AMENDMENT TO PARTICIPATION AGREEMENT
This AMENDMENT is entered into as of May 1, 2010, by and among XXXXXXX
FINANCIAL SERVICES, INC., formerly XXXXXXX FUND DISTRIBTORS, INC.,
("Distributor"), a Washington corporation, the principal underwriter for XXXXXXX
INVESTMENT FUNDS, formerly XXXXXXX INSURANCE FUNDS ("Trust"), a Massachusetts
Business Trust, and FIRST METLIFE INVESTORS INSURANCE COMPANY ("Company"), a New
York corporation.
WHEREAS, Company, pursuant to a Participation Agreement (as defined
below), purchases Shares of certain Funds of the Trust on behalf of its Separate
Accounts to fund certain variable life insurance and/or variable annuity
contracts issued by Company ("Contracts"); and
WHEREAS, Distributor, Trust, and Company (each a "Party" and, together,
the "Parties") seek to enter into this Amendment to make changes to the
Participation Agreement in order to permit the Parties to deliver the Trust's
summary prospectuses pursuant to the requirements of Rule 498 ("Rule 498") under
the Securities Act of 1933, as amended (the "1933 Act").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, which consideration is full and complete, Distributor, Trust, and
Company hereby agree as follows:
1. DEFINITIONS. Unless otherwise noted, terms used in this Amendment shall
have the same meaning as in the Participation Agreement. For purposes of
this Amendment:
a. The term "Fund" shall mean any series of beneficial interest of
the Trust.
b. The term "Fund Documents" shall mean those documents prepared by
the Fund that, pursuant to Rule 498, must be publicly
accessible, free of charge, at the Web site address specified on
the cover page or at the beginning of the Summary Prospectus.
Fund Documents includes the Fund's current Summary Prospectus,
Statutory Prospectus, Statement of Additional Information, and
most recent annual and semi-annual reports to shareholders under
Rule 30e-l of the Investment Company Act of 1940 (the "1940
Act").
c. The term "Fund Documents Web Site" shall mean the Web site
maintained by the Trust or its agent where Contract Owners and
prospective Contract Owners may access the Fund Documents in
compliance with Rule 498.
d. The term "Participation Agreement" shall mean the agreement
entered into on May 1, 2000, by and among the Trust,
Distributor, and First Cova Life Insurance Company , and the
agreement entered into on January 1, 1997, by and among the
Trust, Distributor and Cova Life Insurance Company, both
agreements assumed by the Company, as amended, as well as any
future amendments thereto.
e. The term "Statutory Prospectus" shall mean a prospectus that
satisfies the requirements of section 10(a) of the 0000 Xxx.
f. The term "Summary Prospectus" shall mean a prospectus described
in paragraph (b) of Rule 498.
g. The term "Applicable Law" shall mean the Federal Securities Laws
as defined in Rule 38a-l(e)(l) under the 1940 Act, any rules
promulgated under such Federal Securities Laws, and any
applicable guidance received from the SEC or from the staff of
the SEC (the "SEC Staff") thereunder. As used herein, the phrase
"any applicable guidance received from the SEC or from the SEC
Staff thereunder" shall refer only to published no-action
relief, interpretative guidance, exemptive orders or final
rulemaking guidance, but shall specifically exclude oral
statements, speeches or informal guidance that may be provided
by the SEC or the SEC Staff from time to time. The term
"Applicable Law" also includes any state laws, rules and
regulations that may apply to this Amendment.
2. USE OF SUMMARY PROSPECTUS.
a. The Company may not alter any material provided by the Trust or
the Distributor pursuant to this Section without the prior
written consent of the Trust or the Distributor.
b. Except as provided below in this Section 2.b., the Company shall
deliver (or arrange for delivery of) a Summary Prospectus for
each Fund in compliance with Rule 498, including but not limited
to the greater prominence provisions, and allocation of expenses
for delivery shall be under the same terms and circumstances
agreed to in the Participation Agreement. The Company, in its
sole discretion, reserves the right to deliver the Statutory
Prospectus in place of the Summary Prospectus; provided,
however, the Company shall be responsible for any additional
costs of printing and delivering a Statutory Prospectus instead
of a Summary Prospectus.
