FEDERATED
WORLD-CLASS INVESTMENT MANAGER(R)
FUND PARTICIPATION AGREEMENT
This AGREEMENT is made this 3 day exemptions from the provisions
of Feb, 2011, by and between of sections 9(a), 13(a), 15(a),
MetLife Investors USA Insurance and 15(b) of the 1940 Act and
Company (the "Insurer"), a life Rules 6e-2(b)(15) and
insurance company domiciled in 6e-3(T)(b)(15) thereunder, to the
Massachusetts, on its behalf and extent necessary to permit shares
on behalf of certain segregated of the Investment Company to be
asset accounts of the Insurer sold to and held by variable
listed on Exhibit A to this annuity and variable life
Agreement (the "Separate insurance separate accounts of
Accounts"); Federated Insurance life insurance companies that may
Series (the "Investment or may not be affiliated with one
Company"), a Massachusetts another (hereinafter the "Mixed
business trust; and Federated and Shared Funding Exemptive
Securities Corp. (the Order"); and
"Distributor"), a Pennsylvania
corporation. WHEREAS, the Distributor is
registered as a broker-dealer
WHEREAS, the Investment with the SEC under the Securities
Company is registered with the Exchange Act of 1934, as amended
Securities and Exchange ("1934 Act"), and is a member in
Commission ("SEC") as an open-end good standing of the Financial
management investment company Industry Regulatory Authority
under the Investment Company Act ("FINRA"); and
of 1940, as amended ("1940 Act");
and WHEREAS, to the extent
permitted by applicable insurance
WHEREAS, the Investment laws and regulations, the Insurer
Company is authorized to issue intends to purchase shares of one
separate classes of shares of or more of the Investment
beneficial interest ("shares"), Company's portfolios on behalf of
each representing an interest in its Separate Accounts to serve as
a separate portfolio of assets (a an investment medium for Variable
"Fund") and each Fund has its own Contracts funded by the Separate
investment objective, policies, Accounts, and the Distributor is
and limitations; and shares of authorized to sell shares of the
the Funds are registered under Funds;
the Securities Act of 1933, as
amended ("1933 Act"); and NOW, THEREFORE, in
consideration of the foregoing
WHEREAS, the Investment and the mutual promises and
Company is available to offer covenants set forth, the parties
shares of one or more of its hereby agree as follows:
Funds to separate accounts of
insurance companies that fund 1. SALE OF INVESTMENT COMPANY SHARES
variable annuity contracts and ---------------------------------
variable life insurance policies
and to serve as an investment (a) The Distributor agrees to
medium for variable annuity sell to the Insurer those shares
contracts and variable life of the Funds offered and made
insurance policies offered by available by the Investment
insurance companies that have Company and identified on Exhibit
entered into participation C that the Insurer orders on
agreements substantially similar behalf of its Separate Accounts,
to this agreement ("Participating and agrees to execute such orders
Insurance Companies"); and on each day on which the
Investment Company calculates its
WHEREAS, the Insurer has net asset value pursuant to rules
issued or will issue variable of the SEC ("business day") at
annuity contracts and variable the net asset value determined as
life insurance policies described in the Investment
("Variable Contracts") supported Company's registration statement,
wholly or partially by the next computed after receipt and
Separate Accounts; and acceptance by the Investment
Company or its agent of the order
WHEREAS, the Separate Accounts for the shares of the Investment
are duly established and Company.
maintained as segregated asset
accounts by the Insurer to set (b) The Investment Company agrees
aside and invest assets to make available on each
attributable to the aforesaid business day shares of the Funds
Variable Contracts; and for purchase at the applicable
net asset value per share by the
WHEREAS, the Investment Company Insurer on behalf of its Separate
has obtained an order from the Accounts; provided, however, that
SEC dated December 29, 1993 (File the Board of Trustees of the
No. 812-8620), granting Investment Company or its
Participating Insurance Companies designee may refuse to sell
and variable annuity and variable shares of any Fund to any person,
life insurance separate accounts or suspend or terminate the
offering of shares of any Fund,
if such action is
PGHLIB-2340111.1-GCJONES-999921-50001
required by law or by regulatory cash. The Investment Company shall
authorities having jurisdiction or notify the Insurer of the number of
is, in the sole discretion of the shares so issued as payment of such
Trustees, or their designee, acting dividends and distributions.
in good faith and in light of the
Trustees' fiduciary duties under (j) The Investment Company shall
applicable law, necessary in the best instruct its recordkeeping agent to
interests of the shareholders of any advise the Insurer on each business
Fund. day of the net asset value per share
for each Fund. Neither the Investment
(c) The Investment Company and the Company, any Fund nor the
Distributor agree that shares of the Distributor, nor any of their
Funds of the Investment Company will affiliates shall be liable for any
be sold only to Participating information provided to the Insurer
Insurance Companies, their separate pursuant to this Agreement which
accounts, and other persons information is based on incorrect
consistent with applicable law. No information supplied by the Insurer
shares of any Fund will be sold or any other Participating Insurance
directly to the general public to the Company to the Investment Company or
extent not permitted by applicable the Distributor.
law.
2. REPRESENTATIONS AND WARRANTIES
(d) The Investment Company and the ------------------------------
Distributor will not sell shares of
the Funds to any insurance company or (a) The Insurer represents and
separate account unless an agreement warrants that it is an insurance
containing provisions substantially company duly organized and in good
the same as the provisions in standing under applicable law and
Section 4 of this Agreement is in that it is taxed as an insurance
effect to govern such sales. company under Subchapter L of the
Internal Revenue Code of 1986, as
(e) Upon receipt of a request for amended, (the "Code").
redemption in proper form from the
Insurer, the Investment Company (b) The Insurer represents and
agrees to redeem any full or warrants that it has legally and
fractional shares of the Funds held validly established each of the
by the Insurer, ordinarily executing Separate Accounts as a segregated
such requests on each business day at asset account under the applicable
the net asset value next computed state Insurance Code, and that each
after receipt and acceptance by the of the Separate Accounts is a validly
Investment Company or its agent of existing segregated asset account
the request for redemption, except under applicable federal and state
that the Investment Company reserves law.
the right to suspend the right of
redemption, consistent with (c) The Insurer represents and
Section 22(e) of the 1940 Act and any warrants that the Variable Contracts
rules thereunder. Such redemption issued by the Insurer or interests in
shall be paid consistent with the Separate Accounts under such
Section 22(e) of the 1940 Act and any Variable Contracts (i) are or, prior
rules, regulations or orders to issuance, will be registered as
thereunder, and the procedures and securities under the 1933 Act or,
policies of the Investment Company as alternatively, (ii) are not
described in the current registration registered because they are properly
statement for the Investment Company. exempt from registration under the
1933 Act or will be offered
(f) Any purchase or redemption exclusively in transactions that are
request for any Fund shares held or properly exempt from registration
to be held in the Insurer's general under the 1933 Act.
account shall be effected at the net
asset value per share next determined (d) The Insurer represents and
after the receipt and acceptance of warrants that each of the Separate
such request by the Investment Accounts (i) has been registered as a
Company. unit investment trust in accordance
with the provisions of the 1940 Act
(g) The Insurer agrees to purchase or, alternatively, (ii) has not been
and redeem the shares of each Fund in registered in proper reliance upon an
accordance with the provisions of exclusion from registration under the
Exhibit B to this Agreement and the 1940 Act.
current prospectus for the Fund.
(e) The Insurer represents that it
(h) Issuance and transfer of shares believes, in good faith, that the
of the Funds will be by book entry Variable Contracts issued by the
only unless otherwise agreed by the Insurer are currently treated as
Investment Company. Stock annuity contracts or life insurance
certificates will not be issued to policies (which may include modified
the Insurer or the Separate Accounts endowment contracts), whichever is
unless otherwise agreed by the appropriate, under applicable
Investment Company. Shares ordered provisions of the Code.
from the Investment Company will be
recorded in an appropriate title for (f) The Investment Company represents
the Separate Accounts or the and warrants that it is duly
appropriate sub-accounts of the organized as a business trust under
Separate Accounts. the laws of the Commonwealth of
Massachusetts, and is in good
(i) The Investment Company shall standing under applicable law.
furnish same day notice to the
Insurer of any income, dividends or (g) The Investment Company represents
capital gain distributions payable on and warrants that the shares of the
the shares of the Funds. The Insurer Funds are duly authorized for
hereby elects to reinvest in the Fund issuance in accordance with
all such dividends and distributions applicable law and that the
as are payable on a Fund's shares and Investment Company is registered as
to receive such dividends and an open-end management investment
distributions in additional shares of company under the 1940 Act.
that Fund. The Insurer reserves the
right to revoke this election in (h) The Investment Company represents
writing and to receive all such that it believes, in good faith, that
dividends and distributions in the Funds currently comply with the
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 2
diversification provisions of (m) The parties shall each be deemed
Section 817(h) of the Code and the to repeat all the foregoing
regulations issued thereunder representations and warranties made
relating to the diversification by it at the time of any transaction
requirements for variable life subject to this Agreement.
insurance policies and variable
annuity contracts. 3. GENERAL DUTIES
--------------
(i) The Distributor represents and
warrants that it is a member in good (a) The Investment Company shall take
standing of the FINRA and is all such actions as are necessary to
registered as a broker-dealer with permit the sale of the shares of each
the SEC. Fund to the Separate Accounts,
including maintaining its
(j) The Insurer represents and registration as an investment company
warrants that all of its directors, under the 1940 Act, and registering
officers, employees, and other the shares of the Funds sold to the
individuals/entities employed or Separate Accounts under the 1933 Act
controlled by the Insurer dealing for so long as required by applicable
with the money and/or securities of law. The Investment Company shall
the Separate Accounts are covered by amend its Registration Statement
a blanket fidelity bond or similar filed with the SEC under the 1933 Act
coverage for the benefit of the and the 1940 Act from time to time as
Separate Accounts, in an amount not required in order to effect the
less than the amount that would be continuous offering of the shares of
required by Rule 17g-1 of the 1940 the Funds. The Investment Company
Act or related provisions as may be shall register and qualify the shares
promulgated from time to time as if for sale in accordance with the laws
the Separate Accounts were subject to of the various states to the extent
such rule. The aforesaid bond deemed necessary by the Investment
includes coverage for larceny and Company or the Distributor.
