EXHIBIT (8)(d)(3) AMENDMENT NO. 12 TO FUND PARTICIPATION AGREMENT (JANUS ASPEN SERIES)
EXHIBIT (8)(d)(3)
AMENDMENT NO. 12 TO FUND PARTICIPATION AGREMENT
(JANUS ASPEN SERIES)
AMENDMENT NO. 12 TO
JANUS ASPEN SERIES
(Service Shares)
This Amendment (the “Amendment”) to the Fund Participation Agreement (as defined below) is made effective as of July 23, 2010 (“Effective Date”) by and between Janus Aspen Series (the “Trust”), Janus Capital Management LLC (for the purposes of Sections 4 and 5 of this Amendment only), and Transamerica Life Insurance Company, a life insurance company organized under the laws of the State of Iowa, and as successor-in-interest to Transamerica Occidental Life Insurance Company and Transamerica Life Insurance and Annuity Company (the “Company”).
RECITALS
WHEREAS, the Trust and the Company are parties to a Fund Participation Agreement dated as of April 6, 2000 (the “Agreement”); and
WHEREAS, the Trust and the Company, as successor-in-interest to Transamerica Occidental Life Insurance Company and Transamerica Life Insurance and Annuity Company, are parties to Fund Participation Agreements for Service Shares dated as of January 15, 2001 and August 15, 2000, respectively, the accounts of which the parties wish to consolidate under the Agreement for handling pursuant to the terms of the Agreement; and
WHEREAS, the parties wish to further amend the Agreement as set forth below.
AMENDMENT
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree to amend the Agreement as follows:
| 1. | Schedule A of the Agreement is hereby deleted in its entirety and replaced with the revised Schedule A attached to this Amendment. |
| 2. | The following shall be added to the end of Article I of the Agreement: |
“1.10 All orders accepted by the Company shall be subject to the terms of the then current prospectus of each Portfolio, including without limitation, policies regarding minimum account sizes, market timing and excessive trading. In addition, the Company acknowledges that the Trust has the right to refuse any purchase order if the Trust determines it is in violation of the Trust’s stated policies. The Company shall use its commercially reasonable best efforts, and shall reasonably cooperate with, the Trust to enforce stated prospectus policies regarding transactions in Shares, particularly those related to market timing. The Company acknowledges that orders accepted by it in violation of the Trust’s stated policies may be subsequently revoked or cancelled by the Trust and that the Trust shall not be responsible for any losses incurred by the
Company or Contract or Account as a result of such cancellation. The Trust or its agent shall notify the Company of such cancellation prior to 12:00 p.m. EST on the next following Business Day after any such cancellation.
1.11 The Company certifies that it is following all relevant rules and regulations, as well as internal policies and procedures, regarding “forward pricing” and the handling of mutual fund orders on a timely basis. As evidence of its compliance, upon request, the Company shall provide annual certification to the Trust that it is following all relevant rules, regulations, and internal policies and procedures regarding “forward pricing” and the handling of mutual fund orders on a timely basis.”
| 3. | The following shall be added to the end of Article III of the Agreement: |
“3.10 Each party to the Agreement represents and warrant that it is currently in compliance and will remain in compliance with all applicable state and federal anti-money laundering laws, regulations, and requirements. In addition, each party to the Agreement represents and warrants that it has adopted and implemented policies and procedures reasonably designed to achieve compliance with the applicable requirements administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury.”
| 4. | The Fund Participation Agreement for Service Shares between the Trust and the Company as successor-in-interest to Transamerica Occidental Life Insurance Company dated January 15, 2001 shall terminate as of the Effective Date. |
| 5. | The Fund Participation Agreement for Service Shares between the Trust and the Company as successor-in-interest to Transamerica Life Insurance and Annuity Company dated August 15, 2000 shall terminate as of the Effective Date. |
| 6. | A new Article IX shall be added as follows: |
“ARTICLE IX
Confidential Information
Each party to this Agreement acknowledges that in order to perform the duties called for in this Agreement, it may be necessary for a party (“owner”) to disclose to the other party(ies) certain “Confidential Information.” Confidential Information means non-public, proprietary information, data or know-how of an owner, including, but not limited to, personal information of an owner’s customers. No party will use another party’s Confidential Information except as required for the performance of this Agreement. Each party will use commercially reasonable efforts in a manner fully consistent with industry standards and applicable federal, state and international laws and regulations to hold in confidence a party’s Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party or its subsidiaries and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed or in the public domain through no fault of the receiving party; (iv) rightfully received by the receiving party or its subsidiaries from a third
party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the owner; or (vi) disclosed pursuant to the requirements of law, regulation or court order.
