AMENDMENT NO. 3 TO
AMENDED AND RESTATED PARTICIPATION AGREEMENT
The Amended and Restated Participation Agreement ("Agreement") dated August
1, 2007 by and among XXXXXXX XXXXX VARIABLE INSURANCE TRUST, a statutory
trust formed under the laws of Delaware (the "Trust"), XXXXXXX, SACHS & CO.,
a New York limited partnership (the "Distributor"), and COMMONWEALTH ANNUITY
AND LIFE INSURANCE COMPANY, a Massachusetts life insurance company (the
"Company"), is hereby amended effective February 11, 2011, as follows:
1. Schedule 1 of the Participation Agreement is hereby deleted in its
entirety and replaced with the Schedule 1 attached hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
the Agreement to be executed in its name and behalf by its duly authorized
officer on date specified below.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
(Trust)
Date: 1/26/11 By: /s/ Xxxxx XxXxxxxx
----------------------
Name: Xxxxx XxXxxxxx
Title: Managing Director
XXXXXXX, SACHS & CO.
(Distributor)
Date: 1/26/11 By: /s/ Xxxxx XxXxxxxx
----------------------
Name: Xxxxx XxXxxxxx
Title: Managing Director
COMMONWEALTH ANNUITY AND LIFE INSURANCE COMPANY
(Company)
Date: 1/14/11 By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
Title: Senior Vice President and Chief Operations Officer
SCHEDULE 1
SEPARATE ACCOUNTS AND VARIABLE PRODUCTS
VARIABLE ANNUITY PRODUCTS
SEPARATE ACCOUNT PRODUCT NAME 1933 ACT # 1940 ACT #
----------------------- ------------------------------------ ----------- ------------
Separate Account VA-K ExecAnnuity Plus/ 33-39702 811-6293
Allmerica Advantage
Separate Account VA-K Delaware Medallion I, II and III 33-44830 811-6293
Separate Account VA-K Delaware Golden Medallion 333-81281 811-6293
Separate Account VA-K Directed Advisory Solutions 333-90543 811-6293
(Agency No-Load/ Fund Quest)
Separate Account VA-K Value Generation (Annuity Scout) 333-87099 811-6293
Separate Account VA-K Immediate Advantage 333-81861 811-6293
Separate Account VA-K Agency C-Shares (Premier Choice) 333-38274 811-6293
Select Separate Account Select Resource 33-47216 811-6632
Select Separate Account Select Charter 333-63093 811-6632
Select Separate Account Select Reward 333-78245 811-6632
Select Separate Account Select Acclaim 333-92115 811-6632
Separate Account VA-A VA Annuity 0-00000 (XX) 000-00000
2-53205 (Q)
Separate Account VA-B VA Annuity 2-53203 811-02559
Separate Account VA-C VA Annuity 2-53204 811-02558
Separate Account VA-G VA Annuity 2-86439 811-03842
Separate Account VA-H VA Annuity 2-86440 811-03841
Commonwealth Annuity Preferred Plus 333-141019 811-22024
Separate Account A
Commonwealth Annuity Advantage TV 333-141045 811-22024
Separate Account A
Commonwealth Annuity Horizon 333-157121 811-22024
Separate Account A
Separate Account VA-P Pioneer Vision 33-85916 811-8848
Separate Account VA-P Pioneer C-Vision 333-64831 811-8848
Separate Account VA-P Pioneer XtraVision 333-81017 811-8848
AMENDMENT TO
PARTICIPATION AGREEMENT
The
Participation Agreement ("Agreement") dated January 2, 2006 by and among
XXXXXXX XXXXX VARIABLE INSURANCE TRUST, a statutory trust formed under the
laws of Delaware (the "Trust"), XXXXXXX, SACHS & CO., a New York limited
partnership (the "Distributor"), and FIRST ALLMERICA FINANCIAL LIFE INSURANCE
COMPANY, a Massachusetts life insurance company (the "Company"), is hereby
amended effective September 1, 2010, as follows:
1. Schedules 1 through 4 of the
Participation Agreement are hereby deleted in
their entirety and replaced with the Schedules 1 through 4 attached hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
the Agreement to be executed in its name and behalf by its duly authorized
officer on the date specified below.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
(Trust)
Date: 8/12/10 By: /s/ Xxxxx XxXxxxxx
----------------------
Name: Xxxxx XxXxxxxx
Title: Managing Director
XXXXXXX, SACHS & CO.
(Distributor)
Date: 8/12/10 By: /s/ Xxxxx XxXxxxxx
----------------------
Name: Xxxxx XxXxxxxx
Title: Managing Director
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
(Company)
Date: 8/11/10 By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
SCHEDULE 1
REGISTERED SEPARATE ACCOUNTS AND VARIABLE PRODUCTS
LIFE
PRODUCT SEPARATE ACCOUNT COMPANY 1933 XXX 0000 ACT
------- ------------------------ ------- --------- ---------
VEL II ('93) VEL II Account FAFLIC 33-71056 811-8130
Group VEL (Standard) Group VEL Account FAFLIC 333-06383 811-7663
Inheiritage/Select Inheiritage Inheiritage Account FAFLIC 33-74184 811-8304
Allmerica Select Life II Allmerica Select Separate FAFLIC 333-62639 811-8987
(Select VEL) Account II
SPVL (a/k/a VEL III and Agency Separate Account SPVL FAFLIC 333-45914 811-10133
SPVL)
SPL II Separate Account SPVL FAFLIC 333-84310 811-10133
ANNUITY
PRODUCT SEPARATE ACCOUNT COMPANY 1933 XXX 0000 ACT
------- ------------------------ ------- --------- -----------
Allmerica XXX Separate Account I FAFLIC 33-47858 811-6666-01
ExecAnnuity Plus/Allmerica Separate Account VA-K FAFLIC 33-71052 811-8114
Advantage
Allmerica Select Resource Allmerica Select FAFLIC 33-71058 811-08116
Separate Account
Allmerica Select Reward (Bonus) Allmerica Select FAFLIC 333-54070 811-08116
Separate Account
Delaware Medallion I/II and III Separate Account VA-K FAFLIC 33-71054 811-8114
Delaware Golden Medallion Separate Account VA-K FAFLIC 333-54218 811-8114
DirectedAdvisorySolutions Separate Account VA-K FAFLIC 333-90545 811-8114
Allmerica Value Generation Separate Account VA-K FAFLIC 333-87105 811-8114
IVA/Agency IVA Separate Account VA-K FAFLIC 333-81859 811-8114
(Allmerica Immediate Advantage)
Agency C-Shares Separate Account VA-K FAFLIC 333-38276 811-8114
Allmerica Select Charter Allmerica Select FAFLIC 333-63087 811-08116
Separate Account
Fulcrum Fulcrum Separate Account FAFLIC 333-16929 811-7947
2
SCHEDULE 2
SCHEDULE 2A
