to or from the Existing Contract Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. (e) Upon request, the Company provide a Financial Intermediary Controls and Compliance Assessment (“▇▇▇▇▇”) and a Statement on Standards for Attestation Engagements 18 Report (“SSAE 18”) or other report(s) that is/are substantially similar and acceptable to Fund Parties, each issued by a recognized independent accounting firm selected by the Company. (f) The Company shall permit the Fund or its designee, ~~shall~~ at the Fund’s expense, to conduct one physical on-site due diligence review per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee will provide the Company with ~~as many printed copies~~ reasonable notice of its intention to conduct such a review. For purposes of these review privileges, the Company shall permit the authorized personnel of the ~~Fund~~Fund or its designees to have access to its books, records, information, systems, employees and agents pertinent to the Company’s ~~current shareholder report~~ performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all review activity of the Fund or its designee, and the review will be subject to such reasonable security and confidentiality measures as the Company may ~~reasonably request~~require. ~~If requested by~~ The Fund shall reimburse the Company for its reasonable expenses, including its employees’ time, incurred in connection with the review. (g) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls. (a) The Company represents and warrants that, to the best of its knowledge, the ~~Fund shall also provide an electronic copy containing the Fund’s shareholder reports,~~ various procedures and ~~such other assistance as is reasonably necessary in order for~~ systems which the Company ~~twice each year (once for~~ has implemented with regard to safeguarding its records, data, equipment, facilities and other property used in the ~~Fund’s semi-annual report and once for~~ performance of its obligations hereunder or under the ~~Fund’s annual report)~~ Related Agreements from loss or damage attributable to ~~distribute the reports to Existing Contract Owners~~fire,

Appears in 1 contract

Sources: Fund Participation Agreement (Protective COLI VUL)

