Amendment No. 3 to Participation Agreement As of May 3, 2004 by and among Franklin Templeton Variable Insurance Products Trust Franklin/Templeton Distributors, Inc. Farmers New World Life Insurance Company
Exhibit (h)(26)
Amendment No. 3 to Participation Agreement
As of May 3, 2004
by and among
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
Farmers New World Life Insurance Company
As of May 3, 2004
by and among
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
Farmers New World Life Insurance Company
Franklin Xxxxxxxxx Variable Insurance Products Trust (the “Trust”), Franklin/Xxxxxxxxx
Distributors, Inc. (the “Underwriter,” and together with the Trust, “we” or “us”) and Fanners New
World Life Insurance Company (“you”), on your behalf and on behalf of certain Accounts, have
previously entered into a Participation Agreement dated May 15, 2000, as amended (the
“Agreement”). The parties now desire to amend the Agreement in 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.
AMENDMENT
For good and valuable consideration, the receipt of which is hereby acknowledged,
the parties agree to amend the Agreement as follows:
1. | Section 2.1.6 of the Agreement is hereby amended to add the following sentence at the end of the section: | |
“Without limiting the foregoing, you agree that, in your agreements with broker-dealers governing sales of Contracts, you require that, in recommending to a Contract owner the purchase, sale or exchange of any subaccount units under the Contracts, such broker-dealers shall have reasonable grounds for believing that the recommendation is suitable for such Contract owner.” | ||
2. | A new Section 2.1.12 is hereby added to the Agreement as follows: |
“2.1.12 As covered financial institutions we, only with respect to Portfolio
shareholders, and you each undertake and agree to comply, and to take full responsibility in
complying with any and all applicable laws, regulations and other requirements relating to
money laundering including, without limitation, the International Money Laundering Abatement
and Anti-Terrorist Financing Act of 2001 (Title III of the USA PATRIOT Act).”
1
3. | Section 3 of the Agreement is hereby deleted in its entirety and replaced with the following Section 3: |
“3.
Purchase and Redemption of Trust Portfolio Shares
3.1
Availability of Trust Portfolio Shares
3.1.1 We will make shares of the Portfolios available to the
Accounts for the benefit of the Contracts. The shares will be available for
purchase at the net asset value per share next computed after we (or our agent, or
you as our designee) receive a purchase order, as established in accordance with
the provisions of the then current prospectus of the Trust. All orders are subject to
acceptance by us and by the Portfolio or its transfer agent, and become effective
only upon confirmation by us. Notwithstanding the foregoing, the Trust’s Board
of Trustees (“Trustees”) may refuse to sell shares of any Portfolio to any person,
or may suspend or terminate the offering of shares of any Portfolio if such action
is required by law or by regulatory authorities having jurisdiction or if, in the sole
discretion of the Trustees, they deem such action to be in the best interests of the
shareholders of such Portfolio.
3.1.2 Without limiting the other provisions of this Section 3.1,
among other delegations by the Trustees, the Trustees have determined that there
is a significant risk that the Trust and its shareholders may be adversely affected
by investors with short term trading activity and/or whose purchase and
redemption activity follows a market timing pattern as defined in the prospectus
for the Trust, and have authorized the Trust, the Underwriter and the Trust’s
transfer agent to adopt procedures and take other action (including, without
limitation, rejecting specific purchase orders in whole or in part) as they deem
necessary to reduce, discourage, restrict or eliminate such trading and/or market
timing activity. You agree that your purchases and redemptions of Portfolio
shares are subject to, and that you will assist us in implementing, the Market
Timing Trading Policy and Additional Policies (as described in the Trust’s
prospectus) and the Trust’s restrictions on excessive and/or short term trading
activity and/or purchase and redemption activity that follows a market timing
pattern.
3.1.3 We agree that shares of the Trust will be sold only to life insurance companies
which have entered into fund participation agreements with the Trust (“Participating
Insurance Companies”) and their separate accounts or to qualified pension and retirement
plans in accordance with the terms of the Shared Funding Order. No shares of any Portfolio
will be sold to the general public.
3.2 This subsection 3.2 is not used.
2
3.3
Purchase and Redmption
3.3.1 You are hereby appointed as our designee for the sole purpose of receiving from
Contract owners purchase and exchange orders and . requests for redemption resulting from
investment in and payments under the Contracts that pertain to sub accounts that invest in
Portfolios (“Instructions”). “Business Day” shall mean any day on which the New York Stock Exchange
is open for trading and on which the Trust calculates its net asset value pursuant to the rules of
the SEC and its current prospectus. “Close of Trading” shall mean the close of trading on the New
York Stock Exchange, generally 4:00 p.m. Eastern Time. You represent and warrant that all
Instructions transmitted to us for processing on or as of a given Business Day (“Day 1”) shall have
been received in proper form and time stamped by you prior to the Close of Trading on Day 1. Such
Instructions shall receive the share price next calculated following the Close of Trading on Day 1,
provided that we receive such Instructions from you before 9 a.m. Eastern Time on the next Business
Day (“Day 2”). You represent and warrant that Instructions received in proper form and time stamped
by you after the Close of Trading on Day 1 shall be treated by you and transmitted to us as if
received on Day 2. Such Instructions shall receive the share price next calculated following the
Close of Trading on Day 2. You represent and warrant that you have, maintain and periodically test,
procedures and systems in place reasonably designed to prevent Instructions received after the
Close of Trading on Day 1 from being executed with Instructions received before the Close of
Trading on Day 1. All Instructions we receive from you after 9 a.m. Eastern Time on Day 2 shall be
processed by us on the following Business Day and shall receive the share price next calculated
following the Close of Trading on Day 2,
3.3.2 We shall calculate the net asset value per share of each
Portfolio on each Business Day, and shall communicate these net asset values to
you or your designated agent on a daily basis as soon as reasonably practical after
the calculation is completed (normally by 6:30 p.m. Eastern Time).
