Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof. (b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded. (c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to: (i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or (ii) establishing a new registered management investment company or managed separate account. (d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. (e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 11 contracts
Sources: Participation Agreement (American Equity Life Annuity Account), Participation Agreement (Farm Bureau Life Variable Account), Participation Agreement (Farm Bureau Life Variable Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e.IE., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 11 contracts
Sources: Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1412, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 11 contracts
Sources: Shareholder Services Agreement (Valley Forge Life Insurance Co Variable Life Separate Accoun), Shareholder Services Agreement (Provident Mutual Variable Life Separate Account), Shareholder Services Agreement (American Separate Account 5)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief4.1 During such time as the Fund engages in Mixed Funding or Shared Funding, as amended, filed by the Issuer on December 21, 1987, parties hereto shall comply with the SEC and the order issued by the SEC conditions in response thereto (the "Shared Funding Exemptive Order"). this Article IV.
4.2 The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Fund's Board of Directors of the Issuer (the "Board") will Trustees shall monitor the Issuer Fund for the existence of any material irreconcilable conflict (1) between the interests of the contract owners of all separate accounts variable annuity contracts and variable life insurance policies, and (2) between the interests of owners of Variable Contracts ("Participating CompaniesVariable Contract Owners") investing issued by different Participating Life Insurance Companies that invest in funds of the IssuerFund. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio of the Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereofVariable Contract Owners.
(b) 4.3 The Company will Insurer agrees that it shall report any potential or existing conflicts of which it is aware to the BoardFund's Board of Trustees. The Company Insurer will assist be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order Order, or, if the Fund is engaged in Mixed Funding or Shared Funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, the Insurer will be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under such regulation, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company Insurer to inform the Board whenever contract owner Variable Contract Owner voting instructions are disregarded. The Insurer shall carry out its responsibility under this Section 4.3 with a view only to the interests of the Variable Contract Owners.
(c) If 4.4 The Insurer agrees that in the event that it is determined by a majority of the Board, Board of Trustees of the Fund or a majority of its the Fund's disinterested Board members, determines Trustees that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictInsurer shall, the Company shall at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Trustees of the Board membersof the Fund), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including another portfolio of the Fund, or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract owners and Variable Contract Owners and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, owners or life insurance contract owners, or variable contract owners of contracts issued by one or more Participating Insurance Companies) ), that votes in favor of such segregation, or offering to the affected contract owners Variable Contract Owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a the Insurer's decision by the Company to disregard its contract owner Variable Contract Owners' voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may Insurer shall be required, at the BoardFund's election, to withdraw an Account's the Separate Accounts' investment in the Issuer and terminate this Agreement; Fund, provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Trustees, and no charge or penalty will be imposed as a result of such withdrawal. These responsibilities shall be carried out with a view only to the interests of the Board.
(e) For the purpose of this SECTION 14, a Variable Contract Owners. A majority of the disinterested Board members Trustees of the Fund shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Fund or its investment adviser or the Distributor be required to establish a new funding medium for any Variable Contract. The Company Insurer shall not be required by this SECTION 14 Section 4.4 to establish a new funding medium for any Variable Contract if an any offer to do so has been declined by vote of a majority of the Variable Contract owners Owners materially adversely affected by the material irreconcilable material conflict.
4.5 The Insurer, at least annually, shall submit to the Fund's Board of Trustees such reports, materials, or data as the Board reasonably may request so that the Trustees of the Fund may fully carry out the obligations imposed upon the Board by the conditions contained in the application for the Mixed and Shared Funding Exemptive Order and said reports, materials, and data shall be submitted more frequently if deemed appropriate by the Board.
4.6 All reports of potential or existing conflicts received by the Fund's Board of Trustees, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board of Trustees of the Fund or other appropriate records, and such minutes or other records shall be made available to the SEC upon request.
Appears in 10 contracts
Sources: Fund Participation Agreement (American National Variable Annuity Separate Account), Participation Agreement (Phoenix Life Variable Universal Life Account), Fund Participation Agreement (American National Variable Annuity Separate Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by Investors Research and the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. relief As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners Contract Owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners Contract Owners and variable life insurance contract ownersContract Owners; or (vi) a decision by an insurer to disregard the voting instructions of contract ownersContract Owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner Contract Owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner Contract Owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
to (i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners Contract Owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract ownersContract Owners, life insurance contract ownersContract Owners, or variable contract owners Contract Owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners Contract Owners the option of making such a change; and/or
change and (ii) establishing a new registered management investment company or managed separate account. Nothing in this SECTION 12(c) shall be construed to waive any cause of action which may be available to Company against any other Participating Insurance Company or Companies, or against any other person or entity, in the event Company determines in good faith that it (Company) is not responsible (or is not solely responsible) for the material irreconcilable conflict.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner Contract Owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners Contract Owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's Accounts investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1412, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners Owners materially adversely affected by the irreconcilable material conflict.
Appears in 10 contracts
Sources: Fund Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Fund Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Fund Participation Agreement (Lincoln National Variable Annuity Acct L GRP Var Annuity Ii)
Potential Conflicts. (a) 5.1 The Company has received a copy Board of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC Trustees of TRUST and the order issued by the SEC in response thereto MANAGERS TRUST (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "BoardBoards") will monitor TRUST and MANAGERS TRUST, respectively, (collectively the Issuer "Funds"), for the existence of any material irreconcilable conflict between the interests of the contract Variable Contract owners of all separate accounts ("Participating Companies") Insurance Company Separate Accounts investing in funds of the IssuerFunds. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authorityauthority action; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio the Funds are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersowners or by contract owners of different Participating Insurance Companies; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract Variable Contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company 5.2 LIFE COMPANY will report any potential or existing conflicts of which it is aware to the BoardBoards. The Company LIFE COMPANY will assist the be responsible for assisting each appropriate Board in carrying out its responsibilities under the Shared Funding Exemptive Order Conditions set forth in the notice issued by the SEC for the Funds on April 12, 1995 (the "Notice") (Investment Company Act Release No. 21003), which LIFE COMPANY has reviewed, by providing the each appropriate Board with all information reasonably necessary for the Board it to consider any issues raised. This responsibility includes, but is not limited to, an obligation by the Company LIFE COMPANY to inform the each appropriate Board whenever contract Variable Contract owner voting instructions are disregardeddisregarded by LIFE COMPANY. These responsibilities will be carried out with a view only to the interests of the Variable Contract owners.
(c) 5.3 If a majority of the Board, Board of a Fund or a majority of its disinterested Board memberstrustees or directors, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, affecting the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictLIFE COMPANY, the Company shall LIFE COMPANY, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees or directors), will take such action as is any steps necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, including: (ia) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund Funds or any series thereof and reinvesting such those assets in a different investment medium medium, which may include another series of TRUST or MANAGERS TRUST, or another investment company or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract Variable Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract Variable Contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Variable Contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a LIFE COMPANY's decision by the Company to disregard its contract Variable Contract owner voting instructions instructions, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, LIFE COMPANY may be required, at the Board's electionelection of the relevant Fund, to withdraw an its Separate Account's investment in the Issuer such Fund, and terminate this Agreement; provided, however, that no charge or penalty will be imposed as a result of such withdrawal and termination withdrawal. The responsibility to take such remedial action shall be limited carried out with a view only to the extent required by interests of the foregoing material irreconcilable conflict as determined by Variable Contract owners. For the purposes of this Section 5.3, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested applicable Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer relevant Fund or N&B MANAGEMENT (or any other investment adviser of the Funds) be required to establish a new funding medium for any Variable Contract. The Company Further, LIFE COMPANY shall not be required by this SECTION 14 Section 5.3 to establish a new funding medium for any Variable Contract if an any offer to do so has been declined by a vote of a majority of the Variable Contract owners materially adversely affected by the irreconcilable material conflict.
5.4 Any Board's determination of the existence of an irreconcilable material conflict and its implications shall be made known promptly and in writing to LIFE COMPANY.
5.5 No less than annually, LIFE COMPANY shall submit to the Boards such reports, materials or data as such Boards may reasonably request so that the Boards may fully carry out the obligations imposed upon them by these Conditions. Such reports, materials, and data shall be submitted more frequently if deemed appropriate by the applicable Boards.
Appears in 8 contracts
Sources: Participation Agreement (Reliastar Select Life Variable Account), Participation Agreement (United Companies Separate Account One), Participation Agreement (United Companies Separate Account One)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such 10 segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state, insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7. 1, 11 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 8 contracts
Sources: Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M)
Potential Conflicts. (a) 7.1. The Company has received reviewed a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Mixed and Shared Funding Exemptive Order"). The Company ) dated November 2, 1987 of the Securities and Exchange Commission under Section 6(c) of the Act and, in particular, has reviewed the conditions to the requested relief set forth in such application for exemptive reliefthe related Notice. As set forth in such applicationtherein, the Company agrees to report to the Board of Directors of the Issuer Fund (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts between the interests of which it is aware Product Owners of all separate accounts investing in the Fund, and to the Board. The Company will assist the Board in carrying out its responsibilities under the conditions of the Mixed and Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company including information as to inform the Board whenever contract owner a decision to disregard voting instructions are disregardedof variable Contractowners.
(c) 7.2. If a majority of the Board, or a majority of its disinterested Board membersMembers, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Insurance Companies. .
(a) If a majority of the Board whole Board, after notice to the Company and a reasonable opportunity for the Company to appear before it and present its case, determines that the Company is responsible for causing or creating said conflict, and if the Company shall agrees with that determination, the Company shall, at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
These steps could include: (i) withdrawing the assets allocable to some or all of the affected Accounts from the Fund or any Series and reinvesting such assets in a different investment medium vehicle, including another Series of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and Contractowners and, as appropriate, segregating the assets of any appropriate particular group (i.e., variable annuity contract ownersContractowners, variable life insurance contract ownerspolicyowners, or variable contract owners Contractowners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners Contractowners the option of making such a change; and/or
and (ii) establishing a new registered mutual fund or management investment company or managed separate account, or taking such other action as is necessary to remedy or eliminate the irreconcilable material conflict.
(b) If the Company disagrees with the Board's determination, the Company shall file a written protest with the Board, reserving its right to dispute the determination as between just the Company and the Fund. After reserving that right the Company, although disagreeing with the Board that it (the Company) was responsible for the conflict, shall take the necessary steps, under protest, to remedy the conflict, substantially in accordance with paragraph (a) just above, for the protection of Contractowners.
(c) As between the Company and the Fund, if within 45 days after the Board's determination the Company elects to press the dispute, it shall so notify the Board in writing. The parties shall then attempt to resolve the matter amicably through negotiation by individuals from each party who are authorized to settle the controversy. If the matter has not been amicably resolved within 60 days from the date of the Company's notice of its intent to press the dispute, then before either party shall undertake to litigate the dispute it shall be submitted to non-binding arbitration conducted expeditiously in accordance with the CPR Rules for Non-Administered Arbitration of Business Disputes, by a sole arbitrator; PROVIDED, HOWEVER, that if one party has requested the other party to seek an amicable resolution and the other party has failed to participate, the requesting party may initiate arbitration before expiration of the 60-day period set out just above. If within 45 days of the commencement of the process to select an arbitrator the parties cannot agree upon the arbitrator, then he or she will be selected from the CPR Panels of Neutrals. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Sec. 1-16. The place of arbitration shall be Syracuse, New York. The Arbitrator is not empowered to award damages in excess of compensatory damages.
(d) If the Board shall determine that the Fund or another insurer was responsible for the conflict, then the Board shall notify the Company immediately of that determination. The Fund shall assure the Company that it (the Fund) or that other insurer, as applicable, shall, at its sole cost and expense, take whatever steps are necessary to eliminate the conflict.
7.3. If a material irreconcilable conflict arises as a result because of a the Company's decision by the Company to disregard its contract owner Contractowner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at shall withdraw (without charge or penalty) the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; providedFund, however, that such withdrawal and termination shall be limited to if the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the BoardFund so elects.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 8 contracts
Sources: Participation Agreement (Lincoln New York Account N for Variable Annuities), Participation Agreement (Lincoln Life & Annuity Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life & Annuity Flexible Premium Variable Life Account M)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such 10 segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, conflict but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Accounts investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7. 1, 11
Appears in 8 contracts
Sources: Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief4.1 During such time as the Fund engages in Mixed Funding or Shared Funding, as amended, filed by the Issuer on December 21, 1987, parties hereto shall comply with the SEC and the order issued by the SEC conditions in response thereto (the "Shared Funding Exemptive Order"). this Article IV.
4.2 The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Fund’s Board of Directors of the Issuer (the "Board") will Trustees shall monitor the Issuer Fund for the existence of any material irreconcilable conflict (1) between the interests of the contract owners of all separate accounts variable annuity contracts and variable life insurance policies, and ("2) between the interests of owners of Variable Contracts (“Variable Contract Owners”) issued by different Participating Companies") investing Life Insurance Companies that invest in funds of the IssuerFund. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio of the Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereofVariable Contract Owners.
(b) 4.3 The Company will Insurer agrees that it shall report any potential or existing conflicts of which it is aware to the BoardFund’s Board of Trustees. The Company Insurer will assist be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order Order, or, if the Fund is engaged in Mixed Funding or Shared Funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, the Insurer will be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under such regulation, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company Insurer to inform the Board whenever contract owner Variable Contract Owner voting instructions are disregarded. The Insurer shall carry out its responsibility under this Section 4.3 with a view only to the interests of the Variable Contract Owners.
(c) If 4.4 The Insurer agrees that in the event that it is determined by a majority of the Board, Board of Trustees of the Fund or a majority of its the Fund’s disinterested Board members, determines Trustees that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictInsurer shall, the Company shall at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Trustees of the Board membersof the Fund), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including another portfolio of the Fund, or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract owners and Variable Contract Owners and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, owners or life insurance contract owners, or variable contract owners of contracts issued by one or more Participating Insurance Companies) ), that votes in favor of such segregation, or offering to the affected contract owners Variable Contract Owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a the Insurer’s decision by the Company to disregard its contract owner Variable Contract Owners’ voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may Insurer shall be required, at the Board's Fund’s election, to withdraw an Account's the Separate Accounts’ investment in the Issuer and terminate this Agreement; Fund, provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Trustees, and no charge or penalty will be imposed as a result of such withdrawal. These responsibilities shall be carried out with a view only to the interests of the Board.
(e) For the purpose of this SECTION 14, a Variable Contract Owners. A majority of the disinterested Board members Trustees of the Fund shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Fund or its investment adviser or the Distributor be required to establish a new funding medium for any Variable Contract. The Company Insurer shall not be required by this SECTION 14 Section 4.4 to establish a new funding medium for any Variable Contract if an any offer to do so has been declined by vote of a majority of the Variable Contract owners Owners materially adversely affected by the material irreconcilable conflict.
4.5 The Insurer, at least annually, shall submit to the Fund’s Board of Trustees such reports, materials, or data as the Board reasonably may request so that the Trustees of the Fund may fully carry out the obligations imposed upon the Board by the conditions contained in the application for the Mixed and Shared Funding Exemptive Order and said reports, materials, and data shall be submitted more frequently if deemed appropriate by the Board.
4.6 All reports of potential or existing conflicts received by the Fund’s Board of Trustees, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board of Trustees of the Fund or other appropriate records, and such minutes or other records shall be made available to the SEC upon request.
4.7 The Board of Trustees of the Fund shall promptly notify the Insurer in writing of its determination of the existence of an irreconcilable material conflictconflict and its implications.
Appears in 8 contracts
Sources: Fund Participation Agreement (SBL Variable Annuity Account Xiv), Participation Agreement (Ml of New York Variable Annuity Separate Account A), Participation Agreement (Ml of New York Variable Annuity Separate Account A)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 12, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 7 contracts
Sources: Shareholder Services Agreement (First Ameritas Variable Annuity Separate Account), Fund Participation Agreement (Metropolitan Life Separate Account Ul), Shareholder Services Agreement (National Variable Life Insurance Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by 8.1. If required under the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") Accounts investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The 8.2. If required under the Shared Funding Exemptive Order, the Company will report in writing any potential or existing conflicts material irreconcilable conflict of which it is aware to the Administrator. Upon receipt of such report, the Administrator shall report the potential or existing material irreconcilable conflict to the Board. The Administrator shall also report to the Board on a quarterly basis whether the Company has reported any potential or existing material irreconcilable conflicts during the previous calendar quarter. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 8.3. If required under the Shared Funding Exemptive Order, the and it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(d) 8.4. If required under the Shared Funding Exemptive Order, if a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the affected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (at the Company's expense); provided, however, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(e) For 8.5. If required under the purpose Shared Funding Exemptive Order, the, for purposes of Sections 8.3 through 8.4 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 8.3 through 8.4 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
8.6. If required under the Shared Funding Exemptive Order, i and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable.
8.7. If required under the Shared Funding Exemptive Order, each of the Company and the Advisers shall at least annually submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them by the provisions hereof and in the Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board. Without limiting the generality of the foregoing or the Company’s obligations under Section 8.2, the Company shall provide to the Administrator a written report to the Board no later than January 15th of each year indicating whether any material irreconcilable conflicts have arisen during the prior fiscal year of the Trust. All reports received by the Board of potential or existing conflicts, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Securities and Exchange Commission upon request.
Appears in 7 contracts
Sources: Fund Participation Agreement (Variable Annuity-2 Series Account), Fund Participation Agreement (Variable Annuity-2 Series Account), Fund Participation Agreement (Variable Annuity-2 Series Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by 8.1. If required under the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") Accounts investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The 8.2. If required under the Shared Funding Exemptive Order, the Company will report in writing any potential or existing conflicts material irreconcilable conflict of which it is aware to the Administrator. Upon receipt of such report, the Administrator shall report the potential or existing material irreconcilable conflict to the Board. The Administrator shall also report to the Board on a quarterly basis whether the Company has reported any potential or existing material irreconcilable conflicts during the previous calendar quarter. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 8.3. If required under the Shared Funding Exemptive Order, and it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(d) 8.4. If required under the Shared Funding Exemptive Order, if a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's Trust’s election, to withdraw an the affected Account's ’s investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (at the Company’s expense); provided, however, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(e) For 8.5. If required under the purpose Shared Funding Exemptive Order, for purposes of Sections 8.3 through 8.4 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 8.3 through 8.4 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
8.6. If required under the Shared Funding Exemptive Order, and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable.
8.7. If required under the Shared Funding Exemptive Order, each of the Company and the Adviser shall at least annually submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them by the provisions hereof and in the Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board. Without limiting the generality of the foregoing or the Company’s obligations under Section 8.2, the Company shall provide to the Administrator a written report to the Board no later than January 15th of each year indicating whether any material irreconcilable conflicts have arisen during the prior fiscal year of the Trust. All reports received by the Board of potential or existing conflicts, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Securities and Exchange Commission upon request.
Appears in 7 contracts
Sources: Fund Participation Agreement (Protective COLI VUL), Fund Participation Agreement (Jpmorgan Insurance Trust), Fund Participation Agreement (Jefferson National Life Annuity Account G)
Potential Conflicts. (a) 5.1 The Company has received a copy Board of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC Trustees of TRUST and the order issued by the SEC in response thereto MANAGERS TRUST (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "BoardBoards") will monitor TRUST and MANAGERS TRUST, respectively, (collectively the Issuer "Funds"), for the existence of any material irreconcilable conflict between the interests of the contract Variable Contract owners of all separate accounts ("Participating Companies") Insurance Company Separate Accounts investing in funds of the IssuerFunds. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authorityauthority action; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio the Funds are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersowners or by contract owners of different Participating Insurance Companies; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract Variable Contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company 5.2 LIFE COMPANY will report any potential or existing conflicts of which it is aware to the BoardBoards. The Company LIFE COMPANY will assist the provide each appropriate Board with all information reasonably necessary for it to consider any issues raised in carrying out its responsibilities under the Shared Funding Exemptive Order Conditions set forth in the notice issued by providing the Board with all information reasonably necessary SEC for the Board to consider any issues raisedFunds on April 12, 1995 (the "Notice") (Investment Company Act Release No. This includes21003), but is not limited to, an obligation by the Company to which LIFE COMPANY has reviewed. LIFE COMPANY will inform the each appropriate Board whenever contract Variable Contract owner voting instructions are disregardeddisregarded by LIFE COMPANY. These responsibilities will be carried out with a view only to the interests of the Variable Contract owners.
(c) 5.3 If a majority of the Board, Board of a Fund or a majority of its disinterested Board memberstrustees or directors, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, affecting the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictLIFE COMPANY, the Company shall LIFE COMPANY, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees or directors), will take such action as is any steps necessary to remedy or eliminate the material irreconcilable material conflictconflict consistent with the terms and conditions set forth in the Notice. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result because of a LIFE COMPANY's decision by the Company to disregard its contract Variable Contract owner voting instructions instructions, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, LIFE COMPANY may be required, at the Board's electionelection of the relevant Fund, to withdraw an its Separate Account's investment in the Issuer such Fund, and terminate this Agreement; provided, however, that no charge or penalty will be imposed as a result of such withdrawal and termination withdrawal. The responsibility to take such remedial action shall be limited carried out with a view only to the extent required by interests of the foregoing material irreconcilable conflict as determined by Variable Contract owners. For the purposes of this Section 5.3, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested applicable Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer relevant Fund or N&B MANAGEMENT (or any other investment adviser of the Funds) be required to establish a new funding medium for any Variable Contract.
5.4 Any Board's determination of the existence of an irreconcilable material conflict and its implications shall be made known promptly and in writing to LIFE COMPANY.
5.5 No less than annually, LIFE COMPANY shall submit to the Boards such reports, materials or data as such Boards may reasonably request so that the Boards may fully carry out the obligations imposed upon them by these Conditions. The Company Such reports, materials, and data shall be submitted more frequently if deemed appropriate by the applicable Boards, provided that such request shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflictunreasonable.
Appears in 7 contracts
Sources: Fund Participation Agreement (Lincoln National Variable Annuity Acct L GRP Var Annuity I), Fund Participation Agreement (Lincoln National Variable Annuity Account C), Fund Participation Agreement (Lincoln National Variable Annuity Account C)
Potential Conflicts. (a) The Company has We received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with order from the SEC and the order issued by the SEC in response thereto dated July 1, 1988 (the file no. 812-7044) ("Shared Funding Exemptive Order"). The Company has reviewed , which grants exemptions from certain provisions of the conditions 1940 Act and the regulations hereunder to the requested relief set forth in such application for exemptive reliefextent necessary to permit shares of the Trust to be sold to and held by variable annuity and variable life insurance separate accounts of both affiliated and unaffiliated life insurance companies and qualified pension and retirement plans outside the separate account context. As set forth in such applicationYou and we both warrant and agree that both you and we will comply with the Order, including the following conditions that apply to you.
a. The Board of Directors Trustees of the Issuer (the "Board") Trust will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerTrust. An You acknowledge that a material irreconcilable material conflict may (but will not necessarily) arise among Contract owners for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract policy owners; or (vif) a decision by an insurer to disregard the voting instructions of its policy owners or contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company b. You will report any potential or existing conflicts of which it is you are aware to the Boardus. The Company You will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order us by providing the Board us with all information reasonably necessary for the Board of Trustees to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform .
c. If the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, Trustees determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictyou will, the Company shall at its sole cost and your expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, including: (ia) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund affected Portfolio and reinvesting such assets in a different investment medium medium, which may include another Portfolio, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate particular group (i.e., i.e. annuity contract owners, life insurance contract owners, or variable contract policy owners of one or more Participating Companiesinsurer) that votes in favor of such segregation, segregation or offering to the affected contract Contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed management separate account.
