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EXHIBIT 8(o)
FORM OF PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this ___day of April, 2001 by and
between XXXXXXX XXXXX VARIABLE INSURANCE TRUST, an unincorporated business trust
formed under the laws of Delaware (the "Trust"), XXXXXXX, SACHS & CO., a New
York limited partnership (the "Distributor"), and FARMERS NEW WORLD LIFE
INSURANCE COMPANY, a Washington life insurance company (the "Company"), on its
own behalf and on behalf of each separate account of the Company identified
herein.
WHEREAS, the Trust is a series-type mutual fund offering shares of
beneficial interest (the "Trust shares") consisting of one or more separate
series ("Series") of shares, each such Series representing an interest in a
particular investment portfolio of securities and other assets (a "Fund"), and
which Series may be subdivided into various classes ("Classes") with each such
Class supporting a distinct charge and expense arrangement; and
WHEREAS, the Trust was established for the purpose of serving as an
investment vehicle for insurance company separate accounts supporting variable
annuity contracts and variable life insurance policies to be offered by
insurance companies and may also be utilized by qualified retirement plans; and
WHEREAS, the Distributor has the exclusive right to distribute Trust
shares to qualifying investors; and
WHEREAS, the Company desires that the Trust serve as an investment
vehicle for a certain separate account(s) of the Company and the Distributor
desires to sell shares of certain Series and/or Class(es) to such separate
account(s);
NOW, THEREFORE, in consideration of their mutual promises, the Trust,
the Distributor and the Company agree as follows:
ARTICLE I
ADDITIONAL DEFINITIONS
1.1. "Account" -- the separate account of the Company described more
specifically in Schedule 1 to this Agreement. If more than one separate account
is described on Schedule 1, the term shall refer to each separate account so
described.
1.2. "Business Day" -- each day that the Trust is open for business as
provided in the Trust's Prospectus.
1.3. "Code" -- the Internal Revenue Code of 1986, as amended, and any
successor thereto.
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1.4. "Contracts" -- the class or classes of variable annuity contracts
and/or variable life insurance policies issued by the Company and described more
specifically on Schedule 2 to this Agreement.
1.5. "Contract Owners" -- the owners of the Contracts, as distinguished
from all Product Owners.
1.6. "Participating Account" -- a separate account investing all or a
portion of its assets in the Trust, including the Account.
1.7. "Participating Insurance Company" -- any insurance company
investing in the Trust on its behalf or on behalf of a Participating Account,
including the Company.
1.8. "Participating Plan" -- any qualified retirement plan investing in
the Trust.
1.9. "Participating Investor" -- any Participating Account,
Participating Insurance Company or Participating Plan, including the Account and
the Company.
1.10. "Products" -- variable annuity contracts and variable life
insurance policies supported by Participating Accounts, including the Contracts.
1.11. "Product Owners" -- owners of Products, including Contract Owners.
1.12. "Trust Board" -- the board of trustees of the Trust.
1.13. "Registration Statement" -- with respect to the Trust shares or a
class of Contracts, the registration statement filed with the SEC to register
such securities under the 1933 Act, or the most recently filed amendment
thereto, in either case in the form in which it was declared or became
effective. The Contracts' Registration Statement for each class of Contracts is
described more specifically on Schedule 2 to this Agreement. The Trust's
Registration Statement is filed on Form N-1A (File No. 333-35883).
1.14. "1940 Act Registration Statement" -- with respect to the Trust or
the Account, the registration statement filed with the SEC to register such
person as an investment company under the 1940 Act, or the most recently filed
amendment thereto. The Account's 1940 Act Registration Statement is described
more specifically on Schedule 2 to this Agreement. The Trust's 1940 Act
Registration Statement is filed on Form N-1A (File No. 811-08361).
1.15. "Prospectus" -- with respect to shares of a Series (or Class) of
the Trust or a class of Contracts, each version of the definitive 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.
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1.16. "Statement of Additional Information" -- with respect to the
shares of the Trust or a class of Contracts, each version of the definitive
statement of additional information 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 Statement of
Additional Information, such reference thereto shall be deemed to be the last
version so filed prior to the taking of such action.
1.17. "SEC" -- the Securities and Exchange Commission.
1.18. "NASD" -- The National Association of Securities Dealers, Inc.
1.19. "1933 Act" -- the Securities Act of 1933, as amended.
1.20. "1940 Act" -- the Investment Company Act of 1940, as amended.
ARTICLE II
SALE OF TRUST SHARES
2.1. AVAILABILITY OF SHARES
(a) The Trust has granted to the Distributor exclusive authority
to distribute the Trust shares and to select which Series or Classes of
Trust shares shall be made available to Participating Investors.
Pursuant to such authority, and subject to Article X hereof, the
Distributor shall make available to the Company for purchase on behalf
of the Account, shares of the Series and Classes listed on Schedule 3 to
this Agreement, such purchases to be effected at net asset value in
accordance with Section 2.3 of this Agreement. Such Series and Classes
shall be made available to the Company in accordance with the terms and
provisions of this Agreement until this Agreement is terminated pursuant
to Article X or the Distributor suspends or terminates the offering of
shares of such Series or Classes in the circumstances described in
Article X.
(b) Notwithstanding clause (a) of this Section 2.1, Series or
Classes of Trust shares in existence now or that may be established in
the future will be made available to the Company only as the Distributor
may so provide, subject to the Distributor's rights set forth in Article
X to suspend or terminate the offering of shares of any Series or Class
or to terminate this Agreement.
(c) The parties acknowledge and agree that: (i) the Trust may
revoke the Distributor's authority pursuant to the terms and conditions
of its distribution agreement with the Distributor; and (ii) the Trust
reserves the right in its sole discretion to refuse to accept a request
for the purchase of Trust shares.
2.2. REDEMPTIONS. The Trust shall redeem, at the Company's request, any
full or fractional Trust shares held by the Company on behalf of the Account,
such redemptions to be
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effected at net asset value in accordance with Section 2.3 of this Agreement.
Notwithstanding the foregoing, (i) the Company shall not redeem Trust shares
attributable to Contract Owners except in the circumstances permitted in Article
X of this Agreement, and (ii) the Trust may delay redemption of Trust shares of
any Series or Class to the extent permitted by the 1940 Act, any rules,
regulations or orders thereunder, or the Prospectus for such Series or Class.