-----------
SEPARATE ACCOUNTS OF THE COMPANY EXCLUDED FROM THE DEFINITION OF AN
INVESTMENT COMPANY AS PROVIDED FOR BY SECTION 3(c)(11) OF THE 1940 ACT
The following separate accounts of the Company are subject to the Agreement:
DATE AUTHORIZED BY
NAME OF ACCOUNT BOARD OF DIRECTORS GROUP OR TYPE OF PRODUCT
OF THE COMPANY INDIVIDUAL SUPPORTED BY ACCOUNT
------------------- -------------------- ---------- --------------------
Separate Investment August 20, 1991 Group Tax-Qualified
Account Y Pension Products
Separate Investment August 20, 1991 Group Tax-Qualified
Account P Pension Products
Separate Investment August 20, 1991 Group Tax-Qualified
Account J Pension Products
SCHEDULE 2B
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE CONTRACTS NOT
REGISTERED UNDER THE SECURITIES ACT OF 1933 IN RELIANCE UPON SECTION 3(a)(2)
OF THE ACT
The following Contracts are subject to the Agreement:
TYPE OF
PRODUCT
GROUP OR SUPPORTED BY
NAME OF CONTRACT AVAILABLE FUNDS INDIVIDUAL ACCOUNT
---------------- ------------------------------------- ---------- -------------
RIO/RIFA GS VIT Capital Growth - Service
GS VIT Core Fixed Income - Service
GS VIT Growth Opportunities - Service Tax-Qualified
GS VIT Mid Cap Value - Service Group Pension
GS VIT Strategic International Equity - Products
Service
3
SCHEDULE 3
SCHEDULE 3A
-----------
SEPARATE ACCOUNTS OF THE COMPANY EXCLUDED FROM THE DEFINITION OF AN
INVESTMENT COMPANY AS PROVIDED FOR BY SECTION 3(c)(1) OR 3(c)(7) OF THE 1940
ACT
The following separate accounts of the Company are subject to the Agreement:
Date Established by
Board of Directors Type of Product
Name of Account of the Company Group or Individual Supported by Account
--------------- ------------------- ------------------- --------------------
NONE
SCHEDULE 3B
-----------
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE CONTRACTS NOT
REGISTERED UNDER THE SECURITIES ACT OF 1933 IN RELIANCE UPON SECTION 4(2) OF
THE ACT AND REGULATION D THEREUNDER
The following Contracts are subject to the Agreement:
Type of Product
Supported by
Name of Contract Available Funds Group or Individual Account
---------------- --------------- ------------------- ---------------
NONE
SCHEDULE 4
STATE INSURANCE LAW RESTRICTIONS
NONE
4
FUND/SERV AND NETWORKING SUPPLEMENT TO
PARTICIPATION AGREEMENTS
This Fund/SERV and Networking Supplement (the "Supplement") is made and
entered into this 12th day of August, 2008, by and between Xxxxxxx Xxxxx
Variable Insurance Trust ("Fund"), Xxxxxxx, Sachs & Co. ("Fund Agent"), and
Commonwealth Annuity and Life Insurance Company ("Insurance Company"), on its
own behalf and on behalf of each separate account of the Insurance Company
(each an "Account") identified in the
Participation Agreement (as defined
below).
WHEREAS, Insurance Company, the Fund, and Fund Agent have entered into an
Amended and Restated
Participation Agreement dated as of August 1, 2007
("
Participation Agreement"), which provides that the Fund will make available
shares of certain Portfolios ("Fund Shares") for purchase, exchange and
redemption by the Insurance Company, on behalf of the Accounts, in order to
fund variable annuity contracts and variable life insurance policies
contracts ("Contracts") purchased by its customers ("Contract Holders"); and
WHEREAS, Insurance Company and Fund Agent are members in good standing of the
National Securities Clearing Corporation ("NSCC") or otherwise have access to
the NSCC's Fund/SERV system, which permits the transmission of trade and
registration data between Insurance Company and the Fund;
WHEREAS, the parties wish to supplement the Participation Agreement as
necessary to permit the transmission of purchase, exchange and redemption
orders of Fund Shares using the NSCC Fund/SERV system; and
WHEREAS, it is intended that the parties will participate with each other in
NSCC's Networking system ("Networking") to enable the transmission of
shareholder data between Fund Agent and Insurance Company with respect to the
Fund, pursuant to certain matrix levels as described in the Standard
NETWORKING Agreement on file with the NSCC and incorporated herein by
reference:
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, Fund, Fund Agent and Insurance
Company hereby agree to supplement the Participation Agreement as follows:
1. TRANSACTIONS SUBJECT TO FUND/SERV AND NETWORKING.
(a) On each business day that the New York Stock Exchange is open for
business on which the Fund determines the per share net asset values of the
Fund Shares ("Business Day"), Fund Agent shall accept, and effect changes in
its records upon receipt of purchase, redemption, exchanges, and registration
instructions from Insurance Company electronically through Fund/SERV
("Instructions"), without supporting documentation.
(b) Each party hereby agrees to participate in NETWORKING with the other
party pursuant to a mutually agreeable matrix or trust level established by
the NSCC, in accordance with the terms and conditions of the Standard
NETWORKING Agreement, as amended by this
1
Supplement. In the event of any conflict between the terms of the Standard
NETWORKING Agreement and the terms of this Supplement, the terms of this
Supplement shall govern.
(c) Fund Agent acknowledges that Insurance Company may engage one or more
agents to fulfill some or all of Insurance Company's responsibilities
hereunder and that said agent(s) shall be authorized to act on Insurance
Company's behalf and shall be entitled to collect, receive and transmit
information directly to and from Fund Agent on Insurance Company's behalf. As
between the Fund Agent and Insurance Company, Insurance Company represents
and warrants that such agents have appropriate agreements in place with
Insurance Company and if required, with the NSCC, to assume such delegated
responsibilities.