(d) . If a material irreconcilable conflict arises as a result because of a your decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company you will at its sole cost, may be required, at the Board's election, to our election withdraw an your Separate Account's investment in the Issuer and terminate this Agreement; provided, however, Portfolio. No charge or penalty will be imposed against a Separate Account as a result of a withdrawal due to any material irreconcilable conflict. You will be responsible for seeking remedial action in the event that such withdrawal and termination shall be limited to the extent required by Board determines the foregoing existence of a material irreconcilable conflict as determined by and will bear the cost of such remedial action. For purposes of this condition, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members Trust shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer any Trust be required to establish a new funding medium for any Contractvariable contract. The Company shall You will not be required by this SECTION 14 condition to establish a new funding medium for any Contract variable annuity contract or variable life insurance policy if an offer to do so has been declined by vote of a majority of affected Contract owners. We will notify you promptly in the Contract owners materially adversely affected by event that the Board of Trustees determines that a material irreconcilable material conflictconflict exists with respect to any Portfolio of the Trust.
Appears in 6 contracts
Sources: Participation Agreement (Variable Account a/Ma), Participation Agreement (Keyport Variable Account a/Ma), Participation Agreement (Keyport Variable Account a/Ma)
Potential Conflicts. (a) The Company has received If and during the time that the Trust engages in activities that require a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC Mixed and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed , the parties shall comply with the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the this Article VII.
7.1 The Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict (1) between the interests of the contract owners of all separate accounts variable annuity contracts and variable life insurance policies, and ("Participating Companies"2) investing between the interests of owners of Contracts issued by different participating life insurance companies that invest in funds of the IssuerTrust.
A. The Board shall promptly inform Hartford if it determines that a material irreconcilable conflict exists and the implications thereof. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) disregard of a decision by an insurer to disregard the Contract owner's voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereofinstructions.
(b) The Company 7.2 Hartford will report any potential or existing conflicts material irreconcilable conflict of which it is aware to the Board. The Company This includes, but is not limited to, an obligation by Hartford to inform the Board whenever Contract owner voting instructions are disregarded. Hartford will assist be responsible for assisting the Board in carrying out its responsibilities under the any Mixed and Shared Funding Exemptive Order Order, or, if the Trust is engaged in mixed funding or shared funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, Hartford will be responsible for assisting the Board in carrying out its responsibilities under such regulation, by providing the Board with access to all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by Hartford shall carry out its responsibility under this Article 7.2 with a view only to the Company to inform interests of the Board whenever contract owner voting instructions are disregardedContract owners.
(c) 7.3 If it is determined by a majority of the Trust's Board, or a majority of its disinterested Board membersIndependent Trustees, determines that a material irreconcilable conflict exists with regard due to contract owner investments in a Fundissues relating to the Contracts, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictHartford will, the Company shall at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members)practicable, take such action as is whatever steps it can which are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question , including, without limitation, withdrawal of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Separate Account's investment in the Issuer Funds. No charge or penalty will be imposed as a result of such withdrawal.
7.4 Hartford and terminate this Agreement; providedthe Adviser, howeverat least annually, that such withdrawal and termination shall be limited will submit to the extent required Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them. All reports received by the foregoing material irreconcilable conflict as determined by Board of potential or existing conflicts, and all Board action with regard to determining the existence of a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14conflict, a majority of the disinterested Board members shall determine and determining whether or not any proposed action adequately remedies any irreconcilable material a conflict, but shall be properly recorded in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority minutes of the Contract owners materially adversely affected by Board or other appropriate records, and such minutes or other records shall be made available to the irreconcilable material conflictSEC upon request.
Appears in 6 contracts
Sources: Fund Participation Agreement (Hartford Life Insurance Co Separate Account Seven), Fund Participation Agreement (Huntington Va Funds), Fund Participation Agreement (Huntington Va Funds)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by Investors Research and the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners Contract Owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners Contract Owners and variable life insurance contract ownersContract Owners; or (vi) a decision by an insurer to disregard the voting instructions of contract ownersContract Owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner Contract Owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.determines
Appears in 6 contracts
Sources: Fund Participation Agreement (Lincoln Life & Annuity Flexible Premium Variable Life Account M), Fund Participation Agreement (Lincoln Life & Annuity Flexible Premium Variable Life Account M), Fund Participation Agreement (Llany Separate Account S for Flexible Premium Variable Life Insurance)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners contractowners of all variable annuity and variable life insurance separate accounts ("Participating Companies") investing in funds of the IssuerTrust. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; or (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; or (iiic) an administrative or judicial decision in any relevant proceeding; or (ivd) the manner in which the investments of any portfolio Designated Portfolio are being managed; or (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersof Variable Contracts; or (vif) a decision by an insurer to disregard the voting instructions of contract ownersowners of Variable Contracts. The Board Each party hereto shall promptly inform the Company others if it determines that an a material irreconcilable material conflict exists and the implications thereof.
(b) The Company 7.2. Equitable will report any potential or existing conflicts conflicts, of which it is aware aware, to the Board. The Company In this regard, Equitable will monitor its operations for the purpose of identifying any material potential or existing conflicts. Equitable will assist the Board in carrying out its responsibilities under the any Shared Funding Exemptive Order Order, by providing the Board with all 163992 v1 information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company Equitable to inform the Board whenever contract owner the voting instructions of owners of Variable Contracts are disregarded. Equitable's responsibilities under this Section 7.2 will be carried out with a view only to the interests of its Contractowners.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard exists, which determination shall be deemed conclusive as to contract owner investments in a Fund, the Board shall give prompt notice existence of such material irreconcilable conflict and as to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said whether any proposed action adequately remedies such conflict, the Company shall Equitable and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersTrustees), take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to, up to and including:
(ia) withdrawing the assets allocable to some or all of the Accounts variable annuity and variable life insurance separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation withdrawal should be implemented to a vote of all affected contract owners and of Variable Contracts and, as appropriate, segregating withdrawing the assets of any appropriate group (i.e., owners of variable annuity contract owners, contracts or owners of variable life insurance contract owners, or variable contract owners contracts of one or more Participating Insurance Companies) that votes in favor of such segregationwithdrawal, or offering to the affected contract owners of Variable Contracts the option of making such a change; and/or
and (iib) establishing a new anew registered management investment company or managed separate account. Equitable's responsibilities under this Section 7.3 will be carried out with a view only to the interests of Contractowners.
(d) 7.4. If a material irreconcilable conflict arises as a result were ever to arise because of a decision by the Company Equitable to disregard its contract owner Contractowner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, Equitable may be required, at the BoardTrust's election, to withdraw an the affected Account's (or subaccount's) investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (or subaccount); provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty shall be imposed as a result of such withdrawal. Any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being implemented and, until the end of that six (6) month period, the Distributor and Trust shall continue to accept and implement orders by Equitable for the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because a particular state insurance regulator's decision applicable to Equitable conflicts with the majority of other state regulators, then Equitable shall withdraw the affected Account's (eor subaccount's) investment in the Trust and terminate this Agreement with respect to such Account (or subaccount) within six (6) months after the Board informs Equitable in writing that it has determined that such decision has created a material irreconcilable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as dated by a majority of the disinterested members of the Board. Until the end of the foregoing six (6) month period, the Distributor and Trust shall continue to accept and implement orders by Equitable for the purchase (and redemption) of shares of the Trust.
7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately 163992 v1 remedies any material irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Equitable Contracts. The Company Equitable shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Equitable Contracts if an offer to do so has been declined by vote of a majority of the Contract owners Contractowners materially adversely affected by the material irreconcilable conflict. In the event that the Board determines that any proposed action does not adequately remedy any material irreconcilable conflict, then Equitable will withdraw the Account's (or subaccount's) investment in the Trust and terminate this Agreement within six (6) months after the Board informs Equitable in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then:
(a) the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted; and (c) this Agreement shall be otherwise amended by the Trust, without the need for any consent of the other parties, as required by such change in law.
Appears in 6 contracts
Sources: Participation Agreement (Separate Account a of Equitable Life Assu Soc of the Us), Participation Agreement (Separate Account a of Equitable Life Assu Soc of the Us), Participation Agreement (Separate Account a of Equitable Life Assu Soc of the Us)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by Investors Research and the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners Contract Owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners Contract Owners and variable life insurance contract ownersContract Owners; or (vi) a decision by an insurer to disregard the voting instructions of contract ownersContract Owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner Contract Owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines determines
that a material irreconcilable conflict exists with regard to contract owner Contract Owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
to (i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners Contract Owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract ownersContract Owners, life insurance contract ownersContract Owners, or variable contract owners Contract Owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners Contract Owners the option of making such a change; and/or
change and (ii) establishing a new registered management investment company or managed separate account. Nothing in this SECTION 12(C) shall be construed to waive any cause of action which may be available to Company against any other Participating Insurance Company or Companies, or against any other person or entity, in the event Company determines good faith that it (Company) is not responsible (or is not solely responsible) for the material irreconcilable conflict.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner Contract Owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners Contract Owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1412, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners Owners materially adversely affected by the irreconcilable material conflict.
Appears in 5 contracts
Sources: Fund Participation Agreement (Lincoln Life & Annuity Flexible Premium Variable Life Account M), Fund Participation Agreement (Lincoln Life & Annuity Var Ann Sep Acct L Group Var Ann Ii), Fund Participation Agreement (Lincoln Life & Annuity Var Ann Sep Acct L Group Var Ann Ii)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the MML Trust Board of Directors of the Issuer (the "Board") will monitor the Issuer MML Trust for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing directly or indirectly in funds of the IssuerMML Trust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The MML Trust Board shall promptly inform the each Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The 7.2. Each Company will report any potential or existing conflicts of which it is aware to the MML Trust Board. The Company will assist the MML Trust Board in carrying out its responsibilities under applicable provisions of the Shared Funding Exemptive Order 1940 Act, including, among others, Rule 6e-3(t)(b)(15), by providing the MML Trust Board with all information reasonably necessary for the MML Trust Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the MML Trust Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the MML Trust Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Companies. If the Board determines that the each Company is responsible for causing or creating said conflictshall, the Company shall at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the MML Trust or any Fund and reinvesting such assets in a different investment medium medium, including (but not limited to) another Fund of MML Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating of the Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the a Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's MML Trust’s election, to withdraw an the affected Account's ’s investment in the Issuer MML Trust and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the MML Trust Board. Any such withdrawal and termination must take place within six (6) months after MML Trust gives written notice that this provision is being implemented, and until the end of that six-month period MML Trust shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of MML Trust.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator’s decision applicable to a Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account’s investment in MML Trust and terminate this Agreement with respect to such Account within six (6) months after the MML Trust Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the MML Trust Board. Until the end of the foregoing six-month period, MML Trust shall continue to accept and implement orders by the Company, on behalf of MML Trust, for the purchase (and redemption) of shares of MML Trust.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the MML Trust Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer MML Trust be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the MML Trust Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account’s investment in MML Trust and terminate this Agreement within six (6) months after the MML Trust Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the MML Trust Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding on terms and conditions materially different from those contained in those rules currently then: (a) MML Trust and/or the Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.5, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 5 contracts
Sources: Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4), Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4), Participation Agreement (Massachusetts Mutual Variable Annuity Separate Account 4)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerPortfolios. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authorityauthority action; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, ruling or any similar actions action by insurance, tax or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; , (ivd) the manner in which the investments of any portfolio the Portfolios are being managed; (ve) a difference in voting instructions given by variable annuity contract owners of different Participating Insurance Companies; and variable life insurance contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract Contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist be responsible for assisting the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Conditions set forth in the notice when issued by the SEC for the Portfolios (the “Notice”), which the Company has reviewed, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This The responsibility includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregardeddisregarded by the Company. These responsibilities will be carried out with a view only to the interests of the Contract owners.
(c) 7.3. If a majority of the Board, Board or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, affecting the Company, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictCompany, the Company shall at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the Board’s disinterested Board memberstrustees), will take such action as is any steps necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, including; (ia) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund or any Portfolio thereof and reinvesting such those assets in a different investment medium medium, which may include another Portfolio of Fund, or another investment company; (b) submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, or variable life insurance contract owners, or variable contract Contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners Contract owners’ the option of making such a change; and/or
and (iic) establishing a new registered management investment company (or series thereof) or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions instructions, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's electionelection of Fund, to withdraw an the Separate Account's ’s investment in the Issuer Fund, and terminate this Agreement; provided, however, that no charge or penalty will be imposed as a result of such withdrawal and termination withdrawal. The responsibility to take such remedial action shall be limited carried out with a view only to the extent required by interests of the foregoing material irreconcilable conflict as determined by Contract owners. For the purposes of this Section 7.3, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Fund or the Adviser (or any other investment adviser of the Portfolios) be required to establish a new funding medium for any Contract. The Further, the Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract Contracts if an any offer to do so has been declined by a vote of a majority of the Contract owners materially and adversely affected by the irreconcilable material conflict.
7.4. The Board’s determination of the existence of an material irreconcilable conflict and its implications shall be made known promptly and in writing to the Company.
7.5. No less than annually, the Company and the Adviser shall submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them by these Conditions. Such reports, materials, and data. shall be submitted more frequently if deemed appropriate by the Board.
Appears in 4 contracts
Sources: Participation Agreement (SBL Variable Annuity Account Xiv), Participation Agreement (Variable Annuity Account A), Participation Agreement (Variable Annuity Account A)
Potential Conflicts. (a) The Company has received a copy following provisions shall apply only upon the sale of an application for exemptive reliefshares of the Fund to variable life insurance separate accounts, as amended, filed by and then only to the Issuer on December 21, 1987, with extent required under the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")▇▇▇▇ ▇▇▇.
7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund and all other persons investing in the Fund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an a material irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company Company, with a view only to the interests of Contract owners, will report any potential or existing conflicts of which it is aware to the Board. The Company Company, with a view only to the interests of Contract owners, will assist the Board in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded. No less than annually, the Company shall submit to the Board such reports, materials, or data as the Board reasonably requests so that the Board may carry out its obligations under the Mixed and Shared Funding Exemptive Order.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to each Account (at the Company's expense); provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created a material irreconcilable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Fund shall continue to accept and implement orders by the Company for the purchase (eand redemption) of shares of the Fund.
7.6. For the purpose purposes of Section 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any the Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the material irreconcilable conflict. In the event that the Board determines that any proposed action does not adequately remedy any material irreconcilable conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent the Mixed and Shared Funding Exemption Order or any amendment thereto contains terms and conditions different from Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement, then the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with the Mixed and Shared Funding Exemptive Order, and Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in the Mixed and Shared Funding Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.5, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 4 contracts
Sources: Participation Agreement (Separate Account Vul 4 of Transamer Occidental Life Ins Co), Participation Agreement (Separate Account Va 8 of Transamerica Life Ins & Annuity Co), Participation Agreement (Separate Account Vul 2 of Transamerica Occidental Life Ins)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by 8.1. If required under the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") Accounts investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The 8.2. If required under the Shared Funding Exemptive Order, the Company will report in writing any potential or existing conflicts material irreconcilable conflict of which it is aware to the Administrator. Upon receipt of such report, the Administrator shall report the potential or existing material irreconcilable conflict to the Board. The Administrator shall also report to the Board on a quarterly basis whether the Company has reported any potential or existing material irreconcilable conflicts during the previous calendar quarter. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 8.3. If required under the Shared Funding Exemptive Order, the and it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(d) 8.4. If required under the Shared Funding Exemptive Order, if a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's Trust’s election, to withdraw an the affected Account's ’s investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (at the Company’s expense); provided, however, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(e) For 8.5. If required under the purpose Shared Funding Exemptive Order, the, for purposes of Sections 8.3 through 8.4 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 8.3 through 8.4 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
8.6. If required under the Shared Funding Exemptive Order, i and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable.
8.7. If required under the Shared Funding Exemptive Order, each of the Company and the Advisers shall at least annually submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them by the provisions hereof and in the Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board. Without limiting the generality of the foregoing or the Company’s obligations under Section 8.2, the Company shall provide to the Administrator a written report to the Board no later than January 15th of each year indicating whether any material irreconcilable conflicts have arisen during the prior fiscal year of the Trust. All reports received by the Board of potential or existing conflicts, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Securities and Exchange Commission upon request.
Appears in 4 contracts
Sources: Fund Participation Agreement (Separate Account I of National Integrity Life Ins Co), Fund Participation Agreement (Separate Account I of Integrity Life Insurance Co), Fund Participation Agreement (Separate Account Ii of National Integrity Life Insurance Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "“Shared Funding Exemptive Order"”). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "“Board"”) will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("“Participating Companies"”) investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's ’s election, to withdraw an Account's ’s investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 12, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 4 contracts
Sources: Participation Agreement (Ml of New York Variable Annuity Separate Account A), Participation Agreement (Ml of New York Variable Annuity Separate Account A), Participation Agreement (Merrill Lynch Life Variable Annuity Separate Account A)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Separate Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an a Separate Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 12, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 4 contracts
Sources: Shareholder Services Agreement (Ge Capital Life Separate Account Ii), Shareholder Services Agreement (Ge Capital Life Separate Account Ii), Shareholder Services Agreement (Ge Life & Annuity Assurance Co Iv)
Potential Conflicts. (a) 6.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance Insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, . or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments Investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer Insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company Hartford if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company 6.2 Hartford will report any potential or existing conflicts of which it is aware to the Board. The Company Hartford will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company Hartford to inform Inform the Board whenever contract owner voting instructions are disregarded.
(c) 6.3 If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Hartford and other Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictInsurance Companies shall, the Company shall at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium Investment medium. including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 6.4 If a material irreconcilable conflict arises as a result because of a decision by the Company Hartford to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, Hartford may be required, at the BoardTrust's election, to withdraw an the effected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Notwithstanding anything herein possibly to the contrary, "echo" voting or the effectuation of other voting procedures consistent with the Shared Funding Exemptive Order, shall not constitute a decision to disregard contract owner voting instructions as contemplated hereby. Subject to section 9.2, below, any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being Implemented, and until the end of that six month period the Distributor and Trust shall continue to accept and implement orders by Hartford for the purchase (and redemption) of shares of the Trust.
6.5 If a material Irreconcilable conflict arises because a particular state insurance regulator's decision applicable to Hartford conflicts with the majority of other state regulators, then Hartford will withdraw the affected Account's investment in the Trust and terminate this Agreement with respect to such Account within six months after the Board informs Hartford in writing that It has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Distributor and Trust shall continue to accept and Implement orders by Hartford for the purchase (and redemption) of shares of the Trust.
(e) 6.6 For the purpose purposes of Sections 6.3 through 6.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Company Hartford shall not be required by this SECTION 14 Section 6.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict, In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then Hartford will withdraw the Account's investment in the Trust and terminate this Agreement within six (6) months after the Board informs Hartford in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
6.7 If and to the extant that Rule 6e-2 and Rule 6e-3(T) ere amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 60-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.3, 3.4, 6.1, 6.2, 6.3, 6.4, and 6.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained In such Rule(s) as so amended or adopted.
Appears in 4 contracts
Sources: Fund Participation Agreement (Talcott Resolution Life & Annuity Insur Co Separate Account Three), Fund Participation Agreement (Talcott Resolution Life & Annuity Insur Co Separate Account Three), Participation Agreement (Talcott Resolution Life & Annuity Insurance Co Separate Account Seven)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief4.1 During such time as the Fund engages in Mixed Funding or Shared Funding, as amended, filed by the Issuer on December 21, 1987, parties hereto shall comply with the SEC and the order issued by the SEC conditions in response thereto (the "Shared Funding Exemptive Order"). this Article IV.
4.2 The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Fund's Board of Directors of the Issuer (the "Board") will Trustees shall monitor the Issuer Fund for the existence of any material irreconcilable conflict (1) between the interests of the contract owners of all separate accounts variable annuity contracts and variable life insurance policies, and (2) between the interests of owners of Variable Contracts ("Participating CompaniesVariable Contract Owners") investing issued by different Participating Life Insurance Companies that invest in funds of the IssuerFund. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio of the Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereofVariable Contract Owners.
(b) 4.3 The Company will Insurer agrees that it shall report any potential or existing conflicts of which it is aware to the BoardFund's Board of Trustees. The Company Insurer will assist be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order Order, or, if the Fund is engaged in Mixed Funding or Shared Funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, the Insurer will be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under such regulation, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company Insurer to inform the Board whenever contract owner Variable Contract Owner voting instructions are disregarded. The Insurer shall carry out its responsibility under this Section 4.3 with a view only to the interests of the Variable Contract Owners.
(c) If 4.4 The Insurer agrees that in the event that it is determined by a majority of the Board, Board of Trustees of the Fund or a majority of its the Fund's disinterested Board members, determines Trustees that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictInsurer shall, the Company shall at its sole cost and expense, expenses and to the extent reasonably practicable (as determined by a majority of the disinterested Trustees of the Board membersof the Fund), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including another portfolio of the Fund, or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract owners and Variable Contract Owners and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, owners or life insurance contract owners, or variable contract owners of contracts issued by one or more Participating Insurance Companies) ), that votes in favor of such segregation, or offering to the affected contract owners Variable Contract Owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a the Insurer's decision by the Company to disregard its contract owner Variable Contract Owners' voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may Insurer shall be required, at the BoardFund's election, to withdraw an Account's the Separate Accounts' investment in the Issuer and terminate this Agreement; Fund, provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Trustees, and no charge or penalty will be imposed as a result of such withdrawal. These responsibilities shall be carried out with a view only to the interests of the Board.
(e) For the purpose of this SECTION 14, a Variable Contract Owners. A majority of the disinterested Board members Trustees of the Fund shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Fund or its investment adviser or the Distributor be required to establish a new funding medium for any Variable Contract. The Company Insurer shall not be required by this SECTION 14 Section 4.4 to establish a new funding medium for any Variable Contract if an any offer to do so has been declined by vote of a majority of the Variable Contract owners Owners materially adversely affected by the material irreconcilable material conflict.
4.5 The Insurer, at least annually, shall submit to the Fund's Board of Trustees such reports, materials, or data as the Board reasonably may request so that the Trustees of the Fund may fully carry out the obligations imposed upon the Board by the conditions contained in the application for the Mixed and Shared Funding Exemptive Order and said reports, materials, and data shall be submitted more frequently if deemed appropriate by the Board.
4.6 All reports of potential or existing conflicts received by the Fund's Board of Trustees, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board of Trustees of the Fund or other appropriate records, and such minutes or other records shall be made available to the SEC upon request.