embezzlement and is issued by a
reputable bonding company. The (b) The Investment Company shall use
Insurer agrees to hold for the its best efforts to maintain
benefit of the Investment Company and qualification of each Fund as a
to pay to the Investment Company any Regulated Investment Company under
amounts lost from larceny, Subchapter M of the Code (or any
embezzlement or other events covered successor or similar provision) and
by the aforesaid bond to the extent shall notify the Insurer immediately
such amounts properly belong to the upon having a reasonable basis for
Investment Company pursuant to the believing that a Fund has ceased to
terms of this Agreement. The Insurer so qualify or that it might not so
agrees to make all reasonable efforts qualify in the future.
to see that this bond or another bond
containing there provisions is always (c) The Investment Company shall use
in effect, and agrees to notify the its best efforts to enable each Fund
Investment Company and the to comply with the diversification
Distributor in the event that such provisions of Section 817(h) of the
coverage no longer applies. Code and the regulations issued
thereunder relating to the
(k) The Investment Company represents diversification requirements for
and warrants that all of its variable life insurance policies and
trustees, officers, employees, and variable annuity contracts and any
other individuals or entities dealing prospective amendments or other
with the money and/or securities of modifications to Section 817 or
the Investment Company are and shall regulations thereunder, and shall
continue to be at all times covered notify the Insurer immediately upon
by a blanket fidelity bond or similar having a reasonable basis for
coverage for the benefit of the believing that any Fund has ceased to
Investment Company in an amount not comply.
less than the minimum coverage as
required currently by Rule 17g-l of (d) The Insurer shall take all such
the 1940 Act or related provisions as actions as are necessary under
may be promulgated from time to time. applicable federal and state law to
The aforesaid bond shall include permit the sale of the Variable
coverage for larceny and embezzlement Contracts issued by the Insurer,
and shall be issued by a reputable including registering each Separate
bonding company. Account as an investment company to
the extent required under the 1940
(1) The Insurer acknowledges that, Act, and registering the Variable
pursuant to Form 24f-2, the Contracts or interests in the
Investment Company is not required to Separate Accounts under the Variable
pay fees to the SEC for registration Contracts to the extent required
of its shares under the 1933 Act with under the 1933 Act, and obtaining all
respect to its shares issued to necessary approvals to offer the
Separate Accounts that are unit Variable Contracts from state
investment trusts that offer insurance commissioners.
interests that are registered under
the 1933 Act and on which a (e) The Insurer shall use its best
registration fee has been or will be efforts to maintain the treatment of
paid to the SEC ("Registered Separate the Variable Contracts issued by the
Accounts"). The Insurer agrees to Insurer as annuity contracts or life
provide the Investment Company each insurance policies, whichever is
year within 60 days of the end of the appropriate, under applicable
Investment Company's fiscal year, or provisions of the Code, and shall
when reasonably requested by the notify the Investment Company and the
Investment Company, information as to Distributor immediately upon having a
the number of shares purchased by reasonable basis for believing that
Registered Separate Accounts and such Variable Contracts have ceased
Separate Accounts the interests of to be so treated or that they might
which are not registered under the not be so treated in the future.
1933 Act. The Insurer acknowledges
that the Investment Company intends (f) The Insurer shall offer and sell
to rely on the information so the Variable Contracts issued by the
provided and represents and warrants Insurer in accordance with applicable
that such information shall be provisions of the 1933 Act, the 1934
accurate. Act, the 1940 Act, the regulations
promulgated by the FINRA ("FINRA
Conduct Rules"), and
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 3
state law respecting the offering identities as required by the
of variable life insurance AML-CIP Regulations and/or its
policies and variable annuity AML-CIP Program, with respect
contracts. to all customers on whose
behalf Insurer maintains a
(g) The Distributor shall sell direct account with the
and distribute the shares of the Investment Company.
Funds of the Investment Company
in accordance with the applicable (iv) The parties agree that
provisions of the 1933 Act, the (A) accounts in the Investment
1934 Act, the 1940 Act, the FINRA Company beneficially owned by
Conduct Rules, and state law. Insurer's customers shall be
accounts of the Insurer for
(h) During such time as the all purposes under Insurer's
Investment Company engages in AML-CIP Program and that
Mixed Funding or Shared Funding, (B) Insurer's customers will
a majority of the Board of be customers of Insurer for
Trustees of the Investment all purposes under Insurer's
Company shall consist of persons AML-CIP Program.
who are not "interested persons"
of the Investment Company (l)(i) The parties acknowledge
("disinterested Trustees"), as that:
defined by Section 2(a)(19) of
the 1940 Act and the rules (A) the SEC has adopted
thereunder, and as modified by Regulation S-P at 17 CFR Part
any applicable orders of the SEC, 248 to protect the privacy of
except that if this provision of individuals who obtain a
this Section 3(h) is not met by financial product or service
reason of the death, for personal, family or
disqualification, or bona fide household use;
resignation of any Trustee or
Trustees, then the operation of (B) Regulation S-P permits
this provision shall be suspended financial dealers, such as
(i) for a period of 45 days if Insurer and Distributor, to
the vacancy or vacancies may be disclose "nonpublic personal
filled by the Investment information" ("NPI") of its
Company's Board; (ii) for a "customers" and "consumers"
period of 60 days if a vote of (as those terms are therein
shareholders is required to fill defined in Regulation S-P) to
the vacancy or vacancies; or affiliated and nonaffiliated
(iii) for such longer period as third parties, without giving
the SEC may prescribe by order such customers and consumers
upon application. the ability to opt out of such
disclosure, for the limited
(i) The Insurer and its agents purposes of processing and
will not in any way recommend any servicing transactions (17 CFR
proposal or oppose or interfere (S) 248.14); for specified law
with any proposal submitted by enforcement and miscellaneous
the Investment Company at a purposes (17 CFR (S) 248.15);
meeting of owners of Variable and to service providers or in
Contracts ("Variable Contract connection with joint
Owners") or shareholders of the marketing arrangements (17 CFR
Investment Company, and will in (S) 248.13);
no way recommend, oppose, or
interfere with the solicitation (C) Regulation S-P provides
of proxies for Investment Company that the right of a customer
shares held by Variable Contract and consumer to opt out of
Owners, without the prior written having his or her NPI
consent of the Investment disclosed pursuant to 17 CFR
Company, which consent may be (S) 248.7 and 17 CFR (S)
withheld in the Investment 248.10 does not apply when the
Company's sole discretion. NPI is disclosed to service
providers or in connection
(j) Each party hereto shall with joint marketing
cooperate with each other party arrangements, provided the
and all appropriate governmental Insurer and third party enter
authorities having jurisdiction into a contractual agreement
(including, without limitation, that prohibits the third party
the SEC, the FINRA, and state from disclosing or using the
insurance regulators) and shall information other than to
permit such authorities carry out the purposes for
reasonable access to its books which the Insurer disclosed
and records in connection with the information (17 CFR (S)
any investigation or inquiry 248.13);
relating to this Agreement or the
transactions contemplated hereby. (D) NPI of Insurer's consumers
and customers that have no
(k) (i) The parties acknowledge independent customer
that the SEC and the United relationship with Distributor
States Treasury Department have may be disclosed to
adopted a series of rules and Distributor during the term of
regulations arising out of the the Agreement ("Insurer
USA PATRIOT Act (together with Customer NPI");
such rules and regulations, the
"AML-CIP Regulations"), (E) certain consumers and
specifically requiring certain customers of Insurer may also
financial institutions, including be consumers and customers of
the Investment Company, Distributor as fully-disclosed
Distributor and Insurer, to shareholders of Federated mutual
establish a written anti-money funds ("Joint Customer"); and
laundering and customer
identification program (an (F) NPI of Joint Customers may
"AML-CIP Program"). be disclosed and exchanged
during the term of this
(ii) The Investment Company, Agreement ("Joint Customer
Distributor and Insurer each NPI").
represent, warrant and certify
that they have established, (m) Each party hereby covenants
and covenant that at all times that any Joint Customer NPI which
during the existence of this a party receives from the other
Agreement they will maintain, party will be subject to the
an AML-CIP Program in following limitations and
compliance with the AML-CIP restrictions:
Regulations.
(iii) Insurer covenants that it
will perform all activities,
including the establishment and
verification of customer
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 4
(i) Each party may redisclose identified to Insurer as a
Joint Customer NPI to its own "market timer" by another
affiliates, who will be limited fund company;
by the same disclosure and use
restrictions that are imposed on (ii) With respect to Shares
the parties under this held by Insurer on an omnibus
Agreement; and basis with the Funds, Insurer
shall upon Distributor 's
(ii) Each party may redisclose request, promptly provide the
and use Joint Customer NPI only Taxpayer Identification
as necessary in the ordinary Number of each shareholder
course of business to provide that purchased, redeemed,
the services identified in this transferred or exchanged
Agreement except as permitted shares of a Fund and the
under Regulation S-P and as amount and dates of such
required by any applicable shareholder purchases,
federal or state law. redemptions, transfers and
exchanges; and
(iii) Distributor covenants that:
(iii) Insurer shall follow
(A) Distributor may Distributor 's instructions
redisclose Insurer to restrict or prohibit
Customer NPI to its own further purchases or
affiliates, who will be exchanges of Shares by a
limited by the same shareholder that has been
disclosure and use identified by Distributor as
restrictions that are having engaged in
imposed on Distributor transactions of Shares
under this Agreement; and (whether directly or through
Insurer) that violate the
(B) Distributor may policies and procedures of
redisclose and use the Investment Company as
Insurer Customer NPI only disclosed in each Fund's
as necessary in the Prospectus or that are deemed
ordinary course of disruptive to a Fund as
business to provide the determined by Distributor in
services identified in its sole discretion.
this Agreement and to
third-party service (o)Insurer will forward for
providers as permitted processing on each day only
under Regulation S-P. those purchase and redemption
orders received by Insurer
(iv) Each party represents prior to the daily cut-off
and warrants that, in times disclosed in each
accordance with 17 CFR (S) Fund's prospectus. Insurer
248.30, it has implemented, has, and will maintain at all
and will continue to carry times during the term of this
out for the term of the Agreement, appropriate
Agreement, policies and internal controls for the
procedures reasonably segregation of purchase and
designed to: redemption orders received
prior to the daily cut-off
(A) Insure the times disclosed in each
security and Fund's Prospectus, from
confidentiality of purchase and redemption
records and customers' orders received after the
NPI; daily cut-off times disclosed
in each Fund's prospectus as
(B) Protect against and to the extent required by
any anticipated the 1940 Act.
threats or hazards to
the security or (p)Insurer acknowledges that the
integrity of customer Funds are only registered for
records and NPI; and sale in the United States of
America and that no action
(C) Protect against has been taken by or on
unauthorized access or behalf of Distributor or the
use of such customer Investment Company in any
records or NPI that other jurisdiction to permit
could result in a public offering or sale of
substantial harm or Shares, or the possession or
inconvenience to any distribution of any
customer. Prospectus in any
jurisdiction where action for
(v) The provisions of such purposes is required.
