Exhibit 8(dd)(i)
Amendment to Participation Agreement
This AMENDMENT is made and entered into this 11th day of April 2012 by and
between XXXXXXX XXXXX VARIABLE INSURANCE TRUST, a statutory trust formed under
the laws of Delaware (the "Trust"), XXXXXXX, SACHS & CO., a New York limited
partnership (the "Distributor"), and Minnesota Life Insurance Company, a
Minnesota life insurance company (the "Company"), on its own behalf and on
behalf of each separate account of the Company identified in the Participation
Agreement (as defined below).
WHEREAS, the Company, pursuant to a Participation Agreement (as defined
below), purchases shares of certain Funds of the Trust on behalf of its
separate Accounts to fund certain variable life insurance and/or variable
annuity contracts issued by the Company ("Contracts"); and
WHEREAS, the Distributor, the Trust, and the Company seek to enter into this
Amendment to make changes to the Participation Agreement in order to update
certain sections of the Participation Agreement and to permit the Parties to
deliver the Trust's Summary Prospectuses (as defined below) pursuant to the
requirements of Rule 498 ("Rule 498") under the Securities Act of 1933, as
amended (the "1933 Act").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, the Distributor, the Trust, and the
Company hereby agree as follows:
ARTICLE I
Additional Definitions
Unless otherwise noted, terms used in this Amendment shall have the same
meaning as in the Participation Agreement. For purposes of this Amendment:
1.1 "Agreement" - the term "Agreement", as used throughout the Participation
Agreement (as defined below), shall mean the Participation Agreement, and any
amendments thereto.
1.2 "Applicable Law" -- the "federal securities laws" as defined in Rule
38a-1(e)(1) under the Investment Company Act of 1940 (the "1940 Act"), any
rules promulgated under the federal securities laws, FINRA regulations and any
Applicable SEC Guidance (as defined below). The term "Applicable Law" also
includes any state laws, rules and regulations that may apply to this Amendment.
1.3 "Applicable SEC Guidance" - Any applicable: (a) SEC release, opinion, or
order, as well as any published no-action position, written interpretative
guidance by the SEC staff; and (b) FINRA interpretive memoranda or notices to
members, as well as any written interpretive guidance from the FINRA staff.
"Applicable SEC Guidance" does not include oral statements, speeches or
informal guidance by the SEC or its staff.
143 "FINRA" -- The Financial Industry Regulatory Authority, Inc. All
references to the NASD in the Participation Agreement are replaced with
references to FINRA.
1.5 "Fund Documents" -- those documents prepared by the Fund that, pursuant
to Rule 498(e)(1), must be publicly accessible, free of charge, at the Web site
address specified on the cover page or at the beginning of the Summary
Prospectus.
1.6 "Fund Documents Web Site" -- the Web site maintained by the Trust or its
agent where Contract Owners and prospective Contract Owners may access the Fund
Documents in compliance with Rule 498.
1.7 "Participation Agreement" -- the agreement entered into by and among the
Trust, Distributor, and Company on April 1, 2010, and any amendments thereto
(including this Amendment).
1.8 "Prospectus" -- with respect to shares of a Series (or Class) of the
Trust or a class of Schedule 1 Contracts, each version of the Statutory
Prospectus or Summary Prospectus, or supplement thereto filed with the SEC
pursuant to Rule 497 under the 1933 Act. With respect to any provision of this
Agreement requiring a party to take action in accordance with a Prospectus,
such reference thereto shall be deemed to be to the version for the applicable
Series, Class or Contracts last so filed prior to the taking of such action.
For purposes of Article IX, the term "Prospectus" shall include any statement
of additional information incorporated therein.
1.9 "Statutory Prospectus" -- a prospectus that satisfies the requirements
of section 10(a) of the 0000 Xxx.
1.10 "Summary Prospectus" -- a prospectus described in paragraph (b) of Rule
498.
1.11 "Trust" -- as used in this Amendment includes any affiliated and
unaffiliated parties that perform services on behalf of the Trust that are
required by the Participation Agreement.