2.3. PURCHASE AND REDEMPTION PROCEDURES
(a) The Trust hereby appoints the Company as an agent of the
Trust for the limited purpose of receiving purchase and redemption
requests on behalf of the Account (but not with respect to any Trust
shares that may be held in the general account of the Company) for
shares of those Series or Classes made available hereunder, based on
allocations of amounts to the Account or subaccounts thereof under the
Contracts, other transactions relating to the Contracts or the Account
and customary processing of the Contracts. Receipt of any such requests
(or effectuation of such transaction or processing) on any Business Day
by the Company as such limited agent of the Trust prior to the Trust's
close of business as defined from time to time in the applicable
Prospectus for such Series or Class (which as of the date of execution
of this Agreement is defined as the close of regular trading on the New
York Stock Exchange (normally 4:00 p.m. New York Time)) shall constitute
receipt by the Trust on that same Business Day, provided that the
Company uses its best efforts to provide actual and sufficient notice of
such request to the Trust by 8:30 a.m. New York Time on the next
following Business Day and the Trust receives such notice no later than
9:00 a.m. New York time on such Business Day. Such notice may be
communicated by telephone to the office or person designated for such
notice by the Trust, and shall be confirmed by facsimile.
(b) The Company shall pay for shares of each Series or Class on
the same day that it provides actual notice to the Trust of a purchase
request for such shares. Payment for Series or Class shares shall be
made in Federal funds transmitted to the Trust by wire to be received by
the Trust by 3:30 New York Time on the day the Trust receives actual
notice of the purchase request for Series or Class shares (unless the
Trust determines and so advises the Company that sufficient proceeds are
available from redemption of shares of other Series or Classes effected
pursuant to redemption requests tendered by the Company on behalf of the
Account). In no event may proceeds from the redemption of shares
requested pursuant to an order received by the Company after the Trust's
close of business on any Business Day be applied to the payment for
shares for which a purchase order was received prior to the Trust's
close of business on such day. If the issuance of shares is canceled
because Federal funds are not timely received, the Company shall
indemnify the respective Fund and Distributor with respect to all costs,
expenses and losses relating thereto. Upon the Trust's receipt of
Federal funds so wired, such funds shall cease to be the responsibility
of the Company and shall become the responsibility of the Trust. If
Federal funds are not received on time, such funds will be invested, and
Series or Class shares purchased thereby will be issued, as soon as
practicable after actual receipt of such funds but in any event not on
the same day that the purchase order was received.
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(c) Payment for Series or Class shares redeemed by the Account or
the Company shall be made in Federal funds transmitted by wire to the
Company or any other person properly designated in writing by the
Company. The Trust shall use its best efforts to transmit such funds by
6:00 p.m. New York Time on the same Business Day after Trust receives
actual notice of the redemption order for Series or Class shares (unless
redemption proceeds are to be applied to the purchase of Trust shares of
other Series or Classes in accordance with Section 2.3(b) of this
Agreement), except that the Trust reserves the right to redeem Series or
Class shares in assets other than cash and to delay payment of
redemption proceeds to the extent permitted by the 1940 Act, any rules
or regulations or orders thereunder, or the applicable Prospectus;
provided, however, that if the Trust fails to transmit such redemption
proceeds by 6:00 p.m. New York Time on the same Business Day or the end
of such Business Day and such failure is due to circumstances within the
Trust's or the Distributor's control, the Distributor will pay interest
to the Company equal to the amount of such proceeds multiplied by the
current Federal funds rate on each day that delivery of the proceeds is
overdue. The Trust shall not bear any responsibility whatsoever for the
proper disbursement or crediting of redemption proceeds by the Company;
the Company alone shall be responsible for such action.
(d) Any purchase or redemption request for Series or Class 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, in the case of a purchase
request, payment for Trust shares so requested is received by the Trust
in Federal funds prior to close of business for determination of such
value, as defined from time to time in the Prospectus for such Series or
Class.
(e) Prior to the first purchase of any Trust shares hereunder,
the Company and the Trust shall provide each other with all information
necessary to effect wire transmissions of Federal funds to the other
party and all other designated persons pursuant to such protocols and
security procedures as the parties may agree upon. Should such
information change thereafter, the Trust and the Company, as applicable,
shall notify the other in writing of such changes, observing the same
protocols and security procedures, at least three Business Days in
advance of when such change is to take effect. The Company and the Trust
shall observe customary procedures to protect the confidentiality and
security of such information.
(f) The procedures set forth herein are subject to any additional
terms set forth in the applicable Prospectus for the Series or Class or
by the requirements of applicable law.
2.4. NET ASSET VALUE. The Trust shall make the net asset value per share
for each Series or Class to the Company on a daily basis as soon as reasonably
practicable after the net asset value per share for such Series or Class is
calculated and shall use its best efforts to make such net asset value per share
available by 7:00 p.m. New York Time each Business Day. The
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Trust or the Distributor shall provide to the Company a list of persons to
contact to ascertain the time at which the net asset value per share will be
available. The Trust shall calculate such net asset value in accordance with the
Prospectus for such Series or Class.
2.5. DIVIDENDS AND DISTRIBUTIONS. The Trust shall furnish notice to the
Company as soon as reasonably practicable of any income dividends or capital
gain distributions payable on any Series or Class shares. The Company, on its
behalf and on behalf of the Account, hereby elects to receive all such dividends
and distributions as are payable on any Series or Class shares in the form of
additional shares of that Series or Class. The Company reserves the right, on
its behalf and on behalf of the Account, to revoke this election and to receive
all such dividends and capital gain distributions in cash; to be effective, such
revocation must be made in writing and received by the Trust at least three (3)
Business Days prior to a dividend or distribution date. The Trust shall notify
the Company promptly of the number of Series or Class shares so issued as
payment of such dividends and distributions.
2.6. BOOK ENTRY. Issuance and transfer of Trust shares shall be by book
entry only. Stock certificates will not be issued to the Company or the Account.