Section 3(m) shall survive Insurer agrees not to make
the termination of the the Funds available for sale
Agreement. to persons in any
jurisdiction in which such
(n)(i) Insurer shall not offer is unlawful. Should
directly or indirectly offer, Insurer undertake to offer
adopt, implement, conduct or and/or sell Shares of the
participate in any program, Investment Company in any
plan, arrangement, advice or jurisdiction other than the
strategy that Distributor or United States of America,
the Investment Company Insurer shall inform itself
reasonably deem to be harmful of, and shall comply with, at
to Shareholders or its own expense, any and all
potentially disruptive to the applicable law and regulation
management of the Funds, as relating thereto, and none of
communicated to Insurer by Distributor, the Investment
Distributor in writing from Company, or their respective
time to time, or which authorized agents shall have
violates the policies and any responsibility or
procedures of the Funds as liability in connection
disclosed in each Fund's therewith. As used herein,
Prospectus; including without "United States of America"
limitation, any activity shall be deemed to include
involving market timing, any state of the United
programmed transfer, frequent States, the District of
transfer and similar Columbia, Puerto Rico, the
investment programs. Insurer, Virgin Islands, and any other
at all times during the term possession of the United
of this Agreement, shall have States.
active, formal policies and
procedures aimed at deterring (q)The Insurer agrees that the
"market timers." Such Investment Company and the
policies and procedures shall Distributor shall bear no
provide for Insurer's ongoing responsibility for any act or
review of its customers' omission of any fund or
account activity and portfolio that serves as an
prescribe effective actions investment option under the
to deter or detect and stop Variable Contracts other than
disruptive activities. In the Funds hereunder.
addition, Insurer shall not
knowingly permit any customer
to invest in any of the Funds
if that customer has been
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 5
(r)(i) The Parties may agree from entity that has licensed
time to time to set software or systems to
appropriate security Distributor in connection with
procedures and to perform the Website. In addition,
electronically certain of Insurer shall immediately
their obligations under this notify Distributor if any
Agreement, including without password issued to Insurer in
limitation, the delivery of connection herewith is or may
Disclosure Documents, opening be jeopardized.
accounts, transmitting
purchase, exchange, and (v) Insurer agrees to provide
redemption orders, and such security as is necessary
delivering and maintaining to prevent any unauthorized
shareholder communications. use of the Investment
Company's recordkeeping
(ii) Where Insurer (A) has system, accessed via any
obtained the informed consent computer hardware or software
of the underlying beneficial provided to Insurer by
owner of an account in the Distributor. Insurer
Funds , and (B) is the record represents and warrants that
owner of such account in the it has examined and tested the
Funds , Insurer hereby internal systems that it has
consents to the electronic developed to support the
delivery, via Distributor 's services outlined in this
website ("Website"), of all Agreement and, as of the date
Disclosure Documents. Insurer of this Agreement, has no
acknowledges that Distributor knowledge of any situation or
utilizes portable document circumstance that will inhibit
format ("PDF") files for the system's ability to
Disclosure Documents on the perform the expected functions
Website, and that Insurer or inhibit Insurer's ability
might incur costs in to provide the expected
connection with the delivery services.
of Disclosure Documents (e.g.
on-line time). If Insurer does 4. POTENTIAL CONFLICTS
not already have access to the -------------------
Adobe Acrobat Reader software
necessary to view PDF files of (a) During such time as the
Disclosure Documents on the Investment Company engages in
Website, Insurer acknowledges Mixed Funding or Shared Funding,
that such software can be the parties hereto shall comply
obtained for free through the with the conditions in this
Help tab on the Website. Section 4.
Insurer further acknowledges
that notice of updates to the (b) The Investment Company's
Disclosure Documents shall be Board of Trustees shall monitor
provided by Distributor, as the Investment Company for the
appropriate, on the account existence of any material
statement that is regularly irreconcilable conflict
provided to Insurer. (i) between the interests of
owners of variable annuity
(iii) Insurer acknowledges and contracts and variable life
agrees that Distributor insurance policies, and
(A) offers the Website solely (ii) between the interests of
as a convenience on an "as is" owners of variable annuity
and "as available" basis; contracts and variable life
(B) may discontinue the insurance policies issued by
Website's availability at any different Participating Life
time; and (C) disclaims all Insurance Companies that invest
express and implied warranties in the Investment Company. A
regarding the Website, material irreconcilable conflict
including without limitation may arise for a variety of
any warranty of reasons, including: (A) an action
merchantability, fitness for a by any state insurance regulatory
particular purpose, or arising authority; (B) a change in
from course of dealing or applicable federal or state
performance. Insurer further insurance, tax, or securities
acknowledges and agrees that laws or regulations, or a public
in no event shall Distributor, ruling, private letter ruling,
any Fund or its officers and no-action or interpretive letter,
directors, or any of their or any similar action by
affiliates or employees be insurance, tax, or securities
liable (in contract, tort, or regulatory authorities; (C) an
otherwise) to Insurer, its administrative or judicial
registered representatives, or decision in any relevant
third parties for proceeding; (D) the manner in
(D) Insurer's use or non-use which the investments of any Fund
of the Website and any data or of the Investment Company are
information in connection being managed; (E) a difference
therewith; (E) any delay, in voting instructions given by
malfunction, or lack of variable annuity and variable
security associated with, or life insurance contract owners;
caused by, the Website; or or (F) a decision by a
(F) acts or omissions of third Participating Insurance Company
parties, including without to disregard the voting
limitation any entity which instructions of owners of
has licensed software or variable annuity contracts and
systems to Distributor or any variable life insurance policies.
of its affiliates in
connection with the Website. (c) The Insurer agrees that it
Except as strictly necessary shall report any potential or
pursuant to this Agreement, existing conflicts of which it is
Insurer shall not make or aware to the Investment Company's
permit any disclosure or use Board of Trustees. The Insurer
of the Website or any related will be responsible for assisting
documentation or information the Board of Trustees of the
without Distributor's prior Investment Company in carrying
written consent. Insurer out its responsibilities under
agrees to provide such the Mixed and Shared Funding
security necessary to prevent Exemptive Order, or, if the
any unauthorized use of the Investment Company is engaged in
Website. The provisions of Mixed Funding or Shared Funding
this paragraph shall survive in reliance on Rule 6e-2,
the termination of this 6e-3(T), or any other regulation
Agreement. under the 1940 Act, the Insurer
will be responsible for assisting
(iv) As a condition to using the the Board of Trustees of the
Website, Insurer shall complete Investment Company in carrying
and regularly update, or cause out its responsibilities under
the same, all such applications, such regulation, by providing the
authorizations, and other Board with all information
documents that may be required reasonably necessary for the
from time to time by Distributor Board to consider any issues
and any raised. This includes, but is not
limited to,
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 6
an obligation by the Insurer to Exemptive Order and said reports,
inform the Board whenever Variable materials, and data shall be
Contract Owner voting instructions submitted more frequently if deemed
are disregarded. The Insurer shall appropriate by the Board.
carry out its responsibility under
this Section 4(c) with a view only to (f) All reports of potential or
the interests of the Variable existing conflicts received by the
Contract Owners. Investment Company's Board of
Trustees, and all Board action with
(d) The Insurer agrees that in the regard to determining the existence
event that it is determined by a of a conflict, notifying
majority of the Board of Trustees of Participating Insurance Companies of
the Investment Company or a majority a conflict, and determining whether
of the Investment Company's any proposed action adequately
disinterested Trustees that a remedies a conflict, shall be
material irreconcilable conflict properly recorded in the minutes of
exists, the Insurer shall, at its the Board of Trustees of the
expense and to the extent reasonably Investment Company or other
practicable (as determined by a appropriate records, and such minutes
majority of the disinterested or other records shall be made
Trustees of the Board of the available to the SEC upon request.
Investment Company), take whatever
steps are necessary to remedy or (g) The Board of Trustees of the
eliminate the irreconcilable material Investment Company shall promptly
conflict, up to and including: notify the Insurer in writing of its
(i) withdrawing the assets allocable determination of the existence of an
to some or all of the Separate irreconcilable material conflict and
Accounts from the Investment Company its implications.
or any Fund and reinvesting such
assets in a different investment (h) The Investment Company and the
medium, including another portfolio Insurer agree that if and to the
of the Investment Company, or extent Rule 6e-2 or Rule 6e-3(T)
submitting the question as to whether under the 1940 Act is amended or if
such segregation should be Rule 6e-3 is adopted in final form,
implemented to a vote of all affected to the extent applicable, the
Variable Contract Owners and, as Investment Company and the Insurer
appropriate, segregating the assets shall each take such steps as may be
of any appropriate group (i.e., necessary to comply with the Rule as
annuity contract owners or life amended or adopted in final form. If,
insurance contract owners of in the future, the Mixed and Shared
contracts issued by one or more Funding Exemptive Order should no
Participating Insurance Companies), longer be necessary under applicable
that votes in favor of such law, then this Section 4(h) shall
segregation, or offering to the continue in effect, and the remainder
affected Variable Contract Owners the of Section 4 shall no longer apply.
option of making such a change; and
(ii) establishing a new registered 5. PROSPECTUSES AND PROXY STATEMENTS;
management investment company or ----------------------------------
managed separate account. If a VOTING
material irreconcilable conflict ------
arises because of the Insurer's
decision to disregard Variable (a) The Insurer shall distribute such
Contract Owners' voting instructions prospectuses, proxy statements and
and that decision represents a periodic reports of the Investment
minority position or would preclude a Company to the owners of Variable
majority vote, the Insurer shall be Contracts issued by the Insurer as
required, at the Investment Company's required to be distributed to such
election, to withdraw the Separate Variable Contract Owners under
Accounts' investment in the applicable federal or state law.
