PARTICIPATION AGREEMENT
Among
BRIGHTHOUSE FUNDS TRUST II,
BRIGHTHOUSE INVESTMENT ADVISERS, LLC,
BRIGHTHOUSE SECURITIES, LLC
And
GENERAL AMERICAN LIFE INSURANCE COMPANY
This AGREEMENT is made and entered into as of the 6th day of March, 2017, by
and among BRIGHTHOUSE FUNDS TRUST II, a statutory trust organized under the
laws of the State of Delaware (the "Fund"), GENERAL AMERICAN LIFE INSURANCE
COMPANY (the " Company") on its own behalf and on behalf of any current or
future separate accounts of the Company that invest in the Fund (each an
"Account"), BRIGHTHOUSE INVESTMENT ADVISERS, LLC (the "Adviser") and
BRIGHTHOUSE SECURITIES, LLC (the " Underwriter").
WHEREAS, the Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act") and its
shares are registered under the Securities Act of 1933, as amended (hereinafter
the "1933 Act"); and
WHEREAS, the Fund serves as an investment vehicle underlying variable life
insurance policies and variable annuity contracts (collectively, "Variable
Insurance Products") offered by insurance companies ("Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
portfolios of shares, each representing the interest in a particular managed
portfolio of securities and other assets; and
WHEREAS, the Fund has received an order from the Securities and Exchange
Commission ("SEC") granting Participating Insurance Companies and variable
annuity and variable life insurance separate accounts exemptions from certain
provisions of the 1940 Act and certain rules and regulations thereunder, to the
extent necessary to permit shares of the Fund to be sold to and held by both
variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated life insurance companies (hereinafter the "Shared
Funding Exemptive Order"); and
WHEREAS, the Adviser acts as the investment adviser to each portfolio of the
Fund and is registered as an investment adviser under the Investment Advisers
Act of 1940, as amended; and
WHEREAS, the Company has registered or will register certain variable life
and/or variable annuity contracts under the 1933 Act, if required; and
WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act, if required; and
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WHEREAS, the Underwriter is registered as a broker dealer with the SEC under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a
member in good standing of the Financial Industry Regulatory Authority
("FINRA"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of one or more portfolios
of the Fund (the "Portfolios") on behalf of each Account to fund certain
variable life and variable annuity contracts (each, a "Contract") and the
Underwriter is authorized to sell such shares to each Account at net asset
value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Adviser, the Fund and the Underwriter agree as follows:
1. Sale of Fund Shares.
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1.1 Subject to the terms of the Distribution Agreement in effect from time to
time between the Fund and the Underwriter, the Underwriter agrees to sell
to the Company those shares of each Portfolio which each Account orders,
executing such orders on a daily basis at the net asset value next
computed after receipt by the Fund or its designee of the order for the
shares of the Fund. For purposes of this Section 1.1 and Section 1.4, the
Company is the Fund's designee. "Business Day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Fund
calculates the net asset value of shares of the Portfolios. The Company
shall use commercially reasonable efforts to communicate notice of orders
for the purchase of Shares of each Portfolio to the Fund's custodian by
10:00 a.m. Eastern time on the following business day (the "Next Business
Day"), and the Company and the Fund shall each use commercially reasonable
efforts to wire (or cause to be wired) funds to the other, for the purpose
of settling net purchase orders or orders of redemption, by 3:00 p.m. of
the Next Business Day.
1.2 The Fund agrees to make its shares available for purchase at the
applicable net asset value per share by the Company and its Accounts on
those days on which the Fund calculates its net asset value. The Fund
agrees to use reasonable efforts to calculate such net asset value on each
day which the New York Stock Exchange is open for trading. Notwithstanding
the foregoing, the Board of Trustees of the Fund (hereinafter the "Board"
or the "Trustees") may refuse to sell shares of any Portfolio to any
person, or suspend or terminate the offering of shares of any Portfolio,
if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Trustees acting in good
faith and in light of their fiduciary duties under federal and any
applicable state laws, in the best interests of the shareholders of such
Portfolio.
1.3 The Fund and the Underwriter agree that shares of the Fund will be sold
only to Participating Insurance Companies and their separate accounts, or
to other purchasers of the kind specified in Treas. Reg. Section 1.817-5
(f)(3) (or any successor regulation) as from time to time in effect.