Each party to this Agreement represents, warrants and agrees that it has adopted and implemented, and will continue to have in place and follow for the term of this Agreement and thereafter, appropriate policies and procedures designed to detect, prevent and mitigate the risk of identity theft and other breaches of privacy concerning Confidential Information. Each party agrees to take immediate and appropriate measures to respond to any breach of privacy concerning Confidential Information of the owner, and to notify the owner in writing regarding such breach in the most expedient time possible and without unreasonable delay; provided, however, that a party may postpone providing such notice as the party deems consistent with the legitimate needs of law enforcement. Each party further agrees to provide the owner with a summary of its plan to remediate any such breach and to pay for all costs associated with such remediation and with providing written notice of such breach to the applicable party.
Each party agrees to establish and maintain (i) administrative, technical and physical safeguards against the destruction, loss or alteration of Confidential Information, and (ii) appropriate security measures to protect Confidential Information, which measures are consistent with the laws and regulations of the Commonwealth of Massachusetts, as may be amended from time to time, relating to personal information security and with all other applicable federal, state and international laws and regulations relating to personal information security.
The provisions found in this Section on Confidential Information will survive any expiration or termination of the Agreement.”
| JANUS ASPEN SERIES |
TRANSAMERICA LIFE INSURANCE COMPANY | |||||||
| By: |
/s/ Xxxxxxxxx Xxxxxxxxxx-Xxxxxx |
By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: |
Xxxxxxxxx Xxxxxxxxxx-Xxxxxx | Name: | Xxxxxx X. Xxxxx | |||||
| Title: |
Vice President | Title: | Vice President | |||||
| JANUS CAPITAL MANAGEMENT LLC |
||||||||
| By: |
/s/ Xxxxxxx X. Xxxxxxx |
|||||||
| Name: |
Xxxxxxx X. Xxxxxxx | |||||||
| Title: |
Senior Vice President | |||||||
| (For the purposes of Sections 4 and 5 of this Amendment only) | ||||||||
Schedule A
Separate Accounts and Associated Contracts
| Name of Separate Account |
Contracts Funded By Separate Account | |
| Separate Account VUL-1 |
Transamerica Tribute® Variable Universal Life | |
| Separate Account VUL-2 |
Transamerica LineageSMVariable Universal Life | |
| Separate Account VUL-4 |
TransSurvivorSM Variable Universal Life | |
| Separate Account VUL-5 |
TransUltra® Variable Universal Life | |
| Separate Account VUL-6 |
TransAccumulator® I and II Variable Universal Life | |
| Separate Account VA B |
Transamerica Landmark Variable Annuity and Transamerica Freedom Variable Annuity | |
| Separate Account VA C |
Transamerica Extra Variable Annuity | |
| Separate Account VA D |
Transamerica Access Variable Annuity | |
| Separate Account VA K |
Retirement Income Builder – BAI Variable, under the marketing name “Retirement Income” Builder IV | |
| Separate Account VA P |
Flexible Premium Variable Annuity – A, under the marketing names “Transamerica Traditions and Transamerica Opportunity Builder” | |
| Separate Account VA R |
Flexible Premium Variable Annuity – C, under the marketing name “Transamerica Principium” | |
| Flexible Premium Variable Annuity – J, under the marketing name “Transamerica Axiom” | ||
| Separate Account VA W |
Flexible Premium Variable Annuity – G under the marketing name “Transamerica Liberty” | |
| Separate Account VA A |
The Atlas Portfolio Builder Variable Annuity | |
| Separate Account VA E |
Privilege Select Variable Annuity | |
| Separate Account VA-8 |
Transmark Optimum Choice® Variable Annuity | |