Investment Company, provided,
however, that such withdrawal and (b) The Distributor shall provide the
termination shall be limited to the Insurer with as many copies of the
extent required by the foregoing current prospectus of the Investment
material irreconcilable conflict as Company as the Insurer may reasonably
determined by a majority of the request. If requested by the Insurer
disinterested Trustees, and no charge in lieu thereof, the Investment
or penalty will be imposed as a Company shall provide such
result of such withdrawal. These documentation (including a final copy
responsibilities shall be carried out of the Investment Company's
with a view only to the interests of prospectus as set in type or in
the Variable Contract Owners. A camera-ready copy) and other
majority of the disinterested assistance as is reasonably necessary
Trustees of the Investment Company in order for the Insurer to either
shall determine whether or not any print a stand-alone document or print
proposed action adequately remedies together in one document the current
any material irreconcilable conflict, prospectus for the Variable Contracts
but in no event will the Investment issued by the Insurer and the current
Company or its investment adviser or prospectus for the Investment
the Distributor be required to Company, or a document combining the
establish a new funding medium for Investment Company prospectus with
any Variable Contract. The Insurer prospectuses of other funds in which
shall not be required by this the Variable Contracts may be
Section 4(d) to establish a new invested. The Investment Company
funding medium for any Variable shall bear the expense of printing
Contract if any offer to do so has copies of its current prospectus that
been declined by vote of a majority will be distributed to existing
of Variable Contract Owners Variable Contract Owners, and the
materially adversely affected by the Insurer shall bear the expense of
material irreconcilable conflict. printing copies of the Investment
Company's prospectus that are used in
(e) The Insurer, at least annually, connection with offering the Variable
shall submit to the Investment Contracts issued by the Insurer.
Company's Board of Trustees such
reports, materials, or data as the (c) The Investment Company and the
Board reasonably may request so that Distributor shall provide, at the
the Trustees of the Investment Investment Company's expense, such
Company may fully carry out the copies of
obligations imposed upon the Board by
the conditions contained in the
application for the Mixed and Shared
Funding
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 7
the Investment Company's current Separate Account or subaccount
Statement of Additional Information thereof that are not attributable to
("SAI") as may reasonably be the Variable Contracts and owned
requested, to the Insurer and to any beneficially by the Insurer
owner of a Variable Contract issued (resulting from charges against the
by the Insurer who requests such SAI. Variable Contracts or otherwise), in
the same proportion as the votes cast
(d) The Investment Company, at its by owners of the Variable Contracts
expense, shall provide the Insurer funded by that Separate Account or
with copies of its proxy statements, subaccount thereof having a voting
periodic reports to shareholders, and interest in the Fund from whom
other communications to shareholders instructions have been timely
in such quantity as the Insurer shall received. The Insurer shall vote
reasonably require for purposes of shares of each Fund of the Investment
distributing to owners of Variable Company held in its general account,
Contracts issued by the Insurer. The if any, in the same proportion as the
Investment Company, at the Insurer's votes cast with respect to shares of
expense, shall provide the Insurer the Fund held in all Separate
with copies of its periodic reports Accounts of the Insurer or
to shareholders and other sub-accounts thereof, in the aggregate.
communications to shareholders in
such quantity as the Insurer shall (h) During such time as the
reasonably request for use in Investment Company engages in Mixed
connection with offering the Variable Funding or Shared Funding, the
Contracts issued by the Insurer. If Investment Company shall disclose in
requested by the Insurer in lieu its prospectus that (i) the
thereof, the Investment Company shall Investment Company is intended to be
provide such documentation (including a funding vehicle for variable
a final copy of the Investment annuity and variable life insurance
Company's proxy statements, periodic contracts offered by various
reports to shareholders, and other insurance companies, (ii) material
communications to shareholders, as irreconcilable conflicts possibly may
set in type or in camera-ready copy) arise, and (iii) the Board of
and other assistance as reasonably Trustees of the Investment Company
necessary in order for the Insurer to will monitor events in order to
print such shareholder communications identify the existence of any
for distribution to owners of material irreconcilable conflicts and
Variable Contracts issued by the to determine what action, if any,
Insurer. should be taken in response to any
such conflict. The Investment Company
(e) It is understood and agreed that, hereby notifies the Insurer that
except with respect to information prospectus disclosure may be
regarding the Investment Company, the appropriate regarding potential risks
Funds, the Distributor, or an of offering shares of the Investment
investment adviser to the Investment Company to separate accounts funding
Company or the Funds ("Adviser") both variable annuity contracts and
provided in writing by the Investment variable life insurance policies and
Company, the Distributor or the to separate accounts funding Variable
Adviser and used in conformity Contracts of unaffiliated life
therewith, none of the Investment insurance companies.
Company, the Funds, the Distributor,
or the Adviser is responsible for the 6. SALES MATERIAL AND INFORMATION
content of the prospectuses or ------------------------------
statements of additional information
for the Variable Contracts. (a) The Insurer shall furnish, or
shall cause to be furnished, to the
(f) As required by the Mixed and Investment Company or its designee,
Shared Funding Exemptive Order, the each piece of sales literature or
Insurer shall be responsible for other promotional material in which
calculating voting privileges in a the Investment Company (or any Fund
manner consistent with other thereof) or its investment adviser or
Participating Insurance Companies. the Distributor is named at least 15
Towards this end, the Investment days prior to the anticipated use of
Company agrees to provide written such material, and no such sales
instructions on the calculation of literature or other promotional
voting privileges, and the Insurer material shall be used unless the
agree to vote consistent with any Investment Company and the
reasonable standards that the Distributor or the designee of either
Investment Company may adopt and approve the material or do not
provide in writing (which writing may respond with comments on the material
consist of the Investment Company's within 10 days from receipt of the
proxy statement). material.
(g) For so long as the SEC interprets (b) The Insurer agrees that neither
the 1940 Act to require pass-through it nor any of its affiliates or
voting by Participating Insurance agents shall give any information or
Companies whose Separate Accounts are make any representations or
registered as investment companies statements on behalf of the
under the 1940 Act, the Insurer shall Investment Company or concerning the
vote shares of each Fund of the Investment Company other than the
Investment Company held in a Separate information or representations
Account or a sub-account thereof, contained in the Registration
whether or not registered under the Statement or prospectus for the
1940 Act, at regular and special Investment Company shares, as such
meetings of the Investment Company in registration statement and prospectus
accordance with instructions timely may be amended or supplemented from
received by the Insurer (or its time to time, or in reports or proxy
designated agent) from owners of statements for the Investment
Variable Contracts funded by such Company, or in sales literature or
Separate Account or sub-account other promotional material approved
thereof having a voting interest in by the Investment Company or its
the Fund. The Insurer shall vote designee and by the Distributor or
shares of a Fund of the Investment its designee, except with the
Company held in a Separate Account or permission of the Investment Company
a sub-account thereof that are or its designee and the Distributor
attributable to the Variable or its designee.
Contracts as to which no timely
instructions are received, as well as (c) The Investment Company or the
shares held in such Distributor or the designee of either
shall furnish to the Insurer or its
designee,
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 8
each piece of sales literature or 7. INDEMNIFICATION
other promotional material in ---------------
which the Insurer or its Separate
Accounts are named at least 15 (a)Indemnification by the Insurer
days prior to the anticipated use
of such material, and no such (i) The Insurer agrees to
material shall be used unless the indemnify and hold harmless
Insurer or its designee approves each of the Investment
the material or does not respond Company, any affiliated person
with comments on the material of the Investment Company
within 10 days from receipt of within the meaning of
the material. Section 2(a)(3) of the 1940
Act, (other than the Insurer),
(d) The Investment Company and and the Distributor, and each
the Distributor agree that each of their trustees/directors
and the affiliates and agents of and officers, and each person,
each shall not give any if any, who controls the
information or make any Investment Company or the
representations on behalf of the Distributor within the meaning
Insurer or concerning the of Section 15 of the 1933 Act
Insurer, the Separate Accounts, or who is under common control
or the Variable Contracts issued with the Investment Company or
by the Insurer, other than the the Distributor (collectively,
information or representations the "Indemnified Parties" for
contained in a registration purposes of this Section 7(a))
statement or prospectus for such against any and all losses,
Variable Contracts, as such claims, damages, liabilities
registration statement and (including amounts paid in
prospectus may be amended or settlement with the written
supplemented from time to time, consent of the Insurer) or
or in reports for the Separate litigation expenses (including
Accounts or prepared for legal and other expenses), to
distribution to owners of such which the Indemnified Parties
Variable Contracts, or in sales may become subject under any
literature or other promotional statute or regulation, at
material approved by the Insurer common law or otherwise,
or its designee, except with the insofar as such losses,
permission of the Insurer. claims, damages, liabilities
or litigation expenses are
(e) The Investment Company will related to the sale or
provide to the Insurer at least acquisition of the Investment
one complete copy of all Company's shares or the
prospectuses, Statements of Variable Contracts issued by
Additional Information, reports, the Insurer and:
proxy statements and other voting
solicitation materials, and all (A) arise out of or are
amendments and supplements to any based upon any untrue
of the above, that relate to the statement or alleged
Investment Company or its shares, untrue statement of any
promptly after the filing of such material fact contained in
document with the SEC or other the registration statement
regulatory authorities. Upon or prospectus (which shall
Insurer's request, Distributor include an offering
will provide a copy of the Mixed memorandum) for the
and Shared Funding Exemptive Variable Contracts issued
Application and any amendments by the Insurer or sales
thereto. literature for such
Variable Contracts (or any
(f) The Insurer will provide to amendment or supplement to
the Investment Company all any of the foregoing), or
prospectuses (which shall include arise out of or are based
an offering memorandum if the upon the omission or the
Variable Contracts issued by the alleged omission to state
Insurer or interests therein are therein a material fact
not registered under the 1933 required to be stated
Act), Statements of Additional therein or necessary to
Information, reports, make the statements
solicitations for voting therein not misleading,
instructions relating to the provided that this
Investment Company, and all agreement to indemnify
amendments or supplements to any shall not apply as to any
of the above that relate to the Indemnified Party if such
Variable Contracts issued by the statement or omission or
Insurer or the Separate Accounts such alleged statement or
which utilize the Investment omission was made in
Company as an underlying reliance upon and in
investment medium, promptly after conformity with
the filing of such document with information furnished to
the SEC or other regulatory the Insurer by or on
authority. behalf of the Investment
Company for use in the
(g) For purposes of this registration statement or
Section 6, the phrase "sales prospectus for the
literature or other promotional Variable Contracts issued
material" includes, but is not by the Insurer or sales
limited to, advertisements (such literature (or any
as material published, or amendment or supplement)
designed for use on the Internet, or otherwise for use in
in a newspaper, magazine, or connection with the sale
other periodical, radio, of such Variable Contracts
television, telephone or tape or Investment Company
recording, videotape display, shares; or
signs or billboards, motion
pictures, computerized media, or (B) arise out of or as a
other public media), sales result of any statement or
literature (i.e., any written representation (other than
communication distributed or made statements or
generally available to customers representations contained
or the public, including in the registration
brochures, circulars, research statement, prospectus or
reports, market letters, form sales literature of the
letters, seminar texts, reprints Investment Company not
or excerpts of any other supplied by the Insurer or
advertisement, sales literature, persons under its control)
or published article), or wrongful conduct of the
educational or training materials Insurer or any of its
or other communications affiliates, employees or
distributed or made generally agents with respect to the
available to some or all agents sale or distribution of
or employees. the Variable Contracts
issued by the Insurer or
the Investment Company
shares; or
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 9
(C) arise out of any proceedings against them in
untrue statement or connection with the issuance
alleged untrue statement or sale of the Investment
of a material fact Company shares or the
contained in a Variable Contracts issued by
registration statement, the Insurer or the operation
prospectus, or sales of the Investment Company.
