EXHIBIT (H)(8)(E)
AMENDMENT NO. 4 TO
AMENDED AND RESTATED PARTICIPATION AGREEMENT
Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust
Franklin/▇▇▇▇▇▇▇▇▇ Distributors, Inc.
The United States Life Insurance Company in the City of New York
American General Equity Services Corporation
Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust (the "Trust"),
Franklin/▇▇▇▇▇▇▇▇▇ Distributors, Inc. (the "Underwriter," and together with the
Trust, "we" or "us"), The United States Life Insurance Company in the City of
New York (the "Company" or "you"), and American General Equity Services
Corporation, your distributor, on your behalf and on behalf of certain Accounts,
have previously entered into an Amended and Restated Participation Agreement
dated September 5, 2003 and subsequently amended April 18, 2007, June 5, 2007
and September 15, 2008 (the "Agreement"). The parties now desire to amend the
Agreement by this amendment (the "Amendment"). Unless otherwise indicated, the
terms defined in the Agreement shall have the same meaning in this Amendment.
WHEREAS, subject to regulatory approval, American International Life
Assurance Company of New York ("AI Life") is expected to merge with and into the
Company on or about December 31, 2010 (the "Merger") with the Company as the
surviving corporation;
WHEREAS, subject to the consummation of the Merger between AI Life and
the Company, the Company is expected to assume all obligations and
responsibilities of AI Life under a certain Participation Agreement among the
Trust, the Underwriter and AL Life dated May 1, 2000, as amended ("AI Life
Agreement"), for all Contracts covered by the AI Life Agreement, as a result of
the Merger; and
WHEREAS, the parties desire to update the schedules of this Agreement
to include the Accounts and Contracts of AI Life.
A M E N D M E N T
-----------------
NOW, THEREFORE, in consideration of past and prospective business
relations, the parties agree to amend the Agreement as follows:
1. Section 6 is hereby amended and restated in its entirety as set forth
in Attachment A to this Amendment.
2. Schedules B, C and G of the Agreement are deleted and replaced in their
entirety with the Schedules B, C and G attached hereto, respectively.
3. All other terms and provisions of the Agreement not amended herein
shall remain in full force and effect.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized
officers to execute this Amendment effective as of December 31, 2010.
The Company: THE UNITED STATES LIFE INSURANCE COMPANY IN
THE CITY OF NEW YORK
By:
------------------------------------------
Name:
Title:
[Corporate Seal] Attest:
--------------------------------------
Name:
Title:
Distributor for the Company: AMERICAN GENERAL EQUITY SERVICES
CORPORATION
By:
------------------------------------------
Name:
Title:
[Corporate Seal] Attest:
--------------------------------------
Name:
Title:
The Trust: FRANKLIN ▇▇▇▇▇▇▇▇▇ VARIABLE INSURANCE
PRODUCTS TRUST
Only on behalf of
each Portfolio listed
on Schedule C of
the Agreement. By:
------------------------------------------
Name:
Title:
The Underwriter: FRANKLIN/▇▇▇▇▇▇▇▇▇ DISTRIBUTORS, INC.
By:
------------------------------------------
Name:
Title:
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ATTACHMENT A
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6. SALES MATERIAL, INFORMATION AND TRADEMARKS
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6.1 For purposes of this Section 6, "Sales Literature/ Promotional
Material" includes, but is not limited to, portions of the following that use
any logo or other trademark related to the Trust, or Underwriter or its
affiliates, or refer to the Trust: 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, web-sites and other electronic communications 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 or any other advertisement, sales literature or published article or
electronic communication), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees in any media, and disclosure documents, shareholder reports and proxy
materials.
