AMENDMENT TO PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin Xxxxxxxxx Distributors, Inc.
Aetna Life Insurance and Annuity Company
Aetna Insurance Company of America
Golden American Life Insurance Company
Directed Services, Inc.
The participation agreement, dated as of July 20, 2001, by and among Franklin
Xxxxxxxxx Variable Insurance Products Trust, Franklin Xxxxxxxxx Distributors,
Inc., Aetna Life Insurance and Annuity Company and Aetna Insurance Company of
America (the "Agreement") is hereby amended as follows:
1. Golden American Life Insurance Company and Directed Services, Inc. are added
as parties to the Agreement.
2. The following Section 2.1.12 is added to the Agreement:
2.1.12 You undertake and agree to comply, and to take full responsibility in
complying with any and all laws, regulations, protocols and other requirements
relating to money laundering both United States and foreign, including, without
limitation, the International Money Laundering Abatement and Anti-Terrorist
Financing Act of 2001 (Title III of the USA Patriot Act), hereinafter,
collectively with the rules, regulations and orders promulgated thereunder, the
"Act," and any requirements and/or requests in connection therewith, made by
regulatory authorities, the Trust or the Underwriter or their duly appointed
agents, either generally or in respect of a specific transaction, and/or in the
context of a "primary money laundering concern" as defined in the Act. You agree
as a condition precedent to any transaction taking or continuing to be in
effect, to comply with any and all anti-money laundering laws, regulations,
orders or requirements, and without prejudice to the generality of the above, to
provide regulatory authorities, the Trust, the Underwriter or their duly
appointed agents, with all necessary reports created in the normal course of
business ("reports") and information for them to fulfill their obligations, if
any, under the Act for the purposes of the Trust, the Underwriter, or other
third parties complying with any and all anti-money laundering requirements,
including, without limitation, the enhanced due diligence obligations imposed by
the Act, the filing of Currency Transaction Reports and/or of Suspicious
Activity Reports obligations required by the Act, and/or the sharing of
information requirements imposed by the Act. In the event satisfactory reports
and information are not received within a reasonable time period from the date
of the request, the Trust or the Underwriter reserve the right to reject any
transaction and/or cease to deal with you and/or the Accounts.
Further, you represent that you have not received notice of, and to your
knowledge, there is no basis for, any claim, action, suit, investigation or
proceeding that might result in a finding that you are not or have not been in
compliance with the Act, and the rules and regulations promulgated thereunder.
You agree to notify the Trust and the Underwriter immediately if the
representation in the previous sentence is no longer true or if you have a
reasonable basis for believing that such representation may no longer be true.
3. Section 9.2 of the Agreement is hereby deleted in its entirety and replaced
with the following Section 9.2:
9.2 This Agreement may be terminated immediately by us upon written notice to
you if:
9.2.1 you notify the Trust or the Underwriter that the exemption from
registration under Section 3(c) of the 1940 Act no longer applies, or might not
apply in the future, to the unregistered Accounts, or that the exemption from
registration under Section 4(2) or Regulation D promulgated under the 1933 Act
no longer applies or might not apply in the future, to interests under the
unregistered Contracts, provided, however, that this Section 9.2.1 shall not
apply if the exemptions from registration do not apply solely because you have
determined to, and have, registered the Accounts and the Contracts pursuant to
the 1933 and 1940 Acts; or
9.2.2 either one or both of the Trust or the Underwriter respectively,
shall determine, in their sole judgment exercised in good faith, that you have
suffered a material adverse change in your business, operations, financial
condition or prospects since the date of this Agreement or are the subject of
material adverse publicity; or
9.2.3 you breach any of the provisions of Section 2.1.12 of this
Agreement or any of the warranties and representations you make in that Section:
(i) were not true on the effective date of this Agreement; (ii) are no longer
true; or (iii) have not been true during any time since the effective date of
this Agreement.
4. Section 9.3 of the Agreement is hereby deleted in its entirety and replaced
with the following Section 9.3:
9.3 If this Agreement is terminated for any reason, except as required by
the Shared Funding Order or pursuant to Section 9.2.1 or Section 9.2.3, above,
we shall, at your option, continue to make available additional shares of any
Portfolio and redeem shares of any Portfolio pursuant to all of the terms and
conditions of this Agreement for all Contracts in effect on the effective date
of termination of this Agreement. If this Agreement is terminated as required by
the Shared Funding Order, its provisions shall govern.
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5. Section 7.1.1 of the Agreement is hereby deleted in its entirety and replaced
with the following Section 7.1.1:
7.1.1 You agree to indemnify and hold harmless the Underwriter, the
Trust and each of its Trustees, officers, employees and agents and each person,
if any, who controls the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually the "Indemnified
Party" for purposes of this Section 7) against any and all losses, claims,
damages, fines, liabilities (including amounts paid in settlement with your
written consent, which consent shall not be unreasonably withheld) or expenses
(including the reasonable costs of investigating or defending any alleged loss,
claim, damage, fines, liability or expense and reasonable legal counsel fees
incurred in connection therewith) (collectively, "Losses"), to which the
Indemnified Parties may become subject under any statute or regulation, or at
common law or otherwise, insofar as such Losses are related to the sale or
acquisition of shares of the Trust or the Contracts and
6. Schedules A,B and G of the Agreement are hereby deleted in their entirety and
replaced with the Schedules A, B and G attached hereto, respectively.