Purchase and redemption orders for Trust shares shall be recorded in an
appropriate ledger for the Account or the appropriate subaccount of the Account.
The Trust shall provide to the Company for each Business Day involving a trade a
confirmation listing the closing net asset value for the Business Day and a
transaction history report.
2.7. PRICING ERRORS. Any material errors in the calculation of net asset
value, dividends or capital gain information shall be reported immediately upon
discovery to the Company. An error shall be deemed "material" based on our
interpretation of the SEC's position and policy with regard to materiality, as
it may be modified from time to time. Neither the Trust, any Fund, the
Distributor, nor any of their affiliates shall be liable for any information
provided to the Company pursuant to this Agreement which information is based on
incorrect information supplied by or on behalf of the Company or any other
Participating Company to the Trust or the Distributor; otherwise if the Trust
provides the Company with a materially incorrect share net asset value, the
Company on behalf of the Account(s) described in Schedule 1, shall be entitled
to an adjustment to the number of shares purchased or redeemed to reflect
correct net asset value.
2.8. LIMITS ON PURCHASERS. The Distributor and the Trust shall sell
Trust shares only to insurance companies and their separate accounts and to
persons or plans ("Qualified Persons") that qualify to purchase shares of the
Trust under Section 817(h) of the Code and the regulations thereunder without
impairing the ability of the Account to consider the portfolio investments of
the Trust as constituting investments of the Account for the purpose of
satisfying the diversification requirements of Section 817(h). The Distributor
and the Trust shall not sell Trust shares to any insurance company or separate
account unless an agreement complying with Article VIII of this Agreement is in
effect to govern such sales. The Company hereby represents and warrants that it
and the Account are Qualified Persons.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. COMPANY. The Company represents and warrants that: (i) the Company
is an insurance company duly organized and in good standing under Washington
insurance law; (ii) the Account is a validly existing separate account, duly
established and maintained in accordance with applicable law; (iii) the
Account's 1940 Act Registration Statement has been filed with the SEC in
accordance with the provisions of the 1940 Act and the Account is duly
registered as a unit investment trust thereunder; (iv) the Contracts'
Registration Statement has been declared effective by the SEC; (v) the Contracts
will be issued in compliance in all material respects with all applicable
Federal and state laws; (vi) the Contracts have been filed, qualified and/or
approved for sale, as applicable, under the insurance laws and regulations of
the states in which the Contracts will be offered; (vii) the Account will
maintain its registration under the 1940 Act and will comply in all material
respects with the 1940 Act; (viii) the Contracts currently are, and at the time
of issuance and for so long as they are outstanding will be, treated as annuity
contracts or life insurance policies, whichever is appropriate, under applicable
provisions of the Code; and (ix) the Company's entering into and performing its
obligations under this Agreement does not and will not violate its charter
documents or by-laws, rules or regulations, or any agreement to which it is a
party. The Company will notify the Trust promptly if for any reason it is unable
to perform its obligations under this Agreement.
3.2. TRUST. The Trust represents and warrants that: (i) the Trust is an
unincorporated business trust duly formed and validly existing under the
Delaware law; (ii) the Trust's 1940 Act Registration Statement has been filed
with the SEC in accordance with the provisions of the 1940 Act and the Trust is
duly registered as an open-end management investment company thereunder; (iii)
the Trust's Registration Statement has been declared effective by the SEC; (iv)
the Trust shares will be issued in compliance in all material respects with all
applicable federal laws; (v) the Trust will remain registered under and will
comply in all material respects with the 1940 Act during the term of this
Agreement; (vi) each Fund of the Trust qualifies or will qualify as a "regulated
investment company" under Subchapter M of the Code and complies or will comply
with the diversification standards prescribed in Section 817(h) of the Code and
the regulations thereunder; and (vii) the investment policies of each Fund are
in material compliance with any investment restrictions set forth on Schedule 4
to this Agreement. The Trust, however, makes no representation as to whether any
aspect of its operations (including, but not limited to, fees and expenses and
investment policies) otherwise complies with the insurance laws or regulations
of any state.
3.3. DISTRIBUTOR. 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 of the NASD; and
(iii) the Distributor is registered as an investment adviser under federal
securities laws.
All information relating to agents, customers, shareholders, prospects
or leads of the Company acquired by distributors shall be and remain the
exclusive property of the Company.
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The Distributor acknowledges that it and its employees may, in the course of
performing their responsibilities under this Agreement be exposed to or acquire
information which is proprietary to or confidential to the Company or its
affiliates or their clients or to third parties to whom the Company owes a duty
of confidentiality. The Company's confidential and proprietary information shall
include, but not be limited to: (i) the Company's business methods, policies,
products, personnel, operations, systems, financial, records, procedures,
processes, practices, and strategies; (ii) all compilation of data, information,
or other documents provided to the distributor; (iii) all information regarding
the Company's agents and customers and the nature of Company's relationship with
its agents and customers; (iv) confidential, proprietary or trade secret
information submitted by Company's suppliers, consultants or co-venturers or
other agents to the Company for study, evaluation or use; and (v) any other
information concerning the Company not generally known to the public. The
Distributor agrees to hold such information in strict confidence and not to
copy, reproduce, sell, assign, license, market, transfer or otherwise dispose
of, give or disclose such information to third parties or to use such
information for any purposes whatsoever other than the provision of services to
the Company as contemplated by this Agreement and to advise each of its
employees who may be exposed to such proprietary and confidential information of
their obligations to keep such information confidential. The Distributor shall
not utilize, or permit to be utilized, its knowledge of the Company or its
knowledge of the Company's agents or clients, which is derived as a result of
any relationship created through this Agreement, except to the extent necessary
to fulfill the purposes of this Agreement or except as expressly permitted by
the prior written consent of the Company.
Confidential information shall not be deemed to include information
which is (1) in or becomes part of the public domain other than by disclosure by
the Distributor in violation of this Agreement; (2) demonstrably known to the
Distributor previously; (3) independently developed by the Distributor outside
of this Agreement; or (4) rightfully obtained by the Distributor from third
parties. It is understood and agreed that in the event of a breach of this
section the Company shall be entitled to injunctive relief to restrain any such
breach, threatened or actual.