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~~ prospectuses and statements of additional information of the Fund (“Shareholder Communications”) 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee ~~will pay~~ shall provide the Company~~’s usual~~, ~~customary~~ free of charge, with as many copies of the current statutory prospectus (describing only the Portfolios listed in Schedule B hereto) and ~~reasonable costs~~ other Shareholder Communications for ~~printing and distributing prospectuses~~ the Shares as the Company may reasonably request for ~~Existing~~ distribution to existing Contract ~~Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers~~owners whose Contracts are funded by such Shares. The Underwriter or its designee shall provide the Company ~~free of charge~~ with as many copies of ~~any supplement to~~ the ~~current prospectus of~~ Shareholder Communications for the ~~relevant Portfolio(s) in such quantity~~ Shares as the Company ~~shall~~ may reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination require with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, expenses to be borne ~~by the Company~~in accordance with Schedule D hereof. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution ~~costs~~ expenses for which the Company requests ~~reimbursement in respect of Existing Contract Owners~~reimbursement. The Company agrees to use its best efforts to minimize any printing ~~and distribution costs~~expenses. If the Company prints such documents, Company agrees that any printer it its selects shall be a reputable printer within the industry. Notwithstanding the above, the Company is not obligated to distribute any Shareholder Communication, except as required by law. 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, a print-ready PDF, or an electronic copy of the documents in a format suitable for printing and posting on the Company’s website) and other assistance as is reasonably necessary in order for the Company to have Shareholder Communications of different registered investment companies printed together in a single document or posted on the Company’s web-site or printed individually by the Company if it so chooses, with expenses to be borne in accordance with Schedule D hereof. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Fund or its designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company) for distribution to any owner of a Contract funded by the Shares or to a prospective purchaser who requests such statement. The prospectus for the Shares shall state that the statement of additional information for the Shares is available from the Fund or its designee. 2.4 The Fund shall provide the Company with information regarding the Fund’s expenses, which information may include a table of fees and related narrative disclosure, for use in any prospectus or other descriptive document relating to a Contract. 2.5 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. The Company will distribute this proxy material, reports, and other communications to existing Contract owners. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL (“Fund Parties”) or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within ~~fifteen~~ eight Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 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~~ one copy of the following reports: (a) the Company’s annual financial ~~statements~~ report (prepared under generally accepted accounting principles (“GAAP”)), if any); (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy ~~statement,~~ statement notice or report of the Company sent ~~to policyholders; and~~toContract owners invested in Portfolio Shares; (d) any registration statement (without ~~exhibits)~~ exhibits)and financial reports and ~~annual and quarterly financial~~ reports of the Company filed with the SEC relating to Contracts with assets invested in Portfolio Shares; and (e) all registration statements, prospectuses, statement of additional information, reports, financial statement, proxy statements, sales literature and other promotional materials, applications for exemptions, requests for no-action letters, and all amendments of any ~~state insurance regulator.~~of the above, that relate to the Fund or Fund Shares, within a reasonable time after filing such document with the SEC or FINRA 2.8 Notwithstanding anything to the contrary in this Agreement, 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. The Fund agrees to respond to any request for approval on a prompt and timely basis. 2.9 Upon request, the Fund or its designee will furnish, or will cause to be furnished, to the Company or its designees, each piece of sales literature or other promotional material for distribution. No party shall use any other party’s names, logos, trademarks or service marks, whether registered or unregistered, without the prior written consent of such party. Notwithstanding the foregoing, the Company may use the Fund’s and Portfolios’ names and logos for the limited purpose of including them among a list of fund options available in the Contracts and Accounts. Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 The Fund will provide the Company ~~shall register~~ with as much notice as is reasonably practicable of any proxy solicitation for any Portfolio, and ~~qualify~~ of any material change in the ~~Contracts for sale~~ Fund’s registration statement, particularly any change resulting in a change to the ~~extent required by applicable securities laws and insurance laws~~ registration statement or prospectus or statement of additional information for any Account. The Fund will cooperate with the ~~various states.~~ Company so as to enable the Company to solicit proxies from Contract owners or to make changes to its prospectus, statement of additional information or registration statement, in an orderly manner. 2.11 The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations~~Applicable Law. (All applicable laws, rules and regulations ~~including, without limitation,~~ and the rules and regulations of any ~~regulatory or~~ self-regulatory ~~authority~~ organization with jurisdiction over a party are collectively referred to herein as “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~~Applicable Law. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 2.12 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law. (b) Each party and its employees will, upon reasonable request, be available during normal business hours to consult with the non-requesting party or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s or parties’ performance or perform general customer supervision. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”) and its Financial Intermediary Controls and Compliance Assessment. (e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity or the Fund or its designee, ~~shall provide~~ and the ~~Company with as many printed copies of the Fund’s current shareholder report~~ audit will be subject to such reasonable security and confidentiality measures as the Company may ~~reasonably request. If requested by~~ require. (f) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, ~~the Fund shall also provide an electronic copy containing the Fund’s shareholder reports,~~ procedures and such other assistance as is reasonably necessary in order for the Company twice each year (once for the Fund’s semi-annual report and once for the Fund’s annual report) to distribute the reports to Existing Contract Ownerscontrols.

Appears in 1 contract

Sources: Fund Participation Agreement (Thrivent Variable Annuity Account I)