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective Date as of January 2, 2002.
Franklin Xxxxxxxxx Variable Insurance Franklin Xxxxxxxxx Distributors, Inc.
-------------------------------------- -------------------------------------
Products Trust
--------------
By: /s/Xxxxx X. Xxxxxxxx By: /s/Xxxxxx X. Xxxxxx
--------------------- -------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President Title: Vice President
Aetna Life Insurance and Annuity Company Aetna Insurance Company of America
---------------------------------------- ----------------------------------
By: /s/Xxxxxx X. Xxxxxxxxxxx By: /s/Xxxxxx X. Xxxxxxxxxxx
------------------------- ------------------------
Name: Xxxxxx X. Xxxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President Title: Vice President
Golden American Life Insurance Company Directed Services, Inc.
-------------------------------------- -----------------------
By: /s/Xxxxxxxx X. Xxxxx By: /s/Xxxxx X. Xxxxxxxx
--------------------- ----------------------
Name: Xxxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President Title: Senior Vice President
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SCHEDULE A
THE COMPANIES
Aetna Life Insurance and Annuity Company
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Incorporated in Connecticut.
Aetna Insurance Company of America
Principal Business Office: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Principal Executive Office: 0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Incorporated in Connecticut. Effective January 5, 2000, changed its state of
domicile to Florida.
Golden American Life Insurance Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Incorporated in Minnesota; effective December 21, 1993, changed its state of
domicile to Delaware.
Directed Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Incorporated in New York.
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SCHEDULE B
ACCOUNTS OF THE COMPANIES
Aetna Life Insurance and Annuity Company
----------------------------------------
1. Name: Variable Annuity Acount B
Date Established: 1974
SEC Registration Number: 811-02512
2. Name: Variable Annuity Account C
Date Established: 1974
SEC Registration Number: 811-02513
3. Name: Variable Annuity Account D
Date Established: 1974
Unregistered
4. Name: Variable Life Account C
Date Established: 1999
SEC Registration Number: 811-09665
Aetna Insurance Company of America
----------------------------------
1. Name: Variable Annuity Account I
Date Established: 1999
SEC Registration Number: 811-8502
Golden American Life Insurance Company
--------------------------------------
1. Name: Variable Annuity Account B
Date Established: July 14, 1988
SEC Registration Number: 811-5626
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SCHEDULE C
AVAILABLE PORTFOLIOS AND CLASSES OF SHARES OF THE TRUST; INVESTMENT ADVISERS
Franklin Xxxxxxxxx Variable Investment Adviser
Insurance Products Trust ------------------
-------------------------
Franklin Growth and Income Securities Fund Franklin Advisers, Inc.
Franklin Income Securities Fund Franklin Advisers, Inc.
Franklin Small Cap Fund Franklin Advisers, Inc.
Franklin U.S. Government Fund Franklin Advisers, Inc.
Franklin Value Securities Fund Franklin Advisory Services, LLC
Mutual Shares Securities Fund Franklin Mutual Advisers, LLC
Templeton Developing Markets Securities Fund Xxxxxxxxx Asset Management, Ltd.
Templeton Growth Securities Fund Xxxxxxxxx Global Advisors Limited
Xxxxxxxxx International Securities Fund Xxxxxxxxx Investment Counsel ,LLC
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SCHEDULE F
RULE 12B-1 PLANS
COMPENSATION SCHEDULE
---------------------
Each Portfolio named below shall pay the following amounts pursuant to the terms
and conditions referenced below under its Class 2 Rule 12b-1 Distribution Plan,
stated as a percentage per year of Class 2's average daily net assets
represented by shares of Class 2.
PORTFOLIO NAME MAXIMUM ANNUAL PAYMENT RATE
-------------- ---------------------------
Franklin Growth and Income Securities Fund 0.25%
Franklin Income Securities Fund 0.25%
Franklin Small Cap Fund 0.25%
Franklin U.S. Government Fund 0.25%
Franklin Value Securities Fund 0.25%
Mutual Shares Securities Fund 0.25%
Templeton Developing Markets Securities Fund 0.25%
Templeton Growth Securities Fund 0.25%
Xxxxxxxxx International Securities Fund 0.25%
AGREEMENT PROVISIONS
--------------------
If the Company, on behalf of any Account, purchases Trust Portfolio
shares ("Eligible Shares") which are subject to a Rule 12b-1 plan adopted under
the 1940 Act (the "Plan"), the Company may participate in the Plan.