c. The Company may, in its sole discretion, bind or bundle together
the Summary Prospectuses or Statutory Prospectuses for the Funds
with Summary Prospectuses and Statutory Prospectuses for other
investment options under the Contract and the Contract
Prospectus(es) (all together, "Bound Volume") as long as such
binding or bundling is done in compliance with Applicable Law,
including Rule 498 and any applicable guidance received from the
SEC or from the SEC Staff thereunder. If a Summary Prospectus is
delivered, this provision shall supersede applicable provisions
in the Participation Agreement regarding bundling of
prospectuses.
d. The Company shall be permitted, but not required, in its sole
discretion, to post a copy of the Trust's Statutory Prospectuses
and/or Summary Prospectuses on the Company's Web site.
e. The Trust shall maintain the Fund Documents Web Site in
compliance with the applicable requirements of Rule 498.
f. Any web site address provided in the Summary Prospectus shall be
specific enough to lead Contract Owners or prospective Contract
Owners directly and exclusively to the Fund Documents that are
dedicated for use by the Company's Contract Owners and the Fund
Documents Web Site shall not furnish a hyperlink to any other
web site address unrelated to the Fund Documents.
g. If at any point the Trust determines that it no longer wishes to
utilize the Summary Prospectus delivery option, the Trust must
provide the Company with at least sixty (60) days advance
written notice of this intent so that the Company can arrange to
deliver a Statutory Prospectus in place of a Summary Prospectus
in compliance with this Amendment, and to reprint any Bound
Volume required to be delivered. After the termination of any
notice period provided to the Company pursuant to this
paragraph, the Trust shall continue to maintain the Fund
Documents Web Site in compliance with the requirements of this
Amendment and Rule 498 for a minimum of 90 days, in order to
comply with Rule 498(e)(1); provided, however, upon expiration
of such 90-day period, the Trust may discontinue maintenance of
the Fund Documents Web Site and will be released from all
related obligations regarding the Fund Documents Website
described herein. In the event the Company desires to maintain
the Fund Documents Web Site going forward, the Trust and the
Company shall enter into a written agreement specifying the
terms of such arrangement.
3. RESPONSE TO REQUESTS FOR ADDITIONAL FUND DOCUMENTS. The Trust and
Underwriter will be responsible for compliance with the provisions of
Rule 498(f)(1) regarding Contract Owner requests for additional Fund
Documents and shall respond to the requests with the most recent Trust
documents, including any appropriate supplements.
4. REPRESENTATIONS AND WARRANTIES.
a. The Trust and the Distributor represent and warrant the
following as of the date hereof and for as long as this
Amendment is in effect and valid:
i. Each shall comply with the requirements of Rule 498 and
applicable guidance received from the SEC or from the SEC
Staff thereunder in connection with the offer and sale of
Fund Shares as specified and delegated in this Amendment.
ii. Any Summary Prospectus provided by the Trust to the
Company pursuant to this Amendment and the hosting of such
Summary Prospectuses on the Fund Documents Website shall
comply with the requirements of Rule 498 and applicable
guidance received from the SEC or from the SEC Staff
thereunder.
iii. The Trust or Distributor will notify the Company of any
unexpected interruptions in the availability of the Fund
Documents Web Site that result in material non-compliance
with Rule 498 promptly upon discovery of the interruption.
iv. Any information about Contract owners obtained in the
course of the Trust fulfilling its obligations under Rule
498 and this Amendment will be used solely for the
purposes of: (1) responding to requests for additional
Fund Documents, and (2) to allow the Trust to monitor its
compliance with Rule 498 or any other purposes associated
with compliance under Rule 498 or applicable law or
regulation.
b. The Trust represents and warrants the following as of the date
hereof and for as long as this Amendment is in effect and valid:
i. The Trust has reasonable policies and procedures in place
designed to ensure compliance with the applicable
provisions of Rule 498 and fulfillment of its obligations
under this Amendment.
ii. In connection with the Fund Documents Web Site and the
documents contained thereon, the Trust agrees to use or to
arrange for the use of commercially reasonable efforts to
employ procedures consistent with industry practices
designed to reduce exposure to viruses.
c. The Company represents and warrants the following as of the date
hereof and for as long as this Amendment is in effect and valid:
i. It shall comply with the requirements of Rule 498 and
applicable guidance received from the SEC or from the SEC
Staff thereunder in connection with the binding, bundling
and delivery of the Summary Prospectuses for the Funds and
any other duties or obligations assumed in this Amendment.
ii. It has reasonable policies and procedures in place to
ensure that it can appropriately meet its obligations
under this Amendment.
