Contract
Amendment No. 2 to Participation Agreement
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
National Life Insurance Company
Equity Services, Inc.
Franklin Xxxxxxxxx Variable Insurance Products Trust (the “Trust”), Franklin/Xxxxxxxxx
Distributors, Inc. (the “Underwriter,” and together with the Trust, “we” or “us”), National Life
Insurance Company (the “Company” or “you”), and Equity Services, Inc., your distributor, on
your behalf and on behalf of certain Accounts, have previously entered into a Participation
Agreement dated May 1, 2004 and subsequently amended June 5, 2007 (the “Agreement”). The
parties now desire to amend the Agreement by this amendment (the “Amendment”).
Except as modified hereby, all other terms and conditions of the Agreement shall remain
in full force and effect. Unless otherwise indicated, the terms defined in the Agreement shall
have the same meaning in this Amendment.
A M E N D M E N T
For good and valuable consideration, the receipt of which is hereby acknowledged, the
parties agree to amend the Agreement as follows:
1. Section 2.3.2 is amended and restated in its entirety as follows:
“2.3.2 Each investment adviser (each, an “Adviser”) of a Portfolio, as indicated in the
current prospectus of the Portfolio, is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, or exempt from such registration.”
2. The term “National Association of Securities Dealers, Inc. (the “NASD”) is hereby
replaced with “Financial Industry Regulatory Authority (“FINRA”)” throughout the
Agreement in sections 2.1.6, 2.3.1, 10.7, 10.8 and Schedule F, respectively.
3. Section 10.12 is amended and restated in its entirety as follows:
“10.12 No provisions of this Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by both parties.
Notwithstanding the foregoing: (i) the Site Terms may be separately amended as
provided therein and, as so amended and in effect from time to time, shall be a part of this
Agreement; and (ii) Schedule C may be separately amended as provided therein and, as
so amended shall be a part of this Agreement.”
4. Schedules B, C, D, F and G of the Agreement are deleted and replaced in their entirety
with the Schedules B, C, D, F and G attached hereto, respectively.
5. All other terms and provisions of the Agreement not amended herein shall remain in full
force and effect.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized officers to execute
this Amendment effective as of October 30, 2008.
| The Trust: | FRANKLIN XXXXXXXXX VARIABLE INSURANCE | |
| PRODUCTS TRUST | ||
| Only on behalf of | ||
| each Portfolio listed | ||
| on Schedule C of | ||
| the Agreement. | By: /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Vice President | ||
| The Underwriter: | FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC. | |
| By: /s/ Xxxxxx Xxxxxx | ||
| Name: Xxxxxx Xxxxxx | ||
| Title: Senior Vice President | ||
| The Company: | NATIONAL LIFE INSURANCE COMPANY | |
| By: /s/ Xxxxxxxxx X. XxxXxxxx | ||
| Name: Xxxxxxxxx X. XxxXxxxx | ||
| Title: Vice President – Product Development | ||
| The Distributor: | EQUITY SERVICES, INC. | |
| By: /s/ Xxxxxxx X. Teese | ||
| Name: Xxxxxxx X. Teese | ||
| Title: Vice President - Compliance | ||
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| Schedule B | ||
| Accounts of the Company | ||
| Name of Account | SEC Registration | |
| Yes/No | ||
| National Variable Life Insurance Account | Yes | |
| National Variable Annuity Account II | Yes |
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Schedule C
Available Portfolios and Classes of Shares of the Trust
1. Franklin Global Real Estate Securities Fund, Class 2
2. Franklin Small-Mid Cap Growth Securities Fund, Class 2
3. Franklin Small Cap Value Securities Fund, Class 2
4. Mutual Shares Securities Fund, Class 2
5. Xxxxxxxxx Foreign Securities Fund, Class 2
6. Franklin U.S. Government Fund, Class 1
7. Mutual Discovery Securities Fund, Class 1
In addition to portfolios and classes of shares listed above, any additional Portfolios and classes
of shares other than Class 3 shares are included in this Schedule C listing provided that:
(1) the General Counsel of Franklin Xxxxxxxxx Investments receives from a person
authorized by you a written notice in the form attached (which may be electronic
mail or sent by electronic mail) (“Notice”) identifying this Agreement as provided
in the Notice and specifying: (i) the names and classes of shares of additional
Portfolios that you propose to offer as investment options of the Separate
Accounts under the Contracts; and (ii) the date that you propose to begin offering
Separate Account interests investing in the additional Portfolios under the
Contracts; and
(2) we do not within ten (10) Business Days following receipt of the Notice send you
a writing (which may be electronic mail) objecting to your offering such Separate
Accounts investing in the additional Portfolios and classes of shares under the
Contracts.