2. OPERATING PROCEDURES.
The Operating Procedures governing the responsibilities of the Fund and the
Insurance Company under the Participation Agreement and this Supplement with
respect to the purchase and redemption of Fund Shares and share price
communications are hereby incorporated into the Participation Agreement, as
Schedule A thereto. In the event that the NSCC's Fund/SERV system is not
available, the parties agree that orders will be processed in accordance with
the Manual Procedures set forth in Schedule A.
3. AS OF TRANSACTIONS.
Processing errors which result from any delay or error caused by Insurance
Company may be adjusted through Fund/SERV by Insurance Company by the
necessary corrective transactions on an as-of basis ("As Of Trade");
provided, however, that prior authorization must be obtained from Fund Agent
if the corrective transaction is backdated more than five days or to a
previous calendar year. Insurance Company shall promptly pay each Fund for
any loss incurred by the Fund as a result of the As of Trade that results
from a delay or error caused by the Insurance Company. Fund Agent shall have
complete and sole discretion as to whether or not to accept an As Of Trade.
If an As Of Trade is allowed by Fund Agent to be processed as of a particular
Trade Date, Insurance Company warrants that the trade relates only to
Instructions received by Insurance Company by the Close of Trading on Trade
Date. Fund Agent reserves the right to process any As Of Trade outside of
Fund/SERV.
4. TRADE CONFIRMATION.
Any information provided by Fund Agent to Insurance Company electronically
through Fund/SERV and pursuant to this Supplement, shall satisfy the
confirmation delivery obligations as outlined by Rule 10b-10 of the
Securities Exchange Act of 1934. Insurance Company hereby provides its
informed consent to suppress the delivery of this information using
paper-media. Insurance Company will promptly verify accuracy of confirmations
of transactions and records received by Fund Agent through Fund/SERV.
5. OVERPAYMENTS
2
(a) OVERPAYMENTS TO INSURANCE COMPANY. In the event of overpayment to
Insurance Company upon a redemption, where such overpayment is caused by Fund
Agent's error, Insurance Company agrees to use commercially reasonable
efforts to collect such overpayment from the Contract Holder. If, after such
efforts, Insurance Company is not able to recover all of such overpayment,
Insurance Company will cooperate with the attempts of Fund Agent or the
relevant Fund to recover any portion of the overpayment, including providing
Fund Agent or a Fund with information reasonably available to Insurance
Company as to the identity of the Contract Holder(s) from whom such remainder
has not been recovered. If the overpayment proceeds are still in the custody
of Insurance Company or the Contract Holder's account with Insurance Company,
or if the overpayment is caused by Insurance Company's error, Insurance
Company shall promptly repay such overpayment to Fund Agent after Insurance
Company receives notice of such overpayment.
(b) OVERPAYMENTS TO FUND AGENT. In the event any overpayment is made to
Fund Agent by Insurance Company, Fund Agent shall promptly repay such
overpayment to Insurance Company after Fund Agent receives notice of such
overpayment.
6. NETWORKING
This section 6 shall apply only between parties using the NSCC's NETWORKING
service (Networking) with each other from time to time:
(a) Each party represents to the other that it or its agent has executed
and filed with the NSCC, and has not terminated, the standard NETWORKING
Agreement (the "NETWORKING Agreement") and that it or its agent is eligible
to use the NSCC's NETWORKING service. Each party agrees to participate in
NETWORKING with the other under the terms of the NETWORKING Agreement and in
accordance with the rules, standards and procedures of the NSCC as in effect
from time-to-time.
(b) The terms of the NETWORKING Agreement, as supplement by this Section 6,
shall be incorporated by reference herein. The term "Fund Agent" has the
meaning assigned thereto in the NETWORKING Agreement; the term "Firm" as used
therein shall be deemed to refer to the Insurance Company or its agent. The
provisions of Article III of the NETWORKING Agreement as incorporated by
reference herein shall survive termination of this Agreement with respect to
acts or omissions occurring prior to such termination and actions, claims,
suits, complaints, proceedings or investigations resulting from or arising
out such acts or omissions.
(c) Insurance Company shall be responsible for obtaining and maintaining
all documentation and information (together, "Information"), and any changes
to such Information, necessary to ensure that all Networking accounts are
established and maintained in compliance with applicable laws and
regulations, including, without limitation, tax laws and regulations.
Insurance Company represents and warrants that (i) all such Information is,
and shall remain, true and correct; (ii) each taxpayer identification number
or certificate of foreign status provided by Insurance Company to the Funds
or Fund Agent has been certified, under penalties of perjury, by the
Shareholder on the appropriate Internal Revenue Service form or a legally
acceptable substitute; and (iii) Insurance Company shall hold available for
provision to, or inspection by, regulatory authority, all Information
required by law or regulation to be so held.
3
(d) Insurance Company shall provide cross-reference data between its
internal customer account numbers and the Fund shareholder account numbers.
Insurance Company shall be responsible for the accuracy of the
cross-reference file as established, for providing updated information, and
for the accuracy of any information or instructions given to Fund Agent
regarding the cross-reference file. Fund Agent shall be responsible for
maintaining the cross-reference file, once established, for processing such
information as provided and for executing such instructions. Fund Agent shall
not be responsible for any changes to the cross-reference file until a
reasonable period of time after Fund Agent's receipt thereof.
7. REPRESENTATIONS AND WARRANTIES
(a) Fund Agent and Insurance Company each represents, warrants, and
covenants to the other that:
(i) it shall perform any and all duties, functions, procedures and
responsibilities assigned to it under this Supplement and as otherwise
established by the NSCC in a competent manner and in compliance with
(a) all applicable laws, rules and regulations, including NSCC rules
and procedures relating to Fund/SERV and NETWORKING; and (b) the then
current prospectuses and statements of additional information of the
Fund;
(ii) it shall maintain facilities, equipment and skilled personnel
sufficient to perform the foregoing activities and to otherwise comply
with the terms of this Supplement;
(iii) all trades, confirmations and other information provided by one
party to the other party through the NSCC and pursuant to this
Supplement shall be accurate, complete and, in the format prescribed
by the NSCC. Each party shall adopt, implement and maintain procedures
reasonably designed to ensure the accuracy of all transmissions through
Fund/SERV and NETWORKING and to limit the access to, and the inputting
of data into, Fund/SERV and NETWORKING to persons specifically
authorized by such party; and
(iv) it has duly executed and delivered the NETWORKING Agreement, and
has filed such Agreement with the NSCC.