To the extent the Company or its affiliates, agents or designees
(collectively "you") provide any activity or service which is primarily intended
to assist in the promotion, distribution or account servicing of Eligible Shares
("Rule 12b-1 Services") or variable contracts offering Eligible Shares, the
Underwriter, the Trust or their affiliates (collectively, "we") may pay you a
Rule 12b-1 fee. "Rule 12b-1 Services" may include, but are not limited to,
printing of prospectuses and reports used for sales purposes, preparing and
distributing sales literature and related expenses, advertisements, education of
dealers and their representatives, and similar distribution-related expenses,
furnishing personal services to owners of Contracts which may invest in Eligible
Shares ("Contract Owners"), education of Contract Owners, answering routine
inquiries regarding a Portfolio, coordinating responses to Contract Owner
inquiries regarding the Portfolios, maintaining such accounts or providing such
other enhanced services as a Trust Portfolio or Contract may require, or
providing other services eligible for service fees as defined under NASD rules.
Your acceptance of such compensation is your acknowledgment that eligible
services have been rendered. All Rule 12b-1 fees, shall be based on the value of
Eligible Shares owned by the Company on behalf of its Accounts, and shall be
calculated on the basis and at the rates set forth in the Compensation Schedule
stated above. The aggregate annual fees paid pursuant to each Plan shall not
exceed the amounts stated as the "annual maximums" in the Portfolio's
prospectus, unless an increase is approved by shareholders as provided in the
Plan. These maximums shall be a specified percent of the value of a Portfolio's
net assets attributable to Eligible Shares owned by the Company on behalf of its
Accounts (determined in the same manner as the Portfolio uses to compute its net
assets as set forth in its effective Prospectus).
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The Rule 12b-1 fee will be paid to you within thirty (30) days after the end of
the three-month periods ending in January, April, July and October.
You shall furnish us with such information as shall reasonably be
requested by the Trust's Boards of Trustees ("Trustees") with respect to the
Rule 12b-1 fees paid to you pursuant to the Plans. We shall furnish to the
Trustees, for their review on a quarterly basis, a written report of the amounts
expended under the Plans and the purposes for which such expenditures were made.
The Plans and provisions of any agreement relating to such Plans must
be approved annually by a vote of the Trustees, including the Trustees who are
not interested persons of the Trust and who have no financial interest in the
Plans or any related agreement ("Disinterested Trustees"). Each Plan may be
terminated at any time by the vote of a majority of the Disinterested Trustees,
or by a vote of a majority of the outstanding shares as provided in the Plan, on
sixty (60) days' written notice, without payment of any penalty. The Plans may
also be terminated by any act that terminates the Underwriting Agreement between
the Underwriter and the Trust, and/or the management or administration agreement
between Franklin Advisers, Inc. and its affiliates and the Trust. Continuation
of the Plans is also conditioned on Disinterested Trustees being ultimately
responsible for selecting and nominating any new Disinterested Trustees. Under
Rule 12b-1, the Trustees have a duty to request and evaluate, and persons who
are party to any agreement related to a Plan have a duty to furnish, such
information as may reasonably be necessary to an informed determination of
whether the Plan or any agreement should be implemented or continued. Under Rule
12b-1, the Trust is permitted to implement or continue Plans or the provisions
of any agreement relating to such Plans from year-to-year only if, based on
certain legal considerations, the Trustees are able to conclude that the Plans
will benefit each affected Trust Portfolio and class. Absent such yearly
determination, the Plans must be terminated as set forth above. In the event of
the termination of the Plans for any reason, the provisions of this Schedule F
relating to the Plans will also terminate. Because the Rule 12b-1 fees paid to
you pursuant to the Plans may be reduced or terminated at any time and we are
not liable for, and will not offset any reduction or termination in such fees,
you agree to consider whether or not your selling agreements with persons or
entities through whom you intend to distribute the Contracts should provide that
compensation paid to them may be reduced if such Rule 12b-1 fees are reduced or
terminated.
Any obligation assumed by the Trust pursuant to this Agreement shall be limited
in all cases to the assets of the Trust and no person shall seek satisfaction
thereof from shareholders of the Trust. You agree to waive payment of any
amounts payable to you by Underwriter under a Plan until such time as the
Underwriter has received such fee from the Trust.
The provisions of the Plans shall control over the provisions of the
Participation Agreement, including this Schedule F, in the event of any
inconsistency. You agree to provide complete disclosure as required by all
applicable statutes, rules and regulations of all rule 12b-1 fees received from
us in the prospectus of the Contracts.
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SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: Aetna Life Insurance and Annuity Company
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Counsel
Aetna Insurance Company of America
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Counsel
Golden American Life Insurance Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Vice President
& Associate General Counsel
To the Trust: Franklin Xxxxxxxxx Variable Insurance
Products Trust
0 Xxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Assistant Vice President
To the Underwriter: Franklin Xxxxxxxxx Distributors, Inc.
0 Xxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Vice President
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