Appears in 3 contracts
Sources: Participation Agreement (Bma Variable Life Account A), Participation Agreement (Bma Variable Life Account A), Fund Participation Agreement (Great American Reserve Variable Annuity Account F)
Potential Conflicts. (a) The Company ING has received a copy of an application for exemptive relief, as amended, filed by the Issuer Fund on December 21, 1987, and with the SEC and the order issued by the SEC dated ________(File No._______) in response thereto (the "Mixed and Shared Funding Exemptive Order"). The Company ING has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer Fund (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners contractholders of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners contractholders and variable life insurance contract ownerscontractholders; or (vi) a decision by an insurer to disregard the voting instructions of contract ownerscontractholders. The Board shall promptly inform the Company ING if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company ING will report any potential or existing conflicts of which it is aware to the Board. The Company ING will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company ING to inform the Board whenever contract owner contractholder voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner contractholder investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company ING is responsible for causing or creating said conflict, the Company ING shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts Account from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners contractholders and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners contractholders the option of making such a change; and/or
and/or (ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company ING to disregard its contract owner contractholder voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners contractholders having an interest in the IssuerFund, the Company ING at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer Fund and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 10, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contract. The Company ING shall not be required by this SECTION 14 Section 10 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners or participants materially adversely affected by the irreconcilable material conflict.
Appears in 3 contracts
Sources: Fund Participation Agreement (Variable Annuity Account I of Ing Life Insurance & Annuity Co), Fund Participation Agreement (Variable Annuity Acct C of Ing Life Insurance & Annuity Co), Fund Participation Agreement (Variable Annuity Acct C of Ing Life Insurance & Annuity Co)
Potential Conflicts. (a) The Company ING has received a copy of an application for exemptive relief, as amended, filed by the Issuer Fund on December 21, 1987, and with the SEC and the order issued by the SEC dated February 9, 1998 (File No. 812-10822) in response thereto (the "Mixed and Shared Funding Exemptive Order"). The Company ING has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer Fund (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners contractholders of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners contractholders and variable life insurance contract ownerscontractholders; or (vi) a decision by an insurer to disregard the voting instructions of contract ownerscontractholders. The Board shall promptly inform the Company ING if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company ING will report any potential or existing conflicts of which it is aware to the Board. The Company ING will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company ING to inform the Board whenever contract owner contractholder voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner contractholder investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company ING is responsible for causing or creating said conflict, the Company ING shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts Account from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners contractholders and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners contractholders the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company ING to disregard its contract owner contractholder voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners contractholders having an interest in the IssuerFund, the Company ING at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer Fund and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to ING conflicts with the majority of other state regulators, then ING will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account after the Board informs ING in writing that it has determined that such decisions has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested Board members. Until the date that the Agreement is terminated, the Fund shall continue to accept and implement orders by ING for the purchase (and redemption) of shares of the Fund.
(f) For the purpose of this SECTION 14Section 10, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contract. The Company ING shall not be required by this SECTION 14 Section 10 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners or participants materially adversely affected by the irreconcilable material conflict.
(g) If and to the extent the Mixed and Shared Funding Exemptive Order or any amendment thereto contains terms and conditions different from Sections 7(g), (h) and (i) and 10(a), (b), (c), (d) and (e) of this Agreement, then the Fund and/or the Participating Companies, as appropriate, shall take such steps as may be necessary to comply with the Mixed and Shared Funding Exemptive Order, and Sections 7(g), (h) and (i) and 10(a), (b), (c), (d) and (e) of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in the Mixed and Shared Funding Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 7(g), (h) and (i) and 10(a), (b), (c), (d) and (e) of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 3 contracts
Sources: Participation Agreement (Variable Annuity Account I of Ing Insurance Co of America), Participation Agreement (Variable Annuity Acct C of Ing Life Insurance & Annuity Co), Participation Agreement (Variable Annuity Account I of Ing Insurance Co of America)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 3 contracts
Sources: Participation Agreement (Separate Account Vul-2 of the American Franklin Life Ins Co), Participation Agreement (Separate Account Va 1 of the American Franklin Life Ins Co), Participation Agreement (Separate Account Vul-2 of the American Franklin Life Ins Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners contractowners of all variable annuity and variable life insurance separate accounts ("Participating Companies") and Qualified Plan participants investing in funds of the IssuerTrust. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Designated Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersof Variable Contracts; or (vif) a decision by an insurer to disregard the voting instructions of contract ownersowners of Variable contracts. The Board shall promptly inform the Company MONY if it determines that an a material irreconcilable material conflict exists and the implications thereof.
(b) The Company 7.2. MONY will report any potential or existing conflicts of which it is aware to the Board. The Company MONY will assist the Board in carrying out its responsibilities under the any Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company MONY to inform the Board whenever contract owner the voting instructions of owners of Variable Contracts are disregarded. Upon the written request of the Trust, MONY will also provide to the Board, not more frequently than annually, a written certification in a format to be determined by mutual agreement of the Trust and MONY, as to its best knowledge of any events that may result in a material irreconcilable conflict. MONY's responsibilities under this Section 7.2 will be carried out with a view only to the interests of its Contractowners.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all MONY and other Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictInsurance Companies and Qualified Plans shall, the Company shall at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersTrustees), take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to, up to and including:
(ia) withdrawing the assets allocable to some or all of the Accounts variable annuity and variable life insurance separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation withdrawal should be implemented to a vote of all affected contract owners and of Variable Contracts and, as appropriate, segregating withdrawing the assets of any appropriate group (i.e.i. e., owners of variable annuity contract owners, contracts or owners of variable life insurance contract owners, or variable contract owners contracts of one or more Participating Insurance Companies) that votes in favor of such segregationwithdrawal, or offering to the affected contract owners of Variable Contracts the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account. MONY's responsibilities under this Section 7.3 will be carried out with a view only to the interests of Contractowners.
(d) 7.4. If a material irreconcilable conflict arises as a result ever were to arise because of a decision by the Company MONY to disregard its contract owner Contractowner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, MONY may be required, at the BoardTrust's election, to withdraw an the affected Account's (or subaccount's) investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (or subaccount); provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty shall be imposed as a result of such withdrawal. Any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being implemented and, until the end of that six (6) month period, the Distributors and Trust shall continue to accept and implement orders by MONY for the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because a particular state insurance regulator's decision applicable to MONY conflicts with the majority of other state regulators, then MONY shall withdraw the affected Account's (eor subaccount's) investment in the Trust and terminate this Agreement with respect to such Account (or subaccount) within six (6) months after the Board informs MONY in writing that it has determined that such decision has created a material irreconcilable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six (6) month period, the Distributors and Trust shall continue to accept and implement orders by MONY for the purchase (and redemption) of shares of the Trust.
7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe MONY Contracts. The Company MONY shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the MONY Contracts if an offer to do so has been declined by vote of a majority of the Contract owners Contractowners materially adversely affected by the material irreconcilable conflict. In the event that the Board determines that any proposed action does not adequately remedy any material irreconcilable conflict, then MONY will withdraw the Account's (or subaccount's) investment in the Trust and terminate this Agreement within six (6) months after the Board informs MONY in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3 (T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then:
(a) the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted; and (c) this Agreement shall be otherwise amended by the Trust, without the need for any consent of the other parties, as required by such change in law.
Appears in 3 contracts
Sources: Participation Agreement (Mony Variable Account A), Participation Agreement (Mony America Variable Account A), Participation Agreement (Mony America Variable Account L)
Potential Conflicts. (a) 8.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 8.2 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 8.3 If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(ia) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(iib) establishing a new registered management investment company or managed separate account.
(d) 8.4 If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) 8.5 For the purpose of this SECTION 14Article VIII, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Article VIII to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 3 contracts
Sources: Participation Agreement (Variable Annuity Account B), Participation Agreement (Variable Annuity Account B), Participation Agreement (Variable Annuity Account B)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-no- action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 12, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 3 contracts
Sources: Shareholder Services Agreement (American Fidelity Separate Account B), Shareholder Services Agreement (American Fidelity Separate Account C), Shareholder Services Agreement (Agl Separate Account Vl R)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "“Shared Funding Exemptive Order"”). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "“Board"”) will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("“Participating Companies"”) investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:: The Guardian-SSA-Insurance.Mix January 29, 1998
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's ’s election, to withdraw an Account's ’s investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 12, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 3 contracts
Sources: Shareholder Services Agreement (Guardian Separate Acct N of the Guardian Ins & Annuity Co), Shareholder Services Agreement (Guardian Separate Acct N of the Guardian Ins & Annuity Co), Shareholder Services Agreement (Guardian Separate Acct N of the Guardian Ins & Annuity Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state, insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7. 1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 3 contracts
Sources: Participation Agreement (Lincoln Life Variable Annuity Account N), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")4.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Fund Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any irreconcilable material irreconcilable conflict between among the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by Participating Insurance Companies or by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners; or (g) if applicable, a decision by a Qualified Entity to disregard the voting instructions of a person participating in such entity. The Fund Board shall will promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof. A majority of the Fund Board will consist of persons who are not "interested" persons of the Fund.
(b) 4.2. The Company will report any potential or existing conflicts of which it is aware to the Fund Board. The Company will agrees to assist the Fund Board in carrying out its responsibilities under responsibilities, as delineated in the Shared Funding Exemptive Order Order, by providing the Fund Board with all information reasonably necessary for the Fund Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Fund Board whenever contract Contract owner voting instructions are to be disregarded. The Fund Board will record in its minutes, or other appropriate records, all reports received by it and all action with regard to a conflict.
(c) 4.3. If it is determined by a majority of the Fund Board, or a majority of its disinterested Board membersdirectors, determines that a an irreconcilable material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies will, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersdirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (ia) withdrawing the assets allocable to some or all of the Accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, Contract owners or variable life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account.
(d) 4.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its Contract owner voting instructions, and such disregard of voting instructions could conflict with the majority of contract owner voting instructions instructions, and said decision the Company's judgment represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however, that such withdrawal and termination shall will be limited to the extent required by the foregoing irreconcilable material irreconcilable conflict as determined by a majority of the disinterested members directors of the Fund Board. No charge or penalty will be imposed as a result of such withdrawal. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice to the Company that this provision is being implemented. Until the end of such six-month period the Adviser and Fund will, to the extent permitted by law and any exemptive relief previously granted to the Fund, continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
4.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state insurance regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account; provided, however, that such withdrawal and termination will be limited to the extent required by the foregoing irreconcilable material conflict as determined by a majority of the disinterested directors of the Fund Board. No charge or penalty will be imposed as a result of such withdrawal. Any such withdrawal and termination must take place within six (e6) months after the Fund gives written notice to the Company that this provision is being implemented. Until the end of such six-month period the Adviser and Fund will, to the extent permitted by law and any exemptive relief previously granted to the Fund, continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
4.6. For the purpose purposes of Sections 4.3 through 4.6 of this SECTION 14Agreement, a majority of the disinterested members of the Fund Board members shall will determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund or the Adviser be required to establish a new funding medium for any Contractthe Contracts. The Company shall will not be required by this SECTION 14 Article IV to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
4.7. The Company will at least annually submit to the Fund Board such reports, materials or data as the Fund Board may reasonably request so that the Fund Board may fully carry out the duties imposed upon it as delineated in the Exemptive Order, and said reports, materials and data will be submitted more frequently if deemed appropriate by the Fund Board.
4.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Exemptive Order) on terms and conditions materially different from those contained in the Exemptive Order, then:
(a) the Fund and/or the Company, as appropriate, will take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 4.1, 4.2, 4.3, 4.4, and 4.5 of this Agreement will continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
4.9. The Company, or any affiliate, will maintain at its home office, available to the SEC (a) a list of its officers, directors and employees who participate directly in the management or administration of any Accounts and/or (b) a list of its agents who, as registered representatives, offer and sell Contracts.
Appears in 3 contracts
Sources: Participation Agreement (Wanger Advisors Trust), Participation Agreement (Ids Life of New York Flexible Portfolio Annuity Account), Participation Agreement (Wanger Advisors Trust)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract Contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 3 contracts
Sources: Participation Agreement (Country Investors Variable Annunity Account), Participation Agreement (Country Investors Variable Life Account), Participation Agreement (Country Investors Variable Annunity Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by 8.1. If required under the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") Accounts investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The 8.2. If required under the Shared Funding Exemptive Order, the Company will report in writing any potential or existing conflicts material irreconcilable conflict of which it is aware to the Administrator. Upon receipt of such report, the Administrator shall report the potential or existing material irreconcilable conflict to the Board. The Administrator shall also report to the Board on a quarterly basis whether the Company has reported any potential or existing material irreconcilable conflicts during the previous calendar quarter. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 8.3. If required under the Shared Funding Exemptive Order, the and it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(d) 8.4. If required under the Shared Funding Exemptive Order, if a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the affected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (at the Company's expense); provided, however, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(e) For 8.5. If required under the purpose Shared Funding Exemptive Order, the, for purposes of Sections 8.3 through 8.4 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 8.3 through 8.4 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
8.6. If required under the Shared Funding Exemptive Order, i and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable.
8.7. If required under the Shared Funding Exemptive Order, each of the Company and the Advisers shall at least annually submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them by the provisions hereof and in the Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board. Without limiting the generality of the foregoing or the Company's obligations under Section 8.2, the Company shall provide to the Administrator a written report to the Board no later than January 15th of each year indicating whether any material irreconcilable conflicts have arisen during the prior fiscal year of the Trust. All reports received by the Board of potential or existing conflicts, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Securities and Exchange Commission upon request.
Appears in 3 contracts
Sources: Fund Participation Agreement (Usl Separate Account Usl Vl-R), Fund Participation Agreement (Variable Account B American Intl Life Assur Co of New York), Fund Participation Agreement (Variable Account Ii Aig Life Insurance Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by 8.1. If required under the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") Accounts investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The 8.2. If required under the Shared Funding Exemptive Order, the Company will report in writing any potential or existing conflicts material irreconcilable conflict of which it is aware to the Administrator. Upon receipt of such report, the Administrator shall report the potential or existing material irreconcilable conflict to the Board. The Administrator shall also report to the Board on a quarterly basis whether the Company has reported any potential or existing material irreconcilable conflicts during the previous calendar quarter. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 8.3. If required under the Shared Funding Exemptive Order, the and it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(d) 8.4. If required under the Shared Funding Exemptive Order, if a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the affected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (at the Company's expense); provided, however, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(e) For 8.5. If required under the purpose Shared Funding Exemptive Order, the, for purposes of Sections 8.3 through 8.4 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be <PAGE> required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 8.3 through 8.4 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
8.6. If required under the Shared Funding Exemptive Order, and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable.
8.7. If required under the Shared Funding Exemptive Order, each of the Company and the Advisers shall at least annually submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them by the provisions hereof and in the Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board. Without limiting the generality of the foregoing or the Company's obligations under Section 8.2, the Company shall provide to the Administrator a written report to the Board no later than January 15th of each year indicating whether any material irreconcilable conflicts have arisen during the prior fiscal year of the Trust. All reports received by the Board of potential or existing conflicts, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Securities and Exchange Commission upon request.
Appears in 3 contracts
Sources: Fund Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Fund Participation Agreement (Lincoln Life & Annuity Flexible Premium Variable Life Account M), Fund Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer Distributor on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. relief As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost -cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1411, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 11 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 3 contracts
Sources: Participation Agreement (Bma Variable Life Account A), Participation Agreement (Bma Variable Life Account A), Fund Participation Agreement (Great American Reserve Variable Annuity Account F)
Potential Conflicts. (a) 7.1. The Company has received reviewed a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Mixed and Shared Funding Exemptive Order"). The Company ) dated November 2, 1987 of the Securities and Exchange Commission under Section 6(c) of the Act and, in particular, has reviewed the conditions to the requested relief set forth in such application for exemptive reliefthe related Notice. As set forth in such applicationtherein, the Company agrees to report to the Board of Directors of the Issuer Fund (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts between the interests of which it is aware Product Owners of all separate accounts investing in the Fund, and to the Board. The Company will assist the Board in carrying out its responsibilities under the conditions of the Mixed and Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company including information as to inform the Board whenever contract owner a decision to disregard voting instructions are disregardedof variable Contractowners.
(c) 7.2. If a majority of the Board, or a majority of its disinterested Board membersMembers, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Insurance Companies. .
(a) If a majority of the Board whole Board, after notice to the Company and a reasonable opportunity for the Company to appear before it and present its case, determines that the Company is responsible for causing or creating said conflict, and if the Company shall agrees with that determination, the Company shall, at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
These steps could include: (i) withdrawing the assets allocable to some or all of the affected Accounts from the Fund or any Series and reinvesting such assets in a different investment medium vehicle, including another Series of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and Contractowners and, as appropriate, segregating the assets of any appropriate particular group (i.e., variable annuity contract ownersContractowners, variable life insurance contract ownerspolicyowners, or variable contract owners Contractowners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners Contractowners the option of making such a change; and/or
and (ii) establishing a new registered mutual fund or management investment company or managed separate account.
(d) If a material irreconcilable conflict arises , or taking such other action as a result of a decision by the Company is necessary to disregard its contract owner voting instructions and said decision represents a minority position remedy or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by eliminate the irreconcilable material conflict.
(b) If the Company disagrees with the Board's determination, the Company shall file a written protest with the Board, reserving its right to dispute the determination as between just the Company and the Fund. After reserving that right the Company, although disagreeing with the Board that it (the Company) was responsible for the conflict, shall take the necessary steps, under protest, to remedy the conflict, substantially in accordance with paragraph (a) just above, for the protection of Contractowners.
(c) As between the Company and the Fund, if within 45 days after the Board's determination the Company elects to press the dispute, it shall so notify the Board in writing. The parties shall then attempt to resolve the matter amicably through negotiation by individuals from each party who are authorized to settle the controversy. If the matter has not been amicably resolved within 60 days from the date of the Company's notice of its intent to press the dispute, then before either party shall undertake to litigate the dispute it shall be submitted to non-binding arbitration conducted expeditiously in accordance with the CPR Rules for Non-Administered Arbitration of Business Disputes, by a sole arbitrator; PROVIDED, HOWEVER, that if one party has requested the other party to seek an amicable resolution and the other party has failed to participate, the requesting party may initiate arbitration before expiration of the 60-day period set out just above.
Appears in 3 contracts
Sources: Participation Agreement (Lincoln New York Account N for Variable Annuities), Participation Agreement (Llany Separate Account S for Flexible Premium Vari Life Insu), Participation Agreement (Lincoln Life & Annuity Flexible Prem Vari Life Acct M)
Potential Conflicts. (a) 8.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 8.2 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 8.3 If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take members),take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(ia) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(iib) establishing a new registered management investment company or managed separate account.
(d) 8.4 If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) 8.5 For the purpose of this SECTION 14Article VIII, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Article VIII to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 3 contracts
Sources: Participation Agreement (Variflex), Participation Agreement (Variflex), Participation Agreement (Variflex)
Potential Conflicts. (a) 7.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerPortfolios. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal insurance (including federal, state or state insuranceother jurisdiction), tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board Directors shall promptly inform the Company if it determines they determine that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2 The Company will report any potential or existing conflicts of which it is aware to the BoardDirectors and, on an annual basis, shall provide the Fund with written notification that the Company is not aware of any conflict, if such is the case. The Company will assist the Board Directors in carrying out its their responsibilities under any applicable provisions of the Shared Funding federal securities laws and/or any exemptive orders granted by the SEC, including the order obtained by the Fund from the SEC, dated ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇▇ No. 812-12760) (“Exemptive Order Order”), by providing the Board Directors with all information reasonably necessary for the Board Directors to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board Directors whenever contract owner Contract holder voting instructions are disregarded. The Company acknowledges that: (i) the Company’s disregard of voting instructions may conflict with the majority of Contract holders’ voting instructions; and (ii) the Company’s action could preclude a majority vote approving a proposed change or could represent a minority view. If the Company’s judgment represents a minority position or would preclude a majority vote, then the Company may be required, at the Fund’s election, to withdraw the Accounts’ investment in the Portfolios. Other than possible decline in the value of an Account due to fluctuations in the net asset value of the Portfolios, no charge or penalty will be imposed as a result of such withdrawal.
(c) 7.3 If it is determined by a majority of the BoardDirectors, or a majority of its disinterested Board membersDirectors, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall shall, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersDirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts from the Fund any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and Contract holders and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners Contract holders the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4 If a material irreconcilable conflict arises as because a result of a particular state insurance regulator’s decision by applicable to the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a conflicts with the majority vote by all of its contract owners having an interest in the Issuerother insurance regulators, then the Company at its sole cost, may be required, at will withdraw the Board's election, to withdraw an affected Account's ’s investment in the Issuer Portfolio(s) and terminate this AgreementAgreement with respect to such Account within six (6) months after the Directors inform the Company in writing that the Directors have determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Directors. Until the end of the Boardforegoing six (6) month period, DFAS and the Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Portfolios.
(e) 7.5 For the purpose purposes of Sections 7.3 through 7.5 of this SECTION 14Agreement, a majority of the disinterested Board members Directors shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners holders materially adversely affected by the irreconcilable material conflict. In the event that the Directors determine that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw an Account’s investment in the Portfolios and terminate this Agreement within six (6) months after the Directors inform the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict.
7.6 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in any Exemptive Order) on terms and conditions materially different from those contained in any Exemptive Order, then (a) the Fund and/or the Company, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3 (T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 7.1, 7.2, 7.3 and 7.4 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted by the SEC.
Appears in 3 contracts
Sources: Participation Agreement (Separate Account Va B), Participation Agreement (Separate Account Va Cc), Participation Agreement (TFLIC Separate Account VNY)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, conflict but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Accounts investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7. 1,
Appears in 3 contracts
Sources: Participation Agreement (Lincoln Life Variable Annuity Account N), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M)
Potential Conflicts. (a) 6.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between among the interests of the contract Contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, tax or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract Contract owners. The Board shall promptly inform the Company if it determines they determine that an irreconcilable material conflict exists and the implications thereof.
(b) 6.2 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner Contract owners' voting instructions are disregarded.
(c) 6.3 If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersdirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group group, (i.e.I.E., annuity contract Contract owners, life insurance contract Contract owners, or variable contract Contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 6.4 If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner Contract owners' voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six-month period the Fund and the Distributor shall continue to accept and implement orders by the Company for the purchase (and redemption) of Fund shares.
6.5 If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six (6) months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six-month period, the Fund and the Distributor shall continue to accept and implement orders by the Company for the purchase (and redemption) of Fund shares.
(e) 6.6 For the purpose purposes of Sections 6.3 through 6.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 6.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
6.7 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Company, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T) as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 6.1, 6.2, 6.3, 6.4 and 6.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 3 contracts
Sources: Participation Agreement (Variable Annuity Account), Participation Agreement (Metropolitan Life Separate Account UL), Participation Agreement (Metlife of Ct Fund Ul Iii for Variable Life Insurance)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 3 contracts
Sources: Participation Agreement (Separate Account Vul-2 of the American Franklin Life Ins Co), Participation Agreement (Separate Account Va 1 of the American Franklin Life Ins Co), Participation Agreement (Separate Account Vul-2 of the American Franklin Life Ins Co)
Potential Conflicts. (a) The During such time as the Investment Company has received a copy of an application for exemptive reliefengages in Mixed Funding or Shared Funding, as amended, filed by the Issuer on December 21, 1987, parties hereto shall comply with the SEC and the order issued by the SEC conditions in response thereto this Section 4.