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1.4 The Fund agrees to redeem, on the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests
on a daily basis at the net asset value next computed after receipt by the
Fund or its designee of the request for redemption. The Company shall use
commercially reasonable efforts to communicate notice of orders for the
redemption of Shares of each Series to the Fund's custodian by 10:00 a.m.
Eastern time on the Next Business Day, and the Company and the Fund shall
each use commercially reasonable efforts to wire (or cause to be wired)
funds to the other, for the purpose of settling net purchase orders or
orders of redemption.
1.5 The Company agrees that all purchases and redemptions by it of the shares
of each Portfolio will be in accordance with the provisions of the then
current prospectus and statement of additional information of the Fund for
the respective Portfolio and in accordance with any procedures that the
Fund, the Underwriter or the Fund's transfer agent may have established
governing purchases and redemptions of shares of the Portfolio generally.
1.6 The Company shall pay for Fund shares on the Next Business Day after an
order to purchase Fund shares is made in accordance with the provisions of
Section 1.1. hereof. Payment shall be in federal funds transmitted by wire
to the Fund's custodian.
1.7 Issuance and transfer of the Funds' shares will be by book entry only.
Share certificates will not be issued. Shares ordered from the Fund will
be recorded on the transfer records of the Fund in an appropriate title
for each Account or the appropriate subaccount of each Account.
1.8 The Fund shall furnish same day notice (bye-mail, fax or telephone,
followed by written confirmation) to the Company of any income, dividends
or capital gain distributions payable on the shares of any Portfolio. The
Company hereby elects to receive all such income dividends and capital
gain distributions as are payable on the Portfolio shares in additional
shares of that Portfolio. The Company reserves the right to revoke this
election and to receive all such income dividends and capital gain
distributions in cash. The Fund shall notify the Company of the number of
shares so issued as payment of such dividends and distributions.
1.9 The Fund shall make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical
after the net asset value per share is calculated and shall use its best
efforts to make such net asset value per share available by 7:00 p.m.
Eastern time. The Fund shall furnish the Company's daily share balance to
the Company as soon as reasonably practicable.
2. Representations and Warranties.
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2.1 The Company represents and warrants that each Contract shall be either
(i) registered, or prior to the purchase of shares of any Portfolio in
connection with the funding of such Contract, will be registered under the
1933 Act or (ii) exempt from such registration; that
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the Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws, including all
applicable customer suitability requirements. The Company further
represents and warrants that it is an insurance company duly organized and
in good standing under applicable law and that it has legally and validly
established each Account as a separate account pursuant to relevant state
insurance law prior to any issuance or sale of any Contract by such
Account and that each Account shall be either (i) registered or, prior to
any issuance or sale of the Contracts, will register each Account as a
unit investment trust in accordance with the provisions of the 1940 Act;
or (ii) exempt from such registration.
2.2 The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the State of Delaware and
all applicable federal and state securities laws and that the Fund is and
shall remain registered under the 1940 Act. The Fund agrees that it will
amend the registration statement for its shares under the 1933 Act and the
1940 Act from time to time as required in order to permit the continuous
public offering of its shares in accordance with the 1933 Act. The Fund
shall register and qualify the shares for sale in accordance with the laws
of the various states only if and to the extent deemed advisable by the
Fund or the Underwriter.
2.3 The Fund represents that each Portfolio is currently qualified or will
elect to qualify as a "regulated investment company" under subchapter M of
the Internal Revenue Code of 1986, as amended, (the "Code") and agrees
that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) and that it will
notify the Company promptly upon having a reasonable basis for believing
that it has ceased to so qualify or that it might not so qualify in the
future.
2.4 Subject to Section 6.1, the Company represents that the Contracts are
currently treated as endowment, annuity or life insurance contracts under
applicable provisions of the Code and agrees that it will make every
effort to maintain such treatment and that it will notify the Fund and the
Underwriter immediately upon having a reasonable basis for believing that
the Contracts have ceased to be so treated or that they might not be so
treated in the future.
2.5 The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or regulations of
the various states.
2.6 The Underwriter represents and warrants that it is a member in good
standing of FINRA and is registered as a broker-dealer with the SEC.
2.7 The Underwriter further represents that it will sell and distribute the
Fund shares in accordance with all applicable state and federal securities
laws, including without limitation the 1933 Act, the 1934 Act and the 1940
Act.