literature of the
Investment Company or any (b)Indemnification By the
amendment thereof or Distributor
supplement thereto or the
omission or alleged (i) The Distributor agrees to
omission to state therein indemnify and hold harmless
a material fact required the Insurer and its directors
to be stated therein or and officers and each person,
necessary to make the if any, who controls the
statements therein not Insurer within the meaning of
misleading if such a Section 15 of the 1933 Act or
statement or omission was who is under common control
made in reliance upon with the Insurer
information furnished to (collectively, the
the Investment Company by "Indemnified Parties" for
or on behalf of the purposes of this
Insurer; or Section 7(b)) against any and
all losses, claims, damages,
(D) arise out of or liabilities (including
result from any material amounts paid in settlement
breach of any with the written consent of
representation and/or the Distributor) or
warranty made by the litigation expenses
Insurer in this Agreement (including legal and other
or arise out of or result expenses) to which the
from any other material Indemnified Parties may
breach of this Agreement become subject under any
by the Insurer; statute or regulation, at
common law or otherwise,
except to the extent provided in insofar as such losses,
Sections 7(a)(ii) and 7(a)(iii) claims, damages, liabilities
hereof. or litigation expenses are
related to the sale or
(ii) The Insurer shall not be acquisition of the Investment
liable under this Company's shares or the
indemnification provision Variable Contracts issued by
with respect to any losses, the Insurer and:
claims, damages, liabilities
or litigation expenses to (A) arise out of or are
which an Indemnified Party based upon any untrue
would otherwise be subject by statement or alleged
reason of willful untrue statement of any
misfeasance, bad faith, or material fact contained
gross negligence in the in the registration
performance of the statement or prospectus
Indemnified Party's duties or or sales literature of
by reason of the Indemnified the Investment Company
Party's reckless disregard of (or any amendment or
obligations or duties under supplement to any of the
this Agreement or to the foregoing), or arise out
Investment Company. of or are based upon the
omission or the alleged
(iii) The Insurer shall not omission to state therein
be liable under this a material fact required
indemnification provision to be stated therein or
with respect to any claim necessary to make the
made against an Indemnified statements therein not
Party unless such Party shall misleading, provided that
have notified the Insurer in this agreement to
writing within a reasonable indemnify shall not apply
time after the summons or as to any Indemnified
other first legal process Party if such statement
giving information of the or omission or such
nature of the claim shall alleged statement or
have been served upon such omission was made in
Indemnified Party (or after reliance upon and in
such Party shall have conformity with
received notice of such information furnished to
service on any designated the Distributor or the
agent), but failure to notify Investment Company or the
the Insurer of any such claim designee of either by or
shall not relieve the Insurer on behalf of the Insurer
from any liability which it for use in the
may have to the Indemnified registration statement or
Party against whom such prospectus for the
action is brought otherwise Investment Company or in
than on account of this sales literature (or any
indemnification provision. In amendment or supplement)
case any such action is or otherwise for use in
brought against the the registration
Indemnified Parties, the statement or prospectus
Insurer shall be entitled to for the Investment
participate, at its own Company or in sales
expense, in the defense of literature (or any
such action. The Insurer also amendment or supplement)
shall be entitled to assume or otherwise for use in
the defense thereof, with connection with the sale
counsel satisfactory to the of the Variable Contracts
party named in the action. issued by the Insurer or
After notice from the Insurer Investment Company
to such party of the shares; or
Insurer's election to assume
the defense thereof, the (B) arise out of or as a
Indemnified Party shall bear result of any statement
the fees and expenses of any or representations (other
additional counsel retained than statements or
by it, and the Insurer will representations contained
not be liable to such party in the registration
under this Agreement for any statement, prospectus or
legal or other expenses sales literature for the
subsequently incurred by such Variable Contracts not
party independently in supplied by the
connection with the defense Distributor or any
thereof other than reasonable employees or agents
costs of investigation. thereof) or wrongful
conduct of the Investment
(iv) The Indemnified Parties Company or Distributor,
shall promptly notify the or the affiliates,
Insurer of the commencement of employees, or agents of
any litigation or the Investment Company or
the Distributor with
respect to the sale or
distribution of the
Variable Contracts
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 10
issued by the Insurer or independently in connection
Investment Company shares; with the defense thereof other
or than reasonable costs of
investigation.
(C) arise out of any
untrue statement or (iv) The Insurer shall
alleged untrue statement promptly notify the
of a material fact Distributor of the
contained in a commencement of any litigation
registration statement, or proceedings against it or
prospectus, or sales any of its officers or
literature covering the directors in connection with
Variable Contracts issued the issuance or sale of the
by the Insurer, or any Variable Contracts issued by
amendment thereof or the Insurer or the operation
supplement thereto, or the of the Separate Accounts.
omission or alleged
omission to state therein (c)Indemnification by the
a material fact required Investment Company
to be stated therein or
necessary to make the (i) The Investment Company
statement or statements agrees to indemnify and hold
therein not misleading, if harmless the Insurer, and its
such statement or omission directors and officers and
was made in reliance upon each person, if any, who
information furnished to controls the Insurer within
the Insurer by or on the meaning of Section 15 of
behalf of the Investment the 1933 Act or who is under
Company; or common control with the
Insurer (collectively, the
(D) arise out of or result "Indemnified Parties" for
from any material breach purposes of this Section 7(c))
of any representation against any and all losses,
and/or warranty made by claims, damages, liabilities
the Distributor in this (including amounts paid in
Agreement or arise out of settlement with the written
or result from any other consent of the Investment
material breach of this Company) or litigation
Agreement by the expenses (including legal and
Distributor; other expenses) to which the
Indemnified Parties may become
except to the extent provided in subject under any statute or
Sections 7(b)(ii) and 7(b)(iii) regulation, at common law or
hereof. otherwise, insofar as such
losses, claims, damages,
(ii) The Distributor shall not liabilities or litigation
be liable under this expenses are related to the
indemnification provision with sale or acquisition of the
respect to any losses, claims, Investment Company's shares or
damages, liabilities or the Variable Contracts issued
litigation expenses to which by the Insurer and arise out
an Indemnified Party would of or result from any material
otherwise be subject by reason breach of any representation
of willful misfeasance, bad and/or warranty made by the
faith, or gross negligence in Investment Company in this
the performance of the Agreement or arise out of or
Indemnified Party's duties or result from any other material
by reason of the Indemnified breach of this Agreement by
Party's reckless disregard of the Investment Company,
obligations or duties under
this Agreement or to the except to the extent provided
Insurer or the Separate in Sections 7(c)(ii) and
Accounts. 7(c)(iii) hereof.
(iii) The Distributor shall not (ii) The Investment Company
be liable under this shall not be liable under this
indemnification provision with indemnification provision with
respect to any claim made against respect to any losses, claims,
an Indemnified Party unless such damages, liabilities or
Party shall have notified the litigation expenses to which
Distributor in writing within a an Indemnified Party would
reasonable time after the summons otherwise be subject by reason
or other first legal process of willful misfeasance, bad
giving information of the nature faith, or gross negligence in
of the claim shall have been the performance of the
served upon such Indemnified Indemnified Party's duties or
Party (or after such Party shall by reason of the Indemnified
have received notice of such Party's reckless disregard of
service on any designated agent), obligations or duties under
but failure to notify the this Agreement or to the
Distributor of any such claim Insurer or the Separate
shall not relieve the Distributor Accounts.
