AMENDMENT NO. 3 TO PARTICIPATION AGREEMENT
as of May 1, 2007
by and among
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
Allianz Life Insurance Company of New York
Allianz Life Financial Services, LLC
(Formerly USAllianz Investor Services, LLC)
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust"),
Franklin/Xxxxxxxxx Distributors, Inc. (the "Underwriter," and together with the
Trust, "we" or "us"), Allianz Life Insurance Company of New York ("you"), and
Allianz Life Financial Services, LLC (formerly "USAllianz Investor Services,
LLC"), your distributor, on your behalf and on behalf of certain Accounts, have
previously entered into a Participation Agreement dated October 1, 2003 and
amended as of May 3, 2004 and May 1, 2006 (the "Agreement"). The parties now
desire to further amend the Agreement in this amendment (the "Amendment").
Except as modified hereby, all other terms and conditions of the
Agreement and earlier amendments, 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 1 and Section 2.2.1 are hereby each amended to reflect that
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust") is
organized as a statutory trust under the laws of the State of Delaware.
2. 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."
3. Section 3.1.3 is amended and restated in its entirety as follows:
"3.1.3 We agree that shares of the Trust will be sold only to: (i) 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; and (ii) investment companies in the
form of funds of funds. No shares of any Portfolio will be sold to the
general public."
Allianz NY FPA Amd #3 2007-5-1.doc
4. Section 5.2 is amended and restated in its entirety as follows:
"5.2 If and to the extent required by law, you shall: (i) solicit voting
instructions from Contract owners; (ii) vote the Trust shares in accordance
with the instructions received from Contract owners; and (iii) vote Trust
shares owned by subaccounts for which no instructions have been received
from Contract owners in the same proportion as Trust shares of such
Portfolio for which instructions have been received from Contract owners;
so long as and to the extent that the SEC continues to interpret the 1940
Act to require pass-through voting privileges for variable contract owners.
You reserve the right to vote Trust shares held in any Account in your own
right, to the extent permitted by law."
5. Schedules A, B, C, D, F and G of the Agreement is hereby deleted in their
entirety and replaced with the Schedules A, B, C, D, F and G attached
hereto, respectively.
6. All other terms and provisions not amended herein shall remain in full
force and effect.
IN WITNESS WHEREOF, each of the parties has caused their duly authorized
officers to execute this Amendment.
The Company: ALLIANZ LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Securities Counsel
Distributor for the Company: ALLIANZ LIFE FINANCIAL SERVICES, LLC
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Sr. VP Advisory Management
2
The Trust: FRANKLIN XXXXXXXXX VARIABLE INSURANCE
ONLY ON BEHALF OF EACH PRODUCTS TRUST
PORTFOLIO LISTED ON
SCHEDULE C HEREOF.
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
3
SCHEDULE A
THE COMPANY AND ITS DISTRIBUTOR
THE COMPANY
Allianz Life Insurance Company of New York
One Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
An insurance company organized under the laws of the State of New York.