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2.8 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply
in all material respects with the 1940 Act.
2.9 Each of the Fund, the Adviser and the Underwriter represent and warrant
that all of their directors, officers and employees dealing with the money
and/or securities of the Fund are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage in an amount, in
the case of the Adviser and the Underwriter, of not less than $5,000,000
and, in the case of the Fund, not less than the minimal coverage as
required by Rule 17g-1 under the 1940 Act or any successor regulations as
may be promulgated from time to time. Each aforesaid bond shall include
coverage for larceny and embezzlement of Fund assets and shall be issued
by a reputable bonding company.
2.10 The Company represents and warrants that all of its directors, officers,
employees and other individuals/entities dealing with the money and/or
securities representing amounts intended for the purchase of shares of the
Fund or proceeds of the redemption of shares of the Fund are and shall
continue to be at all times covered by a blanket fidelity bond or similar
coverage in an amount not less than $5,000,000. The aforesaid Bond shall
include coverage for larceny and embezzlement of Fund assets and shall be
issued by a reputable bonding company.
2.11 The Company represents and warrants that it will not, without the prior
written consent of the Fund and the Adviser, purchase Fund shares with
Account assets derived from the sale of Contracts to individuals or
entities which would cause the investment policies of any Portfolio to be
subject to any limitations not in the Fund's then current prospectus or
statement of additional information with respect to any Portfolio.
2.12 The Fund and the Adviser each represents and warrants that the Summary
Prospectuses, as defined in Rule 498 of the 1933 Act ("Rule 498"), and the
hosting of such Summary Prospectuses will comply with the requirements of
Rule 498 applicable to the Fund and its Portfolio. The Fund further
represents and warrants that it has appropriate policies and procedures in
place to ensure that such website continuously complies with Rule 498.
2.13 The Fund and the Adviser represent and warrant that they will be
responsible for compliance with the provisions of Rule 498(f)(i) involving
Contract owner requests for additional Fund documents made directly to the
Fund, the Adviser or one of their affiliates. The Fund and the Adviser
further represent and warrant that any information obtained about Contract
owners will be used solely for the purposes of responding to requests for
additional Fund documents.
2.14 The Company represents and warrants that it will respond to requests for
additional Fund documents made by Contract owners directly to the Company
or one of its affiliates.
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2.15 The Company represents and warrants that any bundling of Summary
Prospectuses and Statutory Prospectuses, as defined in Rule 498, will be
done in compliance with Rule 498.
2.16 The Fund and the Adviser represent and warrant that they have reasonable
safeguards in place to prevent the documents contained on the web page,
and the documents provided to the Company for purposes of electronic
delivery, from containing any virus.
3. Prospectuses and Proxy Statements; Voting.
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3.1 Unless otherwise noted, any reference to a "prospectus" shall mean any
Statutory Prospectus and Summary Prospectus and any amendments or
supplements thereto filed with the SEC.
3.2 The Underwriter (or the Fund) shall provide the Company with as many
copies of the Fund's current prospectus as the Company may reasonably
request (at the Company's expense with respect to other than existing
Contract owners). If requested by the Company in lieu thereof, the
Underwriter (or the Fund) shall provide such documentation (including a
final copy of the new prospectus as set in type at the Fund's expense) and
other assistance as is reasonably necessary in order for the Company once
each year (or more frequently if the prospectus for the Fund is amended)
to have the prospectus for the Contracts and the Fund's prospectus printed
together in one document (such printing to be at the Company's expense
with respect to other than existing Contract owners).
3.3 The Fund and the Adviser each agrees that the URL indicated on each
Summary Prospectus wi11lead Contract owners directly to the web page used
for hosting Summary Prospectuses, that such web page will contain the
current Fund documents required to be posted in compliance with Rule 498,
and that such web page will not contain any additional materials not
required by Rule 498. The Fund shall immediately notify the Company of any
unexpected interruptions in the availability of this web page.
3.4 At the Company's request, the Fund and the Adviser will provide the
Company with URLs to the Fund's current documents for use with Company's
electronic delivery of Fund documents or on the Company's website. The
Fund and the Adviser will be responsible for ensuring the integrity of the
URLs and for maintaining the Fund's current documents on the site to which
such URLs originally navigate to.