(the "Shared Funding Exemptive Order"). b) The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Investment Company’s Board of Directors of the Issuer (the "Board") will Trustees shall monitor the Issuer Investment Company for the existence of any material irreconcilable conflict (i) between the interests of the contract owners of all separate accounts variable annuity contracts and variable life insurance policies, and ("ii) between the interests of owners of variable annuity contracts and variable life insurance policies issued by different Participating Companies") investing Life Insurance Companies that invest in funds of the IssuerInvestment Company. An A material irreconcilable material conflict may arise for a variety of reasons, including: (iiii) an action by any state insurance regulatory authority; (iiiv) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiiv) an administrative or judicial decision in any relevant proceeding; (ivvi) the manner in which the investments of any portfolio Fund of the Investment Company are being managed; (vvii) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (viviii) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists owners of variable annuity contracts and the implications thereofvariable life insurance policies.
(bc) The Company will Insurer agrees that it shall report any potential or existing conflicts of which it is aware to the BoardInvestment Company’s Board of Trustees. The Company Insurer will assist be responsible for assisting the Board of Trustees of the Investment Company in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order Order, or, if the Investment Company is engaged in Mixed Funding or Shared Funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, the Insurer will be responsible for assisting the Board of Trustees of the Investment Company in carrying out its responsibilities under such regulation, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company Insurer to inform the Board whenever contract owner Variable Contract Owner voting instructions are disregarded. The Insurer shall carry out its responsibility under this Section 4(c) with a view only to the interests of the Variable Contract Owners.
(cd) If The Insurer agrees that in the event that it is determined by a majority of the Board, Board of Trustees of the Investment Company or a majority of its the Investment Company’s disinterested Board members, determines Trustees that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictInsurer shall, the Company shall at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Trustees of the Board membersof the Investment Company), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) withdrawing the assets allocable to some or all of the Separate Accounts from the Investment Company or any Fund and reinvesting such assets in a different investment medium medium, including another portfolio of the Investment Company, or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract owners and Variable Contract Owners and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, owners or life insurance contract owners, or variable contract owners of contracts issued by one or more Participating Insurance Companies) ), that votes in favor of such segregation, or offering to the affected contract owners Variable Contract Owners the option of making such a change; and/or
and (ii) establishing a new registered management investment company or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a the Insurer’s decision by the Company to disregard its contract owner Variable Contract Owners’ voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may Insurer shall be required, at the Board's Investment Company’s election, to withdraw an Account's the Separate Accounts’ investment in the Issuer and terminate this Agreement; Investment Company, provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Trustees, and no charge or penalty will be imposed as a result of such withdrawal. These responsibilities shall be carried out with a view only to the interests of the Board.
(e) For the purpose of this SECTION 14, a Variable Contract Owners. A majority of the disinterested Board members Trustees of the Investment Company shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Investment Company or its investment adviser or the Distributor be required to establish a new funding medium for any Variable Contract. The Company Insurer shall not be required by this SECTION 14 Section 4(d) to establish a new funding medium for any Variable Contract if an any offer to do so has been declined by vote of a majority of the Variable Contract owners Owners materially adversely affected by the material irreconcilable conflict.
(e) The Insurer, at least annually, shall submit to the Investment Company’s Board of Trustees such reports, materials, or data as the Board reasonably may request so that the Trustees of the Investment Company may fully carry out the obligations imposed upon the Board by the conditions contained in the application for the Mixed and Shared Funding Exemptive Order and said reports, materials, and data shall be submitted more frequently if deemed appropriate by the Board.
(f) All reports of potential or existing conflicts received by the Investment Company’s Board of Trustees, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board of Trustees of the Investment Company or other appropriate records, and such minutes or other records shall be made available to the SEC upon request.
(g) The Board of Trustees of the Investment Company shall promptly notify the Insurer in writing of its determination of the existence of an irreconcilable material conflictconflict and its implications.
(h) The Investment Company and the Insurer agree that if and to the extent Rule 6e-2 or Rule 6e-3(T) under the 1940 Act is amended or if Rule 6e-3 is adopted in final form, to the extent applicable, the Investment Company and the Insurer shall each take such steps as may be necessary to comply with the Rule as amended or adopted in final form. If, in the future, the Mixed and Shared Funding Exemptive Order should no longer be necessary under applicable law, then this Section 4(h) shall continue in effect, and the remainder of Section 4 shall no longer apply.
Appears in 2 contracts
Sources: Fund Participation Agreement (SBL Variable Annuity Account Xiv), Participation Agreement (TFLIC Separate Account VNY)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors trustees of the Issuer (the "Board") Trust will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract variable Contract owners of all separate accounts ("Participating Companies") investing in funds the Trust and the participants of all Qualified Plans investing in the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of variable contract owners. The Board trustees of the Trust shall promptly inform the Insurance Company if it determines they determine that an irreconcilable material conflict exists and the implications thereof. The trustees of the Trust shall have sole authority to determine whether an irreconcilable material conflict exists and their determination shall be binding upon the Insurance Company.
(b) 7.2. The Insurance Company and Berg▇▇ ▇▇▇ociates each will report promptly any potential or existing conflicts of which it is aware to the Boardtrustees of the Trust. The Insurance Company and Berg▇▇ ▇▇▇ociates each will assist the Board trustees of the Trust in carrying out its their responsibilities under the Mixed and Shared Funding Exemptive Order Order, by providing the Board trustees of the Trust with all information reasonably necessary for the Board them to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.any
Appears in 2 contracts
Sources: Participation Agreement (Canada Life of New York Variable Annuity Account 1), Participation Agreement (Canada Life of America Variable Annuity Account 1)
Potential Conflicts. (a) 6.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between among the interests of the contract Contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, tax or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract Contract owners. The Board shall promptly inform the Company if it determines they determine that an irreconcilable material conflict exists and the implications thereof.
(b) 6.2 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner Contract owners' voting instructions are disregarded.
(c) 6.3 If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersdirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group group, (i.e., annuity contract Contract owners, life insurance contract Contract owners, or variable contract Contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 6.4 If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner Contract owners' voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six-month period the Fund and the Distributor shall continue to accept and implement orders by the Company for the purchase (and redemption) of Fund shares.
6.5 If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six (6) months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six-month period, the Fund and the Distributor shall continue to accept and implement orders by the Company for the purchase (and redemption) of Fund shares.
(e) 6.6 For the purpose purposes of Sections 6.3 through 6.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 6.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
6.7 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Company, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T) as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 6.1, 6.2, 6.3, 6.4 and 6.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Metlife Investors Usa Separate Account A), Participation Agreement (Metropolitan Life Variable Annuity Separate Account II)
Potential Conflicts. (a) 5.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer TRUST for the existence of any material irreconcilable conflict between the interests of the contract Variable Contract owners of all separate accounts ("Participating Companies") Insurance Company Separate Accounts investing in funds of the IssuerTRUST. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authorityauthority action; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio the TRUST are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersowners or by contract owners of different Participating Insurance Companies or by qualified retirement plans (or their participants, if applicable) investing in the Portfolios; or (vif) a decision by an insurer a Participating Insurance Company or a qualified retirement plan to disregard the voting instructions of contract ownersVariable Contract owners or plan participants, if applicable. The Board shall promptly inform the Company LIFE COMPANY if it determines that an a material irreconcilable material conflict exists and the implications thereofof such conflict.
(b) The Company 5.2 LIFE COMPANY will report any potential or existing conflicts of which it is aware to the Board. The Company LIFE COMPANY will assist be responsible for assisting the Board in carrying out its responsibilities under the Shared Funding Exemptive Order conditions set forth in the Order, by providing the Board with all information reasonably necessary for the Board it to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 5.3 If a majority of the Board, Board or a majority of its disinterested Board members, independent trustees determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictLIFE COMPANY, the Company shall at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersindependent trustees), will take such action as is any steps necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:, including (1) establishing a new investment option and (2)
(ia) withdrawing the Separate Account assets allocable subject to the Accounts conflict from the Fund Portfolio and reinvesting such assets in a different investment investments medium or (b) submitting the question of whether such segregation withdrawal should be implemented to a vote of all affected contract Variable Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) such participants that votes vote in favor of such segregation, withdrawal or offering to the affected contract owners those participants the option of making such a change; and/or
(ii) establishing . LIFE COMPANY will carry out this responsibility with a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited view only to the extent required by the foregoing material irreconcilable conflict as determined by a majority interests of the disinterested members of the Board.
(e) Variable Contract owners. For the purpose purposes of this SECTION 14Section 5.3, a majority of the disinterested independent trustees of the Board members shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer TRUST or MEMBERS Capital Advisors, Inc. (or any other investment adviser of the TRUST) be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Variable Contract if an offer to do so has been declined by vote of a majority of the Variable Contract owners materially adversely affected by the irreconcilable material conflict.
5.4 No less than annually, the TRUST will request from the LIFE COMPANY such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon it by the Order. Such reports, materials, and data shall be requested more frequently if deemed appropriate by the Board.
5.5 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules thereunder with respect to mixed and shared funding on terms and conditions materially different from any exemptions granted in the Order, then TRUST and/or LIFE COMPANY, as appropriate, shall take such steps as may be necessary to comply with Rule 6e-2 and Rule 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such Rules are applicable.
Appears in 2 contracts
Sources: Fund Participation Agreement (Cuna Mutual Variable Annuity Account), Fund Participation Agreement (Ultra Series Fund)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "“Shared Funding Exemptive Order"”). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "“Board"”) will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("“Participating Companies"”) investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasonsreason, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersowner; or (vi) a decision by an insurer to disregard the voting [page break] instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's ’s election, to withdraw an Account's ’s investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 12, a majority of the disinterested disinterred Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners Owners materially adversely affected by the irreconcilable material conflict.. [page break]
Appears in 2 contracts
Sources: Shareholder Services Agreement (C M Life Variable Life Separate Account I), Shareholder Services Agreement (Massachusetts Mutual Variable Life Separate Account I)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material irreconclable conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Variable Insurance Product owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material irreconclable conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under SEC rules and regulations and the conditions of any Shared Funding Exemptive Order obtained by the Fund, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded, by confirming in writing, at the Fund's request, that the Company is unaware of any such potential or existing material irreconclable conflicts, and, upon request, submitting to the Board at least annually (or more frequently if deemed appropriate by the Board) such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the duties imposed upon it as delineated in the Shared Funding Exemptive Order.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersdirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material irreconclable conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e.I.E., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account (at the Company's expense); provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an material irreconclable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund, subject to applicable regulations.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.5 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material irreconclable conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Variable Products. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Variable Products if an offer to do so has been declined by vote of a majority of the Contract contract owners materially adversely affected by the irreconcilable material irreconclable conflict.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding, or if the Fund obtains a Shared Exemptive Order which requires provisions that are materially different from the provisions of this Agreement, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, or to the terms of the Shared Exemptive Order, to the extent applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Separate Account Fuvul of Allmerica Finan Life Ins & Annu Co), Participation Agreement (Fulcrum Separate Account Allmerica Fin Life Ins & Annuity Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")4.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Fund Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any irreconcilable material irreconcilable conflict between among the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by Participating Insurance Companies or by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners; or (g) if applicable, a decision by a Qualified Entity to disregard the voting instructions of a person participating in such entity. The Fund Board shall will promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof. A majority of the Fund Board will consist of persons who are not "interested" persons of the Fund.
(b) 4.2. The Company will report any potential or existing conflicts of which it is aware to the Fund Board. The Company will agrees to assist the Fund Board in carrying out its responsibilities under responsibilities, as delineated in the Shared Funding Exemptive Order Order, by providing the Fund Board with all information reasonably necessary for the Fund Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Fund Board whenever contract Contract owner voting instructions are to be disregarded. The Fund Board will record in its minutes, or other appropriate records, all reports received by it and all action with regard to a conflict.
(c) 4.3. If it is determined by a majority of the Fund Board, or a majority of its disinterested Board memberstrusteesdirectors, determines that a an irreconcilable material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies will, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersdirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (ia) withdrawing the assets allocable to some or all of the Accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, Contract owners or variable life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account.
(d) 4.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its Contract owner voting instructions, and such disregard of voting instructions could conflict with the majority of contract owner voting instructions instructions, and said decision the Company's judgment represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however, that such withdrawal and termination shall will be limited to the extent required by the foregoing irreconcilable material irreconcilable conflict as determined by a majority of the disinterested members directors of the Fund Board. No charge or penalty will be imposed as a result of such withdrawal. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice to the Company that this provision is being implemented. Until the end of such six-month period the Adviser and Fund will, to the extent permitted by law and any exemptive relief previously granted to the Fund, continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
4.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state insurance regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account; provided, however, that such withdrawal and termination will be limited to the extent required by the foregoing irreconcilable material conflict as determined by a majority of the disinterested directors of the Fund Board. No charge or penalty will be imposed as a result of such withdrawal. Any such withdrawal and termination must take place within six (e6) months after the Fund gives written notice to the Company that this provision is being implemented. Until the end of such six-month period the Adviser and Fund will, to the extent permitted by law and any exemptive relief previously granted to the Fund, continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
4.6. For the purpose purposes of Sections 4.3 through 4.6 of this SECTION 14Agreement, a majority of the disinterested members of the Fund Board members shall will determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund or the Adviser be required to establish a new funding medium for any Contractthe Contracts. The Company shall will not be required by this SECTION 14 Article IV to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
4.7. The Company will at least annually submit to the Fund Board such reports, materials or data as the Fund Board may reasonably request so that the Fund Board may fully carry out the duties imposed upon it as delineated in the Exemptive Order, and said reports, materials and data will be submitted more frequently if deemed appropriate by the Fund Board. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Exemptive Order) on terms and conditions materially different from those contained in the Exemptive Order, then: (a) the Fund and/or the Company, as appropriate, will take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 4.1, 4.2, 4.3, 4.4, and 4.5 of this Agreement will continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted. The Company, or any affiliate, will maintain at its home office, available to the SEC (a) a list of its officers, directors and employees who participate directly in the management or administration of any Accounts and/or (b) a list of its agents who, as registered representatives, offer and sell Contracts.
Appears in 2 contracts
Sources: Participation Agreement (Sun Life of Canada U S Variable Account F), Participation Agreement (Sun Life (N.Y.) Variable Account J)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Trust Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Trust Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Trust Board. The Company will assist the Trust Board in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order Order, by providing the Trust Board with all information reasonably necessary for the Trust Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Trust Board whenever contract Contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Trust Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Trust Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, ; 'the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to each Account; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Trust Board. Any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being implemented, and until the end of that six month period the Trust shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Trust and terminate this Agreement with respect to such Account within six months after the Trust Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal, and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Trust Board. Until the end of the foregoing six month period, the Trust shall continue to accept and implement orders by the Company for the purchase (eand redemption) of shares of the Trust.
7.6. For the purpose purposes of Section 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Trust Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any the Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Trust Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Trust and terminate this Agreement within six (6) months after the Trust Board informs the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Trust Board.
7.7. If and to the extent the Mixed and Shared Funding Exemption Order or any amendment thereto contains terms and conditions different from Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement, then the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with the Mixed and Shared Funding Exemptive Order, and Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in the Mixed and Shared Funding Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained' in the Mixed and Shared Funding Exemptive Order, then (a) the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.5, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Southland Separate Account L1), Participation Agreement (Southland Separate Account L1)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by 8.1. If required under the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") Accounts investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The 8.2. If required under the Shared Funding Exemptive Order, the Company will report in writing any potential or existing conflicts material irreconcilable conflict of which it is aware to the Administrator. Upon receipt of such report, the Administrator shall report the potential or existing material irreconcilable conflict to the Board. The Administrator shall also report to the Board on a quarterly basis whether the Company has reported any potential or existing material irreconcilable conflicts during the previous calendar quarter. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 8.3. If required under the Shared Funding Exemptive Order, the and it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(d) 8.4. If required under the Shared Funding Exemptive Order, if a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the affected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (at the Company's expense); provided, however, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty will be imposed as a result of such withdrawal. The Company agrees that it bears the responsibility to take remedial action in the event of a Board determination of an irreconcilable material conflict and the cost of such remedial action, and these responsibilities will be carried out with a view only to the interests of Contract owners.
(e) For 8.5. If required under the purpose Shared Funding Exemptive Order, for purposes of Sections 8.3 through 8.4 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 8.3 through 8.4 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
8.6. If required under the Shared Funding Exemptive Order, and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable.
8.7. If required under the Shared Funding Exemptive Order, each of the Company and the Advisers shall at least annually submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them by the provisions hereof and in the Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board. Without limiting the generality of the foregoing or the Company's obligations under Section 8.2, the Company shall provide to the Administrator a written report to the Board no later than January 15th of each year indicating whether any material irreconcilable conflicts have arisen during the prior fiscal year of the Trust. All reports received by the Board of potential or existing conflicts, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Securities and Exchange Commission upon request.
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)
Potential Conflicts. The following provisions apply effective upon (a) The Company has received a copy the issuance of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). , and (b) investment in the Fund by a separate account of a Participating Insurance Company supporting variable life insurance contracts.
7.1 The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 7.3 If it is determined by a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., i.e. annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4 If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude prelude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5 If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Fund shall continue to accept and implement orders by the company for the purchase (and redemption) of shares of the Fund.
(e) 7.6 For the purpose purposes of Section 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any the Contract if an fan offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determination by a majority of the disinterested members of the Board.
7.7 If and to the extent the Shared Funding Order contains terms and conditions different from Sections, 3.4, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement, then the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with the Shared Funding Exemptive Order, and Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4 and 7.5 of the Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in the Shared Funding Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Fulcrum Separate Account of First Allmerica Fin Life Ins Co), Participation Agreement (Fulcrum Separate Account Allmerica Fin Life Ins & Annuity Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed Fund agrees that the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such applicationBoard, the Board constituted with a majority of Directors disinterested trustees, will monitor each Portfolio of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the variable annuity contract owners and the variable life insurance policy owners of all separate accounts the Company and/or affiliated companies ("Participating Companies"“contract owners”) investing in funds of the IssuerFund. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersowners or by contract owners of different Participating Insurance Companies; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform have the sole authority to determine if a material irreconcilable conflict exists, and such determination shall be binding on the Company only if it determines that an irreconcilable material conflict exists and approved in the implications thereofform of a resolution by a majority of the Board, or a majority of the disinterested trustees of the Board. The Board will give prompt notice of any such determination to the Company.
(b) 7.2. The Company agrees that it will report be responsible for assisting the Board in carrying out its responsibilities under the conditions set forth in the Fund’s exemptive application pursuant to which the SEC has granted the Mixed and Shared Funding Exemptive Order by providing the Board, as it may reasonably request, with all information necessary for the Board to consider any issues raised and agrees that it will be responsible for promptly reporting any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includesincluding, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board. The Company also agrees that, or a majority of its disinterested Board members, determines that if a material irreconcilable conflict exists with regard to contract owner investments in a Fundarises, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall it will at its sole own cost remedy such conflict up to and expense, and to the extent reasonably practicable including (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(ia) withdrawing the assets allocable to some or all of the Accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium, including (but not limited to) another Portfolio of the Fund, or submitting to a vote of all affected contract owners whether to withdraw assets from the Fund or any Portfolio and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of attributable to any appropriate group of contract owners (i.e.e.g., annuity contract owners, life insurance contract owners, owners or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to any of the affected contract owners the option of making such a change; and/or
segregating the assets attributable to their contracts or policies, and (iib) establishing a new registered management investment company or managed separate accountand segregating the assets underlying the Contracts, unless a majority of Contract owners materially adversely affected by the conflict have voted to decline the offer to establish a new registered management investment company.
7.3. A majority of the disinterested trustees of the Board shall determine whether any proposed action by the Company adequately remedies any material irreconcilable conflict. In the event that the Board determines that any proposed action does not adequately remedy any material irreconcilable conflict, the Company will withdraw from investment in the Fund each of the Accounts designated by the disinterested trustees and terminate this Agreement within six (d6) months after the Board informs the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required to remedy any such material irreconcilable conflict as determined by a majority of the disinterested trustees of the Board.
7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's Fund’s election, to withdraw an the Account's ’s investment in the Issuer Fund and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the Fund’s independent trustees. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six-month period the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the Fund.
7.5. If material irreconcilable conflict arises because of particular state insurance regulator’s decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the Account’s investment in the Fund and terminate this Agreement within six (6) months after the Fund’s Board informs the Company in writing that it has determined that such decision has created a material irreconcilable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Fund’s Board. Until the end of the foregoing six (6) month period, the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.2 to establish a new funding medium for any Contract the contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the material irreconcilable conflict. In the event that the Board determines that any proposed action does not adequately remedy any material irreconcilable conflict, then the Company will withdraw the Account’s investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the independent trustees.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rule 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.7, 7.1, 7.2, 7.3 and 7.7 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (SBL Variable Annuity Account Xiv), Participation Agreement (Variable Annuity Account A)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed 6.1 To the extent required by the Issuer on December 21, 1987, with the SEC and the order issued Exemptive Order or by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such applicationapplicable law, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between or among the interests of the variable contract owners of all whose contract values are invested through separate accounts ("Participating Companies") accounts, participants in Qualified Plans and Other Purchasers investing in funds of the IssuerTrust and will determine what action, if any, should be taken in response to any such conflict. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and owners, variable life insurance contract ownersowners and, where applicable, participants in Qualified Plans; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of variable contract owners; or (g) a decision by a Qualified Plan, where applicable, to disregard participant voting instructions. The Board shall Trust will promptly inform the Company Companies if it determines that an a material irreconcilable material conflict exists and of the implications thereof.
(b) The Company 6.2 Each of the Companies, on behalf of itself, its Accounts and any of its affiliates investing in a Fund, will report to the Board any potential or existing conflicts conflict as described in Section 6.1 of which it is aware to the Boardor becomes aware. The Each Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order and under applicable law by providing the Board with all information reasonably necessary for the Board to consider any issues raisedraised with respect to such conflict and by furnishing to the Board, at its reasonable request annually or more frequently, such other materials or reports as the Board may deem appropriate. This includes, but is not limited to, an obligation by Each of the Company to Companies will inform the Board whenever contract it determines to disregard Contract owner voting instructions are disregardedinstructions, and each of the Companies will carry out its responsibility under this Article 6 with a view only to the interests of its Contract owners.
(c) 6.3 If it is determined by a majority of the Board, or a majority of its the disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard respect to contract owner investments in a any Fund, each of the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall as applicable, shall, at its sole cost and own expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to, which steps could include:
(i1) withdrawing the assets allocable to the some or all of its Accounts from the Fund and reinvesting such assets in a different investment medium medium, including (but not limited to) another Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, owners or variable life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) If . In the event that the Board determines that any proposed action by a Company does not adequately remedy any material irreconcilable conflict arises as a result of a decision by conflict, that Company will withdraw the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an affected Account's investment in the Issuer and terminate this Agreement; Trust or a Fund within six months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall will be limited to the extent required by the foregoing any such material irreconcilable conflict as determined by a majority of the disinterested members Trustees.
6.4 If a material irreconcilable conflict arises because of a decision by a Company to disregard Contract owner voting instructions and that decision represents a minority position or would preclude a majority vote, the Company may be required, at the Trust's election, to withdraw the relevant Account's investment in the Trust or a Fund, as applicable, provided, however, that any such withdrawal will be limited to the extent required by such material irreconcilable conflict as determined by a majority of the Boarddisinterested Trustees. Any such withdrawal will take place within six months after the Trust gives written notice that this provision is being implemented. No charge or penalty will be imposed as a result of any such withdrawal.
(e) 6.5 For the purpose purposes of Sections 6.3 through 6.4 of this SECTION 14Agreement, a majority of the disinterested Board members shall Trustees who are not "interested persons" (as defined in Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) of the Trust will determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Nor shall a Company shall not be required by this SECTION 14 Section 6.3 to establish a any new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the material irreconcilable material conflict.