5. INDEMNIFICATION. The parties agree that the indemnification provisions
in the Participation Agreement will apply to the terms of this
Amendment, as applicable.
6. TERM AND TERMINATION.
a. This Amendment shall become effective as of the date written
above and shall remain in effect unless specifically terminated
as provided below.
b. This Amendment may be terminated at any time, without the
payment of any penalty, by mutual agreement of the parties in
writing. This Amendment will terminate automatically upon the
termination of the Participation Agreement.
7. RULES OF CONSTRUCTION. The parties agree that all other provisions of
the Participation Agreement will apply to the terms of this Amendment,
as applicable. To the extent the terms of this Amendment conflict with
the terms of the Participation Agreement, the terms of this Amendment
shall control. This Amendment shall not be construed as amending any of
the terms and conditions in any administrative services agreement, 12b-1
agreement or related agreement, Shareholder Servicing Agreement or other
similar agreement between the Parties.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Amendment
to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date first
set forth above.
ATTEST: XXXXXXX FINANCIAL SERVICES, INC.
[/s/ illegible] By: Xxxxxx Xxxxxxxxx
------------------------------- ------------------------------------------
Title: Name: Xxxxxx Xxxxxxxxx
------------------------- ------------------------------------
Its: President and Chief Executive Officer
-------------------------------------
ATTEST: XXXXXXX INVESTMENT FUNDS
[/s/ illegible] By: /s/ Xxxx Xxxx Xxxxxx
------------------------------- ------------------------------------------
Title: Name: Xxxx Xxxx Xxxxxx
------------------------- ------------------------------------
Its: Assistant Secretary
-------------------------------------
ATTEST: FIRST METLIFE INVESTORS INSURANCE
COMPANY
[/s/ illegible] By: /s/ Xxxx X. Xx Xxxxx
------------------------------- ------------------------------------------
Title: Counsel Name: Xxxx X. Xx Xxxxx
------------------------- ------------------------------------
Its: Vice President
-------------------------------------
AMENDMENT NO. 1
TO
PARTICIPATION AGREEMENT
This Amendment No. 1 (this "Amendment") is made this 7th day of June, 2001 to
the Participation Agreement (the "Agreement"), dated May 1, 2000, by and among
First Cova Financial Life Insurance Company (the "Company"), Xxxxxxx Insurance
Funds (the "Investment Company"), and Xxxxxxx Fund Distributors, Inc. (the
"Underwriter").
WHEREAS, the parties wish to amend the Agreement to reflect the name change of
First Cova Financial Life Insurance Company to First MetLife Investors Insurance
Company; and
WHEREAS, the parties wish to formalize this change by amending the Agreement to
reflect the Company's change of name;
NOW, THEREFORE, in consideration of premises and of the mutual covenants herein
contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree, effective March 22, 2001, as
follows:
1. The Agreement entered into by the parties on May 1, 2000 shall hereinafter
be by and among First MetLife Investors Insurance Company, Xxxxxxx
Insurance Funds and Xxxxxxx Fund Distributors, Inc., and that all
references to First Cova Financial Life Insurance Company shall be changed
to First MetLife Investors Insurance Company of California.
2. Schedule A of the Agreement is hereby amended as follows:
"SCHEDULE A
ACCOUNTS
Date of Resolution of Company's
Name of Account Board which Established the Account
--------------- -------------------------------------
First MetLife Investors Variable
Annuity Account One December 31, 1992
[LOGO]
TACOMA LONDON AUCKLAND
NEW YORK PARIS SINGAPORE
TORONTO SYDNEY TOKYO
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to be
executed in its name and on its behalf of its duly authorized representative and
its seal to be hereunder affixed hereto as of the date first set forth above.
ATTEST: FIRST METLIFE INVESTORS
INSURANCE COMPANY
[/s/ illegible] By: [/s/ illegible]
-------------------------------- -----------------------------------------
Xxxxx X. Xxxxxxx Senior VP & Chief Actuary
ATTEST: XXXXXXX INSURANCE FUNDS
[/s/ illegible] By: [/s/ illegible]
-------------------------------- -----------------------------------------
Assistant Secretary President
ATTEST: XXXXXXX FUND DISTRIBUTORS, INC.
[/s/ illegible] By: [/s/ illegible]
-------------------------------- -----------------------------------------
Assistant Secretary President
[LOGO]
TACOMA LONDON AUCKLAND
NEW YORK PARIS SINGAPORE
TORONTO SYDNEY TOKYO