3.5 If the Fund determines that it will end its use of the Summary Prospectus
delivery option, the Fund and the Adviser will provide the Company with at
least 60 days' advance notice of its intent.
3.6 The parties agree that the Company is not required to distribute Summary
Prospectuses to its Contract owners, but rather use of the Summary
Prospectus will be at the discretion of the Company. The Company agrees
that it will give the Fund and the Adviser sufficient notice of its
intended use of the Summary Prospectuses or the Statutory Prospectus.
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3.7 The Underwriter (or the Fund), at its expense, shall print and provide the
Fund's then current statement of additional information free of charge to
the Company and to any owner of a Contract or prospective owner who
requests such statement.
3.8 The Fund, at its expense, shall provide the Company with copies of its
proxy material, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably require for
distribution (at the Fund's expense) to Contract owners.
3.9 So long as and to the extent that the SEC or its staff continues to
interpret the 1940 Act to require pass-through voting privileges for
variable contract owners, or if and to the extent required by law, the
Company shall: (i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with instructions received from
Contract owners; and (iii) vote Fund shares for which no instructions have
been received in the same proportion as Fund shares of such Portfolio for
which instructions have been received. The Company reserves the right to
vote Fund shares held in any Account in its own right, to the extent
permitted by law. The Company shall be responsible for assuring that with
respect to each Account participating in the Fund, all shares of each
Portfolio attributable to policies and contracts for which no owner
instructions have been received by the Company and all shares of the
Portfolio attributable to charges assessed by the Company against such
policies and contracts will be voted for, voted against, or withheld from
voting on any proposal in the same proportions as are the shares for which
owner instructions have been received by the Company with respect to
policies or contracts issued by such Account. To the extent the Company
has so agreed with respect to an Account not registered with the SEC under
the 1940 Act, all shares of each Portfolio held by the Account will be
voted for, voted against or withheld from voting on any proposal in the
same proportions as are the shares of such Portfolio for which contract
owners' voting instructions have been received. If the Company has not so
agreed, the shares of each Portfolio attributable to such unregistered
Account will be voted for, voted against, or withheld from voting on any
proposal in the same proportions as are all other shares for which the
Company has received voting instructions. Such foregoing standards will
also be applied to the other Participating Insurance Companies. The Fund
shall pay for the costs of soliciting and tabulating such voting
instructions.
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4. Sales Material and Information.
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4.1 The Company shall be solely responsible for sales literature or other
promotional material, in which the Fund, a Portfolio, the Adviser, any
subadviser to any Portfolio, or the Underwriter (in its capacity as
distributor of the Fund) is named, the substance of which is contained in
the then current prospectus or statement of additional information of the
Fund. Other sales literature or other promotional material may also be
used by the Company if such sales literature or other promotional material
(or the substance thereof) has been previously approved by the Fund or its
designee. All other sales literature or other promotional material shall
not be used by the Company until it has been approved by the Fund or its
designee. The Company shall deliver such draft sales literature or other
promotional material to the Fund or its designee at least thirty Business
Days prior to its use. The Fund or such designee shall use commercially
reasonable efforts to review sales literature so delivered within ten days.
4.2 The Company shall not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement, prospectus or statement of
additional information for the Fund shares, as such registration statement
and prospectus or statement of additional information may be amended or
supplemented from time to time, or in reports or proxy statements for the
Fund, or in sales literature or other promotional material approved by the
Fund or its designee or by the Underwriter, except with the approval of
the Fund or the Underwriter or the designee of either.
4.3 The obligations set forth in Section 4.1 herein shall apply mutatis
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mutandis to the Fund and the Underwriter with respect to each piece of
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sales literature or other promotional material in which the Company and/or
any Account is named.
4.4 The Fund and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, any
Account or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as
such registration statement and prospectus may be amended or supplemented
from time to time, or in published reports for each Account which are in
the public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other promotional material approved by
the Company or its designee, except with the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, shareholder annual, semi-annual or other reports, proxy
statements, applications for exemptions, requests for no-action letters
and any amendments to any of the above, that relate to any Portfolio,
promptly after the filing of each such document with the SEC or any other
regulatory authority.