from any liability which it may
have to the Indemnified Party (iii) The Investment Company
against whom such action is shall not be liable under this
brought otherwise than on account indemnification provision with
of this indemnification respect to any claim made
provision. In case any such against an Indemnified Party
action is brought against the unless such party shall have
Indemnified Parties, the notified the Investment
Distributor will be entitled to Company in writing within a
participate, at is own expense, reasonable time after the
in the defense thereof. The summons or other first legal
Distributor also shall be process giving information of
entitled to assume the defense the nature of the claim shall
thereof, with counsel have been served upon such
satisfactory to the party named Indemnified Party (or after
in the action. After notice from such Party shall have received
the Distributor to such party of notice of such service on any
the Distributor's election to designated agent), but failure
assume the defense thereof, the to notify the Investment
Indemnified Party shall bear the Company of any such claim
fees and expenses of any shall not relieve the
additional counsel retained by Investment Company from any
it, and the Distributor will not liability which it may have to
be liable to such party under the Indemnified Party against
this Agreement for any legal or whom such action is brought
other expense subsequently otherwise than on account of
incurred by such party this indemnification
provision. In case any such
action is brought against the
Indemnified Parties, the
Investment
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 11
Company will be entitled to material adverse effect upon the
participate, at its own expense, ability of the Insurer to perform
in the defense thereof. The its obligations under this
Investment Company also shall be Agreement, including as a result
entitled to assume the defense of material adverse publicity, or
thereof, with counsel
satisfactory to the party named (iv) at the option of the
in the action. After notice from Insurer, immediately upon written
the Investment Company to such notice, upon institution of
party of the Investment Company's formal proceedings against the
election to assume the defense Investment Company or the
thereof, the Indemnified Party Distributor by the FINRA, the
shall bear the fees and expenses SEC, or any state securities or
of any additional counsel insurance department or any other
retained by it, and the regulatory body; provided,
Investment Company will not be however, that the Insurer
liable to such party under this determined in its sole judgment
Agreement for any legal or other exercised in good faith, that any
expenses subsequently incurred by such administrative proceedings
such party independently in will have a material adverse
connection with the defense effect upon the ability of the
thereof other than reasonable Distributor or the Investment
costs of investigation. Company to perform its
obligations under this Agreement,
(iv) The Insurer shall promptly including as a result of material
notify the Investment Company of adverse publicity; or
the commencement of any
litigation or proceedings against (v) upon requisite vote of the
it or any of its officers or Variable Contract Owners having
directors in connection with the an interest in the Separate
issuance or sale of the Variable Accounts (or any sub-accounts
Contracts issued by the Insurer thereof) to substitute the shares
or the sale of the Investment of another investment company for
Company's shares. the corresponding shares of the
Investment Company or a Fund in
8. APPLICABLE LAW accordance with the terms of the
-------------- Variable Contracts for which
those shares had been selected or
(a) This Agreement shall be serve as the underlying
construed and the provisions hereof investment media; or
interpreted under and in accordance
with the laws of the Commonwealth of (vi) at the option of any party
Pennsylvania. to the Agreement, immediately
upon written notice, in the event
(b) This Agreement shall be subject any of the shares of a Fund are
to the provisions of the 1933, 1934, not registered, issued or sold in
and 1940 Acts, and the rules and accordance with applicable state
regulations and rulings thereunder, and/or federal law, or such law
including such exemptions from those precludes the use of such shares
statutes, rules and regulations as as the underlying investment
the SEC may grant (including, but media of the Variable Contracts
not limited to, the Mixed and Shared issued or to be issued by the
Funding Exemptive Order), and the Insurer; or
terms hereof shall be interpreted
and construed in accordance (vii) at the option of any party
therewith. to the Agreement, immediately
upon written notice, in the event
9. TERMINATION of a determination by a majority
----------- of the Trustees of the Investment
Company, or a majority of its
(a)This Agreement shall terminate: disinterested Trustees, that an
irreconcilable conflict, as
(i) at the option of any party described in Section 4 hereof,
upon 180 days advance written exists; or
notice to the other parties; or
(viii) at the option of the
(ii) at the option of the Insurer, immediately upon written
Insurer, immediately upon written notice, if the Investment Company
notice, if shares of the Funds or a Fund fails to meet the
are not reasonably available to requirements under Subchapter M
meet the requirements of the of the Code for qualification as
Variable Contracts issued by the a Regulated Investment Company
Insurer, as determined by the specified in Section 3(b) hereof
Insurer, and upon prompt notice or the diversification
by the Insurer to the other requirements specified in
parties; or Section 3(c) hereof; or
(iii) at the option of the (ix) at the option of the
Investment Company or the Investment Company or the
Distributor, immediately upon Distributor, immediately upon
written notice, upon institution of written notice, in the event that
formal proceedings against the any or all Variable Contracts
Insurer or its agent by the FINRA, fail to meet the qualifications
the SEC, or any state securities or specified in Sections 3(d) and
insurance department or any other 3(e) hereof; or
regulatory body regarding the
Insurer's duties under this (x) at the option of the
Agreement or related to the sale of Investment Company or the
the Variable Contracts issued by the Distributor, upon 30 days'
Insurer, the operation of the written notice, if the Investment
Separate Accounts, or the purchase Company or the Distributor shall
of the Investment Company shares; determine, in its sole judgment
provided, however, that the exercised in good faith, that the
Investment Company or the Insurer has suffered a material
Distributor has determined in its adverse change in its business
sole judgment exercised in good operations, financial condition,
faith, that any such administrative or prospects since the date of
proceedings will have a this Agreement or is subject of
material adverse publicity; or
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 12
(xi) at the option of the Company and the Distributor
Insurer, upon 30 days' written shall, at the option of the
notice, if the Insurer shall Insurer, continue, until the one
determine, in its sole judgment year anniversary from the date of
exercised in good faith, that the termination, and from year to
Investment Company or the year thereafter if deemed
Distributor has suffered a appropriate by the Investment
material adverse change in its Company and the Distributor, to
business operations, financial make available additional shares
condition, or prospects since the of the Investment Company
date of this Agreement or is the pursuant to the terms and
subject of material adverse conditions of this Agreement, for
publicity; or all Variable Contracts in effect
on the effective date of
(xii) at the option of the termination of this Agreement
Insurer upon the Investment (hereinafter referred to as
Company's or Distributor's "Existing Contracts").
material breach of any provision Specifically, based on
of this Agreement, upon 30 days' instructions from the owners of
written notice and the the Existing Contracts, the
opportunity to cure within such Separate Accounts shall be
notice period; or permitted to reallocate
investments in the Funds of the
(xiii) at the option of the Investment Company and redeem
Investment Company or the investments in the Funds, and
Distributor upon the Insurer's shall be permitted to invest in
material breach of any provision the Funds in the event that
of this Agreement, upon 30 days' owners of the Existing Contracts
written notice and the make additional premium payments
opportunity to cure within such under the Existing Contracts.
notice period; or
(ii) Insurer agrees, promptly
(xiv) at the option of any party after any termination of this
to the Agreement, immediately Agreement, to take all steps
upon written notice, if the Board necessary to redeem the
of Trustees of the Investment investment of the Separate
Company has decided to (A) refuse Accounts in the Funds within one
to sell shares of any Fund to the year from the date of termination
Insurer and/or any of its of the Agreement as provided in
Separate Accounts; (B) suspend or Section 9. Such steps shall
terminate the offering of shares include, but not be limited to,
of any Fund; or (C) dissolve or obtaining an order pursuant to
liquidate the Investment Company Section 26(c) of the 1940 Act to
or any Fund. permit the substitution of other
securities for the shares of the
(b) Each party to this Agreement Funds. The Investment Company or
shall promptly notify the other the Distributor may, in their
parties to the Agreement of the discretion, permit the Separate
institution against such party of Accounts to continue to invest in
any such formal proceedings as the Funds beyond such one year
described in Sections 9(a) (iii) and anniversary for an additional
(iv) hereof. The Insurer shall give year beginning on the first
60 days prior written notice to the annual anniversary of the date of
Investment Company of the date of termination, and from year to
any proposed vote of Variable year thereafter; provided that
Contract Owners to replace the the Investment Company or the
Investment Company's shares as Distributor agrees in writing to
described in Section 9(a)(v) hereof. permit the Separate Accounts to
continue to invest in the Funds
(c) The Investment Company and the prior to the beginning of any
Distributor acknowledge that the such year.
Insurer may have the right to
substitute shares of other (e) In the event (i) the Agreement
securities for shares of the Funds is terminated pursuant to Sections
under certain circumstances. The 9(a) (vii) or (ix), at the option of
Insurer agrees not to exercise this the Investment Company or the
right until after at least 60 days' Distributor; or (ii) the one year
written notice to the Investment anniversary of the termination of
Company and the Distributor. In the the Agreement is reached or, after
event that the Insurer exercises its waiver as provided in Section 9(d),
right to substitute shares of other such subsequent anniversary is
securities for shares of the Funds, reached (each of (i) and
the Insurer shall furnish, or shall (ii) referred to as a "triggering
cause to be furnished, to the event" and the date of termination
Investment Company and the as provided in (i) or the date of
Distributor, or their designees, any the anniversary as provided in
application for an order seeking (ii) referred to as the "request
approval of the substitution or any date"), the parties agree that such
other written material related to triggering event shall be considered
such substitution, including the as a request for immediate
notice of the substitution to be redemption of shares of the Funds
sent to Variable Contract Owners, at held by the Separate Accounts,
least 15 days prior to the filing or received by the Investment Company
delivery of such application or as of the request date, and the
written material with the SEC or any Investment Company agrees to process
other regulatory body or entity or such redemption request in
to Variable Contract Owners. If, in accordance with the 1940 Act and the
any such application or other regulations thereunder and the
written material, the Investment Investment Company's registration
Company (or any Fund thereof) or its statement.
investment adviser or the
Distributor is named, no such (f) If this Agreement terminates,
application or other written the parties agree that Section 7 and
material shall be filed or delivered Sections 3(a)(j), 8(a) and 8(b),
unless the Investment Company and and, to the extent that all or a
the Distributor, or the designee of portion of the assets of the
either, approve the material or do Separate Accounts continue to be
not respond with comments on the invested in the Investment Company
material within 10 days from receipt or any Fund of the Investment
of the material. Company, Sections 1, 2, 3, and 4 and
(d) (i) Notwithstanding any
termination of this Agreement, and
except as provided in Section 9(e),
the Investment
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 13
Sections 5(f), 5(g) and 5(h) will savings in administrative expense by
remain in effect after termination. virtue of having a sole shareholder
rather than multiple shareholders. In
10. NOTICES consideration of the administrative
------- savings resulting from having a sole
shareholder rather than multiple
Any notice shall be sufficiently shareholders, with respect to share
given when sent by registered or held in sub-accounts for which
certified mail to the other party at Insurer provides administrative
the address of such party set forth services, Distributor agrees to pay
below or at such other address as to Insurer an amount computed at an
such party may from time to time annual rate equal to the percentage
specify in writing to the other party. of average daily net asset value set
forth in Exhibit C to this Agreement.
If to the Investment Company: These payments to Insurer are for
administrative services only and do
Federated Insurance Series not constitute payment in any manner
0000 Xxxxxxxx Xxxxx for any other service. Insurer agrees
Xxxxxxxxxx, XX 00000-0000 to disclose the receipt of
Attn.: Xxxx X. XxXxxxxxx administrative fees pursuant to this
Agreement to Variable Contract Owners
If to the Distributor: to the extent required by law.
