FORM OF SECOND AMENDMENT OF PARTICIPATION AGREEMENT
Exhibit (h)(79)
FORM OF
SECOND AMENDMENT
OF
This Second Amendment dated as of , 2009 is by and among ALLIANZ LIFE INSURANCE
COMPANY OF NEW YORK (the “Company”), a New York corporation, on its own behalf and on behalf of
each separate account of the Company named in Schedule 1 to Participation Agreement (as defined
below), PREMIER VIT, an open-end diversified management investment company organized under the laws
of the State of Massachusetts (the “Fund”), and ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC, a
Delaware limited liability company (the “Underwriter”).
WHEREAS, the Company, the Fund and the Underwriter have entered into a Participation Agreement
on May 1, 2006 (the “Participation Agreement”) and an Amendment dated as of February 6, 2009; and
WHEREAS, the Fund has established a new share class (“Class II”) pursuant to Rule 18f-3 under
the Investment Company Act of 1940, as amended (the “1940 Act”), and has adopted for Class II
shares a distribution and shareholder servicing plan pursuant to Rule 12b-1 (the “Class II Plan”)
under the 1940 Act, according to which Class II shares are permitted to pay fees in connection with
the distribution of Class II shares and personal and account maintenance services provided in
connection with the administration of programs that use Class II shares as their funding medium,
and
WHEREAS, the Company, the Fund and the Underwriter desire to amend the Participation Agreement
to reflect the establishment of Class II shares and to permit the Company to receive compensation
under the Class II Plan,
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:
1. 12b-1 Class. Section 2.6 is deleted and Section 2 is renumbered accordingly.
Sections 5.1 and 5.2 are replaced in their entirety with the following:
5.1. So long as the Underwriter is the sole principal underwriter of the Fund and this
Participation Agreement remains in effect, the Company will be paid each quarter a
distribution and/or service fee at an annual rate of up to 0.25% of the applicable
Portfolio’s average daily net attributable to its Class II shares outstanding in such
quarter which are held in accounts by the Company, such payments to be made either directly
by the Fund or the Underwriter acting as agent for the Fund. The fees will be accrued daily
as of each business day and paid quarterly in arrears on or about the 15th day of the month
following each quarter-end; provided, however, that the Underwriter will have no
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obligation to pay such fees until received from the Fund. Such fees will be paid by the
Fund to the Company only out of the applicable Portfolio’s distribution and service fees
paid pursuant to the Class II Plan in consideration of the Company furnishing distribution
and client services hereunder with respect to the Portfolio and its shareholders. In
addition to any terms and conditions set forth in the applicable Prospectus or required by
applicable law, any such payments made pursuant to this Section 5 shall be subject to the
following terms and conditions:
(a) Any such payment shall be in such amounts as the Fund or the Underwriter may from time
to time advise the Company in writing but in any event not in excess of the amount permitted
by the Class II Plan.
(b) The provisions of this Section relate to the Class II Plan. In accordance with Rule
12b-1, any person authorized to direct the disposition of monies paid or payable by a
Portfolio pursuant to this Section shall provide the Fund’s Board of Trustees, and the
Trustees shall review, at least quarterly, a written report of the amounts so expended and
the purposes for which such expenditures were made.
(c) The Company shall provide to the Underwriter and the Fund each calendar quarter such
information as shall reasonably be requested by the Underwriter or Board of Trustees with
respect to the fees paid to the Company pursuant to this Section 5.
(d) The Company will permit representatives of the Fund and the Underwriter reasonable
access to its personnel and its records to enable them to monitor the quality of services
being provided by the Company pursuant to this Participation Agreement. The Company shall
promptly deliver to the Board of Trustees of the Fund such information as is reasonably
necessary to permit the Board of Trustees to make an informed determination whether to
continue the Class II Plan.
(e) The provisions of this Section applicable to the Fund shall remain in effect for not
more than a year and thereafter for successive annual periods only so long as such
continuance is specifically approved by the Trustees of the Fund at least annually in
conformity with the Class II Plan, Rule 12b-1 and the 1940 Act. In the event of the
assignment (as defined by the 0000 Xxx) of the Participation Agreement or in the event the
Class II Plan terminates, is not continued or ceases to remain in effect, then the
provisions of this Section 5 shall automatically terminate with respect to the shares
covered by such assignment or the terminated Class II Plan. This Section 5 may be terminated
at any time with respect to the Fund without payment of any penalty, by vote of a majority
of the Independent Trustees of the Fund (as defined in the Class II Plan) or by vote of a
majority of the outstanding voting securities of such Fund on not less than 60 days’ written
notice to the parties to the Participation Agreement. In addition, the provisions of this
Section may be terminated at any time, without penalty, by either party with respect to any
Fund on not less than 30 days’ written notice in accordance with Article XI of the
Participation Agreement.
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5.2. Unless otherwise specified, each party shall bear the expenses incident to its
performance hereunder. The Fund shall bear the expenses for the cost of registration and
qualification of the Fund’s shares, preparation and filing of the Fund’s prospectus and
registration statement, Fund voting instructions, proxy materials and reports, setting in
type, printing and distributing the prospectuses, the voting instructions, proxy materials
and reports to existing shareholders and contract owners, the preparation of all statements
and notices required by any federal or state law, all taxes on the issuance or transfer of
the Fund’s shares, and any expenses permitted to be paid or assumed by the Fund pursuant to
a plan under Rule 12b 1 under the 1940 Act
2. Additional Portfolios. Schedule 2 is amended to add the NACM Small Cap Portfolio
and the NFJ Dividend Value Portfolio as Portfolios in which the separate account(s) listed in
Schedule 1 may invest.
3.Continuation. Except as set forth above, the Participation Agreement shall remain
in full force and effect in accordance with its terms.
4. Counterparts. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original.
5. Capitalized Terms. Capitalized terms not defined herein shall has the meaning
ascribed to them in the Participation Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by a duly
authorized representative as of the day and year first above written.
| ALLIANZ LIFE INSURANCE COMPANY OF NEW YORK | ||||
By: Name: |
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Title: |
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| PREMIER VIT | ||||
By: Name: |
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Title: |
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| ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC | ||||
By: Name: |
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Title: |
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[Signature Page – Participation Agreement Amendment]