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4.6 The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional
information, shareholder annual, semi-annual or other reports,
solicitations for voting instructions, applications for exemptions,
requests for no-action letters and any amendments to any of the above,
that relate to the Contracts or any Account, promptly after the filing of
such document with the SEC or any other regulatory authority. Each party
hereto will provide to each other party, to the extent it is relevant to
the Contracts or the Fund, a copy of any comment letter received from the
staff of the SEC or FINRA, and the Company's response thereto, following
any examination or inspection by the staff of the SEC or FINRA.
4.7 As used herein, the phrase "sales literature or other promotional
material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures or other public
media), sales literature (i.e., any written communication distributed or
made generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts,
reprints or excerpts of any other advertisement, sales literature or
published article), educational or training materials or other
communications distributed or made generally available to some or all
agents or employees.
5. Fees and Expenses.
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5.1 The Fund, the Adviser and the Underwriter shall pay no fee or other
compensation to the Company under this agreement, except that if the Fund
or any Portfolio adopts and implements a plan pursuant to Rule 12b-l to
finance distribution expenses or to provide personal account services to
the owners of the Contracts, then the Fund may make payments to the
Company or to the Underwriter. Each party acknowledges that the Adviser
may pay service or administrative fees to the Company and other
Participating Insurance Companies pursuant to separate agreements.
6. Diversification.
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6.1 The Fund will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund will at all times comply
with Section 817(h) of the Code and any Treasury Regulations thereunder
relating to the diversification requirements for variable annuity,
endowment or life insurance contracts, as from time to time in effect.
7. Potential Conflicts.
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7.1 To the extent required by the Shared Funding Exemptive Order or by
applicable law, the Board of Trustees of the Fund (the "Board") will
monitor the Fund for the existence of any material irreconcilable conflict
between the interests of the contract owners of all separate accounts
investing in the Fund. An irreconcilable material conflict may arise for
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a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) 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
action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are being managed; (e) a
difference in voting instructions given by variable annuity contract and
variable life insurance contract owners; or (f) a decision by an insurer
to disregard the voting instructions of contract owners. The Fund shall
promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
7.2 The Company will report to the Board any potential or existing conflicts
between the interests of contract owners of different separate accounts of
which the Company is or becomes aware. The 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
raised. This includes, but is not limited to, an obligation of the Company
to inform the Board whenever contract owner voting instructions are
disregarded.
7.3 If it is determined by a majority of the Board, or a majority of its
disinterested trustees, that a material irreconcilable conflict exists,
the Company and other Participating Insurance Companies shall, at their
expense take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, which steps could include:
(1) 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, 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, 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 (2) establishing a
new registered management investment company or managed separate account.
7.4 If a material irreconcilable conflict arises because of a decision by the
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 Fund's election, to withdraw the relevant
Account's investment in the Fund and terminate this Agreement; provided,
however, that such withdrawal and termination shall be limited to the
extent required by such material irreconcilable conflict as determined by
a majority of the disinterested members of the Board. Any such withdrawal
and termination will take place within six (6) months after the Fund gives
written notice that this provision is being implemented.
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,
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then the Company will withdraw the affected Account's investment in the
Fund and terminate this Agreement 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
such material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict,
but in no event will the Fund be required to establish a new funding
medium for the Contracts. The Company shall not be required by Section 7.3
to establish a new funding medium for the Contracts if an offer to do so
has been declined by vote of a majority of 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) under the 1940 Act
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 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 3.9, 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.
8. Indemnification.
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8.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund and each of
its Trustees and officers and each person, if any, who controls the Fund
within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or litigation
(including legal and other expenses), to which the Indemnified Parties may
become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale
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or acquisition of the Fund's shares or the Contracts and: (i) arise out of
or are based upon any untrue statements or alleged untrue statements of
any material fact contained in the registration statement or prospectus or
statement of additional information (if applicable) for the Contracts or
contained in the Contracts or sales literature or other promotional
material for the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that
this agreement to indemnify shall not apply as to any Indemnified Party if
such statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished to the
Company by or on behalf of the Fund for use in the registration statement
or prospectus or statement of additional information (if applicable) for
the Contracts or in the Contracts or sales literature or other promotional
material (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or (ii) arise
out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus or statement of additional information (if applicable) or sales
literature or other promotional material of the Fund not supplied by the
Company, or persons under its control) or wrongful conduct of the Company
or persons under its control, with respect to the sale or distribution of
the Contracts or Fund Shares; or (iii) arise out of any untrue statement
or alleged untrue statement of a material fact contained in any
registration statement, prospectus or statement of additional information
(if applicable) or sales literature or other promotional material of the
Fund or any amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading if such
a statement or omission was made in reliance upon information furnished to
the Fund by or on behalf of the Company; or (iv) arise as a result of any
failure by the Company to provide the services and furnish the materials
under the terms of this Agreement; or (v) arise out of or result from any
material breach of any representation and/or warranty made by the Company
in this Agreement or arise out of or result from any other material breach
of this Agreement by the Company, as limited by and in accordance with the
provisions of Section 8.1 (b) and 8.1 (c) hereof.