(b) To the extent Insurance Company has engaged one or more third parties
(including affiliates of Insurance Company) to act as subcontractor(s) or
agent(s) ("Agents") to perform services that Insurance Company is responsible
for performing under this Supplement, Insurance Company has determined that
each such Agent is capable of performing such services and shall take
measures as may be necessary to ensure that such Agents perform such services
in accordance with the terms of this Supplement and applicable law. Insurance
Company shall be responsible for, and assume all liability for (including any
obligation for indemnification) the actions and inactions of such Agents as
if such services had been provided by Insurance Company.
8. TERMINATION; AMENDMENT.
This Supplement shall continue in effect until terminated, but shall
terminate automatically if the Participation Agreement is terminated. Fund
Agent or Insurance Company may terminate
4
this Supplement at any time by written notice to the other 30 days prior to
the termination date, but such termination shall not affect the payment or
repayment of fees on transactions, if any, prior to the termination date.
This Supplement may be amended at any time by mutual written agreement of
both parties.
9. CONFLICTING AGREEMENTS.
Except for the Participation Agreement and the Standard Networking Agreement,
this Supplement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, among the
parties. In the event there is any conflict between this Supplement and the
Standard Networking Agreement, the terms and conditions of this Supplement
shall control. In the event there is any conflict between this Supplement and
the applicable Participation Agreement, the terms and conditions of the
Participation Agreement shall control.
10. ASSIGNMENT.
Neither Fund Agent nor Insurance Company may assign this Supplement without
the prior written consent of the other Party, and any attempted assignment
without such consent shall be null and void; provided, however, a change in
control of either Party shall not constitute an assignment of this
Supplement. Fund Agent acknowledges that Insurance Company may engage one or
more agents to fulfill some or all of Insurance Company's responsibilities
hereunder, which shall not constitute an assignment for the purposes of this
Supplement.
11. SEVERABILITY.
If any provision of this Supplement is held to be invalid, the remaining
provisions of the Supplement shall continue to be valid and enforceable.
12. NOTICE.
Any notice or amendment required or permitted hereunder shall be in writing
and shall be given by personal service, mail, or facsimile to the other
parties at the address set forth below (or such other address as the parties
may specify by written notice). Notice shall be effective upon receipt if by
mail, on the date of personal delivery (by private messenger, courier service
or otherwise), or upon receipt of facsimile, whichever occurs first at:
5
Fund:
Xxxxx Xxxxxxx
Secretary
Xxxxxxx Sachs Variable Insurance Trust
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fund Agent:
Xxxxx Xxxx
Managing Director
Xxxxxxx, Sachs & Co.
00 X. Xxxxxx - Xxxxx 000
Xxxxxxx, XX 00000
Insurance Company:
Xxxxxxx X. Xxxxxxx
President and CEO
Commonwealth Annuity and Life Insurance Company
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
13. WAIVER.
The failure of a party to insist upon strict adherence to any provision of
this Supplement on any occasion shall not be considered a waiver nor shall it
deprive such Party of the right thereafter to insist upon strict adherence to
that provision or any other provision of this Supplement.
6
IN WITNESS WHEREOF, the undersigned have caused this Supplement to be
executed as of the date first above written.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
XXXXXXX, SACHS & CO
By: /s/ Xxxxx Xxxx
----------------------
Name: Xxxxx Xxxx
Title: Managing Director
COMMONWEALTH ANNUITY AND LlFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
7
SCHEDULE A
OPERATING PROCEDURES
Unless otherwise defined below, all capitalized terms have the meanings
specified in the Amendment and the Participation Agreement, each of which
this Exhibit is a part.
I. FUND/SERV AND NETWORKING PROCEDURES
A. TRANSMITTAL OF PORTFOLIO INFORMATION. With respect to each Portfolio,
the Fund will provide the Insurance Company or its agent, via the NSCC's
Mutual Fund Profile System, with (i) the net asset value per share of the
Portfolio (the "Share Price") on each Business Day, determined as of the time
specified in the Portfolio's prospectus ("Close of Trading"); (ii) dividend
and capital gains distribution information on ex-date; and (iii) in the case
of fixed income and money market Portfolios which declare dividends daily,
the daily accrual interest rate factor. The Fund will use its best efforts to
communicate such information to the Insurance Company or its designee via the
NSCC's Mutual Fund Profile System by 7:00 p.m. Eastern Time each Business
Day; provided, however, that the Fund reserves the right to communicate the
Share Price at a time later than 7:00 p.m. Eastern Time. Fund Agent shall
notify Insurance Company in the event that the Share Price information will
be delayed and shall make available to Insurance Company, a contact person
that is able to answer questions and provide information about the reason for
the delay and when the information is expected to be provided.
B. TRANSMITTAL OF ORDERS. The Insurance Company agrees that, unless
otherwise agreed to in writing with the Fund, orders for the purchase,
exchange or redemption of Fund shares ("Instructions") received by the
Insurance Company prior to the Close of Trading on any Business Day ("Day 1")
will be transmitted to the Fund's transfer agent via Fund/SERV and accepted
by Fund/SERV prior to 6:00 a.m. Eastern Time on the following Business Day
("Day 2") (such orders are referred to as "Day 1 Trades"). Each transmission
by the Insurance Company or its designee of a purchase, exchange or
redemption order relating to a Business Day ("Order") will constitute a
representation by the Insurance Company that such Order was based on
Instructions that the Insurance Company received and accepted as being in
good order prior to the Close of Trading on that Business Day, and that the
Order included all purchase, exchange and redemption Instructions so received
by the Insurance Company.
In the event that Orders for any Business Day are not transmitted to the Fund
via Fund/SERV and accepted by Fund/SERV prior to 6:00 a.m. Eastern Time on
Day 2, the Insurance Company or its designee shall transmit such Orders to
the Fund in accordance with the Manual Procedures below. If such Orders are
not transmitted to the Fund in accordance with the Manual Procedures, the
Fund reserves the right, in its sole discretion, to reject, reverse or
reprice the Orders (notwithstanding that the Insurance Company may have
received Fund/Serv confirmation of the Orders) and the Insurance Company will
be responsible for reimbursement of any loss sustained by the Fund that may
arise out of the improper transmittal of such Orders.