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~~ 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s 's usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s 's Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio~~’s “~~'s "prospectus” " shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s 's expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s 's proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL ("Fund Parties") or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least ~~fifteen~~ ten Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (~~such materials together with Contract prospectuses and statements of additional information, “~~"Company Materials”"), at least ~~fifteen~~ ten Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within ~~fifteen~~ ten Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“"Updated Company Materials”") unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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 's annual financial ~~statements~~ report (prepared under generally accepted accounting principles (“"GAAP~~”))~~", if any~~; (b)~~ ); the Company’s 's quarterly statements, if any~~; (c)~~ ; any financial statement, proxy statement, notice or report of the Company sent to policyholders; ~~and (d)~~ and any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s 's sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement directly related to this Agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the "Related Agreements") as it may reasonably request (including, without limitation, periodic certifications confirming the Company's provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as ~~many printed~~ well as any other reports or filings that may be required by law. (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the ~~Fund’s current shareholder report as~~ Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party's or parties' performance or perform general customer supervision. The Company ~~may reasonably request. If requested~~ shall also maintain and preserve all records which would enable the Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund ~~shall also provide an electronic copy containing~~ or its designee. Upon reasonable request, the ~~Fund’s shareholder reports~~Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and ~~such other assistance as is reasonably necessary in order for~~ the Company ~~twice each~~ shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report ("SSAE 16") and its Financial Intermediary Controls and Compliance Assessment. (e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall, during normal business hours, permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company's performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require. (~~once for~~ f) Nothing in this Agreement will impose upon the ~~Fund’s semi-annual report~~ Fund or its designee the obligation to review the Company's practices, procedures and ~~once for the Fund’s annual report) to distribute the reports to Existing Contract Owners~~controls.

Appears in 1 contract

Sources: Fund Participation Agreement (Variable Annuity I Ser Acc of GRT West Li & Annu Ins Co of Ny)

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~~ 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners and will not pay~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any ~~costs in connection with~~ printing ~~or distributing~~ expenses. If the Company prints such ~~materials to Prospective Purchasers~~documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL (“Fund Parties”) or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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 ~~statements~~ report (prepared under generally accepted accounting principles (“GAAP”)), if any); (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ 2.11 (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company ~~with~~ for the Fund (the “Related Agreements”) as ~~many printed copies of the Fund’s current shareholder report as the Company~~ it may reasonably ~~request. If requested by~~ request (including, without limitation, periodic certifications confirming the Company~~, the Fund shall also provide an electronic copy containing the Fund~~’s ~~shareholder reports, and such other assistance as is reasonably necessary in order for the Company twice each year (once~~ provision of services for the Fund~~’s semi-annual report~~ ) and ~~once for~~ will cooperate with the ~~Fund’s annual report) to distribute~~ Fund or its designee in connection with the preparation of reports to ~~Existing Contract Owners~~the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law.

Appears in 1 contract

Sources: Fund Participation Agreement (Jefferson National Life of New York Annuity Account 1)

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), and Prospectuses 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 with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing prospectuses for Prospective Purchasers. The Underwriter or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The Underwriter or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The Underwriter or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, BRIL, BAL or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within ~~fifteen~~ ten Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 At the reasonable request of a Party (the ~~Fund~~ “Requesting Party”) or its designee, another Party (the ~~Company~~ “Responding Party”) shall furnish, or shall cause to be furnished, as soon as practical, to the ~~Fund or~~ Requesting Party its designee copies of the following reports~~: (a)~~ : the ~~Company~~Responding Party’s annual financial statements (prepared under generally accepted accounting principles (“GAAP”)), if any~~; (b)~~ ; the ~~Company~~Responding Party’s quarterly statements, if any~~; (c)~~ ; any financial statement, proxy statement, notice or report of the ~~Company~~ Responding Party sent to ~~policyholders~~its policyholders or shareholders, as applicable; ~~and (d)~~ and any registration statement (without exhibits) and annual and quarterly financial reports of the ~~Company~~ Responding Party filed with any federal or state insurance or securities regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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, unless the Contracts are exempt from registration under Applicable Law. ~~The~~ To the extent required by Applicable Law, the Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the~~ The Underwriter or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law, including at the request of a regulatory or self-regulatory authority (including, without limitation, the SEC, FINRA and state insurance regulators). (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records, including without limitation, copies of historical records relating to the transactions effected pursuant to this Agreement. Without limiting the generality of the foregoing, the Company shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided and fees charged by the Company, compliance with the terms of the Agreement, and the internal controls over services provided by the Company as well as written communications regarding the Fund to or from the Existing Contract Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. (e) Upon request, the Company provide a Financial Intermediary Controls and Compliance Assessment (“▇▇▇▇▇”) and a Statement on Standards for Attestation Engagements 18 Report (“SSAE 18”) or other report(s) that is/are substantially similar and acceptable to Fund Parties, each issued by a recognized independent accounting firm selected by the Company. (f) The Company shall permit the Fund or its designee, ~~shall~~ at the Fund’s expense, to conduct one physical on-site due diligence review per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee will provide the Company with ~~as many printed copies~~ reasonable notice of its intention to conduct such a review. For purposes of these review privileges, the Company shall permit the authorized personnel of the ~~Fund~~Fund or its designees to have access to its books, records, information, systems, employees and agents pertinent to the Company’s ~~current shareholder report~~ performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all review activity of the Fund or its designee, and the review will be subject to such reasonable security and confidentiality measures as the Company may ~~reasonably request~~require. ~~If requested by~~ The Fund shall reimburse the Company for its reasonable expenses, including its employees’ time, incurred in connection with the review. (g) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls. (a) The Company represents and warrants that, to the best of its knowledge, the ~~Fund shall also provide an electronic copy containing the Fund’s shareholder reports,~~ various procedures and ~~such other assistance as is reasonably necessary in order for~~ systems which the Company ~~twice each year (once for~~ has implemented with regard to safeguarding its records, data, equipment, facilities and other property used in the ~~Fund’s semi-annual report and once for~~ performance of its obligations hereunder or under the ~~Fund’s annual report)~~ Related Agreements from loss or damage attributable to ~~distribute the reports to Existing Contract Owners~~fire, theft, cyber sec