(b) The Company shall not be liable under this Section 8.1 with respect to
any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject if such loss, claim, damage,
liability or litigation is caused by or arises out of such Indemnified
Party's willful misfeasance, bad faith or gross negligence or by reason of
such Indemnified Party's reckless disregard of obligations or duties under
this Agreement or to the Fund, whichever is applicable.
(c) Each Indemnified Party shall notify the Company of any claim made
against an Indemnified Party in writing within a reasonable time after the
summons or other first legal process giving information of the nature of
the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Company of any such claim
shall not relieve the Company from any liability which it may have to the
12
Indemnified Party against whom such action is brought under this
indemnification provision unless the Company's ability to defend against
the claim shall have been materially prejudiced by the Indemnified Party's
failure to give such notice and shall not in any way relieve the Company
from any liability which it may have to the Indemnified Party against whom
the action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against one or more
Indemnified Parties, the Company shall be entitled to participate, at its
own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to each
Indemnified Party named in the action. After notice from the Company to
such party of the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and the Company will not be liable to such party
under this Agreement for any legal or other expenses subsequently incurred
by such party independently in connection with the defense thereof other
than reasonable costs of investigation. An Indemnified Party shall not
settle any claim involving a remedy other than monetary damages without
the prior written consent of the Company.
(d) The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Fund Shares or the Contracts or the
operation of the Fund.
8.2 Indemnification by the Adviser and the Underwriter
(a) The Adviser and the Underwriter agree to indemnify and hold harmless
the Company and each of its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Adviser and the Underwriter) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements are related to the sale or acquisition of the Fund's shares
or the Contracts and: (i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the registration statement, prospectus or statement of additional
information, or sales literature or other promotional material of the Fund
(or any amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Adviser, the
Underwriter, or Fund by or on behalf of the Company for use in the
registration statement, prospectus or statement of additional information
for the Fund or in sales literature or other promotional material (or any
amendment or supplement) or otherwise for use in connection with the sale
of the Contracts or Fund shares; or (ii) arise out of or as a result of
statements or representations
13
(other than statements or representations contained in the registration
statement, prospectus or statement of additional information or sales
literature or other promotional material for the Contracts not supplied by
the Adviser, the Underwriter or the Fund or persons under their control)
or wrongful conduct of the Adviser, the Underwriter or the Fund or persons
under their control, with respect to the sale or distribution of the
Contracts or Fund Shares; or (iii) arise out of any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement, prospectus or statement of additional information or sales
literature or other promotional material covering the Contracts, or any
amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such statement
or omission was made in reliance upon information furnished to the Company
by or on behalf of the Adviser, the Underwriter, or the Fund; or
(iv) arise as a result of any failure by the Adviser, the Underwriter or
the Fund to provide the services and furnish the materials under the terms
of this Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification requirements
specified in Section 6 of this Agreement); or (v) arise out of or result
from any material breach of any representation and/or warranty made by the
Adviser, the Underwriter, or the Fund in this Agreement or arise out of or
result from any other material breach of this Agreement by the Adviser,
the Underwriter, or the Fund; as limited by and in accordance with the
provisions of Sections 8.2(b) and 8.2(c) hereof.
(b) Neither the Adviser nor the Underwriter shall be liable under this
Section 8.2 with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject if
such loss, claim, damage, liability or litigation is caused by or arises
out of such Indemnified Party's willful misfeasance, bad faith or gross
negligence or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to the Company or each
Account, whichever is applicable.