6.6 If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or proposed Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to "mixed or shared funding" (as understood for purposes of the Exemptive Order) on terms and conditions materially different from those contained in the Exemptive Order, then (a) the Trust and/or the Companies as well as the other Participating Insurance Companies, as appropriate, will take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 2.4, 6.1, 6.2, 6.3 and 6.4 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
6.7 The Trust hereby notifies the Companies that it may be appropriate to include in prospectuses for the Contracts disclosure regarding potential conflicts as described in Section 6.1 hereof.
Appears in 2 contracts
Sources: Participation Agreement (John Hancock Life Insurance Co (Usa) Separate Account N), Participation Agreement (Manufacturers Investment Trust)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Funds’ Board of Directors of the Issuer (the "Board") will shall monitor the Issuer Funds for the existence of any material irreconcilable conflict (i) between the interests of the contract owners of all separate accounts variable annuity contracts and variable life insurance policies, and ("ii) between the interests of owners of variable annuity contracts and variable life insurance policies issued by different Participating Companies") investing Life Insurance Companies that invest in funds of the IssuerFunds. An A material irreconcilable material conflict may arise for a variety of reasons, reasons including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio Fund are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists owners of variable annuity contracts and the implications thereofvariable life insurance policies.
(b) The Company will agrees that it shall report any potential or existing conflicts of which it is aware to the Funds’ Board. The If the Funds are engaged in Mixed Funding or Shared Funding in reliance on Rule 6e-2, 6e-3, or any other regulation under the 1940 Act, the Company will assist be responsible for assisting the Board in carrying out its responsibilities under the Shared Funding Exemptive Order such regulation, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an any obligation by the Company to inform the Board whenever contract owner Customer voting instructions are disregarded. The Company shall carry out its responsibilities under this Section 15(b) with a view only to the interests of the Customers.
(c) If The Company agrees that in the event that it is determined by a majority of the Board, Board or a majority of its the Funds’ disinterested Board members, determines members that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall shall, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) withdrawing the assets allocable to some or all of the Separate Accounts from the Funds or any Fund and reinvesting such assets in a different investment medium vehicle, including another Fund of the investment company, or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract owners and Customers and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, owners or life insurance contract owners, or variable contract owners of contracts issued by one or more Participating Insurance Companies) ), that votes in favor of such segregation, or offering to the affected contract owners Customers the option of making such a change; and/or
and (ii) establishing a new registered management investment company or managed separate account. If a material irreconcilable conflict arises because of the Company’s decision to disregard a Customer’s voting instructions and that decision represents a minority position or would preclude a majority vote, the Company shall be required, at the Funds’ election, to withdraw the Separate Accounts' investment in the Funds, provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested Board members, and no charge or penalty will be imposed as a result of such withdrawal. These responsibilities shall be carried out with a view only to the interests of the Customers. A majority of the disinterested Board members of the Funds shall determine whether or not any proposed action adequately remedies any material irreconcilable conflict, but in no event will the Registrants or any of the Funds’ investment advisers or the Distributor be required to establish a new funding medium for any Contract. The Company shall not be required by this Section 15(c) to establish a new funding medium for any Contract if any offer to do so has been declined by vote of a majority of Customers materially adversely affected by the material irreconcilable conflict.
(d) If a material irreconcilable conflict arises as because a result of a particular state insurance regulator’s decision by applicable to the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a conflicts with the majority vote by all of its contract owners having an interest in the Issuerother state regulators, then the Company at its sole cost, may be required, at will withdraw the Board's election, to withdraw an Account's Separate Accounts’ investment in the Issuer each Fund and terminate this AgreementAgreement within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, each Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of each Trust.
(e) For All reports of potential or existing conflicts received by the purpose Funds’ Board, and all Board action with regard to determining the existence of this SECTION 14a conflict, notifying Participating Insurance Companies of a majority of the disinterested Board members shall determine conflict, and determining whether or not any proposed action adequately remedies any a conflict, shall be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the SEC upon request.
(f) The Board shall promptly notify the Company in writing of its determination of the existence of an irreconcilable material conflictconflict and its implications.
(g) The Funds and the Company agree that if and to the extent Rule 6e-2 or Rule 6e-3 under the 1940 Act is amended, but in no event will to the Issuer be required to establish a new funding medium for any Contract. The extent applicable, the Funds and the Company shall not each take such steps as may be required by this SECTION 14 necessary to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of comply with the Contract owners materially adversely affected by the irreconcilable material conflictRule as amended or adopted in final form.
Appears in 2 contracts
Sources: Fund Participation and Shareholder Services Agreement (SEPARATE ACCOUNT B OF VENERABLE INSURANCE & ANNUITY Co), Fund Participation and Shareholder Services Agreement (Venerable Variable Insurance Trust)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed 6.1 To the extent required by the Issuer on December 21, 1987, with the SEC and the order issued Exemptive Order or by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such applicationapplicable law, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between or among the interests of the variable contract owners of all whose contract values are invested through separate accounts ("Participating Companies") accounts, participants in Qualified Plans and Other Purchasers investing in funds of the IssuerTrust and will determine what action, if any, should be taken in response to any such conflict. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and owners, variable life insurance contract ownersowners and, where applicable, participants in Qualified Plans; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of variable contract owners; or (g) a decision by a Qualified Plan, where applicable, to disregard participant voting instructions. The Board shall Trust will promptly inform the Company Companies if it determines that an a material irreconcilable material conflict exists and of the implications thereof.
(b) The Company 6.2 Each of the Companies, on behalf of itself, its Accounts and any of its affiliates investing in a Fund, will report to the Board any potential or existing conflicts conflict as described in Section 6.1 of which it is aware to the Boardor becomes aware. The Each Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order and under applicable law by providing the Board with all information reasonably necessary for the Board to consider any issues raisedraised with respect to such conflict and by furnishing to the Board, at its reasonable request annually or more frequently, such other materials or reports as the Board may deem appropriate. This includes, but is not limited to, an obligation by Each of the Company to Companies will inform the Board whenever contract it determines to disregard Contract owner voting instructions are disregardedinstructions, and each of the Companies will carry out this and all of its other responsibilities under this Article 6 with a view only to the interests of its Contract owners.
(c) 6.3 If it is determined by a majority of the Board, or a majority of its the disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard respect to contract owner investments in a any Fund, each of the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall as applicable, shall, at its sole cost and own expense, and to the extent reasonably practicable practical (as determined by a majority of the Trust's disinterested Board membersTrustees), take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to, up to and including:
(i1) withdrawing the assets allocable to the some or all of its Accounts from the Trust or any Fund and reinvesting such assets in a different investment medium medium, including (but not limited to) another Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, variable life insurance contract owners, owners or variable contract Contract owners of one or more Participating both Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate accountcompany.
(d) 6.4 If a material irreconcilable conflict arises as a result because of a decision by the a Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the relevant Account's investment in the Issuer Trust or a Fund, as applicable. No charge or penalty will be imposed as a result of any such withdrawal.
6.5 For purposes of Sections 6.3 and terminate 6.4 of this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall Trustees who are not "interested persons" (as defined in Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) of the Trust will determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Trust or any investment adviser to the Trust be required to establish a new funding medium for any Contractthe Contracts. The Nor shall a Company shall not be required by this SECTION 14 Section 6.3 to establish a any new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the material irreconcilable material conflict.
6.6 If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or proposed Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to "mixed or shared funding" (as understood for purposes of the Exemptive Order) on terms and conditions materially different from those contained in the Exemptive Order, then (a) the Trust and/or the Companies as well as the other Participating Insurance Companies, as appropriate, will take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 2.4, 6.1, 6.2, 6.3 and 6.4 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Hancock John Variable Series Trust I), Participation Agreement (Hancock John Variable Series Trust I)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material irreconclable conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Variable Insurance Product owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material irreconclable conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under SEC rules and regulations and the conditions of any Shared Funding Exemptive Order obtained by the Fund, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded, by confirming in writing, at the Fund's request, that the Company is unaware of any such potential or existing irreconciilable material conflicts, and, upon request, submitting to the Board at least annually (or more frequently if deemed appropriate by the Board) such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the duties imposed upon it as delineated in the Shared Funding Exemptive Order.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersdirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material irreconclable conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e.I.E., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account (at the Company's expense); provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an material irreconclable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund, subject to applicable regulations.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.5 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material irreconclable conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Variable Products. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Variable Products if an offer to do so has been declined by vote of a majority of the Contract contract owners materially adversely affected by the irreconcilable material irreconclable conflict.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding, or if the Fund obtains a Shared Exemptive Order which requires provisions that are materially different from the provisions of this Agreement, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, or to the terms of the Shared Exemptive Order, to the extent applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Fulcrum Separate Account of First Allmerica Fin Life Ins Co), Participation Agreement (Separate Account Imo of First Allmerica Finan Life Ins Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer Manager on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer Funds (the "Board") will monitor the Issuer Funds for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFunds. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract contact owner investments in a Fundthe Funds, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund Funds and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the IssuerFunds, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's the Accounts' investment in the Issuer Funds and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1411, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Funds be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 11 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Fund Participation Agreement (Pruco Life of New Jersey Variable Appreciable Account), Fund Participation Agreement (Pruco Life of New Jersey Variable Appreciable Account)
Potential Conflicts. (a) 4.1 The Company has received parties acknowledge that a copy of an application Portfolio's shares may be made available for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")investment to other Participating Insurance Companies. The Company has reviewed the conditions to the requested relief set forth in In such application for exemptive relief. As set forth in such applicationevent, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Insurance Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board Fund shall promptly and in writing inform all Participating Insurance Companies and Qualified Plans, of any determination by the Company if it determines Directors that an irreconcilable material conflict exists and of the implications thereof.
(b) 4.2 The Company will agrees to promptly report any potential or existing conflicts of which it is aware to the BoardDirectors. The Company assets of a Fund (collectively, the "Participants") will assist report any potential or existing conflicts to the Board respective responsible Board(s). Participating Insurance Companies will be responsible for assisting the Fund in carrying out its the responsibilities of the Fund under the Shared Funding Exemptive Order these conditions by providing the Board Directors with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by each Participating Insurance Company, including the Company Company, to inform the respective responsible Board whenever contract owner voting instructions are disregarded. The responsibility to report such information and conflicts to and to assist the Fund will be a contractual obligation of all Participating Insurance Companies and Qualified Plans investing in the Fund under their agreements governing participation in the Fund and these responsibilities will be carried out with a view only to the interests of the contract owners and participants in the Qualified Plans.
(c) 4.3 If it is determined by a majority of the BoardDirectors, or a majority of its the disinterested Board membersDirectors of the Fund, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, then the Board shall give prompt notice to all relevant Participating Companies. If Insurance Companies and Qualified Plans, including the Board determines that the Company is responsible for causing or creating said conflictCompany, the Company shall at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersDirectors or trustees, as the case may be), shall take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to, up to and including:
(ia) withdrawing the assets allocable to some or all of the Separate Accounts from the affected Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including another Portfolio of the Fund, or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, owners or variable life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(iib) withdrawing the assets allocable to some or all of the Qualified Plans from the affected Fund or any Portfolio and reinvesting such assets in a different investment medium, including another Portfolio of the Fund; and (c) establishing a new registered management investment company or managed separate account.
(d) 4.4 If a material irreconcilable conflict arises as a result because of a decision by the Company or a Participating Company to disregard its contract owner voting instructions instructions, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, then the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an its Separate Account's investment in the Issuer Fund and no charge or penalty will be imposed as a result of such withdrawal. The responsibility to take remedial action in the event of the Fund's determination of a material irreconcilable conflict and to bear the cost of such remedial action shall be a contractual obligation of all Participating Insurance Companies, including the Company under this Agreement, and all Qualified Plans under their agreements governing participation in the Fund and these responsibilities will be carried out with a view only to the interests of contract owners and participants in the Qualified Plans. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented. Until the end of such six (6) month period, the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the Fund.
4.5 If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with a majority of other state regulators to which the Company is subject, then the Company will withdraw the affected Account's investment in the Fund and terminate this AgreementAgreement with respect to such Account within six (6) months after the Directors inform the Company in writing it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Directors. Until the end of such six (6) month period, the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the BoardFund.
(e) 4.6 For the purpose purposes of Sections 4.3 through 4.6 of this SECTION 14Agreement, a majority of the disinterested Board members Directors shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for the Variable Insurance Products. In the event that the disinterested Directors determine that any Contract. The proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Directors inform the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall not be limited to the extent required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined such material irreconcilable conflict as determined by vote of a majority of the Contract owners materially adversely affected disinterested Directors.
4.7 The Company shall at least annually submit to the Directors such reports, materials or data as the Directors may reasonably request so that the Directors may fully carry out the duties imposed upon them by the irreconcilable material Mixed and Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if reasonably deemed appropriate by the Directors. The obligation of the Participating Insurance Companies, including the Company, and Qualified Plans to provide these reports, materials, and data under this Agreement to a Fund's Board, when the Board so reasonably requests, shall be a contractual obligation of each Participating Insurance Company and Qualified Plan under the agreements governing participation in the Fund. All reports of potential or existing conflicts received by Fund, and all Board action with regard to determining the existence of a conflict, notifying Participating Insurance Companies and Qualified Plans of a conflict, and determining whether any proposed action adequately remedies a conflict, will be properly recorded in the minutes of the Board or other appropriate records.
4.8 Participating Insurance Companies, including the Company, will determine appropriate prospectus disclosure for its Variable Insurance Products in order to inform owners of Variable Insurance Products of the potential risks of mixed and shared fund.
4.9 If and to the extent that Rule 6e-2 or 6e-3(T) is amended, or similar rule is adopted, so as to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rule 6e-2, 6e-3(T), or Rule 6e-3, as amended, or any other rule, as adopted, to the extent such rules are applicable.
Appears in 2 contracts
Sources: Participation Agreement (Legacy Builder Variable Life Separate Account), Participation Agreement (Advantus Series Fund Inc)
Potential Conflicts. (a) 6.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") Fund will monitor the Issuer Series for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract ownersSeries. The Board of Directors of the Fund shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 6.2 The Company will report any potential or existing conflicts material irreconcilable conflict of which it is aware to the Board. The Company will assist Board of Directors of the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raisedFund. This includes, but is not limited to, an obligation by the Company to inform the Board of Directors of the Fund whenever contract Contract owner voting instructions are disregarded.
(c) 6.3 If it is determined by a majority of the BoardBoard of Directors of the Fund, or a majority of its disinterested Board membersindependent Directors, determines that a material irreconcilable conflict exists with regard due to contract owner investments in a Fund, issues relating to the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictContracts, the Company shall will, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members)practicable, take such action as is whatever steps it can which are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question , including, without limitation, withdrawal of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Separate Account's investment in the Issuer and terminate this Agreement; providedSeries. No charge or penalty will be imposed as a result of such withdrawal.
6.4 The Company, howeverat the request of the Adviser will, that such withdrawal and termination shall be limited at least annually, submit to the extent required Board of Directors of the Fund such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them. All reports received by the foregoing material irreconcilable conflict as determined by Board of potential or existing conflicts, and all Board action with regard to determining the existence of a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14conflict, a majority of the disinterested Board members shall determine and determining whether or not any proposed action adequately remedies any irreconcilable material a conflict, but shall be properly recorded in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority minutes of the Contract owners materially adversely affected by Board or other appropriate records, and such minutes or other records shall be made available to the irreconcilable material conflictSecurities and Exchange Commission upon request.
Appears in 2 contracts
Sources: Fund Participation Agreement (American Maturity Life Insurance Co Separate Account Onect), Fund Participation Agreement (Variable Account D of Fortis Benefits Insurance Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer Distributor on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1412, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Shareholder Services Agreement (Safeco Separate Account Sl), Shareholder Services Agreement (Safeco Separate Account Sl)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer Trust and certain affiliates on December 2120, 1987, 1995 with the SEC and the order issued by the SEC on January 17, 1996, in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors Trustees of the Issuer Trust (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners Variable Contract holders of all separate accounts ("Participating Companies") investing in funds of the IssuerPortfolios. An irreconcilable material conflict may arise for a variety of reasons, including: including (i) an action by any a state insurance regulatory authorityaction; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio a Portfolio are being managed; (v) a difference in among voting instructions given by variable annuity contract owners and variable life insurance contract ownersVariable Contract Owners/Participants; or (vi) a decision by an insurer a Participating Company to disregard the voting instructions of contract ownersVariable Contract owners or Participants. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereofof such conflict.
(b) The Company will report any potential or existing conflicts of which it is becomes aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includesassistance shall include, but is not limited to, an obligation by the Company (i) to inform the Board whenever contract owner the voting instructions of Variable Contract owners or Participants are disregarded, and (ii) to submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon it by the Shared Funding Order, and such reports, materials and data shall be submitted more frequently if deemed appropriate by the Board. The Company will carry out its responsibility under this subsection (b) with a view only to the interests of the Variable Contract owners and Participants.
(c) If a majority of the Board, or a majority of its the disinterested trustees of the Board members("Independent Trustees"), determines determine that a material irreconcilable conflict exists with regard to contract Variable Contract owner or Participant investments in a Fundthe Portfolios, the Board shall give prompt notice to all Participating Companies. If the Trust or ▇▇▇ is responsible for causing or creating such conflict, ▇▇▇ shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the Independent Trustees), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. If a majority of the Board determines or a majority of the Independent Trustees determine that the Company is responsible for causing or creating said such conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersIndependent Trustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund Portfolios and reinvesting such those assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract Variable Contract owners and Participants, and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract Variable Contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract Variable Contract owners or Participants the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner the voting instructions of its Variable Contract owners or Participants, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer affected Portfolio and terminate this Agreementno charge or penalty will be imposed by ▇▇▇ or the Trust as a result of such withdrawal; provided, however, that such withdrawal and termination shall be limited to the extent required by to remedy the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Independent Trustees. The Company's responsibility under this subsection (d) shall be carried out with a view only to the interests of the BoardVariable Contract owners and Participants. In addition, no Variable Contract owner shall be required to bear, directly or indirectly, the costs of remedial actions taken to remedy a material irreconcilable conflict.
(e) For the purpose of this SECTION 14Section 12, a majority of the disinterested Board members Independent Trustees shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust or ▇▇▇ be required to establish a new funding medium for any Variable Contract. The Company shall not be required by this SECTION 14 Section 12 to establish a new funding medium for any Variable Contract if an offer to do so has been declined by vote of a majority of the Variable Contract owners or Participants materially adversely affected by the irreconcilable material conflict.
(f) All reports received by the Board regarding potential or existing conflicts, and all action of the Board with respect to determining the existence of a conflict, notifying Participating Companies of a conflict, and determining whether any proposed action adequately remedies a conflict, will be properly recorded in the minutes or other appropriate records of the Trust.
Appears in 2 contracts
Sources: Fund Participation Agreement (Aul American Individual Variable Annuity Unit Trust), Fund Participation Agreement (Aul American Individual Variable Life Unit Trust)
Potential Conflicts. (a) 8.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 8.2 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 8.3 If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(ia) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and/or (iib) establishing a new registered management investment company or managed separate account.
(d) 8.4 If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) 8.5 For the purpose of this SECTION 14Article VIII, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Article VIII to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Participation Agreement (Variable Annuity Account A), Participation Agreement (SBL Variable Annuity Account Xiv)
Potential Conflicts. (a) 6.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners of Contracts participating in the Accounts and participants of all separate accounts ("Participating Companies") Qualified Plans investing in funds of the IssuerTrust, and determine what action, if any, should be taken in response to such conflicts. An A material irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, tax or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio the Trust are being managed; (v) a difference in voting instructions given by variable annuity contract owners and Contract owners, variable life insurance contract Contract owners, and trustees of the Qualified Plans; or (vi) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract Contract owners; or (vii) if applicable, a decision by a Qualified Plan to disregard the voting instructions of plan participants. The Board Trust shall promptly inform the Company if it the Board determines that an a material irreconcilable material conflict exists and the implications thereof.
(b) 6.2 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded. The responsibility to report such information and assist the Board will be carried out with a view only to the interests of Contract owners.
(c) 6.3 If it is determined by a majority of the Board, or a majority of its disinterested Board membersmembers who are not "interested persons" of the Trust under the 1940 Act (the "Independent Trustees"), determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall shall, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersIndependent Trustees), take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) withdrawing the assets allocable to some or all of the Accounts from the Trust or any Fund and reinvesting such assets in a different investment medium medium, including (but not limited to) another Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e.I.E., annuity contract Contract owners, life insurance contract Contract owners, or variable contract Contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii) establishing a new registered management investment company or managed separate account. The responsibility of the Company to take remedial action will be carried out with a view only to the interests of Contract owners.
(d) 6.4 If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the affected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (at the Company's expense); provided, however, provided that no charge or penalty will be imposed as a result of such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Boardwithdrawal.
(e) 6.5 For the purpose purposes of this SECTION 14Article VI, a majority of the disinterested Board members Independent Trustees shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Trust, the Underwriter, the Trust's adviser or any affiliate be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 the Article VI to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially and adversely affected by the material irreconcilable material conflict.
6.6 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or proposed Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5 and Article VI of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
6.7 The Trust hereby notifies the Company that Account prospectus disclosure regarding potential risks of mixed and shared funding may be appropriate.
6.8 The Company, at least annually, will submit to the Board such reports, materials or data as the Board reasonably may request so that the Board may fully carryout the obligations imposed upon it by the Mixed and Shared Funding Exemptive Order, and such reports, materials and data will be submitted more frequently if deemed appropriate by the Board.
Appears in 2 contracts
Sources: Participation Agreement (American Family Variable Account I), Participation Agreement (American Family Variable Account Ii)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer ACIM (then known as Investors Research Corporation) on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract Contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts Account from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 11, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 11 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Fund Participation Agreement (American Enterprise Variable Annuity Account), Fund Participation Agreement (American Enterprise Variable Annuity Account)
Potential Conflicts. (a) 5.1 The Company has received a copy of parties acknowledge that FUND intends to file an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC to request an order granting relief from various provisions of the '40 Act and the order issued rules thereunder to the extent necessary to permit FUND shares to be sold to and held by variable annuity and variable life insurance separate accounts of both affiliated and unaffiliated Participating Insurance Companies and Qualified Plans. It is anticipated that the Exemptive Order, when and if issued, shall require FUND and each Participating Insurance Company to comply with conditions and undertakings substantially as provided in this Section 5. If the Exemptive Order imposes conditions materially different from those provided for in this Section 5, the conditions and undertakings imposed by the SEC in response thereto (Exemptive Order shall govern this Agreement and the "Shared Funding parties hereto agree to amend this Agreement consistent with the Exemptive Order"). The FUND will not enter into a participation agreement with any other Participating Insurance Company has reviewed unless it imposes the same conditions to and undertakings as are imposed on the requested relief set forth in such application for exemptive relief. As set forth in such application, the COMPANY hereby.
5.2 The Board of Directors of the Issuer (the "Board") will monitor the Issuer FUND for the existence of any material irreconcilable conflict between the interests of the contract Variable Contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFUND. An irreconcilable material conflict may arise for a variety of reasons, includingwhich may include: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, ruling or any similar actions action by insurance, tax or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio FUND are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform Variable Contract owners and (g) if applicable, a decision by a Qualified Plan to disregard the Company if it determines that an irreconcilable material conflict exists and the implications thereofvoting instructions of plan participants.