3.3.3 You shall submit payment for the purchase of shares of a
Portfolio on behalf of an Account in federal funds transmitted by wire to the Trust
or to its designated custodian, which must receive such wires no later than the
close of the Reserve Bank, which is 6:00 p.m. Eastern Time, on the Business Day
following the Business Day as of which such purchases orders are made.
3.3.4 We will redeem any full or fractional shares of any
Portfolio, when requested by you on behalf of an Account, at the net asset value
next computed after receipt by us (or our agent or you as our designee) of the
request for redemption, as established in accordance with the provisions of the
then current prospectus of the Trust. We shall make payment for such shares in
the manner we establish from time to time, but in no event shall payment be
delayed for a greater period than is permitted by the 1940 Act.
3
3.3.5 Issuance and transfer of the Portfolio shares will be by
book entry only. Stock certificates will not be issued to you or the Accounts.
Portfolio shares purchased from the Trust will be recorded in the appropriate title
for each Account or the appropriate subaccount of each Account.
3.3.6 We shall furnish, on or before the ex-dividend date, notice
to you of any income dividends or capital gain distributions payable on the shares
of any Portfolio. You hereby elect to receive all such income dividends and
capital gain distributions as are payable on shares of a Portfolio in additional
shares of that Portfolio, and you reserve the right to change this election in the
future. We will notify you of the number of shares so issued as payment of such
dividends and distributions.
3.3.7 Each party to this Agreement agrees that, in the event of a
material error resulting from incorrect information or confirmations, the parties
will seek to comply in all material respects with the provisions of applicable
federal securities laws.
4. | A new Section 6.7 is hereby added to the Agreement as follows: |
“6,7 You agree that any posting of Portfolio prospectuses on your website will
result in the Portfolio prospectuses: (i) appearing identical to the hard copy printed
version; (ii) being clearly associated with the particular Contracts in which they are
available and posted in close proximity to the applicable Contract prospectuses; (iii)
having no less prominence than prospectuses of any other underlying funds available under
the Contracts; and (iv) being used in an authorized manner. Notwithstanding the above, you
understand and agree that you are responsible for ensuring that participation in the
Portfolios, and any website posting, or other use, of the Portfolio prospectuses is in
compliance with this Agreement and applicable state and federal securities and insurance
laws and regulations, including as they relate to paper or electronic use of fund
prospectuses. The format of such presentation, the script and layout for any website that
mentions the Trust, the Underwriter, an Adviser or the Portfolios shall be routed to us as
sales literature or other promotional materials, pursuant to Section 6 of this Agreement.
In addition, you agree to be solely responsible for maintaining and updating the
Portfolio prospectuses’ PDF files (including prospectus supplements) and removing and/or
replacing promptly any outdated prospectuses, as necessary, ensuring that any accompanying
instructions by us, for using or stopping use are followed. You agree to designate and make
available to us a person to act as a single point of communication contact for these
purposes. We are not responsible for any additional costs or additional liabilities that may
be incurred as a result of your election to place the Portfolio prospectuses on your
website. We reserve the right to revoke this authorization, at any time and for any reason,
although we may instead make our authorization subject to new procedures.”
4
5. | A new paragraph, is added at the end of Section 10.8 of the Agreement as follows: |
“Each party to this Agreement agrees to limit the disclosure of nonpublic personal
information of Contract owners consistent with its policies on privacy with respect to
such information and Regulation S-P of the SEC. Each party hereby agrees that it will
comply with all applicable requirements under the regulations implementing Title V of the
Xxxxx-Xxxxx-Xxxxxx Act and any other applicable federal and state consumer privacy acts,
rules and regulations. Each party further represents that it has in place, and agrees that
it will maintain, information security policies and procedures for protecting nonpublic
personal customer information adequate to conform to applicable legal requirements.”
IN WITNESS WHEREOF, each of the parties has caused its duly authorized officers to execute this
Amendment.
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: Assistant Vice President | ||||||||
The Underwriter: | Franklin/Xxxxxxxxx Distributors, Inc. | |||||||
By: | /s/ Xxxxx X. Xxx | |||||||
Name: Xxxxx X. Xxx | ||||||||
Title: Senior Vice President | ||||||||
The Company: | Farmers New World Life Insurance | |||||||
Company | ||||||||
By: | /s/ Xxxx X. Xxxxxx | |||||||
Name: Xxxx X. Xxxxxx | ||||||||
Title: Asst. Vice President Secretary |
5