In the event the Company or the Distributor is made aware of any actual
or potential violation of this section each shall notify the other immediately
and will provide any assistance reasonably requested by the other in
investigating or remedying any actual or potential violations of this section.
The parties acknowledge that in the event of a breach of this section, the
aggrieved party will suffer irreparable harm for which no adequate remedy at law
exists and shall be entitled to injunctive relief to restrain any such breach,
threatened or actual.
3.4. LEGAL AUTHORITY. Each party represents and warrants that the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
corporate, partnership or trust action, as applicable, by such party, and, when
so executed and delivered, this Agreement will be the valid and binding
obligation of such party enforceable in accordance with its terms.
3.5. BONDING REQUIREMENT. Each party represents and warrants that all of
its directors, officers, partners and employees dealing with the money and/or
securities of the Trust are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for
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the benefit of the Trust in an amount not less than the amount required by the
applicable rules of the NASD and the federal securities laws. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. All parties shall make all reasonable efforts to see
that this bond or another bond containing these provisions is always in effect,
shall provide evidence thereof promptly to any other party upon written request
therefore, and shall notify the other parties promptly in the event that such
coverage no longer applies.
ARTICLE IV
REGULATORY REQUIREMENTS
4.1. TRUST FILINGS. The Trust shall amend the Trust's Registration
Statement and the Trust's 1940 Act Registration Statement from time to time as
required in order to effect the continuous offering of Trust shares in
compliance with applicable law and to maintain the Trust's registration under
the 1940 Act for so long as Trust shares are sold.
4.2. CONTRACTS FILINGS. The Company shall amend the Contracts'
Registration Statement and the Account's 1940 Act Registration Statement from
time to time as required in order to effect the continuous offering of the
Contracts in compliance with applicable law or as may otherwise be required by
applicable law, but in any event shall maintain a current effective Contracts'
Registration Statement and the Account's registration under the 1940 Act for so
long as the Contracts are outstanding unless the Company has supplied the Trust
with an SEC no-action letter or opinion of counsel satisfactory to the Trust's
counsel to the effect that maintaining such Registration Statement(s) on a
current basis is no longer required. The Company shall be responsible for filing
all such Contract forms, applications, marketing materials and other documents
relating to the Contracts and/or the Account with state insurance commissions,
as required or customary, and shall use its best efforts: (i) to obtain any and
all approvals thereof, under applicable state insurance law, of each state or
other jurisdiction in which Contracts are or may be offered for sale; and (ii)
to keep such approvals in effect for so long as the Contracts are outstanding.
4.3. VOTING OF TRUST SHARES. With respect to any matter put to vote by
the holders of Trust shares ("Voting Shares"), the Company will provide
"pass-through" voting privileges to owners of Contracts registered with the SEC
as long as the 1940 Act requires such privileges in such cases. In cases in
which "pass-through" privileges apply, the Company will (i) solicit voting
instructions from Contract Owners of SEC-registered Contracts; (ii) vote Voting
Shares attributable to Contract Owners in accordance with instructions or
proxies timely received from such Contract Owners; and (iii) vote Voting Shares
held by it that are not attributable to reserves for SEC-registered Contracts or
for which it has not received timely voting instructions in the same proportion
as instructions received in a timely fashion from Owners of SEC-registered
Contracts. The Company shall be responsible for ensuring that it calculates
"pass-through" votes for the Account in a manner consistent with the provisions
set forth above and with other Participating Insurance Companies. Neither the
Company nor any of its affiliates will in any way recommend action in connection
with, or oppose or interfere with, the solicitation of proxies for the Trust
shares held for such Contract Owners, except with respect to matters as to which
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Company has the right under Rule 6e-2 or 6e-3(T) under the 1940 Act, to vote
Voting Shares without regard to voting instructions from Contract Owners.
4.4. STATE INSURANCE RESTRICTIONS. The Company acknowledges and agrees
that it is the responsibility of the Company and other Participating Insurance
Companies to determine investment restrictions and any other restrictions,
limitations or requirements under state insurance law applicable to any Fund or
the Trust or the Distributor, and that neither the Trust nor the Distributor
shall bear any responsibility to the Company, other Participating Insurance
Companies or any Product Owners for any such determination or the correctness of
such determination. Schedule 4 sets forth the investment restrictions that the
Company and/or other Participating Insurance Companies have determined are
applicable to any Fund and with which the Trust has agreed to comply as of the
date of this Agreement. The Company shall inform the Trust of any investment
restrictions imposed by state insurance law that the Company determines may
become applicable to the Trust or a Fund from time to time as a result of the
Account's investment therein, other than those set forth on Schedule 4 to this
Agreement. Upon receipt of any such information from the Company or any other
Participating Insurance Company, the Trust shall determine whether it is in the
best interests of shareholders to comply with any such restrictions. If the
Trust determines that it is not in the best interests of shareholders (it being
understood that "shareholders" for this purpose shall mean Product Owners) to
comply with a restriction determined to be applicable by the Company, the Trust
shall so inform the Company, and the Trust and the Company shall discuss
alternative accommodations in the circumstances. If the Trust determines that it
is in the best interests of shareholders to comply with such restrictions, the
Trust and the Company shall amend Schedule 4 to this Agreement to reflect such
restrictions, subject to obtaining any required shareholder approval thereof.
4.5. COMPLIANCE. Under no circumstances will the Trust, the Distributor
or any of their affiliates (excluding Participating Investors) be held
responsible or liable in any respect for any statements or representations made
by them or their legal advisers to the Company or any Contract Owner concerning
the applicability of any federal or state laws, regulations or other authorities
with regard to the activities of the Company, the Accounts and the Contracts
contemplated by this Agreement.
4.6. DRAFTS OF FILINGS. The Trust and the Company shall provide to each
other copies of draft versions of any Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statements, solicitations for voting instructions,
applications for exemptions, requests for no-action letters, and all amendments
or supplements to any of the above, prepared by or on behalf of either of them
and that mentions the other party by name. Such drafts shall be provided to the
other party sufficiently in advance of filing such materials with regulatory
authorities in order to allow such other party a reasonable opportunity to
review the materials; provided that each party shall only comment on that
portion of the draft that relates directly or indirectly to that party or the
conduct of its business.