(b) 5.3 The Company COMPANY will report any potential or existing conflicts of which it is aware to the Board. The Company COMPANY will assist be responsible for assisting the Board in carrying out its responsibilities under the Shared Funding Exemptive Order duties in this regard by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This The responsibility includes, but is not limited to, an obligation by the Company COMPANY to inform the Board whenever contract it has determined to disregard Variable Contract owner voting instructions are disregardedinstructions. These responsibilities of the COMPANY will be carried out with a view only to the interests of the Variable Contract owners.
(c) 5.4 If a majority of the Board, Board or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, affecting the COMPANY, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictCOMPANY, the Company shall at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the Board's disinterested Board members), will take such action as is any steps necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, including; (ia) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund FUND or any Portfolio thereof and reinvesting such those assets in a different investment medium medium, which may include another Portfolio of FUND, or another investment company; (b) submitting the question of as to whether such segregation should be implemented to a vote of all affected contract Variable Contract owners and as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, or variable life insurance contract owners, or variable contract cContract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Variable Contract owners the option of making such a change; and/or
and (iic) establishing a new registered management investment company (or series thereof) or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a the COMPANY's decision by the Company to disregard its contract Variable Contract owner voting instructions instructions, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, COMPANY may be required, at the Board's election, election of FUND to withdraw an the Separate Account's investment in the Issuer FUND, and terminate this Agreement; provided, however, that no charge or penalty will be imposed as a result of such withdrawal and termination withdrawal. The responsibility to take such remedial action shall be limited carried out with a view only to the extent required by interests of the foregoing material irreconcilable conflict as determined by Variable Contract owners. For the purposes of this Section 5.4, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, conflict but in no event will the Issuer FUND or ADVISER (or any other investment adviser of FUND) be required to establish a new funding medium for any Variable Contract. The Company Further, the COMPANY shall not be required by this SECTION 14 Section 5.4 to establish a new funding medium for any Contract Variable Contracts if an any offer to do so has been declined by a vote of a majority of the Variable Contract owners materially and adversely affected by the irreconcilable material conflict.
5.5 The Board's determination of the existence of an irreconcilable material conflict and its implications shall be made known promptly and in writing to the COMPANY.
5.6 No less frequently than annually, the COMPANY shall submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out its obligations. Such reports, materials, and data shall be submitted more frequently if deemed appropriate by the Board.
5.7 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended, or if Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 40 Act or the rules thereunder with respect to mixed and shared funding on terms and conditions materially different from any exemptions granted in the Exemptive Order, then FUND, and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rule 6e-2 and Rule 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such Rules are applicable.
Appears in 2 contracts
Sources: Fund Participation Agreement (Sun Life N Y Variable Account C), Fund Participation Agreement (Keyport Variable Account a/Ma)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors Trustees of the Issuer Fund (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by Participating Insurance Companies or by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract Contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will has reviewed a copy of the Mixed and Shared Funding Exemptive Order, and in particular, has reviewed the conditions to the requested relief set forth therein. The Company agrees to be bound by the responsibilities of a participating insurance company as set forth in the Mixed and Shared Funding Exemptive Order, including without limitation the requirement that the Company report any potential or existing conflicts of which it is aware to the Board. The Company will agrees to assist the Board in carrying out its responsibilities in monitoring such conflicts under the Mixed and Shared Funding Exemptive Order Order, by providing the Board in a timely manner with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregardeddisregarded and by confirming in writing, at the Fund's request, that the Company is unaware of any such potential or existing material irreconcilable conflicts.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and the relevant Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersTrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e.I.E., variable annuity contract Contract owners or life insurance Contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4. If the Company's disregard of voting instructions could conflict with the majority of Contract owners voting instructions, and if the Company and/or the Fund and the Adviser reasonably determine that a material irreconcilable conflict arises (as set forth in the Mixed and Shared Funding Exemptive Order) may arise as a result of a decision by result, then the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the Account's investment in the Issuer Fund and terminate this Agreement; provided. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented. Until such withdrawal and termination is implemented, however, that such the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the Fund. Such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (e6) months after the Fund informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict. Until such withdrawal and termination is implemented, the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the Fund, subject to applicable regulatory limitation. Such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. Upon request, the Company shall at least annually submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the duties imposed upon it as delineated in the Mixed and Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, the (a) the Fund and/or the Participating Insurance Companies (including the Company), as appropriate, shall take such reasonable steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (American Foundation Variable Annuity Separate Account), Participation Agreement (Protective Variable Annuity Separate Account)
Potential Conflicts. (a) 7.1 The Company has received a copy Board of an application for exemptive relief, as amended, filed by Trustees of the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto Fund (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Fund Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between among the interests of the contract owners contractowners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-no action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by Participating Insurance Companies or by variable annuity contract owners and variable life insurance contract owners; contractowners, or (vif) a decision by an insurer to disregard the voting instructions of contract ownerscontractowners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof. A majority of the Fund Board shall consist of persons who are not "interested" persons of the Fund.
(b) 7.2 The Company will report any potential or existing conflicts of which it is aware to the Fund Board. The Company will agrees to assist the Fund Board in carrying out its responsibilities under as delineated in the Shared Funding Exemptive Order application for a mixed and shared funding exemptive order, by providing the Fund Board with all information reasonably necessary for the Fund Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Fund Board whenever contract owner contractowner voting instructions are disregarded. The Fund Board shall record in its minutes or other appropriate records, all reports received by it and all action with regard to a conflict.
(c) 7.3 If it is determined by a majority of the Fund Board, or a majority of its disinterested Board membersDirectors, determines that a an irreconcilable material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersDirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to, up to and including:
(i1) withdrawing the assets allocable to some or all of the Accounts subaccounts of the separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and contractowners and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, contractowners or variable life insurance contract ownerscontractowners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners contractowners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4 If a material irreconcilable conflict arises as a result the Company's disregard of a decision by the Company to disregard its contract owner voting instructions could conflict with the majority of contractowner voting instructions, and said decision the Company's judgment represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected subaccount of the Account's investment in the Issuer Fund and terminate this Agreement; provided, however, that Agreement with respect to such subaccount of the Account. Any such withdrawal and termination shall be limited must take place within 60 days after the Fund gives written notice to the extent required Company that this provision is being implemented. Until the end of such 60 day period the Underwriter and Fund shall continue to accept and implement orders by the foregoing material irreconcilable conflict as determined Company for the purchase (and redemption) of shares of the Fund.
7.5 If a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state insurance regulators, then the Company will withdraw the affected subaccount of the Account's investment in the Fund and terminate this Agreement with respect to such subaccount of the Account. Any such withdrawal and termination must take place within 60 days after the Fund gives written notice to the Company that this provision is being implemented. Until the end of such 60 day period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Fund Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners contractowners materially adversely affected by the irreconcilable material conflict.
7.7 The Company shall at least annually submit to the Fund Board such reports, materials or data as the Fund Board may reasonably request so that the Fund Board may fully carry out the duties imposed upon it as delineated in the Mixed and Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Fund Board.
7.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Riversource of New York Variable Annuity Account 2), Participation Agreement (Riversource Variable Annuity Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, Trust with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order") dated January 17, 1996 (File No. 812-9658). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer Trust (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; owners or by contract owners of different Participating Companies or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a FundPortfolio, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund Portfolio and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract Contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer Trust and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulator's, the Company will withdraw the Separate Account's investment in the Trust within such reasonable time period as the Trust's Board of Trustees may establish after the Trust's Board of Trustees informs the Company that it has determined that such decision has created a material irreconcilable conflict, and until such withdrawal Adviser, Distributor and Trust shall continue to accept and implement orders by Company for the purchase and redemption of shares of the Portfolio.
(f) For the purpose of this SECTION 1412, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
(g) If an to the extent the SEC amends Rule 6e-2 and Rule 6e-3(T) or adopts Rule 6e-3, or takes any other action, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Trust and/or the Company, as appropriate, shall take steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such ruled are applicable.
Appears in 2 contracts
Sources: Shareholder Services Agreement (American Separate Account 5), Shareholder Services Agreement (Safeco Resource Series Trust)
Potential Conflicts. (a) 6.1 The Company has received a copy of parties acknowledge that Fund filed an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC requesting an order granting relief from various provisions of the '40 Act and the rules thereunder to the extent necessary to permit Fund Shares to be sold to and held by variable annuity and variable life insurance separate accounts of Participating Companies and Plans. It is anticipated that such exemptive order issued by the SEC in response thereto (the "Mixed and Shared Funding Exemptive Order"), when and if issued, shall require Fund and each Participating Company and Plan to comply with conditions and undertakings substantially as provided in this Article. The Company has reviewed If the Mixed and Shared Funding Exemptive Order imposes conditions materially different from those provided for in this Article, the conditions and undertakings imposed by the Mixed and Shared Funding Exemptive Order shall govern this Agreement and the parties hereto agree to amend this Agreement consistent with the requested relief set forth in such application for exemptive relief. As set forth in such application, the Mixed and Shared Funding Exemptive Order.
6.2 The Fund's Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between and among the interests of the contract Variable Contract owners of all separate accounts ("Participating Companies") Companies and of Plan Participants and Plans investing in funds of the IssuerFund, and determine what action, if any, should be taken in response to such conflicts. An irreconcilable material conflict may arise for a variety of reasons, includingwhich may include: (ia) an 6 action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, ruling or any similar actions action by insurance, tax or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform Variable Contract owners and (g) if applicable, a decision by a Plan to disregard the Company if it determines that an irreconcilable material conflict exists and the implications thereofvoting instructions of plan participants.
(b) 6.3 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will be obligated to for assist the Board in carrying out its duties and responsibilities under the Mixed and Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This The responsibility includes, but is not limited to, an obligation by the Company to inform the Board whenever contract it has determined to disregard Variable Contract owner voting instructions are disregardedinstructions.
(c) 6.4 If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a the Fund, the Board shall give prompt notice of the conflict and the implications thereof to all Participating CompaniesCompanies and Plans. If the Board determines that the Company is responsible for causing a relevant Participating Company or creating Plan with respect to said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
: (ia) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund or any Portfolio thereof and reinvesting such those assets in a different investment medium medium, which may include another Portfolio of Fund, or another investment company; (b) submitting the question of as to whether such segregation should be implemented to a vote of all affected contract Variable Contract owners and as appropriate, segregating the assets of any appropriate group (i.e., i.e variable annuity contract owners, or variable life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Variable Contract owners the option of making such a change; and/or
and (iic) establishing a new registered management investment company (or series thereof) or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a the Company's decision by the Company to disregard its contract Variable Contract owner voting instructions instructions, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's election, election of Fund to withdraw an the Separate Account's investment in the Issuer Fund, and terminate this Agreement; provided, however, that no charge or penalty will be imposed as a result of such withdrawal and termination withdrawal. The responsibility to take such remedial action shall be limited carried out with a view only to the extent required by interests of the foregoing material irreconcilable conflict as determined by Variable Contract owners. For the purposes of this Article, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, conflict but in no event will the Issuer Fund or its investment adviser (or any other investment adviser of Fund) be required to establish a new funding medium for any Variable Contract. The Further, the Company shall not be required by this SECTION 14 Article to establish a new funding medium for any Contract Variable Contracts if an any offer to do so has been declined by a vote of a majority of the Variable Contract owners materially and adversely affected by the irreconcilable material conflict.
6.5 The Board's determination of the existence of an irreconcilable material conflict and its implications shall be made known promptly and in writing to the Company.
6.6 No less than annually, the Company shall submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out its obligations. Such reports, materials, and data shall be submitted more frequently if deemed appropriate by the Board.
6.7 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended, or if Rule 6e-3 is adopted, to provide exemptive relief from any provision of the '40 Act or the rules thereunder with respect to mixed and shared funding on terms and conditions materially different from any exemptions granted in the Mixed and Shared Funding Exemptive Order, then Fund, and/or the Participating Insurance Companies, as appropriate, shall 7 take such steps as may be necessary to comply with Rule 6e-2 and Rule 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such Rules are applicable.
Appears in 2 contracts
Sources: Fund Participation Agreement (Variable Annuity Account a of Protective Life), Fund Participation Agreement (Protective Variable Annuity Separate Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer Manager on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer Funds (the "Board") will monitor the Issuer Funds for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFunds. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform infonn the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundthe Funds, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund Funds and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the IssuerFunds, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's the Accounts' investment in the Issuer Funds and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1411, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, conflict but in no event will the Issuer Funds be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 11 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Fund Participation Agreement (Pruco Life Variable Universal Account), Participation Agreement (Pruco Life Variable Universal Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer Investors Research on December 2112, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
to (i) withdrawing the assets allocable to the Accounts from the Fund fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
change [and (ii) establishing a new registered management investment company or managed separate account.] Nothing in this paragraph (c) shall be construed to waive any cause of action which may be available to Company against any other Participating Insurance Company or Companies, or against any other person or entity, in the event Company determines in good faith that it (Company) is not responsible (or is not solely responsible) for the material irreconcilable conflict.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1412, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Fund Participation Agreement (Lincoln National Variable Annuity Account C), Fund Participation Agreement (Lincoln National Variable Annuity Account C)
Potential Conflicts. (a) 5.1 The Company has received a copy Board of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC Trustees of TRUST and the order issued by the SEC in response thereto MANAGERS TRUST (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "BoardBoards") will monitor TRUST and MANAGERS TRUST, respectively, (collectively the Issuer "Funds"), for the existence of any any. material irreconcilable conflict between the interests of the contract Variable Contract owners of all separate accounts ("Participating Companies") Insurance Company Separate Accounts investing in funds of the IssuerFunds. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authorityauthority action; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio the Funds are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersowners or by contract owners of different Participating Insurance Companies; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract Variable Contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company 5.2 LIFE COMPANY will report any potential or existing conflicts of which it is aware to the BoardBoards. The Company LIFE COMPANY will assist the be responsible for assisting each appropriate Board in carrying out its responsibilities under the Shared Funding Exemptive Order Conditions set forth in the notice issued by the SEC for the Funds on April 12, 1995 (the "Notice") (Investment Company Act Release No. 21003), which LIFE COMPANY has reviewed, by providing the each appropriate Board with all information reasonably necessary for the Board it to consider any issues raised. This responsibility includes, but is not limited to, an obligation by the Company LIFE COMPANY to inform the each appropriate Board whenever contract Variable Contract owner voting instructions are disregardeddisregarded by LIFE COMPANY. These responsibilities will be carried out with a view only to the interests of the Variable Contract owners.
(c) 5.3 If a majority of the Board, Board of a Fund or a majority of its disinterested Board memberstrustees or directors, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictaffecting LIFE COMPANY, the Company shall LIFE COMPANY, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees or directors), will take such action as is any steps necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, including: (ia) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund Funds or any series thereof and reinvesting such those assets in a different investment medium medium, which may include another series of TRUST or MANAGERS TRUST, or another investment company or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract Variable Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract Variable Contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Variable Contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account.
(d) . If a material irreconcilable conflict conflict, arises as a result because of a LIFE COMPANY's decision by the Company to disregard its contract Variable Contract owner voting instructions instructions, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, LIFE COMPANY may be required, at the Board's electionelection of the relevant Fund, to withdraw an its Separate Account's investment in the Issuer such Fund, and terminate this Agreement; provided, however, that no charge or penalty will be imposed as a result of such withdrawal and termination withdrawal. The responsibility to take such remedial action shall be limited carried out with a view only to the extent required by interests of the foregoing material irreconcilable conflict as determined by Variable Contract owners. For the purposes of this Section 5.3, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested applicable Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer relevant Fund or N&B MANAGEMENT (or any other investment adviser of the Funds) be required to establish a new funding medium for any Variable Contract. The Company Further, LIFE COMPANY shall not be required by this SECTION 14 Section 5.3 to establish a new funding medium for any Variable Contract if an any offer to do so has been declined by a vote of a majority of the Variable Contract owners materially adversely affected by the irreconcilable material conflict.
5.4 Any Board's determination of the existence of an irreconcilable material conflict and its implications shall be made known promptly and in writing to LIFE COMPANY.
5.5 No less than annually, LIFE COMPANY shall submit to the Boards such reports, materials or data as such Boards may reasonably request so that the Boards may fully carry out the obligations imposed upon them by these Conditions. Such reports, materials, and data shall be submitted more frequently if deemed appropriate by the applicable Boards.
Appears in 2 contracts
Sources: Fund Participation Agreement (Variable Account D of Union Security Insurance Co), Participation Agreement (Variable Account D of Union Security Insurance Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors Trustees of the Issuer Fund (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract Contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by Participating Insurance Companies or by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract Contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will has received a copy of the Mixed and Shared Funding Exemptive Order, and in particular, has reviewed the conditions to the requested relief set forth therein. The Company agrees to be bound by the responsibilities of a participating insurance company as set forth in the Mixed and Shared Funding Exemptive Order, including without limitation the requirement that the Company report any potential or existing conflicts of which it is aware to the Board. The Company will agrees to assist the Board in carrying out its responsibilities in monitoring such conflicts under the Mixed and Shared Funding Exemptive Order Order, by providing the Board in a timely manner with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract it or its affiliates disregard Contract owner voting instructions are disregardedand by confirming in writing, at the Fund's request, that the Company is unaware of any such potential or existing material irreconcilable conflicts.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and the relevant Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersTrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract Contract owners or life insurance Contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
7.4. If the Company's (dor its affiliates') If disregard of voting instructions would conflict with the majority of its Contract owners' voting instructions, and if the Company and/or the Fund and the Adviser reasonably determine that a material irreconcilable conflict arises (as set forth in the Mixed and Shared Funding Exemptive Order) may arise as a result of a decision by result, then the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the Account's investment in the Issuer Fund and terminate this Agreement; provided. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented (unless the Fund or the Adviser is advised by their respective legal counsel or by the SEC staff that the effective date of such withdrawal and termination is permitted to be extended). Until such withdrawal and termination is implemented, however, that such the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the Fund. Such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (e6) months after the Fund informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict (unless the Fund or the Adviser is advised by their respective legal counsel or by the SEC staff that the effective date of such withdrawal and termination is permitted to be extended). Until such withdrawal and termination is implemented, the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the Fund, subject to applicable regulatory limitation. Such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination (unless the Fund or the Adviser is advised by their respective legal counsel or by the SEC staff that the effective date of such withdrawal and termination is permitted to be extended) provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. Upon request, the Company shall at least annually submit to the Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the duties imposed upon it as delineated in the Mixed and Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies (including the Company), as appropriate, shall take such reasonable steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Lincoln New York Account N for Variable Annuities), Participation Agreement (Lincoln Life Flexible Premium Variable Life Account M)
Potential Conflicts. (a) The Company has received a copy of an application parties acknowledge that the Fund’s shares may be made available for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")investment to other participating insurance companies. The Company has reviewed the conditions to the requested relief set forth in In such application for exemptive relief. As set forth in such applicationevent, the Board of Directors of the Issuer (the "Board") Fund’s directors will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Insurance Companies") investing in funds of the Issuer. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, tax or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board Fund shall promptly inform Standard of any determination by the Company if it determines Fund’s directors that an a material irreconcilable material conflict exists and of the implications thereof.
(b) The Company will Standard agrees to report promptly any potential or existing conflicts of which it is aware to the BoardFund. The Company Standard will assist the Board Fund in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board Fund with all information reasonably necessary for and requested by the Board Fund’s directors to consider any issues raised. This includes, but is not limited to, an obligation by the Company Standard to inform the Board Fund whenever contract Contract owner voting instructions are disregarded.
(c) If it is determined by a majority of the BoardFund’s directors, or a majority of its the Fund’s disinterested Board membersdirectors, determines that a material irreconcilable conflict exists that affects the interests of Contract owners, Standard shall, in cooperation with regard to contract owner investments in a Fundother Participating Insurance Companies whose Contract owners are also affected, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, own expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), Fund’s directors) take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, which steps could include: (ia) withdrawing the assets allocable to some or all of the Accounts accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether or not such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result because of a decision by the Company Standard to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, Standard may be required, at the Board's Fund’s election, to withdraw an the affected Account's ’s investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the Fund’s disinterested directors. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented. Until the end of such six (6) month period, the Fund shall continue to accept and implement orders by Standard for the purchase and redemption of shares of the Fund.
(e) If a material irreconcilable conflict arises because a particular state insurance regulator’s decision applicable to Standard conflicts with the majority of other state regulators, then Standard will withdraw the affected Account’s investment in the Fund and terminate this Agreement with respect to such Account within six (6) months after the Fund informs Standard in writing that the Fund has determined that such decision has created a material irreconcilable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the Fund’s disinterested members directors. Until the end of such six (6) month period, the Fund shall continue to accept and implement orders by Standard for the purchase and redemption of shares of the BoardFund.
(ef) For the purpose purposes of Items C through F of this SECTION 14Section, a majority of the Fund’s disinterested Board members directors shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contract. The Company Standard shall not be required by this SECTION 14 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the material irreconcilable conflict. In the event that the Fund’s directors determine that any proposed action does not adequately remedy any material irreconcilable conflict, then Standard will withdraw the Account’s investment in the Fund and terminate this Agreement within six (6) months after the Fund informs Standard in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the Fund’s disinterested directors.
(g) Upon request, Standard shall submit to the Fund’s directors such reports, materials or data as the directors may reasonably request so that the directors may fully carry out the duties imposed upon them by the Shared Funding Exemptive Order.
(h) If and to the extent that Rule 6e-3(T) is amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rule 6e-3(T), as amended, or Rule 6e-3, as adopted, to the extent such rules are applicable.
Appears in 2 contracts
Sources: Fund Participation Agreement (Standard Insurance Co), Fund Participation Agreement (Standard Insurance Co)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Variable Insurance Product owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The 7.2. Each of the Company and the Adviser will report any potential or existing conflicts of which it is aware to the Board. The Each of the Company and the Adviser will assist the Board in carrying out its responsibilities under SEC rules and regulations. The Adviser, and the participating insurance companies and participating qualified plans will at least annually submit to the Board such reports, materials, or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon by the conditions contained in the Shared Funding Exemptive Order Order, and said reports, materials, and data will be submitted more frequently if deemed appropriate by providing the Board. The responsibilities to report such information and conflicts and to assist the Board will be carried out with all information reasonably necessary for a view only to the Board to consider any issues raised. This includesinterests of contract owners and plan participants, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregardedas applicable.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its members who are not "interested persons" of the Fund, the Adviser or the Company as that term is defined in the 1940 Act (hereinafter "disinterested Board members"), determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersdirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e.I.E., annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account (at the Company's expense); provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Distributor and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.5 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Variable Products. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Variable Products if an offer to do so has been declined by vote of a majority of the Contract contract owners materially adversely affected by the irreconcilable material conflict.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding, or if the Fund obtains a Shared Exemptive Order which requires provisions that are materially different from the provisions of this Agreement, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, or to the terms of the Shared Exemptive Order, to the extent applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Separate Account Fuvul of Allmerica Finan Life Ins & Annu Co), Participation Agreement (Vel Ii Acct of State Mutual Life Assur Co of America)
Potential Conflicts. (a) 7.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies"including the Contract holders) investing in funds of the IssuerPortfolios. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal insurance (including federal, state or state insuranceother jurisdiction), tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. A majority of Directors will consist of persons who are not “interested” persons of the Fund. The Board Directors shall promptly inform the Company if it determines they determine that an a material irreconcilable material conflict exists and the implications thereof.