Appears in 1 contract

Sources: Fund Participation Agreement (PLAIC Variable Annuity Account S)

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 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~~ Fund or its designee shall provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to owners of Contracts whose cash values are invested, through the Accounts, in Shares of such Portfolio(s) (referred to in this Article 2 as “Existing Contract Owners”) and to prospective purchasers of Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”). The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing prospectuses for Existing Contract Owners. The Company will bear the costs of printing and distributing both statutory and summary prospectuses for Prospective Purchasers. The ~~Underwriter~~ Fund or its designee shall provide the Company free of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract Owners. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), the ~~Underwriter~~ Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages in the Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that the ~~Underwriter~~ Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the costs of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its designee, at its expense, shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution at the Company’s expense to any Existing Contract Owner or Prospective Purchaser. 2.4 The ~~Underwriter~~ Fund or its designee shall provide the Company free of charge copies (or a PDF if requested by the Company), if and to the extent applicable to the Shares, of the Fund’s reports to shareholders and other communications to shareholders not described above in this Article 2 (collectively, “Reports”) in such quantity as the Company shall reasonably request for distribution to Existing Contract Owners. The ~~Underwriter~~ Fund or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the ~~Underwriter~~ Fund or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the ~~Underwriter~~ Fund or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasers. 2.5 The Company will provide the ~~Underwriter~~ Fund or its designee with supporting documentation which is sufficient in the reasonable opinion of the ~~Underwriter~~ Fund or its designee to enable the ~~Underwriter~~ Fund or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 or statement of additional information for the Contracts in which the name, logos, trademarks or service marks (whether registered or unregistered) of the Fund, any Portfolio, ~~BRIL~~DIST, ~~BAL~~ Cboe Vest or any of their respective affiliates (the “Marks”) are used at least fifteen Business Days prior to the filing of such document with the SEC. 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 any of the Marks are used (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. 2.7 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 statements (prepared under generally accepted accounting principles (“GAAP”)), if any; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and annual and quarterly financial reports of the Company filed with any state insurance regulator. 2.8 Notwithstanding anything to the contrary in this Agreement, 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~~ Cboe Vest in connection with the Contracts other than information or representations contained in and accurately derived from the registration statement or Prospectus for the Shares, reports of the Fund, Fund-sponsored proxy statements, or in sales literature or other promotional material approved by the Fund or Underwriter (as such documents may be amended or supplemented from time to time), except with the written permission of the Fund or Underwriter. 2.9 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. 2.10 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. The Company shall amend the registration statement of the Contracts under the 1933 Act and the 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “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. 2.11 The ~~Underwriter~~ Fund or its designee will provide the Company with copies of its proxy materials applicable to the Fund. ~~Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter~~ The Fund or its designee shall ~~solely~~ bear the reasonable costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy ~~materials~~materials and tabulating proxy voting instructions, ~~soliciting~~ including reasonable costs charged by any service provider engaged by the Company for this purpose. The Company will (i) distribute proxy materials applicable to the Fund to Existing Contract Owners and (ii) solicit voting instructions from Existing Contract Owners~~, and tabulating proxy voting instructions~~. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 Contract Owners: (a) the Company will provide pass-through voting privileges to Existing Contract Owners and vote the Shares of the Fund in accordance with instructions received from the Existing Contract Owners; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 Existing Contract Owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from Existing Contract Owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by Existing Contract Owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its designee (including, without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as well as any other reports or filings that may be required by law, including at the request of a regulatory or self-regulatory authority (including, without limitation, the SEC, FINRA and state insurance regulators). (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of such records, including without limitation, copies of historical records relating to the transactions effected pursuant to this Agreement. Without limiting the generality of the foregoing, the Company shall maintain and preserve all records necessary for it to fulfill its obligations under this Agreement or which would enable Fund Parties to substantiate the services provided and fees charged by the Company, compliance with the terms of the Agreement, and the internal controls over services provided by the Company as well as written communications regarding the Fund to or from the Existing Contract Owners and any other records reasonably required by the Fund or its designee. Upon reasonable request, the Company agrees to make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and the Company shall complete and return such due diligence questionnaire within a reasonable timeframe. (e) On an annual basis, the Company shall obtain a Financial Intermediary Controls and Compliance Assessment (“▇▇▇▇▇”) and a Statement on Standards for Attestation Engagements 18 Report (“SSAE 18”) or any successor report(s) that is/are substantially similar and acceptable to Fund Parties, each issued by a recognized independent accounting firm selected by the Company. Upon request, the Company shall promptly provide to Fund Parties copies of its most recent ▇▇▇▇▇ and SSAE 18 or any successor report(s) that is/are substantially similar and acceptable to Fund Parties. (f) The Company shall permit the Fund or its designee to conduct one physical on-site due diligence review per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee will provide the Company with reasonable notice of its intention to conduct such a review. For purposes of these review privileges, the Company shall permit the authorized personnel of the Fund or its designees to have access to its books, records, information, systems, employees and agents pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all review activity of the Fund or its designee, ~~shall provide~~ and the ~~Company with as many printed copies of the Fund’s current shareholder report~~ review will be subject to such reasonable security and confidentiality measures as the Company may ~~reasonably request. If requested by~~ require. (g) Nothing in this Agreement will impose upon the Fund or its designee the obligation to review the Company’s practices, procedures or controls. (a) The Company represents and warrants that, to the best of its knowledge, the ~~Fund shall also provide an electronic copy containing~~ various procedures and systems which the ~~Fund’s shareholder reports~~Company has implemented with regard to safeguarding its records, data, equipment, facilities and other property used in the performance of its obligations hereunder or under the Related Agreements from loss or damage attributable to fire, theft, cyber security threat or any other cause are adequate, and the Company will make such ~~other assistance~~ changes therein from time to time as ~~is reasonably necessary~~ in ~~order~~ its reasonable judgment are required for the ~~Company twice each year (once for~~ secure performance of the ~~Fund~~Company’s ~~semi-annual report~~ obligations hereunder. The parties shall review such systems and ~~once for the Fund’s annual report) to distribute the reports to Existing Contract Owners~~proc

Appears in 1 contract

Sources: Fund Participation Agreement (Aul American Individual Variable Life Unit Trust)