Provided that we do not object as provided above, your Notice shall amend, supplement and
become a part of this Schedule C and the Agreement.
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FORM OF NOTICE PURSUANT TO SCHEDULE C OF PARTICIPATION AGREEMENT
To: General Counsel c/o
Xxxxx Xxx (Xxxx@xxx.xxx;) or Xxxxx Xxxxxxxx (xxxxxxx@xxx.xxx)
Fax: 000 000-0000
Franklin Xxxxxxxxx Investments
0 Xxxxxxxx Xxxxxxx,
Xxxx. 000, 0xx Xxxxx
Xxx Xxxxx, XX 00000
| With respect to the following agreement(s) (collectively, the “Agreement”) |
| (please reproduce and complete table for multiple agreements): |
|
|
| Date of Participation Agreement: |
|
|
| Insurance Company(ies): |
|
|
| Insurance Company Distributor(s): |
As provided by Schedule C of the Agreement, this Notice proposes to Franklin Xxxxxxxxx
Variable Insurance Products Trust, and Franklin/Xxxxxxxxx Distributors, Inc. the addition as of
the offering date(s) listed below of the following Portfolios as additional investment options
listed on Schedule C:
| Names and Classes of Shares of Additional Portfolios | Offering Date(s) | |
| Listing of current classes for your reference: | ||
| Class 1 (no 12b-1 fee); | ||
| Class 2 (12b-1 fee of 25 bps); or | ||
| Class 4 (12b-1 fee of 35 bps). |
Name and title of authorized person of insurance company:
Contact Information:
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Schedule D
Contracts of the Company
All variable life and variable annuity contracts issued by separate accounts listed on Schedule B
of this Agreement.
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Schedule F
Rule 12b-1 Plans of the Trust
Compensation
Each Class 2 or Class 4 Portfolio named or referenced on Schedule C of this Agreement
may make payments at a rate stated in its prospectus pursuant to the terms and conditions of its
Rule 12b-1 distribution plan.
Agreement Provisions
If the Company, on behalf of any Account, purchases Trust Portfolio shares (“Eligible
Shares”) that are subject to a Rule 12b-1 plan adopted under the 1940 Act (the “Plan”), the
Company, on behalf of its Distributor, may participate in the Plan.
To the extent the Company or its affiliates, agents or designees (collectively “you”)
provide any activity or service that is primarily intended to assist in the promotion, distribution
or account servicing of Eligible Shares (“Rule 12b-1 Services”) or variable contracts offering
Eligible Shares, the Underwriter, the Trust or their affiliates (collectively, “we”) may pay you a
Rule 12b-1 fee. “Rule 12b-1 Services” may include, but are not limited to, printing of
prospectuses and reports used for sales purposes, preparing and distributing sales literature and
related expenses, advertisements, education of dealers and their representatives, and similar
distribution-related expenses, furnishing personal services to owners of Contracts which may
invest in Eligible Shares (“Contract Owners”), education of Contract Owners, answering routine
inquiries regarding a Portfolio, coordinating responses to Contract Owner inquiries regarding the
Portfolios, maintaining such accounts or providing such other enhanced services as a Trust
Portfolio or Contract may require, or providing other services eligible for service fees as defined
under NASD Rules.