THE DISTRIBUTOR
Allianz Life Financial Services, LLC
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
A limited liability company organized under the laws of the State of Minnesota
4
SCHEDULE C
AVAILABLE PORTFOLIOS AND CLASSES OF SHARES OF THE TRUST;
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST
CLASS 1 SHARES
Franklin Money Market Fund
Franklin Global Real Estate Securities Fund
Franklin Zero Coupon Fund 2010
Mutual Discovery Securities Fund
Mutual Shares Securities Fund
Xxxxxxxxx Developing Markets Securities Fund
Xxxxxxxxx Foreign Securities Fund
Templeton Global Asset Allocation Fund
Xxxxxxxxx Global Income Securities Fund
CLASS 1 AND CLASS 2 SHARES
Franklin Global Communications Securities Fund
Franklin Growth and Income Securities Fund
Franklin High Income Securities Fund
Franklin Income Securities Fund
Franklin Large Cap Growth Securities Fund
Franklin Rising Dividends Securities Fund
Franklin Small-Mid Cap Growth Securities Fund
Franklin Small Cap Value Securities Fund
Franklin U.S. Government Fund
CLASS 2 SHARES
Franklin Xxxxxxxxx VIP Founding Funds Allocation Fund
5
SCHEDULE D
CONTRACTS OF THE COMPANY
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
INSURANCE PRODUCT NAME SEPARATE ACCOUNT NAME
# COMPANY REGISTERED Y/N REGISTERED Y/N CLASSES OF SHARES AND PORTFOLIOS
1933 ACT NO. 1940 ACT #
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
1 Allianz Life Allianz Advantage Allianz Life of NY Class 2 Shares:
Insurance Yes Variable Account C Franklin Global Communications Securities Fund
Company of 333-19699 Yes Franklin Growth and Income Securities Fund
New York 811-05716 Franklin High Income Securities Fund
Franklin Income Securities Fund
Franklin Large Cap Growth Securities Fund
Franklin Global Real Estate Securities Fund
Franklin Rising Dividends Securities Fund
Franklin Small-Mid Cap Growth Securities Fund
Franklin Small Cap Value Securities Fund
Franklin Xxxxxxxxx VIP Founding Funds Allocation
Fund
Franklin U.S. Government Fund
Mutual Discovery Securities Fund
Mutual Shares Securities Fund
Xxxxxxxxx Developing Markets Securities Fund
Xxxxxxxxx Foreign Securities Fund
Xxxxxxxxx Global Income Securities Fund
Xxxxxxxxx Growth Securities Fund
Class 1 Shares:
Franklin Zero Coupon Fund 2010
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
2 Allianz Life Valuemark II Allianz Life of NY Class 1 Shares:
Insurance Yes Variable Account C Franklin Global Communications Securities Fund
Company of 33-26646 Yes Franklin Growth and Income Securities Fund
New York 811-05716 Franklin High Income Securities Fund
Franklin Income Securities Fund
Franklin Large Cap Growth Securities Fund
Franklin Global Real Estate Securities Fund
Franklin Rising Dividends Securities Fund
Franklin Small-Mid Cap Growth Securities Fund
Franklin Small Cap Value Securities Fund
Franklin U.S. Government Fund
Franklin Zero Coupon Fund 2010
Mutual Discovery Securities Fund
Mutual Shares Securities Fund
Xxxxxxxxx Developing Markets Securities Fund
Xxxxxxxxx Foreign Securities Fund
Xxxxxxxxx Global Income Securities Fund
Xxxxxxxxx Growth Securities Fund
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
6
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
INSURANCE PRODUCT NAME SEPARATE ACCOUNT NAME
# COMPANY REGISTERED Y/N REGISTERED Y/N CLASSES OF SHARES AND PORTFOLIOS
1933 ACT NO. 1940 ACT #
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
3 Allianz Life Valuemark IV Allianz Life of NY Class 1 Shares:
Insurance Yes Variable Account C Franklin Global Communications Securities Fund
Company of 333-19699 Yes Franklin Growth and Income Securities Fund
New York 811-05716 Franklin High Income Securities Fund
Franklin Income Securities Fund
Franklin Large Cap Growth Securities Fund
Franklin Global Real Estate Securities Fund
Franklin Rising Dividends Securities Fund
Franklin Small-Mid Cap Growth Securities Fund
Franklin Small Cap Value Securities Fund
Franklin U.S. Government Fund