(b) 7.2 The Company will report any potential or existing conflicts of which it is aware to the BoardDirectors and, upon request by the Fund, shall provide the Fund with written notification that the Company is not aware of any conflict, if such is the case. The Company will assist the Board Directors in carrying out its their responsibilities under any applicable provisions of the Shared Funding federal securities laws and/or any exemptive orders granted by the SEC, including the Exemptive Order Order, by providing the Board Directors with all information reasonably necessary for the Board Directors to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board Directors whenever contract owner Contract holder voting instructions are disregarded. To the extent the Company does not implement pass-through voting for the Fund’s proxy votes, the Company acknowledges that: (i) the Company’s disregard of voting instructions may conflict with the majority of Contract holders’ voting instructions; and (ii) the Company’s action could preclude a majority vote approving a proposed change or could represent a minority view. If the Company does not implement pass-through voting for the fund’s proxy votes and the Company’s judgment represents a minority position or would preclude a majority vote, then the Company may be required, at the Fund’s election, to withdraw the Accounts’ investment in the Portfolios. Other than possible decline in the value of an Account due to fluctuations in the NAV of the Portfolios, no charge or penalty will be imposed as a result of such withdrawal.
(c) 7.3 If it is determined by a majority of the BoardDirectors, or a majority of its disinterested Board membersDirectors, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall may, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersDirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts from the Fund any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and Contract holders and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners Contract holders the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account. No charge or penalty will be imposed by the Fund on the Company as a result of any withdrawal outlined above and the Company will carry out these responsibilities with a view only to the interests of the Contract holders.
(d) 7.4 If a material irreconcilable conflict arises as because a result of a particular state insurance regulator’s decision by applicable to the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a conflicts with the majority vote by all of its contract owners having an interest in the Issuerother insurance regulators, then the Company at its sole cost, may be required, at will withdraw the Board's election, to withdraw an affected Account's ’s investment in the Issuer Portfolio(s) and terminate this AgreementAgreement with respect to such Account within six (6) months after the Directors inform the Company in writing that the Directors have determined that such decision has created an material irreconcilable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Directors. Until the end of the Boardforegoing six (6) month period, DFAS and the Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Portfolios.
(e) 7.5 For the purpose purposes of Sections 7.3 through 7.5 of this SECTION 14Agreement, a majority of the disinterested Board members Directors shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners holders materially adversely affected by the material irreconcilable conflict. In the event that the Directors determine that any proposed action does not adequately remedy any material irreconcilable conflict, then the Company will withdraw an Account’s investment in the Portfolios and terminate this Agreement within six (6) months after the Directors inform the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict.
7.6 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in any exemptive order) on terms and conditions materially different from those contained in the Exemptive Order, then (a) the Fund and/or the Company, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3 (T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) and (b) this Section 7 shall be deemed to incorporate such new terms and conditions, and any term or conditions of this Section 7 that is inconsistent therewith, shall be deemed to be succeeded thereby.
7.7 All reports received by the Directors of potential or existing conflicts (including those received from the Company pursuant to Section 7.2), and all action by the Directors with regard to determining the existence of a conflict, and determining whether any proposed action adequately remedies a conflict, shall be properly recorded in the minutes of the Directors or other appropriate records, and such minutes or other records shall be made available to the SEC upon request.
Appears in 2 contracts
Sources: Participation Agreement (Corporate Sponsored Vul Separate Account I), Participation Agreement (New York Life Ins & Annuity Corp Var Univ Life Sep Acc I)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed 6.1 To the extent required by the Issuer on December 21, 1987, with the SEC and the order issued Exemptive Order or by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such applicationapplicable law, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between or among the interests of the variable contract owners of all whose contract values are invested through separate accounts ("Participating Companies") accounts, participants in Qualified Plans and Other Purchasers investing in funds of the IssuerTrust and will determine what action, if any, should be taken in response to any such conflict. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and owners, variable life insurance contract ownersowners and, where applicable, participants in Qualified Plans; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of variable contract owners; or (g) a decision by a Qualified Plan, where applicable, to disregard participant voting instructions. The Board shall Trust will promptly inform the Company Companies if it determines that an a material irreconcilable material conflict exists and of the implications thereof.
(b) The Company 6.2 Each of the Companies, on behalf of itself, its Accounts and any of its affiliates investing in a Fund, will report to the Board any potential or existing conflicts conflict as described in Section 6.1 of which it is aware to the Boardor becomes aware. The Each Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order and under applicable law by providing the Board with all information reasonably necessary for the Board to consider any issues raisedraised with respect to such conflict and by furnishing to the Board, at its reasonable request annually or more frequently, such other materials or reports as the Board may deem appropriate. This includes, but is not limited to, an obligation by Each of the Company to Companies will inform the Board whenever contract it determines to disregard Contract owner voting instructions are disregardedinstructions, and each of the Companies will carry out this and all of its other responsibilities under this Article 6 with a view only to the interests of its Contract owners.
(c) 6.3 If it is determined by a majority of the Board, or a majority of its the disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard respect to contract owner investments in a any Fund, each of the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall as applicable, shall, at its sole cost and own expense, and to the extent reasonably practicable practical (as determined by a majority of the Trust's disinterested Board membersTrustees), take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to, up to and including:
(i1) withdrawing the assets allocable to the some or all of its Accounts from the Trust or any Fund and reinvesting such assets in a different investment medium medium, including (but not limited to) another Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, variable life insurance contract owners, owners or variable contract Contract owners of one or more Participating both Companies) that votes in favor of such segregation, or offering to the affected contract Contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) If . In the event that the Board determines that any proposed action by a Company does not adequately remedy any material irreconcilable conflict arises as a result of a decision by conflict, that Company will withdraw the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an affected Account's investment in the Issuer and terminate this Agreement; Trust or a Fund within six months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall will be limited to the extent required by the foregoing any such material irreconcilable conflict as determined by a majority of the disinterested members of the BoardTrustees.
(e) 6.4 If a material irreconcilable conflict arises because of a decision by a Company to disregard Contract owner voting instructions and that decision represents a minority position or would preclude a majority vote, the Company may be required, at the Trust's election, to withdraw the relevant Account's investment in the Trust or a Fund, as applicable. No charge or penalty will be imposed as a result of any such withdrawal.
6.5 For the purpose purposes of Sections 6.3 and 6.4 of this SECTION 14Agreement, a majority of the disinterested Board members shall Trustees who are not "interested persons" (as defined in Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) of the Trust will determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Trust or any investment adviser to the Trust be required to establish a new funding medium for any Contractthe Contracts. The Nor shall a Company shall not be required by this SECTION 14 Section 6.3 to establish a any new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the material irreconcilable material conflict.
6.6 If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or proposed Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to "mixed or shared funding" (as understood for purposes of the Exemptive Order) on terms and conditions materially different from those contained in the Exemptive Order, then (a) the Trust and/or the Companies as well as the other Participating Insurance Companies, as appropriate, will take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 2.4, 6.1, 6.2, 6.3 and 6.4 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
6.7 The Trust hereby notifies the Companies that it may be appropriate to include in prospectuses for the Contracts disclosure regarding potential conflicts as described in Section 6.1 hereof.
Appears in 2 contracts
Sources: Participation Agreement (Hancock John Variable Series Trust I), Participation Agreement (Hancock John Variable Series Trust I)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners contractowners of all variable annuity and variable life insurance separate accounts ("Participating Companies") and Qualified Plan participants investing in funds of the IssuerTrust. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Designated Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersof Variable Contracts; or (vif) a decision by an insurer to disregard the voting instructions of contract ownersowners of Variable contracts. The Board shall promptly inform the Company MONY if it determines that an a material irreconcilable material conflict exists and the implications thereof.
(b) The Company 7.2. MONY will report any potential or existing conflicts of which it is aware to the Board. The Company MONY will assist the Board in carrying out its responsibilities under the any Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company MONY to inform the Board whenever contract owner the voting instructions of owners of Variable Contracts are disregarded. Upon the written request of the Trust, MONY will also provide to the Board, not more frequently than annually, a written certification in a format to be determined by mutual agreement of the Trust and MONY, as to its best knowledge of any events that may result in a material irreconcilable conflict. MONY’s responsibilities under this Section 7.2 will be carried out with a view only to the interests of its Contractowners.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all MONY and other Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictInsurance Companies and Qualified Plans shall, the Company shall at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersTrustees), take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (ia) withdrawing the assets allocable to some or all of the Accounts variable annuity and variable life insurance separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation withdrawal should be implemented to a vote of all affected contract owners and of Variable Contracts and, as appropriate, segregating withdrawing the assets of any appropriate group (i.e.i. e., owners of variable annuity contract owners, contracts or owners of variable life insurance contract owners, or variable contract owners contracts of one or more Participating Insurance Companies) that votes in favor of such segregationwithdrawal, or offering to the affected contract owners of Variable Contracts the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account. MONY’s responsibilities under this Section 7.3 will be carried out with a view only to the interests of Contractowners.
(d) 7.4. If a material irreconcilable conflict arises as a result ever were to arise because of a decision by the Company MONY to disregard its contract owner Contractowner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, MONY may be required, at the Board's Trust’s election, to withdraw an the affected Account's ’s (or subaccount’s) investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (or subaccount); provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty shall be imposed as a result of such withdrawal. Any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being implemented and, until the end of that six (6) month period, the Distributors and Trust shall continue to accept and implement orders by MONY for the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because a particular state insurance regulator’s decision applicable to MONY conflicts with the majority of other state regulators, then MONY shall withdraw the affected Account’s (eor subaccount’s) investment in the Trust and terminate this Agreement with respect to such Account (or subaccount) within six (6) months after the Board informs MONY in writing that it has determined that such decision has created a material irreconcilable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six (6) month period, the Distributors and Trust shall continue to accept and implement orders by MONY for the purchase (and redemption) of shares of the Trust.
7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe MONY Contracts. The Company MONY shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the MONY Contracts if an offer to do so has been declined by vote of a majority of the Contract owners Contractowners materially adversely affected by the material irreconcilable conflict. In the event that the Board determines that any proposed action does not adequately remedy any material irreconcilable conflict, then MONY will withdraw the Account’s (or subaccount’s) investment in the Trust and terminate this Agreement within six (6) months after the Board informs MONY in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3 (T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then: (a) the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted; and (c) this Agreement shall be otherwise amended by the Trust, without the need for any consent of the other parties, as required by such change in law.
Appears in 2 contracts
Sources: Participation Agreement (Axa Premier Vip Trust), Participation Agreement (Axa Premier Vip Trust)
Potential Conflicts. (a) 5.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") Fund will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds the Fund. The Company will report to the Board any potential or existing conflicts of which it is or becomes aware between any of its Contract owners, or between any of its Contract owners and contract owners of other Participating Insurers. The Company will be responsible for assisting the Board in carrying out its responsibilities to identify and resolve material conflicts by providing the Board with all information available to it that is reasonably necessary for the Board to consider any issues raised, including information as to a decision by the Company to disregard voting instructions of its Contract owners.
5.2 The Board's determination of the Issuerexistence of an irreconcilable material conflict and its implications shall be made known promptly by it to the Company and other Participating Insurers. An irreconcilable material conflict and its implications shall be made known promptly by it to the Company and other Participating Insurers. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, insurance tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersowners or by contract owners of different Participating Insurers; or (vif) a decision by an insurer a Participating Insurer to disregard the voting instructions of its variable contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which 5.3 If it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order determined by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, Board or a majority of its disinterested Board members, determines Directors that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, that affects the Board shall give prompt notice to all Participating Companies. If interests of the Board determines that the Company is responsible for causing or creating said conflictContract owners, the Company shall at its sole cost and expenseshall, and to the extent reasonably practicable (as determined by a majority of the Fund's disinterested Board membersDirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to, which steps could include:
(ia) withdrawing the assets allocable to the Accounts Separate Account from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including another Portfolio of the Fund, or submitting participating in the submission of the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate particular group (i.e., e.g. annuity contract owners, owners or life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account.
(d) . The Company shall take such steps at its expense if the conflict affects solely the interests of the owners of the Company's Contracts, but shall bear only its equitable portion of any such expense if the conflict also affects the interests of the contract owners of one or more Participating Insurers other than the Company, provided: that this sentence shall not be construed to require the Fund to bear any portion of such expense. If a material irreconcilable conflict arises as a result because of a the Company's decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an Account's the investment of the Separate Account in the Issuer Fund, and terminate no charge or penalty will be imposed as a result of such a withdrawal. The Company agrees to take such remedial action as may be required under this Agreement; provided, however, that such withdrawal and termination shall be limited paragraph 5.3 with a view only to the extent required by the foregoing material irreconcilable conflict as determined by interests of its Contract owners. For purposes of this paragraph 5.3, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Fund's Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractvariable contract. The Company shall not be required by this SECTION 14 paragraph 5.3 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract contract owners materially and adversely affected by the irreconcilable material conflict. Notwithstanding the foregoing, if the Company is required under this paragraph 5.3 to withdraw the investment of the Separate Account in the Fund, such withdrawal may take place within six (6) months after the Fund gives written notice that this paragraph 5.3 is being implemented, provided: That the Fund may require that such withdrawal must take place within a shorter period of time after such notice if a majority of the disinterested members of the Fund's Board determines that such shorter period is necessary to avoid irreparable harm to its shareholders; and further provided: That until the end of such six month (or shorter) period the Fund shall continue to accept and implement orders by the Company for the purchase and redemption of Fund Shares.
5.4 In discharging its responsibilities under this Article V, the Company will cooperate and coordinate, to the extent necessary, with the Board and with other Participating Insurers.
5.5 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or a subsequent Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding on terms and conditions materially different from those contained in the Fund's mixed and shared funding order (Investment Company Act Release No. ) then the Fund or the Participating Insurers, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), and related Rules as amended, to the extent such rules are applicable.
Appears in 2 contracts
Sources: Fund Participation Agreement (Lincoln Benefit Life Variable Life Account), Fund Participation Agreement (Lincoln Benefit Life Variable Annuity Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors trustees of the Issuer (the "Board") Trust will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract variable Contract owners of all separate accounts ("Participating Companies") investing in funds the Trust and the participants of all Qualified Plans investing in the IssuerTrust. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of variable contract owners. The Board trustees of the Trust shall promptly inform the Insurance Company if it determines they determine that an irreconcilable material conflict exists and the implications thereof. The trustees of the Trust shall have sole authority to determine whether an irreconcilable material conflict exists and their determination shall be binding upon the Insurance Company.
(b) 7.2. The Insurance Company and Berger each will report promptly any potential or existing conflicts of confli▇▇▇ ▇▇ which it is aware to the Boardtrustees of the Trust. The Insurance Company and Berger each will assist the Board trustees of the Trust in carrying out its ▇▇▇▇▇ responsibilities under the Mixed and Shared Funding Exemptive Order Order, by providing the Board trustees of the Trust with all information reasonably necessary for the Board them to consider any issues raised. This includes, but is not limited to, an obligation by the Insurance Company to inform the Board trustees of the Trust whenever contract Contract owner voting instructions are to be disregarded. These responsibilities shall be carried out by the Insurance Company with a view only to the interests of the Contract owners and by Berger with a view only to the interests of Contract holders and ▇▇▇▇▇▇ied Plan participants.
(c) 7.3. If it is determined by a majority of the Boardtrustees of the Trust, or a majority of the trustees who are not interested persons of the Trust, any of its disinterested Board membersFunds, determines or Berger (the "Independent Trustees"), that a material irreconcilable conflict exists with regard to contract owner investments in a Fundirreconcilab▇▇ ▇▇▇flict exists, the Board shall give prompt notice to all Insurance Company and/or other Participating Companies. If the Board determines Insurance Companies or Qualified Plans that the Company is responsible for causing or creating said conflicthave executed participation agreements shall, the Company shall at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersIndependent Trustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts separate accounts from the Trust or any Fund and reinvesting such those assets in a different investment medium medium, including (but not limited to) another Fund of the Trust, or submitting the question of whether such segregation should be implemented to a vote of all affected variable contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e.e.g., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected variable contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate accountaccount and obtaining any necessary approvals or orders of the Commission in connection therewith.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Insurance Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Insurance Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the affected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to that Account; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Independent Trustees. Any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being implemented, and, until the end of that six month period, the Trust shall continue to accept and implement orders by the Insurance Company for the purchase (and redemption) of shares of the BoardTrust.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Insurance Company conflicts with the majority of other state regulators, then the Insurance Company will withdraw the affected Account's investment in the Trust and terminate this Agreement with respect to that Account within six months after the trustees of the Trust inform the Insurance Company in writing that they have determined that the state insurance regulator's decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the Independent Trustees. Until the end of the foregoing six month period, the Trust shall continue to accept and implement orders by the Insurance Company for the purchase (eand redemption) of shares of the Trust.
7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested Board members Independent Trustees shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Insurance Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the trustees of the Trust determine that any proposed action does not adequately remedy any irreconcilable material conflict, then the Insurance Company will withdraw the Account's investment in the Trust and terminate this Agreement within six (6) months after the trustees of the Trust inform the Insurance Company in writing of the foregoing determination, provided, however, that the withdrawal and termination shall be limited to the extent required by the material irreconcilable conflict, as determined by a majority of the Independent Trustees.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent those rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to those Sections are contained in the Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Berger Institutional Products Trust), Participation Agreement (Berger Institutional Products Trust)
Potential Conflicts. (a) 6.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") Trustees will monitor the Issuer Trust for the existence of any material irreconcilable conflict between among the interests of the variable annuity and variable life insurance contract owners funded by each of all the separate accounts ("Participating Companies") investing in funds the Trust. The concept of a "material irreconcilable conflict" is not defined by the Issuer. An irreconcilable material 1940 Act or the rules thereunder, but the Parties recognize that such a conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, tax or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract Contract owners; or (g) a decision by a Qualified Plan to disregard the voting instructions of plan participants. The Board Trustees shall promptly inform the Company if it determines they determine that an irreconcilable material conflict exists and the implications thereof.
(b) 6.2 The Company will report any potential or existing conflicts of which it is they are aware to the BoardTrustees. The Company will assist the Board Trustees in carrying out its their responsibilities under the Mixed and Shared Funding Exemptive Order Order, by providing the Board Trustees with all information reasonably necessary for the Board Trustees to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board Trustees whenever contract owner Contract owners voting instructions are disregarded.
(c) 6.3 If it is determined by a majority of the BoardTrustees, or a majority of its disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersdirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Company's Accounts and the separate accounts of other Participating Insurance Companies from the Trust or any Fund and reinvesting such assets in a different investment medium medium, including (but not limited to) another Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group group, (i.e., annuity contract Contract owners, life insurance contract Contract owners, or variable contract Contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 6.4 If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the affected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested Trustees. Any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being implemented, and until the end of that six month period that Trust and the Distributor shall continue to accept and implement orders by the Company for the purchase (and redemption) of the Trust's shares.
6.5 If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Trust and terminate this Agreement with respect to such Account within six months after the Trustees inform the Company in writing that they have determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Trustees. Until the end of the Boardforegoing six month period, the Trust and the Distributor shall continue to accept and implement orders by the Company for the purchase (and redemption) of the Trust's shares.
(e) 6.6 For the purpose purposes of Sections 6.3 through 6.6 of this SECTION 14Agreement, a majority of the disinterested Board members Trustees shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 6.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Trustees determine that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Trust and terminate this Agreement within six (6) months after the Trustees inform the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested Trustees.
6.7 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Trust and/or the Participating Insurance Company, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T) as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 6.1, 6.2, 6.3, 6.4 and 6.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Riversource of New York Variable Annuity Account), Participation Agreement (Riversource Variable Account 10)
Potential Conflicts. (a) The Company ING has received a copy of an application for exemptive relief, as amended, filed by the Issuer Fund on December 21, 1987, and with the SEC and the order issued by the SEC dated ________ (File No. _______) in response thereto (the "Mixed and Shared Funding Exemptive Order"). The Company ING has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer Fund (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners contractholders of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners contractholders and variable life insurance contract ownerscontractholders; or (vi) a decision by an insurer to disregard the voting instructions of contract ownerscontractholders. The Board shall promptly inform the Company ING if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company ING will report any potential or existing conflicts of which it is aware to the Board. The Company ING will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company ING to inform the Board whenever contract owner contractholder voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner contractholder investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company ING is responsible for causing or creating said conflict, the Company ING shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts Account from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners contractholders and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners contractholders the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company ING to disregard its contract owner contractholder voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners contractholders having an interest in the IssuerFund, the Company ING at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer Fund and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 10, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contract. The Company ING shall not be required by this SECTION 14 Section 10 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners or participants materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Fund Participation Agreement (Variable Annuity Acct C of Ing Life Insurance & Annuity Co), Fund Participation Agreement (Variable Annuity Acct C of Ing Life Insurance & Annuity Co)
Potential Conflicts. (a) 7.1 The Company has received a copy Board of an application for exemptive relief, as amended, filed by Trustees of the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto Fund (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "“Fund Board"”) will monitor the Issuer Fund for the existence of any material irreconcilable conflict between among the interests of the contract owners contractowners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-no action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by Participating Insurance Companies or by variable annuity contract owners and variable life insurance contract owners; contractowners, or (vif) a decision by an insurer to disregard the voting instructions of contract ownerscontractowners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof. A majority of the Fund Board shall consist of persons who are not “interested” persons of the Fund.
(b) 7.2 The Company will report any potential or existing conflicts of which it is aware to the Fund Board. The Company will agrees to assist the Fund Board in carrying out its responsibilities under as delineated in the Shared Funding Exemptive Order application for a mixed and shared funding exemptive order, by providing the Fund Board with all information reasonably necessary for the Fund Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Fund Board whenever contract owner contractowner voting instructions are disregarded. The Fund Board shall record in its minutes or other appropriate records, all reports received by it and all action with regard to a conflict.
(c) 7.3 If it is determined by a majority of the Fund Board, or a majority of its disinterested Board membersDirectors, determines that a an irreconcilable material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersDirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i1) withdrawing the assets allocable to some or all of the Accounts subaccounts of the separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and contractowners and, as appropriate, segregating the assets of any appropriate group (i.e., variable annuity contract owners, contractowners or variable life insurance contract ownerscontractowners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners contractowners the option of making such a change; and/or
and (ii2) establishing a new registered management investment company or managed separate account.
(d) 7.4 If a material irreconcilable conflict arises as a result the Company’s disregard of a decision by the Company to disregard its contract owner voting instructions could conflict with the majority of contractowner voting instructions, and said decision the Company’s judgment represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's Fund’s election, to withdraw an the affected subaccount of the Account's ’s investment in the Issuer Fund and terminate this Agreement; provided, however, that Agreement with respect to such subaccount of the Account. Any such withdrawal and termination shall be limited must take place within 60 days after the Fund gives written notice to the extent required Company that this provision is being implemented. Until the end of such 60 day period the Underwriter and Fund shall continue to accept and implement orders by the foregoing material irreconcilable conflict as determined Company for the purchase (and redemption) of shares of the Fund.