4.7. COPIES OF FILINGS. The Trust and the Company shall provide to each
other at least one complete copy of all Registration Statements, Prospectuses,
Statements of Additional
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Information, periodic and other shareholder or Contract Owner reports, proxy
statements, solicitations of voting instructions, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the
above, that relate to the Trust, the Contracts or the Account, as the case may
be, promptly after the filing by or on behalf of each such party of such
document with the SEC or other regulatory authorities (it being understood that
this provision is not intended to require the Trust to provide to the Company
copies of any such documents prepared, filed or used by Participating Investors
other than the Company and the Account).
4.8. REGULATORY RESPONSES. Each party shall promptly provide to all
other parties copies of responses to no-action requests, notices, orders and
other rulings received by such party with respect to any filing covered by
Section 4.7 of this Agreement.
4.9. COMPLAINTS AND PROCEEDINGS
(a) The Trust and/or the Distributor shall immediately notify the
Company of: (i) the issuance by any court or regulatory body of any stop
order, cease and desist order, or other similar order (but not including
an order of a regulatory body exempting or approving a proposed
transaction or arrangement) with respect to the Trust's Registration
Statement or the Prospectus of any Series or Class; (ii) any request by
the SEC for any amendment to the Trust's Registration Statement or the
Prospectus of any Series or Class; (iii) the initiation of any
proceedings for that purpose or for any other purposes relating to the
registration or offering of the Trust shares; or (iv) any other action
or circumstances that may prevent the lawful offer or sale of Trust
shares or any Class or Series in any state or jurisdiction, including,
without limitation, any circumstance in which (A) such shares are not
registered and, in all material respects, issued and sold in accordance
with applicable state and federal law or (B) such law precludes the use
of such shares as an underlying investment medium for the Contracts. The
Trust will make every reasonable effort to prevent the issuance of any
such stop order, cease and desist order or similar order and, if any
such order is issued, to obtain the lifting thereof at the earliest
possible time.
(b) The Company shall immediately notify the Trust and the
Distributor of: (i) the issuance by any court or regulatory body of any
stop order, cease and desist order, or other similar order (but not
including an order of a regulatory body exempting or approving a
proposed transaction or arrangement) with respect to the Contracts'
Registration Statement or the Contracts' Prospectus; (ii) any request by
the SEC for any amendment to the Contracts' Registration Statement or
Prospectus; (iii) the initiation of any proceedings for that purpose or
for any other purposes relating to the registration or offering of the
Contracts; or (iv) any other action or circumstances that may prevent
the lawful offer or sale of the Contracts or any class of Contracts in
any state or jurisdiction, including, without limitation, any
circumstance in which such Contracts are not registered, qualified and
approved, and, in all material respects, issued and sold in accordance
with applicable state and federal laws. The Company will make every
reasonable effort to prevent the issuance of any such stop order, cease
and desist order or
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similar order and, if any such order is issued, to obtain the lifting
thereof at the earliest possible time.
(c) Each party shall immediately notify the other parties when it
receives notice, or otherwise becomes aware of, the commencement of any
litigation or proceeding against such party or a person affiliated
therewith in connection with the issuance or sale of Trust shares or the
Contracts.
(d) The Company shall provide to the Trust and the Distributor
any complaints it has received from Contract Owners pertaining to the
Trust or a Fund, and the Trust and Distributor shall each provide to the
Company any complaints it has received from Contract Owners relating to
the Contracts.
4.10. COOPERATION. Each party hereto shall cooperate with the other
parties and all appropriate government authorities (including without limitation
the SEC, the NASD and state securities and insurance regulators) and shall
permit such authorities reasonable access to its books and records in connection
with any investigation or inquiry by any such authority relating to this
Agreement or the transactions contemplated hereby. However, such access shall
not extend to attorney-client privileged information.
ARTICLE V
SALE, ADMINISTRATION AND SERVICING OF THE CONTRACTS
5.1. SALE OF THE CONTRACTS. The Company shall be responsible for the
sale and marketing of the Contracts. The Company shall make available 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 material
compliance accordance with federal and state laws. The Company shall, consistent
with industry practice, use its best efforts to ensure that all persons offering
the Contracts are duly licensed and registered under applicable insurance and
securities laws. The Company shall ensure that procedures are in place that
sales of the Contracts satisfy applicable suitability requirements under
insurance and securities laws and regulations, including without limitation the
rules of the NASD. The Company shall adopt and implement procedures reasonably
designed to ensure that information concerning the Trust and the Distributor
that is intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract Owners or
offerees) is so used.
5.2. ADMINISTRATION AND SERVICING OF THE CONTRACTS. In connection with
the offering of the Contracts, the Company shall be fully responsible as to the
Trust and the Distributor for the underwriting, issuance, service and
administration of the Contracts and for the administration of the Account,
including, without limitation, the calculation of performance information for
the Contracts, the timely payment of Contract Owner redemption requests and
processing of Contract transactions, and the maintenance of a service center.
The Company shall use its best efforts to perform such functions in all respects
at a level commensurate with those standards prevailing in the variable
insurance industry. Subject to Section 5.4, the Company shall provide
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to Contract Owners all Trust reports, solicitations for voting instructions
including any related Trust proxy solicitation materials, and updated Trust
Prospectuses as required under the federal securities laws.
5.3. CUSTOMER COMPLAINTS. The Company shall promptly address all
customer complaints and resolve such complaints consistent with high ethical
standards and principles of ethical conduct.
5.4. TRUST PROSPECTUSES AND REPORTS. In order to enable the Company to
fulfill its obligations under this Agreement and the federal securities laws,
the Trust shall provide the Company with a copy, in camera-ready form or form
otherwise suitable for printing or duplication of: (i) the Trust's Prospectus
for the Series and Classes listed on Schedule 3 and any supplement thereto; (ii)
each Statement of Additional Information and any supplement thereto; (iii) any
Trust proxy soliciting material for such Series or Classes; and (iv) any Trust
periodic shareholder reports or other communications with shareholders. The
Trust and the Company may agree upon alternate arrangements, but in all cases,
the Trust reserves the right to approve the printing of any such material. The
Trust shall provide the Company at least 10 days advance written notice when any
such material shall become available, provided, however, that in the case of a
supplement, the Trust shall provide the Company notice reasonable in the
circumstances, it being understood that circumstances surrounding such
supplement may not allow for advance notice. The Company may not alter any
material so provided by the Trust or the Distributor (including without
limitation presenting or delivering such material in a different medium, e.g.,
electronic or Internet) without the prior written consent of the Distributor.