ARTICLE II
Sale of Trust Shares
2.1 Confirmations required by Section 2.3(a) of the Participation Agreement
may be sent by electronic mail.
2.2 Section 2.3(d) of the Participation Agreement is replaced with the
following language: Any purchase or redemption request for Trust shares held or
to be held in the Company's general account, shall be effected at the net asset
value per share next determined after the Trust's actual receipt of such
request, provided that payment for Trust shares purchased is received by the
Trust in federal funds prior to the Trust's close of business, as defined from
time to time in the Prospectus for such Series or Class.
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ARTICLE III
Representations and Warranties
3.1 Company. In addition to the representations and warranties set forth in
Section 3.1 of the Participation Agreement, the Company represents and warrants
that: (a) it complies with the requirements of Rule 498 and Applicable SEC
Guidance thereunder in connection with the delivery of the Summary Prospectuses
for the Funds; and (b) it maintains reasonable policies and procedures to
ensure that it can appropriately meet its obligations under this Amendment.
3.2 Trust. In addition to the representations and warranties set forth in
Section 3.2 of the Participation Agreement, the Trust represents and warrants
that: (a) it complies with the requirements of Rule 498 and Applicable SEC
Guidance regarding the Rule in connection with the offer and sale of Fund
Shares as specified in this Amendment, (b) it maintains policies and procedures
reasonably designed to ensure that the Fund Documents are available on the Fund
Documents Web Site and in the manner required by Rule 498 and Applicable SEC
Guidance related thereto, (c) as provided by Rule 498(e)(4)(ii), it shall take
prompt action to ensure that the Fund Documents become available in the manner
required by Rule 498(e)(1), (e)(2),and (e)(3) and Applicable SEC Guidance as
soon as practicable following the earlier of the time at which it knows or
reasonably should have known that the Fund Documents are not available in the
required manner; and (d) it maintains reasonable policies and procedures to
ensure that it can appropriately meet its obligations under this Amendment.
3.3 Distributor. Section 3.3 of the Participation Agreement is replaced with
the following: The Distributor represents and warrants that: (i) the
Distributor is a limited partnership duly organized and in good standing under
New York law; (ii) the Distributor is registered as a broker-dealer under
federal and applicable state securities laws and is a member in good standing
of FINRA; (iii) the Distributor is registered as an investment adviser under
federal securities laws; and (iv) it complies with the requirements of Rule 498
and Applicable SEC Guidance in connection with the offer and sale of Fund
Shares as specified in this Amendment.
ARTICLE IV
Regulatory Requirements
4.1 Delivery of the Prospectuses by the Company. The following Sections 4.2A
through 4.2H are hereby added to the Participation Agreement:
4.2A Delivery of the Prospectuses by the Company. The Company shall deliver
(or arrange for delivery of) an appropriate Prospectus to each prospective
Contract Owner describing in all material respects the terms and features of
the Contract being offered. Except as provided below, the Company shall also
deliver (or arrange for delivery of) a Summary Prospectus for each Fund that a
prospective Contract Owner identifies on his or her application as an intended
investment option under a Contract or to which a Contract Owner currently
allocates premium payments or transfers Contract value. In addition, the
Company reserves the right to deliver the Statutory Prospectus in place of the
Summary Prospectus. The Company shall deliver (or arrange for delivery of) such
Summary or Statutory Prospectuses at the times required by applicable
provisions of the 1933 Act and 1940 Act, the rules or regulations thereunder,
and any Applicable SEC Guidance.
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4.2B Specific Requirements for Summary Prospectuses. The Company may bind
together the Summary Prospectuses or Statutory Prospectuses for the Funds with
Summary Prospectuses and Statutory Prospectuses for shares of other investment
companies available as investment options under the Contract and the
Prospectus(es) describing the Contract(s) provided that such binding is done in
compliance with Rule 498(c)(2) and any Applicable SEC Guidance. The Company
shall deliver all Summary Prospectuses and all Statutory Prospectuses in
compliance with the Greater Prominence requirements of Rule 498(f)(2) and any
Applicable SEC Guidance.