All Orders transmitted to the Fund via Fund/SERV will be communicated in
accordance with Fund/SERV rules, guidelines and procedures. The Insurance
Company acknowledges that
8
certain cash flows may be known on or before a trade date, and the Insurance
Company agrees to use its reasonable efforts to notify the Fund of such cash
flows before such trade date.
C. FUND/SERV CONFIRMATION. The Fund, acting through the Fund's transfer
agent, has established one or more master accounts on its mutual fund
shareholder account recordkeeping system (each, a "T/A Account") reflecting
the aggregate ownership of shares of each Portfolio of the Fund and all
transactions involving such shares by the Insurance Company on behalf of the
Accounts. The Fund's transfer agent will transmit a confirmation via
Fund/SERV that will set forth the number of Portfolio shares purchased,
exchanged and redeemed, the beginning and ending share balances, and the net
asset value per share.
D. PRICING OF ORDERS. Day 1 Trades communicated to the Fund as provided
under Section C of these Fund/SERV Procedures will be effected at the Share
Price for the applicable Portfolio on Day 1.
E. SETTLEMENT. Day 1 Trades confirmed by the Fund via Fund/SERV will
settle in U.S. dollars in accordance with the Fund's profile within Fund/SERV
applicable to the Insurance Company.
F. DIVIDENDS AND OTHER DISTRIBUTIONS. The Fund or its transfer agent will
furnish the Insurance Company or its designee notice of any dividends or
other distributions payable on the shares of each Portfolio via Networking.
Dividends and distributions with respect to a Portfolio will be automatically
reinvested in additional shares of the Portfolio held by the T/A Account(s)
and the Fund or its transfer agent will notify the Insurance Company or its
agent, via Networking, as to the number of shares so issued.
G. ACTIVITY REPORTING AND VERIFICATION. The Fund or its transfer agent
will transmit or make available to the Insurance Company, via Networking
(including DST Vision, Advisor Central, websites, or other electronic means),
a report containing any transactions or other activity occurring in a T/A
Account on a Business Day, including any Fund/SERV transactions, and the
share balance for each T/A Account in accordance with Fund/SERV's Networking
guidelines. The Insurance Company will promptly review and verify this
information and immediately advise the Fund or its transfer agent in writing
of any discrepancies between the Insurance Company's records and the balance
in the T/A Account(s).
If the Insurance Company chooses not to utilize Networking, the Fund or its
transfer agent will deliver to the Insurance Company a physical statement for
the preceding calendar month reflecting the shares of each Portfolio held by
the T/A Account(s) as of the end of such preceding month and all purchases,
exchanges and redemptions by the Insurance Company of shares of a Portfolio
during such preceding month. The Insurance Company will, immediately on
receipt of any physical statement concerning an Account, verify the
information contained therein against the information contained on the
Insurance Company's record-keeping system and immediately advise the Fund in
writing of any discrepancies between such information.
The Fund and the Insurance Company will cooperate to resolve any such
discrepancies as soon as reasonably practicable.
9
H. PROCESSING ADJUSTMENTS. In the event of any error or delay with respect
to these Fund/SERV and Networking Procedures that is caused by the Fund or
its transfer agent, the Fund will make any adjustments on its (or its
transfer agent's) accounting system necessary to correct such error or delay.
The Insurance Company will make the corresponding adjustments on its
record-keeping system. The Insurance Company and the Fund will each provide
the other with prompt notice of any errors or delays of the type referred to
in these Fund/SERV and Networking Procedures.
I. FUND/SERV UNAVAILABILITY. If the Fund/SERV and Networking systems are
unavailable for any reason, or if it is otherwise impracticable to operate in
accordance with these Fund/SERV and Networking Procedures, transactions shall
be processed in accordance with the Manual Procedures outlined below.
II. MANUAL PROCEDURES
A. TRANSMITTAL OF PORTFOLIO INFORMATION. With respect to each Portfolio,
the Fund or its transfer agent will provide the Insurance Company with (i)
the Share Price determined as of the Close of Trading on each Business Day;
(ii) dividend and capital gains distribution information on ex-date,; and
(iii) in the case of fixed income and money market Portfolios which declare
dividends daily, the daily acrual interest rate factor. The Fund will use its
best efforts to communicate, or have its transfer agent communicate, such
information to the Insurance Company or its designee via facsimile or other
method agreed upon by the parties by 7:00 p.m. Eastern Time each Business
Day; however, the Fund reserves the right to communicate the Share Price at a
time later than 7:00 p.m. Eastern Time. Fund Agent shall notify Insurance
Company in the event that the Share Price information will be delayed and
shall make available to Insurance Company, a contact person that is able to
answer questions and provide information about the reason for the delay and
when the information is expected to be provided.
B. TRANSMITTAL OF ORDERS. The Insurance Company agrees that, unless
otherwise agreed to in writing with the Fund, Instructions received by the
Insurance Company prior to the Close of Trading on any Business Day ("Day 1")
will be transmitted to the Fund by facsimile no later than 9:00 a.m. Eastern
Time on the following Business Day ("Day 2") (such Orders are referred to as
"Day 1 Trades"). Each transmission by the Insurance Company or its designee
of a purchase, exchange or redemption order relating to a Business Day
("Order") will constitute a representation by the Insurance Company that such
Order was based on Instructions that the Insurance Company received and
accepted as being in good order prior to the Close of Trading on that
Business Day, and that the Order included all purchase, exchange and
redemption Instructions so received by the Insurance Company.
All Orders transmitted to the Fund will be communicated in U.S. dollars and
will indicate the date of the transaction. On Business Days where there are
no Orders, or where the net dollar amount for purchases and redemptions for
an Account equals zero, the communication will so indicate. The Insurance
Company acknowledges that certain cash flows may be known on or before a
trade date, and the Insurance Company agrees to use its reasonable efforts to
notify the Fund of such cash flows before such trade date.
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C. CONFIRMATION. All Orders transmitted in accordance with Section B of
these Manual Procedures are subject to acceptance by the Fund and shall
become effective only upon confirmation by the Fund, which confirmation shall
be sent to the Insurance Company or its designee via mail.
D. PRICING OF ORDERS. Day 1 Trades communicated to the Fund by 9:00 a.m.
Eastern Time on Day 2 will be effected at the Share Price for the applicable
Portfolio on Day 1.