5.5. TRUST ADVERTISING MATERIAL. No piece of marketing, advertising or
sales literature or other promotional material in which the Trust or the
Distributor or the trade name and trademark Xxxxxxx Xxxxx (the "Xxxx") is named
(including, without limitation, material for prospects, existing Contract
Owners, brokers, rating or ranking agencies, or the press, whether in print,
radio, television, video, Internet, or other electronic medium) shall be used by
the Company or any person directly or indirectly authorized by the Company,
including without limitation, underwriters, distributors, and sellers of the
Contracts, except with the prior written consent of the Trust or the
Distributor, as applicable, as to the form, content and medium of such material.
Any such piece shall be furnished to the Trust for such consent prior to its
use, which consent shall not be unreasonably withheld. The Trust or the
Distributor shall respond to any request for written consent within five (5)
Business Days, but failure to respond shall not relieve the Company of the
obligation to obtain the prior written consent of the Trust or the Distributor.
After receiving the Trust's or Distributor's consent to the use of any such
material, no further changes may be made without obtaining the Trust's or
Distributor's consent to such changes. The Trust or Distributor may at any time
in its sole discretion revoke such written consent, and upon notification of
such revocation, the Company shall no longer use the material subject to such
revocation. Until further notice to the Company, the Trust has delegated its
rights and responsibilities under this provision to the Distributor.
5.6. CONTRACTS ADVERTISING MATERIAL. No piece of marketing, advertising
or sales literature or other promotional material in which the Company is named
shall be used by the
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Trust or the Distributor, except with the prior written consent of the Company,
which consent shall not be unreasonably withheld. Any such piece shall be
furnished to the Company for such consent prior to its use. The Company shall
respond to any request for written consent within five (5) Business Days, but
failure to respond shall not relieve the Company of the obligation to obtain the
prior written consent of the Company. The Company may at any time in its sole
discretion revoke any written consent, and upon notification of such revocation,
neither the Trust nor the Distributor shall use the material subject to such
revocation. The Company, upon prior written notice to the Trust, may delegate
its rights and responsibilities under this provision to the principal
underwriter for the Contracts.
5.7. TRADE NAMES. No party shall use any other party's trade names,
logos, trademarks or service marks, whether registered or unregistered, without
the prior written consent of such other party, or after written consent therefor
has been revoked, provided that separate consent is not required under this
Section 5.7 to the extent that consent to use a party's name, logo, trademark or
service xxxx in connection with a particular piece of advertising or sales
literature has previously been given by a party under Section 5.5 or 5.6 of this
Agreement. The Company shall not use in advertising, publicity or otherwise the
name of the Trust, Distributor, or any of their affiliates nor any trade name,
trademark, trade device, service xxxx, symbol or any abbreviation, contraction
or simulation thereof of the Trust, Distributor, or their affiliates without the
prior written consent of the Trust or the Distributor in each instance. The
Company acknowledges that the Distributor owns all right, title and interest in
and to the Xxxx and the registrations thereof. The Company shall use the Xxxx
intact and shall not modify or alter the Xxxx. Upon termination of this
Agreement, the Company or its successor (to the extent and as soon as it
lawfully can) will cease the use of the Xxxx. The Trust and the Distributor
shall not use in advertising, publicity, or otherwise the name of the Company,
or any of its affiliates not any trade name, trademark, trade device, service
xxxx, symbol or any abbreviation, contraction or simulation thereof of the
Company, or its affiliates without the prior written consent of the Company in
each instance.
5.8. REPRESENTATIONS BY COMPANY. Except with the prior written consent
of the Trust, the Company shall not give any information or make any
representations or statements about the Trust or the Funds nor shall it
authorize or allow any other person to do so except information or
representations contained in the Trust's Registration Statement or the Trust's
Prospectuses or in reports or proxy statements for the Trust, or in sales
literature or other promotional material approved in writing by the Trust or its
designee in accordance with this Article V, or in published reports or
statements of the Trust in the public domain.
5.9. REPRESENTATIONS BY TRUST. Except with the prior written consent of
the Company, the Trust shall not give any information or make any
representations on behalf of the Company or concerning the Company, the Account
or the Contracts other than the information or representations contained in the
Contracts' Registration Statement or Contracts' Prospectus or in published
reports of the Account which are in the public domain or in sales literature or
other promotional material approved in writing by the Company in accordance with
this Article V.
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5.10. ADVERTISING. For purposes of this Article V, the phrase "sales
literature or other promotional material" includes, but is not limited to, any
material constituting sales literature or advertising under the NASD rules, the
1940 Act or the 1933 Act.
ARTICLE VI
COMPLIANCE WITH CODE
6.1. SECTION 817(h). Each Fund of the Trust shall comply with Section
817(h) of the Code and the regulations issued thereunder to the extent
applicable to the Fund as an investment company underlying the Account, and the
Trust shall (i) notify the Company immediately upon having a reasonable basis
for believing that a Fund has ceased to so qualify or that it might not so
qualify in the future, and (ii) take all reasonable steps to adequately
diversify a Fund to achieve compliance with the grace period afforded by
Treasury Regulation 1.817-5.
6.2. SUBCHAPTER M. Each Fund of the Trust shall maintain the
qualification of the Fund as a registered investment company (under Subchapter M
or any successor or similar provision), and the Trust shall (i) notify the
Company immediately upon having a reasonable basis for believing that a Fund has
ceased to so qualify or that it might not so qualify in the future, and (ii)
take all reasonable steps to maintain qualification or to requalify the Funds as
a registered investment company under Subchapter M.
6.3. CONTRACTS. The Company shall ensure the continued treatment of the
Contracts as annuity contracts or life insurance policies, whichever is
appropriate, under applicable provisions of the Code and shall notify the Trust
and the Distributor immediately upon having a reasonable basis for believing
that the Contracts have ceased to be so treated or that they might not be so
treated in the future.