6.2 You may use the name of the Trust and trademarks and the logo
of the Underwriter in Sales Literature/Promotional Material as reasonably
necessary to carry out your performance and obligations under this Agreement
provided that you comply with the provisions of this Agreement. You agree to
abide by any reasonable use guidelines regarding use of such trademarks and
logos that we may give from time to time. You shall, as we may request from time
to time, promptly furnish, or cause to be furnished to us or our designee, at
least one complete copy of each registration statement, prospectus, statement of
additional information, private placement memorandum, retirement plan disclosure
information or other disclosure documents or similar information, as applicable
(collectively "Disclosure Documents"), as well as any report, solicitation for
voting instructions, Sales Literature/ Promotional Material created and approved
by you, and all amendments to any of the above that relate to the Contracts, the
Accounts, the Trust, or Underwriter or its affiliates.
6.3 You and your agents shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust,
the Underwriter or an Adviser, other than information or representations
contained in and accurately derived from the registration statement or
prospectus for the Trust shares (as such registration statement and prospectus
may be amended or supplemented from time to time), annual and semi-annual
reports of the Trust, Trust-sponsored proxy statements, or in Sales
Literature/Promotional Material created by us for the Trust and provided by the
Trust or its designee to you, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
6.4 You agree, represent and warrant that you are solely
responsible for any Sales Literature/ Promotional Material prepared by you and
that such material will: (a) conform to all requirements of any applicable laws
or regulations of any government or authorized agency having jurisdiction over
the offering or sale of shares of the Portfolios or Contracts; (b) be solely
based upon and not contrary to or inconsistent with the information or materials
provided to you by us or a Portfolio; and (c) be made available promptly to us
upon our request. You agree to file any Sales Literature/Promotional Material
prepared by you with FINRA, or other applicable legal or regulatory authority,
within the timeframes that may be required from time to time by FINRA or such
other legal or regulatory authority. Unless otherwise expressly agreed to in
writing, it is understood that we will neither review nor approve for use any
materials prepared by you and will not be materially involved in the preparation
of, or have any responsibility for, any such materials
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prepared by you. You are not authorized to modify or translate any materials we
have provided to you.
6.5 You shall promptly notify us of any written customer complaint
or notice of any regulatory investigation or proceeding received by you relating
to any Disclosure Documents or Sales Literature/Promotional Material.
6.6 We shall not give any information or make any representations
or statements on behalf of you or concerning you, the Accounts or the Contracts
other than information or representations, including naming you as a Trust
shareholder, contained in and accurately derived from Disclosure Documents for
the Contracts (as such Disclosure Documents may be amended or supplemented from
time to time), or in materials approved by you for distribution, including Sales
Literature/ Promotional Material, except as required by legal process or
regulatory authorities or with your written permission.
6.7 Except as provided in Section 6.2, you shall not use any
designation comprised in whole or part of the names or marks "Franklin" or
"▇▇▇▇▇▇▇▇▇" or any logo or other trademark relating to the Trust or the
Underwriter without prior written consent, and upon termination of this
Agreement for any reason, you shall cease all use of any such name or ▇▇▇▇ as
soon as reasonably practicable.
6.8 You shall furnish to us ten (10) Business Days prior to its
first submission to the SEC or its staff, any request or filing for no-action
assurance or exemptive relief naming, pertaining to, or affecting, the Trust,
the Underwriter or any of the Portfolios.
6.9 You agree that any posting of Designated Portfolio Documents
on your website or use of Designated Portfolio Documents in any other electronic
format will result in the Designated Portfolio Documents: (i) appearing
identical to the hard copy printed version or .pdf format file provided to you
by us (except that you may reformat .pdf format prospectus files in order to
delete blank pages and to insert .pdf format prospectus supplement files
provided by us to you); (ii) being clearly associated with the particular
Contracts in which they are available and posted in close proximity to the
applicable Contract prospectuses; (iii) having no less prominence than
prospectuses of any other underlying funds available under the Contracts; (iv)
in compliance with any statutory prospectus delivery requirements and (v) being
used in an authorized manner. Notwithstanding the above, you understand and
agree that you are responsible for ensuring that participation in the
Portfolios, and any website posting, or other use, of the Designated Portfolio
Documents is in compliance with this Agreement and applicable state and federal
securities and insurance laws and regulations, including as they relate to paper
or electronic delivery or use of fund prospectuses. We reserve the right to
inspect and review your website if any Designated Portfolio Documents and/or
other Trust documents are posted on your website and you shall, upon our
reasonable request, provide us timely access to your website materials to
perform such inspection and review.