Your acceptance of such compensation is your acknowledgment that eligible services
have been rendered. All Rule 12b-1 fees, shall be based on the value of Eligible Shares owned
by the Company on behalf of its Accounts, and shall be calculated on the basis and at the rates
set forth in the compensation provision stated above. The aggregate annual fees paid pursuant to
each Plan shall not exceed the amounts stated as the “annual maximums” in the Portfolio’s
prospectus, unless an increase is approved by shareholders as provided in the Plan. These
maximums shall be a specified percent of the value of a Portfolio’s net assets attributable to
Eligible Shares owned by the Company on behalf of its Accounts (determined in the same
manner as the Portfolio uses to compute its net assets as set forth in its effective Prospectus).
The Rule 12b-1 fee will be paid to you within thirty (30) days after the end of the three-month
periods ending in January, April, July and October.
You shall furnish us with such information as shall reasonably be requested by the
Trust’s Boards of Trustees (“Trustees”) with respect to the Rule 12b-1 fees paid to you pursuant
to the Plans. We shall furnish to the Trustees, for their review on a quarterly basis, a written
report of the amounts expended under the Plans and the purposes for which such expenditures
were made.
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The Plans and provisions of any agreement relating to such Plans must be approved
annually by a vote of the Trustees, including the Trustees who are not interested persons of the
Trust and who have no financial interest in the Plans or any related agreement (“Disinterested
Trustees”). Each Plan may be terminated at any time by the vote of a majority of the
Disinterested Trustees, or by a vote of a majority of the outstanding shares as provided in the
Plan, on sixty (60) days’ written notice, without payment of any penalty, or as provided in the
Plan. Continuation of the Plans is also conditioned on Disinterested Trustees being ultimately
responsible for selecting and nominating any new Disinterested Trustees. Under Rule 12b-1, the
Trustees have a duty to request and evaluate, and persons who are party to any agreement related
to a Plan have a duty to furnish, such information as may reasonably be necessary to an informed
determination of whether the Plan or any agreement should be implemented or continued. Under
Rule 12b-1, the Trust is permitted to implement or continue Plans or the provisions of any
agreement relating to such Plans from year-to-year only if, based on certain legal considerations,
the Trustees are able to conclude that the Plans will benefit each affected Trust Portfolio and
class. Absent such yearly determination, the Plans must be terminated as set forth above. In the
event of the termination of the Plans for any reason, the provisions of this Schedule F relating to
the Plans will also terminate. You agree that your selling agreements with persons or entities
through whom you intend to distribute Contracts will provide that compensation paid to such
persons or entities may be reduced if a Portfolio’s Plan is no longer effective or is no longer
applicable to such Portfolio or class of shares available under the Contracts.
Any obligation assumed by the Trust pursuant to this Agreement shall be limited in all
cases to the assets of the Trust and no person shall seek satisfaction thereof from shareholders of
the Trust. You agree to waive payment of any amounts payable to you by Underwriter under a
Plan until such time as the Underwriter has received such fee from the Trust.
The provisions of the Plans shall control over the provisions of the Participation
Agreement, including this Schedule F, in the event of any inconsistency. You agree to provide
complete disclosure as required by all applicable statutes, rules and regulations of all rule 12b-1
fees received from us in the prospectus of the Contracts.
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| Schedule G | ||
| Addresses for Notices | ||
| To the Company: | National Life Insurance Company | |
| National Xxxx Xxxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: Xxxx Xxxxxx, Counsel | ||
| To the Distributor: | Equity Services, Inc. | |
| National Xxxx Xxxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: Counsel | ||
| To the Trust: | Franklin Xxxxxxxxx Variable Insurance Products Trust | |
| Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx | ||
| Xxx Xxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxxxx, Vice President | ||
| To the Underwriter: | Franklin/Xxxxxxxxx Distributors, Inc. | |
| 000 Xxxxxxxx Xxxxxxx, 0xx Xxxxx | ||
| Xx. Xxxxxxxxxx, XX 00000 | ||
| Attention: Xxxxx Xxxxx, President | ||
| If to the Trust or Underwriter | ||
| with a copy to: | Franklin Xxxxxxxxx Xxxxxxxxxxx | |
| Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx | ||
| Xxx Xxxxx, Xxxxxxxxxx 00000 | ||
| Attention: General Counsel | ||
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