(c) Each Indemnified Party shall notify each of the Adviser, the
Underwriter, and the Fund of any claim made against the Indemnified Party
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure to
notify each of the Adviser, the Underwriter, and the Fund of any such
claim shall not relieve the Adviser or the Underwriter from any liability
which it may have to the Indemnified Party against whom such action is
brought under this indemnification provision unless the Adviser or the
Underwriter's ability to defend against the claim shall have been
materially prejudiced by the Indemnified Party's failure to give such
notice and shall not in any way relieve the Adviser or the Underwriter
from any liability which it may have to the Indemnified Party against whom
the action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against one or more
Indemnified Parties, the Adviser and the Underwriter will be entitled to
participate, at their own expense, in the defense thereof. The Adviser
and/or the Underwriter shall be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action. After notice
14
from the Adviser and/or the Underwriter to such party of the election of
the Adviser and/or the Underwriter to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and the Adviser and/or the Underwriter will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation. An
Indemnified Party shall not settle any claim involving any remedy other
than monetary damages without the prior written consent of the Adviser
and/or the Underwriter.
(d) The Company agrees promptly to notify the Adviser, the Underwriter and
the Fund of the commencement of any litigation or proceedings against it
or any of its officers or directors in connection with the issuance or
sale of the Contracts or the operation of each Account.
9. Applicable Law.
--------------
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware.
9.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may
grant (including, but not limited to, the Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance
therewith.
10. Termination.
-----------
10.1 This Agreement shall terminate:
(a) at the option of any party upon 180 days' advance written notice to
the other parties; provided, however, that such notice shall not be given
earlier than one year following the date of this Agreement; or
(b) at the option of the Company to the extent that shares of a Portfolio
are not reasonably available to meet the requirements of the Contracts as
determined by the Company, provided however, that such termination shall
apply only to those Portfolios the shares of which are not reasonably
available. Prompt notice of the election to terminate for such cause shall
be furnished by the Company; or
(c) at the option of the Fund in the event that formal administrative
proceedings are instituted against the Company by FINRA, the SEC, any
state insurance department or commissioner or similar insurance regulator
or any other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, with respect to the
operation of any Account or the purchase by any Account of Fund shares,
provided, however, that the Fund determines in its sole judgment,
exercised in good faith,
15
that any such administrative proceedings will have a material adverse
effect upon the ability of the Company to perform its obligations under
this Agreement; or
(d) at the option of the Company in the event that formal administrative
proceedings are instituted against the Fund, the Adviser or the
Underwriter by FINRA, the SEC or any state securities or insurance
department or commissioner or any other regulatory body, provided,
however, that the Company determines in its sole judgment exercised in
good faith, that any such administrative proceedings will have a material
adverse effect upon the ability of the Fund, the Adviser or the
Underwriter to perform its obligations under this Agreement; or
(e) with respect to any Account, upon requisite authority (by vote of the
Contract owners having an interest in such Account or any subaccount
thereof, or otherwise) to substitute the shares of another investment
company (or separate Portfolio thereof) for the shares of any Portfolio in
accordance with the terms of the Contracts for which shares of that
Portfolio had been selected to serve as the underlying investment medium.