ARTICLE VII
EXPENSES
7.1. EXPENSES. All expenses incident to each party's performance under
this Agreement (including expenses expressly assumed by such party pursuant to
this Agreement) shall be paid by such party to the extent permitted by law.
7.2. TRUST EXPENSES. Expenses incident to the Trust's performance of its
duties and obligations under this Agreement include, but are not limited to, the
costs of:
(a) registration and qualification of the Trust shares under the
federal securities laws;
(b) preparation and filing with the SEC of the Trust's Prospectuses,
Trust's Statement of Additional Information, Trust's Registration
Statement, Trust proxy materials and shareholder reports, and
preparation of a camera-ready copy of the foregoing;
(c) preparation of all statements and notices required by any Federal
or state securities law;
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(d) all taxes on the issuance or transfer of Trust shares;
(e) payment of all applicable fees relating to the Trust, including,
without limitation, all fees due under Rule 24f-2 in connection
with sales of Trust shares to qualified retirement plans,
custodial, auditing, transfer agent and advisory fees, fees for
insurance coverage and Trustees' fees; and
(f) any expenses permitted to be paid or assumed by the Trust
pursuant to a plan, if any, under Rule 12b-1 under the 1940 Act.
7.3. COMPANY EXPENSES. Expenses incident to the Company's performance of
its duties and obligations under this Agreement include, but are not limited to,
the costs of:
(a) registration and qualification of the Contracts under the federal
securities laws;
(b) preparation and filing with the SEC of the Contracts' Prospectus
and Contracts' Registration Statement;
(c) the sale, marketing and distribution of the Contracts, including
printing and dissemination of Contracts' and the Series
Prospectuses and compensation for Contract sales;
(d) administration of the Contracts;
(e) payment of all applicable fees relating to the Contracts,
including, without limitation, all fees due under Rule 24f-2;
(f) preparation, printing and dissemination of all statements and
notices to Contract Owners required by any Federal or state
insurance law other than those paid for by the Trust; and
(g) preparation, printing and dissemination of all marketing
materials for the Contracts and Trust except where other
arrangements are made in advance.
7.4. 12b-1 PAYMENTS. The Trust shall pay no fee or other compensation to
the Company under this Agreement, except that if the Trust or any Series or
Class adopts and implements a plan pursuant to Rule 12b-1 under the 1940 Act to
finance distribution expenses, then payments may be made to the Company in
accordance with such plan. The Trust currently does not intend to make any
payments to finance distribution expenses pursuant to Rule 12b-1 under the 1940
Act or in contravention of such rule, although it may make payments pursuant to
Rule 12b-1 in the future. To the extent that it decides to finance distribution
expenses pursuant to Rule 12b-1 and such formulation is required by the 1940 Act
or any rules or order thereunder, the Trust undertakes to have a Board of
Trustees, a majority of whom are not interested persons of the Trust, formulate
and approve any plan under Rule 12b-1 to finance distribution expenses.
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ARTICLE VIII
POTENTIAL CONFLICTS
8.1. EXEMPTIVE ORDER. The parties to this Agreement acknowledge that the
Trust has received an exemptive order from the SEC (the "Exemptive Order")
granting relief from various provisions of the 1940 Act and the rules thereunder
to the extent necessary to permit Trust shares to be sold to and held by
variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated Participating Insurance Companies and other
Qualified Persons (as defined in Section 2.8 hereof). The Exemptive Order
requires the Trust and each Participating Insurance Company to comply with
conditions and undertakings substantially as provided in this Article VIII. The
Trust will not enter into a participation agreement with any other Participating
Insurance Company unless it imposes the same conditions and undertakings on that
company as are imposed on the Company pursuant to this Article VIII.
8.2. COMPANY MONITORING REQUIREMENTS. The Company will monitor its
operations and those of the Trust for the purpose of identifying any material
irreconcilable conflicts or potential material irreconcilable conflicts between
or among the interests of Participating Plans, Product Owners of variable life
insurance policies and Product Owners of variable annuity contracts.
8.3. COMPANY REPORTING REQUIREMENTS. The Company shall report any
conflicts or potential conflicts to the Trust Board and will provide the Trust
Board, at least annually, with all information reasonably necessary for the
Trust Board to consider any issues raised by such existing or potential
conflicts or by the conditions and undertakings required by the Exemptive Order.
The Company also shall assist the Trust Board in carrying out its obligations
including, but not limited to: (a) informing the Trust Board whenever it
disregards Contract Owner voting instructions with respect to variable life
insurance policies, and (b) providing such other information and reports as the
Trust Board may reasonably request. The Company will carry out these obligations
with a view only to the interests of Contract Owners.
8.4. TRUST BOARD MONITORING AND DETERMINATION. The Trust Board shall
monitor the Trust for the existence of any material irreconcilable conflicts
between or among the interests of Participating Plans, Product Owners of
variable life insurance policies and Product Owners of variable annuity
contracts and determine what action, if any, should be taken in response to
those conflicts. A majority vote of Trustees who are not interested persons of
the Trust as defined in the 1940 Act (the "disinterested trustees") shall
represent a conclusive determination as to the existence of a material
irreconcilable conflict between or among the interests of Product Owners and
Participating Plans and as to whether any proposed action adequately remedies
any material irreconcilable conflict. The Trust Board shall give prompt written
notice to the Company and Participating Plan of any such determination.
8.5. UNDERTAKING TO RESOLVE CONFLICT. In the event that a material
irreconcilable conflict of interest arises between Product Owners of variable
life insurance policies or Product Owners of variable annuity contracts and
Participating Plans, the Company will, at its own
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expense, take whatever action is necessary to remedy such conflict as it
adversely affects Contract Owners up to and including (1) establishing a new
registered management investment company, and (2) withdrawing assets from the
Trust attributable to reserves for the Contracts subject to the conflict and
reinvesting such assets in a different investment medium (including another Fund
of the Trust) or submitting the question of whether such withdrawal should be
implemented to a vote of all affected Contract Owners, and, as appropriate,
segregating the assets supporting the Contracts of any group of such owners that
votes in favor of such withdrawal, or offering to such owners the option of
making such a change. The Company will carry out the responsibility to take the
foregoing action with a view only to the interests of Contract Owners.