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~~ 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~~ The Underwriter or its designee shall promptly provide the Company with a PDF of the current prospectus of the applicable Portfolio(s) suitable for duplication by the Company for distribution to existing Contract owners of whose Contracts ~~whose cash values~~ are ~~invested, through the Accounts, in~~ funded by Shares of such Portfolio(s~~) (referred to in this Article 2 as “Existing Contract Owners”~~) and to prospective purchasers of ~~Contracts including owners of Contracts whose cash values are not funded by Shares of the Portfolio(s) (collectively, “Prospective Purchasers”)~~Contracts. The Underwriter or its designee will pay the Company’s usual, customary and reasonable printing costs for printing ~~and distributing~~ prospectuses for ~~Existing~~ existing Contract ~~Owners~~owners. The Company will bear the costs of printing ~~and distributing~~ prospectuses for ~~Prospective Purchasers. The Underwriter or its designee shall provide the Company free~~ prospective purchasers of charge with copies of any supplement to the current prospectus of the relevant Portfolio(s) in such quantity as the Company shall reasonably request (or a PDF if requested by the Company) for distribution to Existing Contract Owners, where applicable. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs for printing and distributing supplements for Existing Contract OwnersContracts. The Company will bear the costs of printing and distributing supplements for Prospective Purchasers. If any of these documents are printed in combination with such documents of other fund families (a “Combined Prospectus/Supplement”), provide the Underwriter or its designee ~~will pay a pro rata portion of the printing and distribution costs based on the number of pages~~ with supporting documentation which is sufficient in the ~~Combined Prospectus/Supplement that is attributable to the Portfolio(s)’ prospectus(es) or supplement(s); provided, however, that~~ reasonable opinion of the Underwriter or its designee ~~will only pay~~ to enable the ~~costs described above with respect~~ Underwriter or its designee to ~~Existing Contract Owners~~ verify the printing expenses for which the Company requests reimbursement. The Company agrees to use its best efforts to minimize any printing expenses. If the Company prints such documents, Company agrees that any printer its selects shall be a reputable printer within the industry. The Underwriter shall reimburse the Company within 30 days, upon the Company’s request, for the Company’s costs. The Underwriter agrees to use best efforts to resolve any billing discrepancies detected by the Company and ~~will not pay~~ to immediately remit any ~~costs in connection with printing or distributing such materials to Prospective Purchasers~~corrective payment upon demand. The Company may use such PDF described above to assist with the updating of any of its Contract prospectuses or related materials in order to have the prospectuses of the Portfolios conform to the Company’s Contract prospectuses or related materials, with the ~~costs~~ expenses of such updating, including printing, to be borne by the Company. For purposes of this Section 2.2 only, references to a Portfolio’s “prospectus” shall exclude the related statement of additional information. 2.3 The ~~Underwriter~~ Fund or its ~~designee, at its expense,~~ designee shall provide a master PDF of the statement of additional information for the Portfolios to the Company (suitable for duplication by the Company at the Company’s expense) for distribution ~~at the Company’s expense~~ to any ~~Existing~~ owner of a Contract ~~Owner~~ funded by the Shares or ~~Prospective Purchaser~~to a prospective purchaser who requests such statement. 2.4 The Underwriter or its designee shall provide the Company free of charge ~~copies (or a PDF if requested by the Company)~~copies, if and to the extent applicable to the Shares, of the Fund’s proxy materials, reports to shareholders and other communications to shareholders ~~not described above in this Article 2 (collectively, “Reports”)~~ in such quantity as the Company shall reasonably request for distribution to ~~Existing~~ Contract Owners. The Underwriter or its designee will pay the Company’s usual, customary and reasonable costs of printing and distributing Reports for Existing Contract Owners. If a Report is printed in combination with such documents of other fund families (a “Combined Report”), the Underwriter or its designee will pay a pro rata portion of the printing and distribution costs based on the number of pages of the Combined Report that is attributable to the Fund’s Report, provided, however, that the Underwriter or its designee will only pay the costs described above with respect to Existing Contract Owners and will not pay any costs in connection with printing or distributing such materials to Prospective Purchasersowners. 