In addition, you agree to be solely responsible for maintaining and
updating the Designated Portfolio Documents' .pdf files and removing and/or
replacing promptly any outdated prospectuses and other documents, as necessary,
ensuring that any accompanying instructions by us, for using or stopping use,
are followed. You agree to designate and make available to us a person to act as
a single point of communication contact for these purposes. We are not
responsible for any additional costs or additional liabilities that may be
incurred as a result of your election to place the Designated Portfolio
Documents on your website. We reserve the right to revoke this
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authorization, at any time and for any reason, although we may instead make our
authorization subject to new procedures.
6.10 Each of your and your distributor's registered
representatives, agents, independent contractors and employees, as applicable,
will have access to our websites at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and such other URLs
through which we may permit you to conduct business concerning the Portfolios
from time to time (referred to collectively as the "Site") as provided herein:
(i) upon registration by such individual on a Site; (ii) if you cause a Site
Access Request Form (an "Access Form") to be signed by your authorized
supervisory personnel and submitted to us, as a Schedule to, and legally a part
of, this Agreement; or (iii) if you provide such individual with the necessary
access codes or other information necessary to access the Site through any
generic or firm-wide authorization we may grant you from time to time. Upon
receipt by us of a completed registration submitted by an individual through the
Site or a signed Access Form referencing such individual, we shall be entitled
to rely upon the representations contained therein as if you had made them
directly hereunder and we will issue a user identification, express number
and/or password (collectively, "Access Code"). Any person to whom we issue an
Access Code or to whom you provide the necessary Access Codes or other
information necessary to access the Site through any generic or firm-wide
authorization we may grant you from time to time shall be an "Authorized User."
We shall be entitled to assume that such person validly represents you and that
all instructions received from such person are authorized, in which case such
person will have access to the Site, including all services and information to
which you are authorized to access on the Site. All inquiries and actions
initiated by you (including your Authorized Users) are your responsibility, are
at your risk and are subject to our review and approval (which could cause a
delay in processing). You agree that we do not have a duty to question
information or instructions you (including Authorized Users) give to us under
this Agreement, and that we are entitled to treat as authorized, and act upon,
any such instructions and information you submit to us. You agree to take all
reasonable measures to prevent any individual other than an Authorized User from
obtaining access to the Site. You agree to inform us if you wish to restrict or
revoke the access of any individual Access Code. If you become aware of any loss
or theft or unauthorized use of any Access Code, you agree to contact us
immediately. You also agree to monitor your (including Authorized Users') use of
the Site to ensure the terms of this Agreement are followed. You also agree that
you will comply with all policies and agreements concerning Site usage,
including without limitation the Terms of Use Agreement(s) posted on the Site
("Site Terms"), as may be revised and reposted on the Site from time to time,
and those Site Terms (as in effect from time to time) are a part of this
Agreement. Your duties under this section are considered "services" required
under the terms of this Agreement. You acknowledge that the Site is transmitted
over the Internet on a reasonable efforts basis and we do not warrant or
guarantee their accuracy, timeliness, completeness, reliability or
non-infringement. Moreover, you acknowledge that the Site is provided for
informational purposes only, and is not intended to comply with any requirements
established by any regulatory or governmental agency.