The Company will give 90 days' prior written notice to the Fund of the
date of any proposed vote to replace the Fund's shares or of the filing by
the Company with the SEC of any application relating to any such
substitution; or
(f) at the option of the Company, in the event any shares of any Portfolio
are not registered, issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such shares as the
underlying investment medium of the Contracts issued or to be issued by
the Company; or
(g) at the option of the Company, if any Portfolio ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably believes that
any Portfolio may fail to so qualify; or
(h) at the option of the Company, if the Fund fails to meet the
diversification requirements specified in Section 6 hereof; or
(i) at the option of the Fund, the Adviser or the Underwriter, if (1) the
Fund, the Adviser or the Underwriter, as the case may be, shall determine,
in its sole judgment reasonably exercised in good faith, that the Company
has suffered a material adverse change in its business or financial
condition or is the subject of material adverse publicity and such
material adverse change or material adverse publicity will have a material
adverse impact on the business and operations of the Fund, the Adviser or
the Underwriter, as the case may be, (2) the Fund, the Adviser or the
Underwriter shall notify the Company in writing of such determination and
its intent to terminate this Agreement, and (3) after considering the
actions taken by the Company and any other changes in circumstances since
the giving of such notice, such determination of the Fund, the Adviser or
the Underwriter shall continue to apply on the sixtieth (60th) day
following the giving of such notice, which sixtieth day shall be the
effective date of termination; or
16
(j) at the option of the Company, if (1) the Company shall determine, in
its sole judgment reasonably exercised in good faith, that the Fund, the
Adviser or the Underwriter has suffered a material adverse change in its
business or financial condition or is the subject of material adverse
publicity and such material adverse change or material adverse publicity
will have a material adverse impact upon the business and operations of
the Company, (2) the Company shall notify the Fund, the Adviser and the
Underwriter in writing of such determination and its intent to terminate
the Agreement, and (3) after considering the actions taken by the Fund,
the Adviser and/or the Underwriter and any other changes in circumstances
since the giving of such notice, such determination shall continue to
apply on the sixtieth (60th) day following the giving of such notice,
which sixtieth day shall be the effective date of termination; or
(k) in the case of an Account not registered under the 1933 Act or 1940
Act, the Company shall give the Fund 90 days' prior written notice if the
Company chooses to cease using any Portfolio as an investment vehicle for
such Account.
It is understood and agreed that the right of any party hereto to terminate
this Agreement pursuant to Section 10.1 (a) may be exercised for any reason or
for no reason.
10.2 Notice Requirement. No termination of this Agreement shall be effective
unless and until the party terminating this Agreement gives prior written
notice to all other parties to this Agreement of its intent to terminate
which notice shall set forth the basis for such termination. Furthermore,
in the event that any termination is based upon the provisions of
Section 7, or the provision of Section 10.l(a), 10.1(i) or 10.1(j) of this
Agreement, such prior written notice shall be given in advance of the
effective date of termination as required by such provisions; and
10.3 In the event that any termination is based upon the provisions of
Section 10.1 (c) or 10.1 (d) of this Agreement, such prior written notice
shall be given at least ninety (90) days before the effective date of
termination.
10.4 Effect of Termination. Notwithstanding any termination of this Agreement,
the Fund and the Underwriter shall, at the option of the Company, continue
to make available additional shares of each Portfolio pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to
as "Existing Contracts"). Specifically, without limitation, the owners of
the Existing Contracts shall be permitted to reallocate investments in the
Fund, redeem investments in the Fund and/or invest in the Fund upon the
making of additional purchase payments under the Existing Contracts. The
parties agree that this Section 10.4 shall not apply to any terminations
under Section 10.1 (b) or Section 7, and in the case of terminations under
Section 7 terminations, the effect of such terminations shall be governed
by Section 7 of this Agreement.
17
11. Notices.
-------
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify
in writing to the other party.
If to the Fund or to the Adviser:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
If to the Company:
c/o MetLife
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Law Department
If to the Underwriter:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Miscellaneous.
-------------
12.1 A copy of the Agreement and Declaration of Trust establishing the Met
Investors Series Trust (renamed Brighthouse Funds Trust II) is on file
with the Secretary of the State of Delaware, and notice is hereby given
that this Agreement is executed on behalf of the Fund by officers of the
Fund as officers and not individually and that the obligations of or
arising out of this Agreement are not binding upon any of the trustees,
officers or shareholders of the Fund individually but are binding only
upon the assets and property belonging to the Portfolio.
12.2 Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of
the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted
by this Agreement, shall not disclose, disseminate or utilize such names
and addresses and other confidential information until such time as it may
come into the public domain without the express written consent of the
affected party.
12.3 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
18
12.4 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
12.5 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
SEC, FINRA and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with
any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
12.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
12.8 At the request of any party to this Agreement and no less than annually,
each other party will make available to the requesting party's Board,
independent auditors and/or representatives of the appropriate regulatory
agencies, all records, reports, materials, data, and access to operating
procedures that may be reasonably requested in connection with compliance
and regulatory requirements related to this Agreement or any party's
obligations under this Agreement.
SIGNATURES APPEAR ON THE FOLLOWING PAGE.
19
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
as of the date first set forth above.
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. Model
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. Model
Title: Vice President
BRIGHTHOUSE FUNDS TRUST II
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
BRIGHTHOUSE INVESTMENT ADVISERS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
BRIGHTHOUSE SECURITIES, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
20