7.5 If a particular state insurance regulator’s decision applicable to the Company conflicts with the majority of other state insurance regulators, then the Company will withdraw the affected subaccount of the Account’s investment in the Fund and terminate this Agreement with respect to such subaccount of the Account. Any such withdrawal and termination must take place within 60 days after the Fund gives written notice to the Company that this provision is being implemented. Until the end of such 60 day period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested Fund Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners contractowners materially adversely affected by the irreconcilable material conflict.
7.7 The Company shall at least annually submit to the Fund Board such reports, materials or data as the Fund Board may reasonably request so that the Fund Board may fully carry out the duties imposed upon it as delineated in the Mixed and Shared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Fund Board.
7.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Premier Vit), Participation Agreement (Premier Vit)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as is appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1412, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Shareholder Services Agreement (General American Life Insurance Co Separate Account Eleven), Shareholder Services Agreement (General American Life Insurance Co Separate Account Eleven)
Potential Conflicts. The following provisions apply effective upon (a) The Company has received a copy the issuance of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). , and (b) investment in the Fund by a separate account of a Participating Insurance Company supporting variable life insurance contracts.
7.1 The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio the Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2 The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 7.3 If it is determined by a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund and reinvesting such assets in a different investment medium medium, including (but not limited to) another Series of GCSF or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., I.E. annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4 If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude prelude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's Fund_s election, to withdraw an Account's the affected Account_s investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5 If a material irreconcilable conflict arises because a particular state insurance regulator_s decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account_s investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6 For the purpose purposes of Section 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer GCSG be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any the Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Accounts' investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7 If and to the extent the Shared Funding Order contains terms and conditions different from Sections, 3.4, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement, then the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with the Shared Funding Exemptive Order, and Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4 and 7.5 of the Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in the Shared Funding Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Gabelli Capital Series Funds Inc), Participation Agreement (Gabelli Capital Series Funds Inc)
Potential Conflicts. The following provisions apply effective upon (a) The Company has received a copy the issuance of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"), and (b) investment in the Fund by a separate account of a Participating Insurance Company supporting variable life insurance contracts.
7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the any Shared Funding Exemptive Order and/or Rule 6e-3(T) of the 1940 Act, to the extent applicable, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract Contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., I.E. annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude prelude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the Board's Fund?s election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Fund shall continue to accept and implement orders by the company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Section 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any the Contract if an fan offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determination by a majority of the disinterested members of the Board.
7.7. If and to the extent the Shared Funding Order contains terms and conditions different from Sections, 3.4, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement, then the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with the Shared Funding Exemptive Order, and Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4 and 7.5 of the Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in the Shared Funding Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 2 contracts
Sources: Participation Agreement (Sep Acct Va K Execannuity of Allmerica Fin Lfe Ins & Ann Co), Participation Agreement (Separate Acct Va K of First Allmerica Financial Life Ins Co)
Potential Conflicts. (a) 5.1 The Company has received a copy Board of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC Trustees of TRUST and the order issued by the SEC in response thereto MANAGERS TRUST (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "BoardBoards") will monitor TRUST and MANAGERS TRUST, respectively, (collectively the Issuer "Funds"), for the existence of any material irreconcilable conflict between the interests of the contract Variable Contract owners of all separate accounts ("Participating Companies") Insurance Company Separate Accounts investing in funds of the IssuerFunds. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authorityauthority action; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio the Funds are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersowners or by contract owners of different Participating Insurance Companies; or (vif) a decision by an insurer a Participating Insurance Company to disregard the voting instructions of contract Variable Contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company 5.2 LIFE COMPANY will report any potential or existing conflicts of which it is aware to the BoardBoards. The Company LIFE COMPANY will assist the be responsible for assisting each appropriate Board in carrying out its responsibilities under the Shared Funding Exemptive Order Conditions set forth in the notice issued by the SEC for the Funds on April 12, 1995 (the "Notice") (Investment Company Act Release No. 21003), which LIFE COMPANY has reviewed, by providing the each appropriate Board with all information reasonably necessary for the Board it to consider any issues raised. This responsibility includes, but is not limited to, an obligation by the Company LIFE COMPANY to inform the each appropriate Board whenever contract Variable Contract owner voting instructions are disregardeddisregarded by LIFE COMPANY. These responsibilities will be carried out with a view only to the interests of the Variable Contract owners.
(c) 5.3 If a majority of the Board, Board of a Fund or a majority of its disinterested Board memberstrustees or directors, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, affecting the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictLIFE COMPANY, the Company shall LIFE COMPANY, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees or directors), will take such action as is any steps necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, including: (ia) withdrawing the assets allocable to some or all of the Separate Accounts from the Fund Funds or any series thereof and reinvesting such those assets in a different investment medium medium, which may include another series of TRUST or MANAGERS TRUST, or another investment company or submitting the question of as to whether such segregation should be implemented to a vote of all affected contract Variable Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract Variable Contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract Variable Contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account.
(d) . If a material irreconcilable conflict arises as a result because of a LIFE COMPANY's decision by the Company to disregard its contract Variable Contract owner voting instructions instructions, and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, LIFE COMPANY may be required, at the Board's electionelection of the relevant Fund, to withdraw an its Separate Account's investment in the Issuer such Fund, and terminate this Agreement; provided, however, that no charge or penalty will be imposed as a result of such withdrawal and termination withdrawal. The responsibility to take such remedial action shall be limited carried out with a view only to the extent required by interests of the foregoing material irreconcilable conflict as determined by Variable Contract owners. For the purposes of this Section 5.3, a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, a majority of the disinterested applicable Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer relevant Fund or N&B MANAGEMENT (or any other investment adviser of the Funds) be required to establish a new funding medium for any Variable Contract. The Company Further, LIFE COMPANY shall not be required by this SECTION 14 Section 5.3 to establish a new funding medium for any Variable Contract if an any offer to do so has been declined by a vote of a majority of the Variable Contract owners materially adversely affected by the irreconcilable material conflict.
5.4 Any Board's determination of the existence of an irreconcilable material conflict and its implications shall be made known promptly and in writing to LIFE COMPANY.
5.5 No less than annually, LIFE COMPANY shall submit to the Boards such reports, materials or data as such Boards may reasonably request so that the Boards may fully carry out the obligations imposed upon them by these Conditions. Such reports, materials, and data shall be submitted more frequently if deemed appropriate by the applicable Boards.
Appears in 2 contracts
Sources: Fund Participation Agreement (Variable Account Ii Aig Life Insurance Co), Fund Participation Agreement (Variable Account B American Intl Life Assur Co of New York)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive exceptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "“Shared Funding Exemptive Order"”). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive exemtive relief. As set forth in such application, the Board of Directors of the Issuer (the "“Board"”) will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("“Participating Companies"”) investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts Account from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's ’s election, to withdraw an Account's ’s investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14Section 12, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 12 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 2 contracts
Sources: Shareholder Services Agreement (Principal Life Insurance Co Separate Account B), Shareholder Services Agreement (Principal Life Insurance Co Variable Life Sep Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners contractowners of all variable annuity and variable life insurance separate accounts ("Participating Companies") and Qualified Plan participants investing in funds of the IssuerTrust. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Designated Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract ownersof Variable Contracts; or (vif) a decision by an insurer to disregard the voting instructions of contract ownersowners of Variable contracts. The Board shall promptly inform the Company MONY if it determines that an a material irreconcilable material conflict exists and the implications thereof.
(b) The Company 7.2. MONY will report any potential or existing conflicts of which it is aware to the Board. The Company MONY will assist the Board in carrying out its responsibilities under the any Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company MONY to inform the Board whenever contract owner the voting instructions of owners of Variable Contracts are disregarded. Upon the written request of the Trust, MONY will also provide to the Board, not more frequently than annually, a written certification in a format to be determined by mutual agreement of the Trust and MONY, as to its best knowledge of any events that may result in a material irreconcilable conflict. MONY’s responsibilities under this Section 7.2 will be carried out with a view only to the interests of its Contractowners.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fundexists, the Board shall give prompt notice to all MONY and other Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictInsurance Companies and Qualified Plans shall, the Company shall at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersTrustees), take such action as is whatever steps are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (ia) withdrawing the assets allocable to some or all of the Accounts variable annuity and variable life insurance separate accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether such segregation withdrawal should be implemented to a vote of all affected contract owners and of Variable Contracts and, as appropriate, segregating withdrawing the assets of any appropriate group (i.e.i. e., owners of variable annuity contract owners, contracts or owners of variable life insurance contract owners, or variable contract owners contracts of one or more Participating Insurance Companies) that votes in favor of such segregationwithdrawal, or offering to the affected contract owners of Variable Contracts the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account. MONY’s responsibilities under this Section 7.3 will be carried out with a view only to the interests of Contractowners.
(d) 7.4. If a material irreconcilable conflict arises as a result ever were to arise because of a decision by the Company MONY to disregard its contract owner Contractowner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, MONY may be required, at the Board's Trust’s election, to withdraw an the affected Account's ’s (or subaccount’s) investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account (or subaccount); provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. No charge or penalty shall be imposed as a result of such withdrawal. Any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being implemented and, until the end of that six (6) month period, the Distributor and Trust shall continue to accept and implement orders by MONY for the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because a particular state insurance regulator’s decision applicable to MONY conflicts with the majority of other state regulators, then MONY shall withdraw the affected Account’s (eor subaccount’s) investment in the Trust and terminate this Agreement with respect to such Account (or subaccount) within six (6) months after the Board informs MONY in writing that it has determined that such decision has created a material irreconcilable conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six (6) month period, the Distributor and Trust shall continue to accept and implement orders by MONY for the purchase (and redemption) of shares of the Trust.
7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any material irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for any Contractthe MONY Contracts. The Company MONY shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the MONY Contracts if an offer to do so has been declined by vote of a majority of the Contract owners Contractowners materially adversely affected by the material irreconcilable conflict. In the event that the Board determines that any proposed action does not adequately remedy any material irreconcilable conflict, then MONY will withdraw the Account’s (or subaccount’s) investment in the Trust and terminate this Agreement within six (6) months after the Board informs MONY in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3 (T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then: (a) the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted; and (c) this Agreement shall be otherwise amended by the Trust, without the need for any consent of the other parties, as required by such change in law.
Appears in 2 contracts
Sources: Participation Agreement (Eq Advisors Trust), Participation Agreement (Axa Premier Vip Trust)
Potential Conflicts. (a) 4.1 The Company has received parties acknowledge that a copy of an application Portfolio's shares may be made available for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")investment to other Participating Insurance Companies. The Company has reviewed the conditions to the requested relief set forth in In such application for exemptive relief. As set forth in such applicationevent, the Board of Directors of the Issuer (the "Board") Trustees will monitor the Issuer Trust for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Insurance Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board Trust shall promptly inform the Company if it determines of any determination by the Trustees that an irreconcilable material conflict exists and of the implications thereof.
(b) 4.2 The Company will agrees to promptly report any potential or existing conflicts of which it is aware to the BoardTrustees. The Company will assist the Board Trustees in carrying out its their responsibilities under the Shared Funding Exemptive Order by providing the Board Trustees with all information reasonably necessary for the Board Trustees to consider any issues raised. This includesraised including, but is not limited to, an obligation information as to a decision by the Company to inform the Board whenever contract disregard Contract owner voting instructions are disregardedinstructions. All communications from the Company to the Trustees may be made in care of the Trust.
(c) 4.3 If it is determined by a majority of the BoardTrustees, or a majority of its the disinterested Board membersTrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, that affects the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictinterests of Contract owners, the Company shall shall, in cooperation with other Participating Insurance Companies whose contract owners are also affected, at its sole cost and expense, own expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), Trustees) take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, which steps could include: (ia) withdrawing the assets allocable to some or all of the Accounts from the Fund Trust or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Trust, or submitting the question of whether or not such segregation withdrawal should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating withdrawal of the assets of any appropriate group (i.e.i.e. , annuity contract owners, life insurance contract policy owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregationwithdrawal, or offering to the affected contract Contract owners the option of making such a change; and/or
and (iib) establishing a new registered management investment company or managed separate account.
(d) 4.4 If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract Contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardTrust's election, to withdraw an the affected Account's investment in the Issuer Trust and terminate this AgreementAgreement with respect to such Account; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Trustees. Any such withdrawal and termination must take place within six (6) months after the Trust gives written notice that this provision is being implemented. Until the end of such six (6) month period, the Trust shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the BoardTrust.
4.5 If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with a majority of other state regulators, then the Company will withdraw the affected Account's investment in the Trust and terminate this Agreement with respect to such Account within six (e6) months after the Trustees inform the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested Trustees. Until the end of such six (6) month period, the Trust shall continue to accept and implement orders by the Company for the purchase and redemption of shares of the Trust.
4.6 For the purpose purposes of Sections 4.3 through 4.6 of this SECTION 14Agreement, a majority of the disinterested Board members Trustees shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Trust be required to establish a new funding medium for the Contracts. In the event that the Trustees determine that any Contract. The proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account's investment in the Trust and terminate this Agreement within six (6) months after the Trustees inform the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall not be limited to the extent required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined such material irreconcilable conflict as determined by vote of a majority of the Contract owners materially adversely affected disinterested Trustees.
4.7 The Company shall at least annually submit to the Trustees such reports, materials or data as the Trustees may reasonably request so that the Trustees may fully carry out the duties imposed upon them by the irreconcilable material conflictShared Funding Exemptive Order, and said reports, materials and data shall be submitted more frequently if reasonably deemed appropriate by the Trustees.
4.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then the Trust and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable.
Appears in 2 contracts
Sources: Participation Agreement (Liberty Variable Investment Trust), Participation Agreement (Variable Account a of Keyport Benefit Life Insurance Co)
Potential Conflicts. (a) 7.1 The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board Directors shall promptly inform the Company if it determines they determine that an irreconcilable material conflict exists and the implications thereofthereof and, on an annual basis, shall provide Company with written notification that the Directors are not aware of any conflict, if such is the case.
(b) 7.2 The Company will report any potential or existing conflicts of which it is aware to the BoardDirectors and, on an annual basis, shall provide Fund with written notification that Company is not aware of any conflict, if such is the case. The Company will assist the Board Directors in carrying out its their responsibilities under any applicable provisions of the Shared Funding federal securities laws and/or any exemptive orders granted by the Securities & Exchange Commission (“Exemptive Order Order”), by providing the Board Directors with all information reasonably necessary for the Board Directors to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board Directors whenever contract owner Owner voting instructions are disregarded.
(c) 7.3 If it is determined by a majority of the BoardDirectors, or a majority of its disinterested Board membersDirectors, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall shall, at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board membersDirectors), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and Owners and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners Owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4 If a material irreconcilable conflict arises as because a result of a particular state insurance regulator’s decision by applicable to the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a conflicts with the majority vote by all of its contract owners having an interest in the Issuerother state regulators, then the Company at its sole cost, may be required, at will withdraw the Board's election, to withdraw an affected Account's ’s investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account within six (6) months after the Directors inform the Company in writing that they have determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members Directors. Until the end of the Boardforegoing six (6) month period, DFAS and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.5 For the purpose purposes of Sections 7.3 through 7.5 of this SECTION 14Agreement, a majority of the disinterested Board members Directors shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners Owners materially adversely affected by the irreconcilable material conflict. In the event that the Directors determine that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Account’s investment in the Fund and terminate this Agreement within six (6) months after the Directors inform the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict.
7.6 If and to the extent that Rule 6e-2 and Rule 6e- 3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in any Exemptive Order) on terms and conditions materially different from those contained in any Exemptive Order, then (a) the Fund and/or the Company, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 7.1, 7.2, 7.3 and 7.4 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 1 contract
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the Issuer. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and/or (ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14, 13 a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 13 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 1 contract
Sources: Shareholder Services Agreement (Annuity Investors Variable Account C)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order")7.1. The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the Board of Directors of the Issuer (the "Board") will monitor the Issuer Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFund. An irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Portfolio are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vif) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) 7.2. The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order Order, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) 7.3. If it is determined by a majority of the Board, or a majority of its disinterested Board memberstrustees, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictexists, the Company shall and other Participating Insurance Companies shall, at its sole cost and expense, their expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board memberstrustees), take such action as is whatever steps are necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
, up to and including: (i) 1), withdrawing the assets allocable to some or all of the Accounts separate accounts from the Fund or any Portfolio and reinvesting such assets in a different investment medium medium, including (but not limited to) another Portfolio of the Fund, or submitting the question of whether such segregation should be implemented to a vote of all affected contract Contract owners and and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
and (ii) 2), establishing a new registered management investment company or managed separate account.
(d) 7.4. If a material irreconcilable conflict arises as a result because of a decision by the Company to disregard its contract owner voting instructions and said that decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuervote, the Company at its sole cost, may be required, at the BoardFund's election, to withdraw an the affected Account's investment in the Issuer Fund and terminate this AgreementAgreement with respect to such Account; provided, however that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Any such withdrawal and termination must take place within six (6) months after the Fund gives written notice that this provision is being implemented, and until the end of that six month period the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state insurance regulator's decision applicable to the Company conflicts with the majority of other state regulators, then the Company will withdraw the affected Account's investment in the Fund and terminate this Agreement with respect to such Account within six months after the Board informs the Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board. Until the end of the foregoing six month period, the Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares of the Fund.
(e) 7.6. For the purpose purposes of Sections 7.3 through 7.6 of this SECTION 14Agreement, a majority of the disinterested members of the Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, conflict but in no event will the Issuer Fund be required to establish a new funding medium for any Contractthe Contracts. The Company shall not be required by this SECTION 14 Section 7.3 to establish a new funding medium for any Contract the Contracts if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Company will withdraw the Accounts investment in the Fund and terminate this Agreement within six (6) months after the Board informs the Company in writing of the foregoing determination, provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms and conditions materially different from those contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and conditions substantially identical to such Sections are contained in such Rule(s) as so amended or adopted.
Appears in 1 contract
Sources: Participation Agreement (First Penn Pacific Variable Life Insurance Separate Account)
Potential Conflicts. (a) The Company has received a copy of an application for exemptive relief, as amended, filed by the Issuer Distributor on December 21, 1987, with the SEC and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed the conditions to the requested relief set forth in such application for exemptive relief. relief As set forth in such application, the Board of Directors of the Issuer Funds (the "Board") will monitor the Issuer Funds for the existence of any material irreconcilable conflict between the interests of the contract owners of all separate accounts ("Participating Companies") investing in funds of the IssuerFunds. An irreconcilable material conflict may arise for a variety of reasons, including: (i) an action by any state insurance regulatory authority; (ii) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar actions by insurance, tax or securities regulatory authorities; (iii) an administrative or judicial decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio are being managed; (v) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to the Board. The Company will assist the Board in carrying out its responsibilities under the Shared Funding Exemptive Order by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by the Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members, determines that a material irreconcilable conflict exists with regard to contract owner investments in a Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflict, the Company shall at its sole cost and expense, and to the extent reasonably practicable (as determined by a majority of the disinterested Board members), take such action as is necessary to remedy or eliminate the irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the IssuerFunds, the Company at its sole cost, may be required, at the Board's election, to withdraw an Account's investment in the Issuer Funds and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 1411, a majority of the disinterested Board members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Issuer Funds be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 11 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority of the Contract owners materially adversely affected by the irreconcilable material conflict.
Appears in 1 contract
Sources: Fund Participation Agreement (Prudential Variable Contract Account Gi-2)
Potential Conflicts. (a) The Company has received If and during the time that the Trust engages in activities that require a copy of an application for exemptive relief, as amended, filed by the Issuer on December 21, 1987, with the SEC Mixed and the order issued by the SEC in response thereto (the "Shared Funding Exemptive Order"). The Company has reviewed , the parties shall comply with the conditions to the requested relief set forth in such application for exemptive relief. As set forth in such application, the this Article VII.
7.1 The Board of Directors of the Issuer (the "Board") will monitor the Issuer Trust for the existence of any material irreconcilable conflict (1) between the interests of the contract owners of all separate accounts variable annuity contracts and variable life insurance policies, and ("Participating Companies"2) investing between the interests of owners of Contracts issued by different participating life insurance companies that invest in funds of the IssuerTrust.
A. The Board shall promptly inform Hartford if it determines that a material irreconcilable conflict exists and the implications thereof. An A material irreconcilable material conflict may arise for a variety of reasons, including: (ia) an action by any state insurance regulatory authority; (iib) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative interpretive letter, or any similar actions action by insurance, tax tax, or securities regulatory authorities; (iiic) an administrative or judicial decision in any relevant proceeding; (ivd) the manner in which the investments of any portfolio Fund are being managed; (ve) a difference in voting instructions given by variable annuity contract owners and variable life insurance contract Contract owners; or (vif) disregard of a decision by an insurer to disregard the Contract owner's voting instructions of contract owners. The Board shall promptly inform the Company if it determines that an irreconcilable material conflict exists and the implications thereofinstructions.
(b) The Company 7.2 Hartford will report any potential or existing conflicts material irreconcilable conflict of which it is aware to the Board. The Company This includes, but is not limited to, an obligation by Hartford to inform the Board whenever Contract owner voting instructions are disregarded. Hartford will assist be responsible for assisting the Board in carrying out its responsibilities under the any Mixed and Shared Funding Exemptive Order Order, or. if the Trust is engaged in mixed funding or shared funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, Hartford will be responsible for assisting the Board in carrying out its responsibilities under such regulation, by providing the Board with access to all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by Hartford shall carry out its responsibility under this Article 7.2 with a view only to the Company to inform interests of the Board whenever contract owner voting instructions are disregardedContract owners.
(c) 7.3 If it is determined by a majority of the Trust's Board, or a majority of its disinterested Board membersIndependent Trustees, determines that a material irreconcilable conflict exists with regard due to contract owner investments in a Fundissues relating to the Contracts, the Board shall give prompt notice to all Participating Companies. If the Board determines that the Company is responsible for causing or creating said conflictHartford will, the Company shall at its sole cost and expense, expense and to the extent reasonably practicable (as determined by a majority of the disinterested Board members)practicable, take such action as is whatever steps it can which are necessary to remedy or eliminate the material irreconcilable material conflict. Such necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question , including, without limitation, withdrawal of whether such segregation should be implemented to a vote of all affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or
(ii) establishing a new registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to disregard its contract owner voting instructions and said decision represents a minority position or would preclude a majority vote by all of its contract owners having an interest in the Issuer, the Company at its sole cost, may be required, at the Board's election, to withdraw an Separate Account's investment in the Issuer Funds, No charge or penalty will be imposed as a result of such withdrawal.
7.4 Hartford and terminate this Agreement; providedthe Adviser, howeverat least annually, that such withdrawal and termination shall be limited will submit to the extent required Board such reports, materials or data as the Board may reasonably request so that the Board may fully carry out the obligations imposed upon them. All reports received by the foregoing material irreconcilable conflict as determined by Board of potential or existing conflicts, and all Board action with regard to determining the existence of a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 14conflict, a majority of the disinterested Board members shall determine and determining whether or not any proposed action adequately remedies any irreconcilable material a conflict, but shall be properly recorded in no event will the Issuer be required to establish a new funding medium for any Contract. The Company shall not be required by this SECTION 14 to establish a new funding medium for any Contract if an offer to do so has been declined by vote of a majority minutes of the Contract owners materially adversely affected by Board or other appropriate records, and such minutes or other records shall be made available to the irreconcilable material conflictSEC upon request.
Appears in 1 contract
Sources: Fund Participation Agreement (Talcott Resolution Life & Annuity Insurance Co Separate Account One)