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SCHEDULE B
ACCOUNTS OF THE COMPANY
SEC REGISTRATION
NAME OF ACCOUNT YES/NO
------------------------------------------------------------ -----------------
The United States Life Insurance Company in the City of New
York Separate Account USL VL-R Yes
The United States Life Insurance Company in the City of New
York Separate Account USL VA-R Yes
The United States Life Insurance Company in the City of New
York Separate Account USL B Yes
The United States Life Insurance Company in the City of New
York Separate Account USL D No
The United States Life Insurance Company in the City of New
York Separate Account USL E No
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SCHEDULE C
AVAILABLE PORTFOLIOS AND CLASSES OF SHARES OF THE TRUST
1. Franklin Small Cap Value Securities Fund - Class 2
2. Franklin U.S. Government Fund - Class 2
3. Mutual Shares Securities Fund - Class 2
4. ▇▇▇▇▇▇▇▇▇ Foreign Securities Fund - Class 2
5. ▇▇▇▇▇▇▇▇▇ Developing Markets Securities Fund - Class 1
6. ▇▇▇▇▇▇▇▇▇ Developing Markets Securities Fund - Class 2
7. ▇▇▇▇▇▇▇▇▇ Foreign Securities Fund - Class 1
8. ▇▇▇▇▇▇▇▇▇ Foreign Securities Fund - Class 2
9. ▇▇▇▇▇▇▇▇▇ Growth Securities Fund - Class 2
In addition to portfolios and classes of shares listed above, any additional
Portfolios and classes of shares other than Class 3 shares are included in this
Schedule C listing provided that:
(1) the General Counsel of Franklin ▇▇▇▇▇▇▇▇▇ Investments receives
from a person authorized by you a written notice in the form
attached (which may be electronic mail or sent by electronic
mail) ("Notice") identifying this Agreement as provided in the
Notice and specifying: (i) the names and classes of shares of
additional Portfolios that you propose to offer as investment
options of the Separate Accounts under the Contracts; and (ii)
the date that you propose to begin offering Separate Account
interests investing in the additional Portfolios under the
Contracts; and
(2) we do not within ten (10) Business Days following receipt of
the Notice send you a writing (which may be electronic mail)
objecting to your offering such Separate Accounts investing in
the additional Portfolios and classes of shares under the
Contracts.
Provided that we do not object as provided above, your Notice shall amend,
supplement and become a part of this Schedule C and the Agreement.
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FORM OF NOTICE PURSUANT TO SCHEDULE C OF PARTICIPATION AGREEMENT
To: General Counsel c/o
or
------------------- -------------------
Fax:
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Franklin ▇▇▇▇▇▇▇▇▇ Investments
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇. ▇▇▇, 2nd Floor
San Mateo, CA 94402
With respect to the following agreement(s) (collectively, the "Agreement")
(please reproduce and complete table for multiple agreements):
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DATE OF PARTICIPATION AGREEMENT:
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INSURANCE COMPANY(IES):
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INSURANCE COMPANY DISTRIBUTOR(S):
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As provided by Schedule C of the Agreement, this Notice proposes to Franklin
▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust, and Franklin/▇▇▇▇▇▇▇▇▇
Distributors, Inc. the addition as of the offering date(s) listed below of the
following Portfolios as additional investment options listed on Schedule C:
NAMES AND CLASSES OF SHARES OF ADDITIONAL PORTFOLIOS OFFERING DATE(S)
Listing of current classes for your reference:
Class 1 (no 12b-1 fee);
Class 2 (12b-1 fee of 25 bps); or
Class 4 (12b-1 fee of 35 bps).
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NAME AND TITLE OF AUTHORIZED PERSON OF INSURANCE COMPANY:
CONTACT INFORMATION:
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SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: The United States Life Insurance Company
In the City of New York
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
To the Distributor: American General Equity Services Corporation
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
To the Trust: Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
----------------------
To the Underwriter: Franklin/▇▇▇▇▇▇▇▇▇ Distributors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
----------------------
If to the Trust or Underwriter
with a copy to: Franklin ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
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