E. SETTLEMENT.
1. PURCHASE ORDERS. In the case of Day 1 Trades that constitute a net
purchase (including exchanges) Order, the Insurance Company or its designee
will arrange for a federal funds wire transfer of the net purchase amount to
a custodial account designated by the Fund by 3:00 p.m. Eastern Time on Day 2.
2. REDEMPTION ORDERS. In the case of Day 1 Trades that constitute a net
redemption (including exchanges) Order, the Fund or its transfer agent will
arrange for a federal funds wire transfer of the net redemption amount to a
bank account designated by the Insurance Company on Day 2, in no instance
later than the time provided for in the applicable Portfolio's Prospectus.
3. GENERALLY. Settlements will be in U.S. dollars. On any Business Day
when the Federal Reserve Wire Transfer System is closed, all communication
and processing rules will be suspended for the settlement of Orders. Orders
will be settled on the next Business Day on which the Federal Reserve Wire
Transfer System is open. Transactions that are the subject of such Orders
will be processed at the Share Price for the applicable Portfolio on the
Business Day to which the Orders originally relate.
F. DIVIDENDS AND OTHER DISTRIBUTIONS. The Fund or its transfer agent will
furnish the Insurance Company or its designee written notice of any dividends
or other distributions payable on the shares of each Portfolio, via facsimile
or other method agreed upon by the parties. Dividends and distributions with
respect to a Portfolio will be automatically reinvested in additional shares
of the Portfolio held by the T/A Account(s) and the Fund or its transfer
agent will notify the Insurance Company or its designee as to the number of
shares so issued.
G. ACTIVITY REPORTING AND VERIFICATION. The Fund or its transfer agent will
deliver to the Insurance Company or its designee in writing, via facsimile or
other method agreed upon by the parties (e.g., DST Vision, Advisor Central,
websites, or other electronic means) a statement for the preceding calendar
month reflecting the shares of each Portfolio held by the T/A Account(s) as
of the end of such preceding month and all purchases, exchanges and
redemptions by the Insurance Company of shares of a Portfolio during such
preceding month. The Insurance Company will, immediately upon receipt of any
statement concerning a T/A Account, verify the information contained therein
against the information contained on the Insurance Company's record-keeping
system and immediately advise the Fund or its transfer agent, in writing, of
any discrepancies between such information. The Fund and the Insurance
Company will cooperate to resolve any such discrepancies as soon as
reasonably practicable.
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H. PROCESSING ADJUSTMENTS. In the event of any error or delay with respect
to these Manual Procedures that is caused by the Fund or its transfer agent,
the Fund will make any adjustments on its (or its transfer agent's)
record-keeping system necessary to correct such error or delay. The Insurance
Company will make the corresponding adjustments on its recordkeeping system.
The Insurance Company and the Fund will each provide the other with prompt
notice of any errors or delays of the type referred to in these Manual
Procedures.
12
AMENDMENT TO PARTICIPATION AGREEMENT
This AMENDMENT is made and entered into this __ day of _________ 2011 by
and between XXXXXXX XXXXX VARIABLE INSURANCE TRUST, a statutory trust formed
under the laws of Delaware (the "Trust"), XXXXXXX, SACHS & CO., a New York
limited partnership (the "Distributor"), and __________________, a
______________ life insurance company (the "Company"), on its own behalf and on
behalf of each separate account of the Company identified in the Participation
Agreement (as defined below).
WHEREAS, the 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 the Company ("Contracts"); and
WHEREAS, the Distributor, the Trust, and the Company seek to enter into
this Amendment to make changes to the Participation Agreement in order to update
certain sections of the Participation Agreement and to permit the Parties to
deliver the Trust's Summary Prospectuses (as defined below) 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, the Distributor, the Trust, and the
Company hereby agree as follows:
ARTICLE I
ADDITIONAL DEFINITIONS
Unless otherwise noted, terms used in this Amendment shall have the same
meaning as in the Participation Agreement. For purposes of this Amendment:
1.1 "Applicable Law" -- the "federal securities laws" as defined in Rule
38a-1(e)(1) under the Investment Company Act of 1940 (the "1940 Act"), any rules
promulgated under the federal securities laws, FINRA regulations and any
Applicable SEC Guidance (as defined below). The term "Applicable Law" also
includes any state laws, rules and regulations that may apply to this Amendment.
1.2 "Applicable SEC Guidance" - Any applicable: (a) SEC release, opinion,
or order, as well as any published no-action position, written interpretative
guidance by the SEC staff; and (b) FINRA interpretive memoranda or notices to
members, as well as any written interpretive guidance from the FINRA staff.
"Applicable SEC Guidance" does not include oral statements, speeches or informal
guidance by the SEC or its staff.
1.3 "FINRA" -- The Financial Industry Regulatory Authority, Inc. All
references to the NASD in the Participation Agreement are replaced with
references to FINRA.
1.4 "Fund Documents" -- those documents prepared by the Fund that, pursuant
to Rule 498(e)(1), 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.
1.5 "Fund Documents Web Site" -- 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.
1.6 "Participation Agreement" -- the agreement entered into by and among
the Trust, Distributor, and Company on ____________ and any amendments thereto.
1.7 "Prospectus" -- with respect to shares of a Series (or Class) of the
Trust or a class of Schedule 1 Contracts, each version of the Statutory
Prospectus or Summary Prospectus, or supplement thereto filed with the SEC
pursuant to Rule 497 under the 1933 Act. With respect to any provision of this
Agreement requiring a party to take action in accordance with a Prospectus, such
reference thereto shall be deemed to be to the version for the applicable
Series, Class or Contracts last so filed prior to the taking of such action. For
purposes of Article IX, the term "Prospectus" shall include any statement of
additional information incorporated therein.
1.8 "Statutory Prospectus" -- a prospectus that satisfies the requirements
of section 10(a) of the 0000 Xxx.
1.9 "Summary Prospectus" -- a prospectus described in paragraph (b) of Rule
498.
1.10 "Trust" -- as used in this Amendment includes any affiliated and
unaffiliated parties that perform services on behalf of the Trust that are
required by this Amendment.
ARTICLE II
SALE OF TRUST SHARES
2.1 Confirmations required by Section 2.3(a) of the Participation Agreement
may be sent by electronic mail.