2.5 The Company will provide the Underwriter or its designee with supporting documentation which is sufficient in the reasonable opinion of the Underwriter or its designee to enable the Underwriter or its designee to verify the printing and distribution costs for which the Company requests reimbursement in respect of Existing Contract Owners. The Company agrees to use its best efforts to minimize any printing and distribution costs. If the Company prints such documents, Company agrees that any printer it selects shall be a reputable printer within the industry. 2.6 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 ~~name, logos, trademarks or service marks (whether registered or unregistered) of the~~ Fund, ~~any Portfolio, BRIL,~~ the Underwriter or BAL (“Fund Parties”) or any ~~of their respective affiliates (the “Marks”) are used~~ Portfolio or any entity with BlackRock in its name is named at least fifteen Business Days prior to the filing of such document with the SEC. 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, any of Portfolio, the ~~Marks are used~~ Underwriter, or BAL or any entity with BlackRock in its name is named (such materials together with Contract prospectuses and statements of additional information, “Company Materials”), at least fifteen Business Days prior to its use. No Company Materials shall be used if any of the Fund Parties reasonably objects to such use within fifteen Business Days after receipt of such material. Notwithstanding the foregoing, the Company need not furnish, or cause to be furnished, to the Fund or its designee (i) materials for internal use only by the Company in connection with performing its obligations under this Agreement or any Related Agreement (as hereinafter defined) or which include the names of the Fund or the Portfolios solely in a list of mutual funds available through the Company or (ii) revisions to Company Materials previously approved by the Fund or its designee (“Updated Company Materials”) unless the Company Materials on which they are based have been materially changed. The Fund or its designee also reserves the right to review Company Materials and Updated Company Materials at any time upon request made by the Fund or its designee to the Company. The Fund or its designee may reasonably object to the continued use of any Company Materials or Updated Company Materials. No Company Materials or Updated Company Materials shall be used if the Fund or its designee so objects. ~~2.7~~ 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 ~~statements~~ report (prepared under ~~generally accepted~~ statutory accounting ~~principles (“GAAP”)), if any~~principles; (b) the Company’s quarterly statements, if any; (c) any financial statement, proxy statement, notice or report of the Company sent to policyholders; and (d) any registration statement (without exhibits) and ~~annual and quarterly~~ financial reports of the Company filed with any state insurance regulator. ~~2.8~~ 2.7 Notwithstanding anything to the contrary in this Agreement, 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~~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 (as such documents may be amended or supplemented from time to time)~~Underwriter, except with the written permission of the Fund or Underwriter. ~~2.9~~ 2.8 Neither the Fund nor the Underwriter shall give any information or make any representations or statements on behalf of the Company or concerning the Company, the Accounts or the Contracts 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. ~~2.10~~ 2.9 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~~law. The Company shall amend the registration statement of the Contracts under the 1933 Act and ~~the~~ 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 laws and rules and regulations. All applicable laws, rules and regulations including, without limitation, the rules and regulations of any regulatory or self-regulatory authority with jurisdiction over a party are collectively referred to herein as “Applicable Law”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. 2.11 The Underwriter or its designee will provide the Company with copies of its proxy materials applicable to the Fund. Separate from providing the Company with a copy and notice of the proxy materials, the Underwriter or its designee shall solely bear the costs of soliciting Fund proxies from the Existing Contract Owners, including the reasonable costs of mailing proxy materials, soliciting voting instructions from Existing Contract Owners, and tabulating proxy voting instructions. The Underwriter or its designee may engage a third party to assist in the solicitation and tabulation of proxy votes.. When requested, the Company will assist the Underwriter or its designee by providing a list of Existing Contract Owners.. 