Franklin Zero Coupon Fund 2010
Mutual Discovery Securities Fund
Mutual Shares Securities Fund
Xxxxxxxxx Developing Markets Securities Fund
Xxxxxxxxx Foreign Securities Fund
Xxxxxxxxx Global Income Securities Fund
Xxxxxxxxx Growth Securities Fund
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
4 Allianz Life Allianz Opportunity Allianz Life of NY Class 2 Shares:
Insurance Yes Variable Account C Franklin Global Communications Securities Fund
Company of 333-75718 Yes Franklin Growth and Income Securities Fund
New York 811-05716 Franklin High Income Securities Fund
Franklin Income Securities Fund
Franklin Large Cap Growth Securities Fund
Franklin Global Real Estate Securities Fund
Franklin Rising Dividends Securities Fund
Franklin Small-Mid Cap Growth Securities Fund
Franklin Small Cap Value Securities Fund
Franklin Xxxxxxxxx VIP Founding Funds Allocation
Fund
Franklin U.S. Government Fund
Mutual Discovery Securities Fund
Mutual Shares Securities Fund
Xxxxxxxxx Developing Markets Securities Fund
Xxxxxxxxx Foreign Securities Fund
Xxxxxxxxx Global Income Securities Fund
Xxxxxxxxx Growth Securities Fund
Class 1 Shares:
Franklin Zero Coupon Fund 2010
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
7
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
INSURANCE PRODUCT NAME SEPARATE ACCOUNT NAME
# COMPANY REGISTERED Y/N REGISTERED Y/N CLASSES OF SHARES AND PORTFOLIOS
1933 ACT NO. 1940 ACT #
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
5 Allianz Life Allianz Charter II Allianz Life of NY Class 2 Shares:
Insurance Yes Variable Account C Franklin Global Communications Securities Fund
Company of 333-105274 Yes Franklin Growth and Income Securities Fund
New York 811-05716 Franklin High Income Securities Fund
Franklin Income Securities Fund
Franklin Large Cap Growth Securities Fund
Franklin Global Real Estate Securities Fund
Franklin Rising Dividends Securities Fund
Franklin Small-Mid Cap Growth Securities Fund
Franklin Small Cap Value Securities Fund
Franklin Xxxxxxxxx VIP Founding Funds Allocation
Fund
Franklin U.S. Government Fund
Mutual Discovery Securities Fund
Mutual Shares Securities Fund
Xxxxxxxxx Developing Markets Securities Fund
Xxxxxxxxx Foreign Securities Fund
Xxxxxxxxx Global Income Securities Fund
Xxxxxxxxx Growth Securities Fund
Class 1 Shares:
Franklin Zero Coupon Fund 2010
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
6 Allianz Life Allianz High Five Allianz Life of NY Class 2 Shares:
Insurance New York Variable Account C Franklin Global Communications Securities Fund
Company of Yes Yes Franklin Growth and Income Securities Fund
New York 333-124767 811-05716 Franklin High Income Securities Fund
Franklin Income Securities Fund
Franklin Large Cap Growth Securities Fund
Franklin Xxxxxxxxx VIP Founding Funds Allocation
Fund
Franklin U.S. Government Fund
Mutual Discovery Securities Fund
Mutual Shares Securities Fund
Xxxxxxxxx Foreign Securities Fund
Xxxxxxxxx Global Income Securities Fund
Xxxxxxxxx Growth Securities Fund
Class 1 Shares:
Franklin Zero Coupon Fund 2010
------- -------------- ---------------------- ------------------------- ---------------------------------------------------
8
SCHEDULE F
RULE 12B-1 PLANS OF THE TRUST
COMPENSATION
Each Class 2 Portfolio named on Schedule C of this Agreement shall pay at an
annualized payment rate of 0.25% stated as a percentage per year of that
Portfolio's Class 2 average daily net assets, pursuant to the terms and
conditions referenced below under its Class 2 Rule 12b-1 Distribution Plan.
AGREEMENT PROVISIONS
If the Company, on behalf of any Account, purchases Trust Portfolio
shares ("Eligible Shares") which are subject to a Rule 12b-1 plan adopted under
the 1940 Act (the "Plan"), the Company 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
provisions 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
9
written report of the amounts expended under the Plans and the purposes for
which such expenditures were made.