Federated Securities Corp. (d) The Investment Company reserves
Federated Investors Tower the right, upon written notice to the
0000 Xxxxxxx Xxxxxx Insurer (given at the earliest
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 practicable time), to take all
Attn.: Xxxx X. XxXxxxxxx actions, including, but not limited
to, the dissolution, reorganization,
If to Contract Administration: liquidation, merger or sale of all
assets of the Investment Company or
Contract Administration any Fund upon the sole authorization
Federated Investors of the Board of Trustees, acting in
0000 Xxxxxxxx Xxxxx good faith.
Xxxxxxxxxx, XX 00000-0000
(e) It is understood that the name
Unless otherwise notified in writing, "Federated" or any derivative thereof
all notices to Insurer shall be given or logo associated with that name is
or sent to the address shown on the the valuable property of the
signature page of this Agreement. Distributor and its affiliates, and
that the Insurer has the right to use
11. MISCELLANEOUS such name (or derivative or logo)
------------- only so long as this Agreement is in
effect. Upon termination of this
(a) A copy of the Investment Agreement the Insurer shall forthwith
Company's Declaration of Trust is on cease to use such name (or derivative
file with the Secretary of the or logo).
Commonwealth of Massachusetts and
notice is hereby given that any (f) The captions in this Agreement
agreements that are executed on are included for convenience of
behalf of the Investment Company by reference only and in no way define
any Trustee or officer of the or delineate any of the provisions
Investment Company are executed in hereof or otherwise affect their
his or her capacity as Trustee or construction or effect.
officer and not individually. The
obligations of this Agreement shall (g) This Agreement may be executed
only be binding upon the assets and simultaneously in two or more
property of the Investment Company counterparts, each of which taken
and shall not be binding upon any together shall constitute one and the
Trustee, officer or shareholder of same instrument.
the Investment Company individually.
No Fund shall be liable for any (h) If any provision of this
obligations properly attributable to Agreement shall be held or made
any other Fund. invalid by a court decision, statute,
rule or otherwise, the remainder of
(b) Nothing in this Agreement shall the Agreement shall not be affected
impede the Investment Company's thereby.
Trustees or shareholders of the
shares of the Investment Company's (i) This Agreement may not be
Funds from exercising any of the assigned by any party to the
rights provided to such Trustees or Agreement except with the written
shareholders in the Investment consent of the other parties to the
Company's Declaration of Trust, as Agreement.
amended, a copy of which will be
provided to the Insurer upon request. (j) Except as provided in this
paragraph ll(j), this Agreement may
(c) Administrative services to be amended only by a writing signed
Variable Contract Owners shall be the by both parties. Distributor may
responsibility of Insurer. Insurer, amend Exhibit C from time to time by
on behalf of its separate accounts posting an amended Exhibit C on
will be the sole shareholder of Distributor's website. Any such
record of Investment Company shares. amendment shall be effective as of
Investment Company and Distributor the date indicated on the amended
recognize that they will derive a Exhibit C. Insurer may amend Exhibit
substantial A by mailing the amended Exhibit A to
Federated Contract Administration at
the address set forth above. Any such
amendment shall be effective as of
the earlier of (i) its receipt by
Distributor or (ii) the date
indicated on the amended Exhibit A.
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
PAGE 14
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement
to be duly executed as of the day
and year first above written.
FEDERATED INSURANCE SERIES
By: /s/ Xxxx XxXxxxxxx
------------------------------
Name: Xxxx XxXxxxxxx
Title: EVP
FEDERATED SECURITIES CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
METLIFE INVESTORS USA INSURANCE COMPANY
Xxxx X. XxXxxxx
----------------------------------------
(Please print or type)
By: /s/ Xxxx X. XxXxxxx
------------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx XX 00000
City State Zipcode
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
Page 15
EXHIBIT A
INSURER SEPARATE ACCOUNT
METLIFE INVESTORS USA SEPARATE ACCOUNT A
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
EXHIBIT A-1
EXHIBIT B
OPERATIONAL PROCEDURES
(a) Insurer shall, on behalf of determined based upon the net
the Investment Company, receive asset value at the Close of
instructions from the Separate Trading on the Trade Date,
Accounts for acceptance prior to provided that, if the Fund
the Close of Trading on each receives the trading
Business Day. Insurer shall, upon information called for by this
its acceptance of any such subparagraph after 9:00 a.m.
instructions, communicate such Eastern Time on a Settlement
acceptance to the Separate Date, the Investment Company
Accounts. shall use its best efforts to
enter the Insurer's purchase
(b) Insurer or its designee shall or redemption order at the net
communicate to Investment asset value at the Close of
Company, by means of electronic Trading on the Trade Date, but
transmission or other mutually if Investment Company is
acceptable means, a report of unable to do so, the
Insurer's trading activity in transaction shall be entered
each of the Funds for the most at the net asset value next
recent Business Day in accordance determined after the
with each Fund's prospectus. Investment Company receives
However, if Insurer will be the trading information.
communicating such information
after the Close of Trading, then (iii) In the event there is a
the Insurer shall be considered net purchase in any Fund,
the Investment Company's agent Insurer or its designee shall
for purposes of Rule 22c-1 of the exercise its best efforts to
Investment Company Act of 1940, direct wire payment in the
as amended. To the extent that dollar amount of the net
each of the parties is a member purchase to be received by the
of, and/or has access to, the Investment Company by the
National Securities Clearing close of the Federal Reserve
Corporation's ("NSCC") systems Wire Transfer System on the
and services, including Fund/SERV Settlement Date. If the wire
and Networking, the parties agree is not received by the
to utilize such services for all Investment Company by such
transactions contemplated time, and such delay was not
hereunder and agree that all such caused by the negligence or
dealings and transactions shall willful misconduct of the
be processed in accordance with, Investment Company, the
and governed by, the NSCC's Rules Investment Company shall be
and Procedures (as the same may entitled to receive from
be amended from time to time) and Insurer the dollar amount of
the Networking Agreement executed any overdraft plus any
by each such party. In the event associated bank charges
of the unavailability of the NSCC incurred.
at any time, the following
procedures shall apply: (iv) In the event there is a
net redemption in any Fund,
(i) The Investment Company the Investment Company shall
shall use its best efforts to wire the redemption proceeds
provide information listed in to the Insurer's custodial
Sections l(i) and l(j) of the account, or to the designated
Agreement to Insurer by means depository for the Insurer,
of electronic transmission or specified by Insurer or its
other mutually acceptable designee. If the Investment
means by 7:00 p.m. Eastern Company receives the
Time on each Business Day. redemption information by 9:00
a.m. Eastern Time on the
(ii) Insurer or its designee Settlement Date, the
shall communicate to the redemption proceeds shall be
Investment Company, by means wired so as to be received on
of electronic transmission or the Settlement Date. If the
other mutually acceptable Investment Company receives
means, a report of Insurer's the redemption information
trading activity in each of after that time, the
the Funds for the most recent Investment Company shall use
Business Day ("Trade Date") by its best efforts to wire the
9:00 a.m. Eastern Time on the redemption proceeds so that
Business Day following the they are received by the Close
Trade Date ("Settlement of
Date"). The number of shares
to be purchased or redeemed
shall be
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
EXHIBIT B-1
Trading on the Settlement Date, (B) Upon such notification,
but if the Investment Company Insurer shall promptly
is unable to do so, the determine, for all Separate
redemption proceeds shall be Accounts which purchased or
wired so as to be received by redeemed Shares on each
the Close of Trading on the Business Day on which a Pricing
Business Day following the Error occurred, the correct
Settlement Date. If the wire is number of Shares purchased or
not received by the time redeemed using the corrected
specified in this price and the amount of
sub-paragraph, and such delay transaction proceeds actually
was not caused by the paid or received. Following
negligence or willful such determination, the Insurer
misconduct of Insurer or its shall adjust the number of
designee, Insurer or Insurer's Shares held in each Separate
designee shall be entitled to Account to the extent necessary
receive from the Investment to reflect the correct number
Company the dollar amount of of Shares purchased or redeemed
any overdraft plus any for the Separate Account.
associated bank charges Following such determination,
incurred; provided, however, Insurer shall notify the Fund
that if the delay was due to of the net changes in
factors beyond the control of transactions for the relevant
the Investment Company and its Separate Account and the Fund
subsidiaries, the Investment shall adjust the Separate
Company shall not be liable for Account accordingly.
any overdraft or any associated
bank charges incurred. (C) If, after taking into
account the adjustments
(v) If the dollar amount of the required by subparagraph
redemption proceeds wired by (d)(B), Insurer determines that
the Investment Company exceeds some Separate Account customers
the amount that should have were still entitled to
been transmitted, Insurer shall additional redemption proceeds
use its best efforts to have (a "Redemption Shortfall"), it
such excess amount returned to shall notify the Investment
the Investment Company as soon Company of the aggregate amount
as possible. of the Redemption Shortfalls
and provide supporting
(c) All wire payments referenced documentation for such amount.
in this Agreement shall be Upon receipt of such
transmitted via the Federal documentation, the Investment
Reserve Wire Transfer System. Company shall cause the
Notwithstanding any other relevant Fund to remit to
provision of this Agreement, in Insurer additional redemption
the event that the Federal Reserve proceeds in the amount of such
Wire Transfer System is closed on Redemption Shortfalls and
any Business Day, the duties of Insurer shall apply such funds
the Investment Company, Insurer, to payment of the Redemption
and their designees under this Shortfalls.
Agreement shall be suspended, and
shall resume on the next Business (D) If, after taking into
Day that the Federal Reserve Wire account the adjustments
Transfer System is open as if such required by subparagraph
period of suspension had not (d)(B), Insurer determines that
occurred. a Separate Account customer
still received excess
(d) In the event (i) a Fund is redemption proceeds (a
required (under the then "Redemption Overage"), Insurer
prevailing pricing error shall use its best efforts to
guidelines of the Investment collect the balance of such
Company) to recalculate purchases Redemption Overage from such
and redemptions of Shares held in Separate Account. In no event,
Insurer's account due to an error however, shall Insurer be
in calculating the net asset value liable to the Investment
of such class of Shares (a "NAV Company or any Fund for any
Error") or (ii) there is a Redemption Overage. Nothing in
dividend rate error with respect this subparagraph (d) shall be
to any Fund held in Insurer's deemed to limit the right of
account (a "Rate Error"; Rate any Fund to recover any
Error and NAV Error individually Redemption Overage directly or
and collectively shall be referred to be indemnified by any party
to as a "Pricing Error"): for losses arising from a
Pricing Error.