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 ~~Owners~~owners: (a) the Company will provide pass-through voting privileges to ~~Existing Contract Owners and vote~~ owners of Contracts whose cash values are invested, through the Accounts, in Shares of the ~~Fund in accordance with instructions received from the Existing Contract Owners~~Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting privileges in the same manner and the Company shall be responsible for assuring that the Accounts calculate voting privileges in the manner established by the Fund; (c) 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 ~~Existing~~ Contract ~~Owners~~ owners are received, as well as Shares held by the Account that are owned by the Company for its general accounts, in the same proportion as the Company votes Shares held by the Account for which timely voting instructions are received from ~~Existing~~ Contract ~~Owners~~owners; and (d) the Company and its agents will in no way recommend or oppose or interfere with the solicitation of proxies for Fund Shares held by ~~Existing~~ Contract ~~Owners~~ owners without the prior written consent of the Fund, which consent may be withheld in the Fund’s sole discretion. ~~2.12~~ (a) The ~~Underwriter~~ Company will furnish the Fund or its ~~designee~~designee (including, ~~shall provide~~ without limitation, any auditors designated by the Fund) with such information in connection with this Agreement and/or any agreement for the provision of administrative services or distribution-related services by the Company for the Fund (the “Related Agreements”) as it may reasonably request (including, without limitation, periodic certifications confirming the Company’s provision of services for the Fund) and will cooperate with the Fund or its designee in connection with the preparation of reports to the Board of Directors concerning this Agreement and/or any Related Agreement and the monies paid or payable pursuant to this Agreement or any Related Agreement, as ~~many printed~~ well as any other reports or filings that may be required by law. (b) The Company and its employees will, upon reasonable request, be available during normal business hours to consult with the Fund or its designee concerning this Agreement and/or any Related Agreement. (c) Each party will maintain and preserve all records as required by law to be maintained and preserved by it in connection with the performance of its obligations under this Agreement and any Related Agreement. Upon the reasonable request of another party, a party will provide copies of historical records relating to transactions between the ~~Fund~~Fund and the Accounts, written communications regarding the Fund to or from the Accounts and other materials that enable the requesting party to monitor and review the other party’s ~~current shareholder report as~~ or parties’ performance or perform general customer supervision. The Company shall also maintain and preserve all records which would enable the ~~Company may reasonably request. If requested~~ Fund or its designee to substantiate the fees charged by the Company, the services provided by the Company and the internal controls over services provided by the Company as well as any other records reasonably required by the Fund ~~shall also provide an electronic copy containing~~ or its designee. Upon reasonable request, the ~~Fund’s shareholder reports~~Company agrees that it will make these records available to the Fund or its designee. (d) From time-to-time, the Fund or its designee may submit a due diligence questionnaire to the Company, and ~~such other assistance as is reasonably necessary in order for~~ the Company ~~twice each~~ shall complete and return such due diligence questionnaire within a reasonable timeframe. Upon request, the Company shall promptly provide to the Fund or its designee a copy of its Statement on Standards for Attestation Engagements 16 Report (“SSAE 16”). (e) The Company shall permit the Fund or its designee to conduct one physical audit per calendar year to ensure compliance with the terms of this Agreement and the Related Agreements. The Fund or its designee agrees to provide the Company with reasonable notice of their intention to conduct such an audit. For purposes of these audit privileges, the Company shall permit the authorized personnel of the Fund or its designee to have access to its books, records, information, systems and employees pertinent to the Company’s performance under this Agreement and/or any Related Agreement. The Fund or its designee will not perform any activity that materially interferes with any activities of the Company or its systems during the audit. The Company is entitled to observe all audit activity or the Fund or its designee, and the audit will be subject to such reasonable security and confidentiality measures as the Company may require. (~~once for~~ f) Nothing in this Agreement will impose upon the ~~Fund~~Fund or its designee the obligation to review the Company’s ~~semi-annual report~~ practices, procedures and ~~once for the Fund’s annual report)~~ controls. 2.12 Insurer agrees to ~~distribute the reports~~ promptly advise BRIL if it receives notice of any investor complaint, litigation initiated or threatened, or communication by a regulatory authority which relates to ~~Existing Contract Owners~~a Fund or to a transaction in Shares by it.

Appears in 1 contract

Sources: Fund Participation Agreement (Massachusetts Mutual Variable Life Separate Account I)

Common use of Obligations of the Parties Clause in Contracts