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. The Plans may
also be terminated by any act that terminates the Underwriting Agreement between
the Underwriter and the Trust, and/or the management or administration agreement
between Franklin Advisers, Inc. and its affiliates and the Trust. 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.
10
SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: Allianz Life Insurance Company of New York
Xxx Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx, President
To the Distributor: Allianz Life Financial Services, LLC
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx XxXxxxxxx, President
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
11
Allianz Life Insurance Company of North America
H. XXXXX XXX XXXXX
Senior Counsel
Corporate Legal
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telefax: 000-000-0000
xxxxx.xxxxxxxx@xxxxxxxxxxx.xxx
xxx.xxxxxxxxxxx.xxx
Franklin Xxxxxxxxx Variable Insurance Products Trust
Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
December 7, 2007
Dear Xx. Xxxxxxxx,
Please find the enclosed draft of an Application for an Order of Approval and an
Order of Exemption (the "Draft Exemptive Application") that is intended to
permit Allianz Life Insurance Company of North America and Allianz Life
Insurance Company of New York (together the "Insurance Company Applicants") and
their respective separate accounts (the "Insurance Company Separate Accounts")
to substitute Class 1 and Class 2 shares of the AZL Xxxxxxxx Emerging Markets
Equity Fund for Class 1 and Class 2 shares, respectively, of the Xxxxxxxxx
Developing Markets Securities Fund, owned by the Insurance Company Separate
Accounts to support certain individual variable annuity and variable life
insurance contracts.
The Insurance Company Applicants are providing the Draft Exemptive Application
pursuant to section 6.6 of the Participation Agreements between themselves and
Franklin Xxxxxxxxx Variable Insurance Products Trust both dated October 1, 2003,
as amended (the "Participation Agreements"). The Insurance Company Applicants
wish to file the Draft Exemptive Application, in substantially the form
enclosed, with the SEC as soon as practicable.
The Insurance Company Applicants recognize that the Participation Agreements
require that any such request for exemptive relief shall be furnished to
Franklin Xxxxxxxxx Variable Insurance Products Trust ten business days prior to
its first submission to the SEC. However, considering that once filed, there
will be ample time for revisions prior to the filing of any amendment(s), and in
order to permit the timely initial filing of the application, WE REQUEST THAT
YOU WAIVE THE TEN-DAY NOTICE REQUIREMENT UNDER SECTION 6.6 OF THE PARTICIPATION
AGREEMENTS. For your convenience, I have enclosed a form which you may sign and
return to my attention at your earliest convenience.
Please feel free to contact me with any questions regarding this matter.
Regards,
/s/ H. Xxxxx xxx Xxxxx
enc.
Copy: General Counsel
SPECIFIC WAIVER OF NOTICE UNDER PARTICIPATION AGREEMENT
We, the undersigned, hereby waive the ten-day notice requirement before filing
an application for an order of exemption with the SEC under section 6.6 of the
Participation Agreements dated October 1, 2003, as amended, between Allianz Life
Insurance Company of North America/Allianz Life Insurance Company of New York
and the Franklin Xxxxxxxxx Variable Insurance Products Trust ("FTVIPT"). This
waiver applies only to the Draft Exemptive Application, in substantially the
form furnished to the FTVIPT with the letter from Allianz Life Insurance Company
of North America dated December 7, 2007, which seeks permission to substitute
Class 1 and Class 2 shares of the AZL Xxxxxxxx Emerging Markets Equity Fund for
Class 1 and Class 2 shares, respectively, of the Xxxxxxxxx Developing Markets
Securities Fund.
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title:Vice President
Date:December 11, 2007
Please Return to:
H. Xxxxx xxx Xxxxx
Senior Counsel
Corporate Legal
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telefax: 000-000-0000
xxxxx.xxxxxxxx@xxxxxxxxxxx.xxx