4.2C Web Site Posting. The Trust shall maintain the Fund Documents Web Site.
The Company shall be permitted, but not required to post a copy of the Trust's
Statutory Prospectuses and/or Summary Prospectuses on the Company's Web site.
The Trust agrees to use commercially reasonable efforts to employ procedures
consistent with industry practices designed to reduce exposure to viruses. The
Trust shall, upon request, provide to the Company the Trust's Statutory
Prospectus and Statement of Additional Information in an electronic format that
permits persons accessing such documents to move directly back and forth
between each section heading in a table of contents and the section of the
document referenced in that section heading, as required by Rule 498.
4.2D Response to Requests for Additional Fund Documents. Within three
(3) Business Days of receiving a request for a paper copy of a Fund Document,
the Trust shall promptly send the same to the person requesting it free of
charge. Within three (3) Business Days of receiving a request for an electronic
copy of a Fund Document, the Trust shall send, by e-mail to the requestor,
either a PDF copy of, or an electronic link to, the same free of charge.
4.2E Cessation of Use of Summary Prospectus. The Trust shall provide the
Company with at least sixty (60) days advance written notice of its intent to
cease using the Summary Prospectus delivery option so that the Company can
arrange to deliver a Statutory Prospectus in place of a Summary Prospectus in
compliance with Section 4.1 of this Amendment. In order to comply with Rule
498(e)(1), the Trust shall continue to maintain the Fund Documents Web Site in
compliance with the requirements of this Amendment and Rule 498 for a minimum
of 90 days after the termination of any notice period.
4.2F Voting of Trust Shares. In addition to the requirements set forth in
Section 4.4 of the Participation Agreement, the Company shall vote Trust shares
held in its general account in the same proportion as it votes the applicable
Series or Class of Trust shares held by the Accounts for which it has received
timely instructions, in accordance with Applicable Law.
4.2G Interpretation of Law. The Trust, the Distributor and their affiliates
are not responsible or liable for acts or omissions by the Company or the
Company's affiliates taken (or not taken) in reliance upon any statements or
representations made by the Trust, the Distributor or any of their affiliates
or their legal advisers to the Company or the Company's affiliates concerning
the applicability of any federal or state laws, regulations or other
authorities to the activities contemplated by this Agreement.
The Company and its affiliates are not responsible or liable for acts or
omissions by the Trust, the Distributor and their affiliates taken (or not
taken) in reliance upon any statements or
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representations made by the Company or it affiliates or their legal advisers to
the Trust, the Distributor and their affiliates concerning the applicability of
any federal or state laws, regulations or other authorities to the activities
contemplated by this Agreement.
4.2H Copies of Filings and Regulatory Responses. In connection with Sections
4.8 and 4.9 of the Participation Agreement, the Company shall provide the Trust
with prompt notice of a filing by the Company of an application for an order
pursuant to Section 26(c) of the 1940 Act involving a Fund and, upon request,
shall provide the Trust with a copy of such an application for exemption.
ARTICLE V
Sale, Administration and Servicing of the Contracts
5.1 Sale of Contracts. The following sentence hereby replaces the second
sentence of Section 5.1 of the Participation Agreement: The Company shall
provide Contracts, the Contracts' and Trust's Prospectuses, Contracts' and
Trust's Statements of Additional Information, and all amendments or supplements
to any of the foregoing to Contract Owners and prospective Contract Owners, all
in accordance with Applicable Law, including Applicable SEC Guidance
ARTICLE VI
Compliance with Code
There are no amendments to this Article.
ARTICLE VII
Expenses
7.1 Trust Expenses. Provision and maintenance of the Fund Documents Web Site
shall be added to the list of the Trust's Expenses as set forth in Section 7.2
of the Participation Agreement.
ARTICLE VIII
Potential Conflicts
There are no amendments to this Article.
ARTICLE IX
Indemnification
There are no amendments to this Article.