(A) The Investment Company
shall promptly notify Insurer
in writing of the Pricing
Error, which written notice
shall identify the class of
Shares, the Business Day(s) on
which the Pricing Error(s)
occurred and the corrected net
asset value of the Shares on
each Business Day.
FUND PARTICIPATION AGREEMENT
APRIL 30, 2008
EXHIBIT B-2
EXHIBIT C TO FUND PARTICIPATION AGREEMENT
AS OF MARCH 1, 2010
The following lists the Funds and Shares subject to the Fund Participation
Agreement and the compensation payable to Insurer pursuant to the Fund
Participation Agreement. Administrative Service Fees are paid at an annual rate
on the average net asset value of shares held in Fund accounts attributed to
Insurer pursuant to the Fund Participation Agreement.
A Fund marked with an asterisk (*) offers one class of shares that is
undesignated but is subject to the same fee rates listed for the class that the
Fund is grouped under. Each Fund's prospectus shall control in case of any
conflict with this Schedule.
EFFECTIVE WITH THE DISTRIBUTION OF PAYMENTS FOR THE PERIOD ENDING APRIL 30,
2008, THE ADMINISTRATIVE SERVICE FEES WILL BE DISTRIBUTED SO LONG AS THE TOTAL
AMOUNT PAYABLE TO INSURER, FOR EACH INDIVIDUAL TRANSFER AGENT SYSTEM FINANCIAL
INTERMEDIARY NUMBER, FOR THE PERIOD IS AT LEAST $25.00.
CLASS P SHARES
--------------
ADMINISTRATIVE SERVICE FEE: 0.25%
FUND NAME SERIES
----------------------------------- --------------------------------------------------
Federated Insurance Series Federated Capital Appreciation Fund II
Federated Capital Income Fund II *
Federated Clover Value Fund II
Federated Equity Income Fund II *
Federated Fund for U.S. Government Securities II *
Federated High Income Bond Fund II
Federated Xxxxxxxx Fund II
Federated Mid Cap Growth Strategies Fund II *
Federated Prime Money Fund II *+
Federated Quality Bond Fund II
CLASS SS SHARES
---------------
ADMINISTRATIVE SERVICE FEE: 0.25%
FUND NAME SERIES
----------------------------------- -------------------------------------------------
Federated Insurance Series Federated Capital Appreciation Fund II
Federated Clover Value Fund II
Federated High Income Bond Fund II
Federated Xxxxxxxx Fund II
Federated Market Opportunity Fund II
Federated Quality Bond Fund II
+The Administrative Service Fee has been reduced as described in the
Temporary Fee Waivers document.
---------------------
Exhibit C to Fund Participation As/of March 1, 2010
Agreement Project Number: 38511
FIRST AMENDMENT TO
FUND PARTICIPATION AGREEMENT
AMONG
FEDERATED SECURITIES CORP., FEDERATED INSURANCE SERIES,
AND
METLIFE INVESTORS USA INSURANCE COMPANY
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Fund Participation Agreement,
dated 2-3, 2011 (the "Agreement") among Federated Securities Corp., Federated
Insurance Series, and MetLife Investors USA Insurance Company as follows,
effective as of the date of the Agreement.
1. The following is added is added after the last "WHEREAS":
WHEREAS; the Investment Company and the Insurer agree to distribute the
prospectuses of the Funds within the Investment Company pursuant to Rule 498 of
the Securities Act of 1933 ("Rule 498"); and
WHEREAS, the parties desire to set out the roles and responsibilities for
complying with Rule 498 and other applicable laws.
2. The following is added as Section 12 of the Agreement:
12. SUMMARY PROSPECTUSES.
(a) For purposes of this Agreement, the terms Summary Prospectus and
Statutory Prospectus shall have the same meaning as set forth in Rule 498.
(b) The Investment Company shall provide the Insurer with copies of the
Summary Prospectuses and any Supplements thereto in the same manner and at
the same times as the Agreement requires that the Investment Company
provides the Insurer with Statutory Prospectuses. The parties agree that the
Investment Company will provide copies of either Summary Prospectuses or
Statutory Prospectuses in its sole discretion.
(c) The Investment Company represents and warrants that the Summary
Prospectuses and the hosting of such Summary Prospectuses will comply with
the requirements of Rule 498 applicable to the Investment Company and its
Funds. The Investment Company further represents and warrants that it has
appropriate policies and procedures in place to ensure that the
Distributor's web site continuously complies with Rule 498.
(d) The Investment Company agrees that the URL indicated on each Summary
Prospectus will lead contract owners directly to the web page used for
hosting Summary Prospectuses, that such web page will contain the current
Investment Company's documents required to be posted in compliance with Rule
498. The Investment Company agrees to use its best efforts to (i) notify the
Insurer of any unexpected interruptions in the availability of this web page
and (ii) make available alternative means of obtaining the documents
required to be posted in compliance with Rule 498.
(e) The Investment Company and the Distributor represent and warrant that
they will be responsible for compliance with the provisions of Rule
498(f)(i) involving contract owner requests for additional Investment
Company documents made directly to the Investment Company, the Distributor,
or one of the Distributor's affiliates. The Investment Company and the
Distributor further represent and warrant that any information obtained
about contract owners will be used solely for the purposes of responding to
requests for additional Investment Company documents.
(f) The Insurer represents and warrants that it will respond to requests for
additional Investment Company documents made by contract owners directly to
the Insurer or one of its affiliates.
(g) Insurer represents and warrants that any bundling of Summary
Prospectuses and Statutory Prospectuses will be done in compliance with Rule
498.
(h) At the Insurer's request, Investment Company will provide the Insurer
with URLs to the Investment Company's current documents for use with
Insurer's electronic delivery of fund documents or on the Insurer's website.
The Investment Company will be responsible for ensuring the integrity of the
URLs and for maintaining the Investment Company's current documents on the
site to which such URLs originally navigate to.
(i) The Investment Company and the Distributor represent and warrant that
they have reasonable safeguards in place to prevent the documents contained
on the web page, and the documents provided to the Insurer for purposes of
electronic delivery, from containing any virus.
(j) If the Investment Company determines that it will end its use of the
Summary Prospectus delivery option, the Investment Company and the
Distributor will provide the Insurer with at least 60 days' advance notice
of its intent.
(k) The parties agree that all other provisions of the Agreement, including
the Indemnification provisions, will apply to the terms of this Amendment as
applicable.
2
3. Unless otherwise specified, capitalized terms used herein and not
otherwise defined herein shall have the meaning assigned to them in the
Agreement.
4. All references in the Agreement to the "Agreement" shall be deemed to be
references to the Agreement, as amended hereby.
5. Except as expressly provided herein, the Agreement shall remain in full
force and effect without any modification, amendment or change.
6. If any term, provision, covenant or condition of this Amendment, or any
application hereof, should be held by a court of competent jurisdiction to
be invalid, void or unenforceable, all provisions, covenants and conditions
of this Amendment, and all applications hereof, not held invalid, void or
unenforceable, shall continue in full force and effect and shall in no way
be affected, impaired or invalidated thereby, provided that the invalidity,
voidness or unenforceability of such term, provision, covenant or condition
does not materially impair the ability of the parties hereto to consummate
the transactions contemplated hereby.
(remainder of page intentionally left blank)
3
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to be executed in its name and on its behalf by its duly authorized
representative as of this date, 2-8, 2011.
FEDERATED SECURITIES CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
FEDERATED INSURANCE SERIES
By: /s/ Xxxx XxXxxxxxx
------------------------------
Name: Xxxx XxXxxxxxx
Title: Executive Vice President
METLIFE INVESTORS USA INSURANCE
COMPANY
By: /s/ Xxxx X. XxXxxxx
------------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President
4
ASSIGNMENT, ASSUMPTION AND CONSENT
This Assignment, Assumption and Consent ("Assignment") is effective as of
November 17, 2014 (the "Effective Date") by and among Federated Securities Corp.
and Federated Insurance Series (together, "Federated Entities"), Metlife
Investors USA Insurance Company ("Assignor"), and MetLife Insurance Company USA
("Assignee").
BACKGROUND PROVISIONS
A. Federated Entities and Assignor are parties to that certain Fund
Participation Agreement, dated as of February 3, 2011 (as amended, the
"Agreement");
B. Assignor desires to assign all of its rights, obligations and liabilities
under the Agreement to Assignee;
C. Assignee desires to accept and assume all of the rights, obligations and
liabilities of Assignor under the Agreement; and
D. Federated Entities desire to consent to such assignment, acceptance and
assumption subject to the terms herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as set forth below.
1. Assignor hereby assigns to Assignee and Assignee hereby accepts and assumes
all of Assignor's rights, obligations and liabilities under the Agreement.
2. Federated Entities hereby consent to the foregoing assignment and assumption
of rights.
3. The Assignment and any actions arising out of or relating to this Assignment
shall be governed by and construed and interpreted in accordance with the laws
of the Commonwealth of Pennsylvania without regard to the conflict of law
provisions thereof.
IN WITNESS WHEREOF the parties hereto have caused this Assignment to be executed
as of the Effective Date set forth above in their names and on their behalf by
and through their duly authorized officers.
FEDERATED SECURITIES CORP. METLIFE INVESTORS USA INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
---------------------------------- ---------------------------------
Print Name: Xxxxxx X. Xxxxxx Print Name: Xxxxx X. Xxxxxxx
Title: President Title: Vice President
Date: 10/22/14 Date: 10-17-14
FEDERATED INSURANCE SERIES METLIFE INSURANCE COMPANY USA
By: /s/ Xxxx X. XxXxxxxxx By: /s/ Xxxxx X. Xxxxxxx
---------------------------------- ---------------------------------
Print Name: Xxxx X. XxXxxxxxx Print Name: Xxxxx X. Xxxxxxx
Title: Exec Vice President Title: Vice President
Date: 10-22-2014 Date: 10-17-14