2.2 Section 2.3(d) of the Participation Agreement is replaced with the
following language: Any purchase or redemption request for Trust shares held or
to be held in the Company's general account, shall be effected at the net asset
value per share next determined after the Trust's actual receipt of such
request, provided that payment for Trust shares purchased is received by the
Trust in federal funds prior to the Trust's close of business, as defined from
time to time in the Prospectus for such Series or Class.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 COMPANY. In addition to the representations and warranties set forth in
Section 3.1 of the Participation Agreement, the Company represents and warrants
that: (a) it complies with the requirements of Rule 498 and Applicable SEC
Guidance thereunder in connection with
2
the delivery of the Summary Prospectuses for the Funds; and (b) it maintains
reasonable policies and procedures to ensure that it can appropriately meet its
obligations under this Amendment.
3.2 TRUST. In addition to the representations and warranties set forth in
Section 3.2 of the Participation Agreement, the Trust represents and warrants
that: (a) it complies with the requirements of Rule 498 and Applicable SEC
Guidance regarding the Rule in connection with the offer and sale of Fund Shares
as specified in this Amendment, (b) it maintains policies and procedures
reasonably designed to ensure that the Fund Documents are available on the Fund
Documents Web Site and in the manner required by Rule 498(e)(1), (e)(2),and
(e)(3) and Applicable SEC Guidance related thereto, and (c) as provided by Rule
498(e)(4)(ii), it shall take prompt action to ensure that the Fund Documents
become available in the manner required by Rule 498(e)(1), (e)(2),and (e)(3) and
Applicable SEC Guidance as soon as practicable following the earlier of the time
at which it knows or reasonably should have known that the Fund Documents are
not available in the required manner.
3.3 DISTRIBUTOR. Section 3.3 of the Participation Agreement is replaced
with the following: The Distributor represents and warrants that: (i) the
Distributor is a limited partnership duly organized and in good standing under
New York law; (ii) the Distributor is registered as a broker-dealer under
federal and applicable state securities laws and is a member in good standing of
FINRA; (iii) the Distributor is registered as an investment adviser under
federal securities laws; and (iv) it complies with the requirements of Rule 498
and Applicable SEC Guidance in connection with the offer and sale of Fund Shares
as specified in this Amendment.
3.4 Section 3.5 of the Participation Agreement is deleted.
ARTICLE IV
REGULATORY REQUIREMENTS
4.1 DELIVERY OF THE PROSPECTUSES BY THE COMPANY. The following Sections
4.2A through 4.2H are hereby added to the Participation Agreement:
4.2A DELIVERY OF THE PROSPECTUSES BY THE COMPANY. The Company shall deliver
(or arrange for delivery of) an appropriate Prospectus to each prospective
Contract Owner describing in all material respects the terms and features of the
Contract being offered. Except as provided below, the Company shall also deliver
(or arrange for delivery of) a Summary Prospectus for each Fund that a
prospective Contract Owner identifies on his or her application as an intended
investment option under a Contract or to which a Contract Owner currently
allocates premium payments or transfers Contract value. In addition, the Company
reserves the right to deliver the Statutory Prospectus in place of the Summary
Prospectus. The Company shall deliver (or arrange for delivery of) such Summary
or Statutory Prospectuses at the times required by applicable provisions of the
1933 Act and 1940 Act, the rules or regulations thereunder, and any Applicable
SEC Guidance.
4.2B SPECIFIC REQUIREMENTS FOR SUMMARY PROSPECTUSES. The Company may
bind together the Summary Prospectuses or Statutory Prospectuses for the
Funds with Summary
3
Prospectuses and Statutory Prospectuses for shares of other investment
companies available as investment options under the Contract and the
Prospectus(es) describing the Contract(s) provided that such binding is done
in compliance with Rule 498(c)(2) and any Applicable SEC Guidance. The
Company shall deliver all Summary Prospectuses and all Statutory Prospectuses
in compliance with the Greater Prominence requirements of Rule 498(f)(2) and
any Applicable SEC Guidance.
4.2C WEB SITE POSTING. The Trust shall maintain the Fund Documents Web
Site. The Company shall be permitted, but not required to post a copy of the
Trust's Statutory Prospectuses and/or Summary Prospectuses on the Company's Web
site. The Trust agrees to use commercially reasonable efforts to employ
procedures consistent with industry practices designed to reduce exposure to
viruses.
4.2D RESPONSE TO REQUESTS FOR ADDITIONAL FUND DOCUMENTS. Within three (3)
Business Days of receiving a request for a paper copy of a Fund Document, the
Trust shall promptly send the same to the person requesting it free of charge.
Within three (3) Business Days of receiving a request for an electronic copy of
a Fund Document, the Trust shall send, by e-mail to the requestor, either a PDF
copy of, or an electronic link to, the same free of charge.
4.2E CESSATION OF USE OF SUMMARY PROSPECTUS. The Trust shall provide the
Company with at least sixty (60) days advance written notice of its intent to
cease using the Summary Prospectus delivery option so that the Company can
arrange to deliver a Statutory Prospectus in place of a Summary Prospectus in
compliance with Section 4.1 of this Amendment. In order to comply with Rule
498(e)(1), 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 after the termination of any notice period.
4.2F VOTING OF TRUST SHARES. In addition to the requirements set forth in
Section 4.3 of the Participation Agreement, the Company shall vote Trust shares
held in its general account in the same proportion as it votes the applicable
Series or Class of Trust shares held by the Accounts for which it has received
timely instructions.
4.2G INTERPRETATION OF LAW. The Trust, the Distributor and their affiliates
are not responsible or liable for acts or omissions by the Company or the
Company's affiliates taken (or not taken) in reliance upon any statements or
representations made by the Trust, the Distributor or any of their affiliates or
their legal advisers to the Company or the Company's affiliates concerning the
applicability of any federal or state laws, regulations or other authorities to
the activities contemplated by this Agreement.
The Company and its affiliates are not responsible or liable for acts or
omissions by the Trust, the Distributor and their affiliates taken (or not
taken) in reliance upon any statements or representations made by the Company or
it affiliates or their legal advisers to the Trust, the Distributor and their
affiliates concerning the applicability of any federal or state laws,
regulations or other authorities to the activities contemplated by this
Agreement.
4.2H COPIES OF FILINGS AND REGULATORY RESPONSES. In connection with
Sections 4.6 and 4.7 of the Participation Agreement, the Company shall provide
the Trust with prompt notice
4
of a filing by the Company of an application for an order pursuant to Section
26(c) of the 1940 Act involving a Fund and, upon request, shall provide the
Trust with a copy of such an application for exemption.