ARTICLE X
Relationship of the Parties; Termination
10.1. Relationship of Parties. Section 10.1 of the Participation Agreement
is replaced with the following: The Company is to be an independent contractor
vis-a-vis the Trust, the Distributor, or any of their affiliates for all
purposes hereunder and will have no authority to act
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for or represent any of them (except to the limited extent the Company acts as
agent of the Trust pursuant to Section 2.3(a) of this Agreement). In addition,
no officer or employee of the Company will be deemed to be an employee or agent
of the Trust, Distributor, or any of their affiliates. The Company will not act
as an "underwriter" or "distributor" of Trust shares, as those terms variously
are used in the 1940 Act, the 1933 Act, and rules and regulations thereunder.
Likewise, the Company will not be a "transfer agent" of the Trust as that term
is used in the 1934 Act and rules thereunder. Consistent with the foregoing,
the Company will not be a "transfer agent" or "administrator" to the Trust as
those terms are referenced in Rule 38a-1 under the 1940 Act.
10.2 Non-Exclusivity and Non-Interference. Notices required to be provided
by the Company to the Distributor pursuant to Section 10.2(d) of the
Participation Agreement shall be given 90 days (rather than 60 days) in advance
of effecting any such substitution.
10.3 Non-Exclusivity and Non-Interference. The following is added to
Section 10.2 of the Participation Agreement:
(f) The Company will use its commercially reasonable efforts to provide the
Distributor with immediate notice if it becomes aware of any transactions in
Account units that would result in the Company making a redemption request for
more than $25 million.
10.4 Term and Termination. This Amendment shall become effective as of the
date written above and shall remain in effect unless specifically terminated as
provided in this Section 10.4. This Amendment may be terminated at any time,
without the payment of any penalty, by mutual agreement of the parties in
writing. This Amendment will terminate automatically upon the termination of
the Participation Agreement.
10.5 Confidentiality. Section 10.8 of the Participation Agreement is
replaced with the following: All "Confidential Information" (as defined in this
section) supplied by one party to another party in connection with the
negotiation or carrying out of this Agreement shall remain the property of the
party providing such information and shall be kept confidential by the
receiving party or parties except: (a) as may be required by law, (b) as
authorized in writing by the party providing the information, or (c) in the
event that such information is otherwise made public without fault by the party
receiving the Confidential Information. Each party agrees to take all
reasonable precautions to prevent any unauthorized disclosure of Confidential
Information. Confidential Information means (individually or collectively)
proprietary information of the parties to this Agreement, including but not
limited to, their inventions, "know-how", trade secrets, business affairs,
prospect lists, product designs, product plans, business strategies, finances,
fee structures, etc. Without limiting the generality of the foregoing,
Confidential Information includes: (a) information that the disclosing party
designates in writing is confidential or proprietary, (b) any non-public
personal information or personally identifiable financial information about any
Contract Owner or prospective Contract Owner, and (c) information that a
reasonable business-person would assume to be confidential or proprietary.
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ARTICLE XI
Applicability to New Accounts and New Contracts
There are no amendments to this Article.
ARTICLE XII
Notice, Request or Consent
The contact information for the Trust and Distributor is replaced with the
following:
If to the Trust:
Xxxxx X. XxXxxxxx
President
Xxxxxxx Sachs Variable Insurance Trust
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to the Distributor:
Xxxxx X. XxXxxxxx
Managing Director
Xxxxxxx, Sachs & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ARTICLE XIII
Miscellaneous
13.1 Rules of Construction. To the extent the terms of this Amendment
conflict with the terms of the Participation Agreement, the terms of this
Amendment shall control.
***SIGNATURE PAGE FOLLOWS***
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be executed in its name and behalf by its duly authorized officer on the date
specified below.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
(Trust)
Date: By:
--------------------- -----------------------------------------
Name:
Title:
XXXXXXX, SACHS & CO.
(Distributor)
Date: By:
--------------------- -----------------------------------------
Name:
Title:
MINNESOTA LIFE INSURANCE COMPANY
(Company)
Date: By:
--------------------- -----------------------------------------
Name:
Title:
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