ARTICLE V
SALE, ADMINISTRATION AND SERVICING OF THE CONTRACTS
5.1 SALE OF CONTRACTS. The following sentence is added to Section 5.1 of
the Participation Agreement: The Company shall deliver the documents listed in
this Section 5.1 and any Amendments thereto and as required by Applicable Law,
including Applicable SEC Guidance.
5.2 TRUST ADVERTISING MATERIAL. With respect to any piece of marketing,
advertising, sales literature or other promotional material required to be
furnished to the Trust or the Distributor pursuant to Section 5.5 of the
Participation Agreement, the Company shall furnish to the Trust or the
Distributor each such piece of advertising, sales literature or other
promotional material at least ten (10) days prior to its use.
ARTICLE VI
COMPLIANCE WITH CODE
There are no amendments to this Article.
ARTICLE VII
EXPENSES
7.1 TRUST EXPENSES. Provision and maintenance of the Fund Documents Web
Site shall be added to the list of the Trust's Expenses as set forth in Section
7.2 of the Participation Agreement.
ARTICLE VIII
POTENTIAL CONFLICTS
There are no amendments to this Article.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION BY THE COMPANY. The following items are added to
Section 9.1 of the Participation Agreement:
(g) arise as a result of any material failure by the Company or persons
under its control (or subject to its authorization) to provide services or
furnish materials as required under the terms of this Amendment; or
(h) arise out of any material breach by the Company or persons under its
control (or subject to its authorization) of this Amendment.
5
9.2 INDEMNIFICATION BY THE TRUST. The following items are added to Section
9.2 of the Participation Agreement:
(f) arise as a result of any material failure by the Trust to provide
services or furnish materials as required under the terms of the Amendment; or
(g) arise out of any material breach by the Trust or persons under its
control (or subject to its authorization) of the Amendment.
9.3 INDEMNIFICATION BY THE DISTRIBUTOR. The following items are added to
Section 9.3 of the Participation Agreement:
(f) arise as a result of any material failure by the Distributor to provide
services or furnish materials as required under the terms of the Amendment; or
(g) arise out of any material breach by the Distributor or persons under
its control (or subject to its authorization) of the Amendment.
ARTICLE X
RELATIONSHIP OF THE PARTIES; TERMINATION
10.1. RELATIONSHIP OF PARTIES. Section 10.1 of the Participation Agreement
is replaced with the following: The Company is to be an independent contractor
vis-a-vis the Trust, the Distributor, or any of their affiliates for all
purposes hereunder and will have no authority to act for or represent any of
them (except to the limited extent the Company acts as agent of the Trust
pursuant to Section 2.3(a) of this Agreement). In addition, no officer or
employee of the Company will be deemed to be an employee or agent of the Trust,
Distributor, or any of their affiliates. The Company will not act as an
"underwriter" or "distributor" of Trust shares, as those terms variously are
used in the 1940 Act, the 1933 Act, and rules and regulations thereunder.
Likewise, the Company will not be a "transfer agent" of the Trust as that term
is used in the 1934 Act and rules thereunder. Consistent with the foregoing, the
Company will not be a "transfer agent" or "administrator" to the Trust as those
terms are referenced in Rule 38a-1 under the 1940 Act.
10.2 NON-EXCLUSIVITY AND NON-INTERFERENCE. Notices required to be provided
by the Company to the Distributor pursuant to Section 10.2(d) of the
Participation Agreement shall be given 90 days (rather than 60 days) in advance
of effecting any such substitution.
10.3 NON-EXCLUSIVITY AND NON-INTERFERENCE. The following is added to
Section 10.2 of the Participation Agreement:
(f) The Company will use its best efforts to provide the Distributor with
immediate notice if it becomes aware of any transactions in Account units that
would result in the Company making a redemption request for more than $25
million.
10.4 TERM AND TERMINATION. This Amendment shall become effective as of the
date written above and shall remain in effect unless specifically terminated as
provided in this Section 10.3. This Amendment may be terminated at any time,
without the payment of any penalty, by
6
mutual agreement of the parties in writing. This Amendment will terminate
automatically upon the termination of the Participation Agreement.
10.5 CONFIDENTIALITY. Section 10.8 of the Participation Agreement is
replaced with the following: All "Confidential Information" (as defined in this
section) supplied by one party to another party in connection with the
negotiation or carrying out of this Agreement shall remain the property of the
party providing such information and shall be kept confidential by the receiving
party or parties except: (a) as may be required by law, (b) as authorized in
writing by the party providing the information, or (c) in the event that such
information is otherwise made public. Each party agrees to take all reasonable
precautions to prevent any unauthorized disclosure of Confidential Information.
Confidential Information means (individually or collectively) proprietary
information of the parties to this Agreement, including but not limited to,
their inventions, "know-how", trade secrets, business affairs, prospect lists,
product designs, product plans, business strategies, finances, fee structures,
etc. Without limiting the generality of the foregoing, Confidential Information
includes: (a) information that the disclosing party designates in writing is
confidential or proprietary, (b) any non-public personal information or
personally identifiable financial information about any Contract Owner or
prospective Contract Owner, and (c) information that a reasonable
business-person would assume to be confidential or proprietary.
ARTICLE XI
APPLICABILITY TO NEW ACCOUNTS AND NEW CONTRACTS
There are no amendments to this Article.
ARTICLE XII
NOTICE, REQUEST OR CONSENT
The contact information for the Trust and Distributor is replaced with
the following:
If to the Trust:
Xxxxx X. XxXxxxxx
President
Xxxxxxx Sachs Variable Insurance Trust
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to the Distributor:
Xxxxx X. XxXxxxxx
Managing Director
Xxxxxxx, Sachs & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ARTICLE XIII
MISCELLANEOUS
7
13.1 RULES OF CONSTRUCTION. To the extent the terms of this Amendment
conflict with the terms of the Participation Agreement, the terms of this
Amendment shall control.
8
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be executed in its name and behalf by its duly authorized officer on the date
specified below.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
(Trust)
Date: By:
-------------------------- -----------------------------------------
Name:
Title:
XXXXXXX, SACHS & CO.
(Distributor)
Date: By:
-------------------------- -----------------------------------------
Name:
Title:
____________________ LIFE INSURANCE COMPANY
(Company)
Date: By:
-------------------------- -----------------------------------------
Name:
Title:
9