8.6. WITHDRAWAL. If a material irreconcilable conflict arises because of
the Company's decision to disregard the voting instructions of Contract Owners
of variable life insurance policies and that decision represents a minority
position or would preclude a majority vote at any Fund shareholder meeting,
then, at the request of the Trust Board, the Company will redeem the shares of
the Trust to which the disregarded voting instructions relate. No charge or
penalty, however, will be imposed in connection with such a redemption.
8.7. EXPENSES ASSOCIATED WITH REMEDIAL ACTION. In no event shall the
Trust be required to bear the expense of establishing a new funding medium for
any Contract. The Company shall not be required by this Article to establish a
new funding medium for any Contract if an offer to do so has been declined by
vote of a majority of the Contract Owners materially adversely affected by the
irreconcilable material conflict.
8.8. SUCCESSOR RULES. If and to the extent that Rule 6e-2 and Rule
6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from
any provisions of the 1940 Act or the rules promulgated thereunder with respect
to mixed and shared funding on terms and conditions materially different from
those contained in the Exemptive Order, then (i) the Trust and/or the Company,
as appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, or Rule 6e-3, as adopted, as applicable, to the
extent such rules are applicable, and (ii) Sections 8.2 through 8.5 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
ARTICLE IX
INDEMNIFICATION
9.1. INDEMNIFICATION BY THE COMPANY. The Company hereby agrees to, and
shall, indemnify and hold harmless the Trust, the Distributor and each person
who controls or is affiliated with the Trust or the Distributor within the
meaning of such terms under the 1933 Act or 1940 Act (but not any Participating
Insurance Companies or Qualified Persons) and any officer, trustee, partner,
director, employee or agent of the foregoing, against any and all losses,
claims, damages or liabilities, joint or several (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amounts
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become
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subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Contracts Registration Statement,
Contracts Prospectus, sales literature or other promotional
material for the Contracts or the Contracts themselves (or any
amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which
they were made; provided that this obligation to indemnify shall
not apply if such statement or omission was made in reliance upon
and in conformity with information furnished in writing to the
Company by the Trust or the Distributor for use in the Contracts
Registration Statement, Contracts Prospectus or in the Contracts
or sales literature or promotional material for the Contracts (or
any amendment or supplement to any of the foregoing) or otherwise
for use in connection with the sale of the Contracts or Trust
shares; or
(b) arise out of any untrue statement of a material fact contained in
the Trust Registration Statement, any Prospectus for Series or
Classes or sales literature or other promotional material of the
Trust (or any amendment or supplement to any of the foregoing),
or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made,
if such statement or omission was made in reliance upon and in
conformity with information furnished to the Trust or Distributor
in writing by or on behalf of the Company; or
(c) arise out of or are based upon any wrongful conduct of, or
violation of federal or state law by, the Company or persons
under its control or subject to its authorization, including
without limitation, any broker-dealers or agents authorized to
sell the Contracts, with respect to the sale, marketing or
distribution of the Contracts or Trust shares, including, without
limitation, any impermissible use of broker-only material,
unsuitable or improper sales of the Contracts or unauthorized
representations about the Contracts or the Trust; or
(d) arise as a result of any failure by the Company or persons under
its control (or subject to its authorization) to provide
services, furnish materials or make payments as required under
this Agreement; or
(e) arise out of any material breach by the Company or persons under
its control (or subject to its authorization) of this Agreement;
or
(f) arise out of any breach of any warranties contained in Article
III hereof, any failure to transmit a request for redemption or
purchase of Trust shares or payment therefor on a timely basis in
accordance with the procedures set forth in Article II,
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or any unauthorized use of the names, trade names or trademark of
the Trust or the Distributor.
This indemnification is in addition to any liability that the Company may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is caused by the
willful misfeasance, bad faith, gross negligence or reckless disregard of duty
by the party seeking indemnification.
9.2. INDEMNIFICATION BY THE TRUST. The Trust hereby agrees to, and
shall, indemnify and hold harmless the Company and each person who controls or
is affiliated with the Company within the meaning of such terms under the 1933
Act or 1940 Act and any officer, director, employee or agent of the foregoing,
against any and all losses, claims, damages or liabilities, joint or several
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they or any of them may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Trust Registration Statement, any
Prospectus for Series or Classes or sales literature or other
promotional material of the Trust (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made;
provided that this obligation to indemnify shall not apply if
such statement or omission was made in reliance upon and in
conformity with information furnished in writing by the Company
to the Trust or the Distributor for use in the Trust Registration
Statement, Trust Prospectus or sales literature or promotional
material for the Trust (or any amendment or supplement to any of
the foregoing) or otherwise for use in connection with the sale
of the Contracts or Trust shares; or
(b) arise out of any untrue statement of a material fact contained in
the Contracts Registration Statement, Contracts Prospectus or
sales literature or other promotional material for the Contracts
(or any amendment or supplement to any of the foregoing), or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made,
if such statement or omission was made in reliance upon
information furnished in writing by the Trust to the Company; or
(c) arise out of or are based upon wrongful conduct of or violation
of federal or state law by the Trust or its Trustees or officers
or persons under its control with respect to the sale of Trust
shares; or
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(d) arise as a result of any failure by the Trust or its Trustees or
officers or persons under its control to provide services,
furnish materials or make payments as required under the terms of
this Agreement; or
(e) arise out of any material breach by the Trust of this Agreement
or persons under its control (including any breach of Section 6.1
of this Agreement and any warranties contained in Article III
hereof); or
(f) arise out of or result from the materially incorrect or untimely
calculation or reporting of the daily net asset value per share
or dividend or capital gain distribution rate, provided that the
foregoing shall be limited to reasonable administrative costs,
and shall not apply where such miscalculation or report is the
result of (i) incorrect information supplied by or on behalf of
the Company to the Trust or the Distributor, or (ii)
circumstances outside the Trust's or the Distributor's control.
it being understood that in no way shall the Trust be liable to the Company with
respect to any violation of insurance law, compliance with which is a
responsibility of the Company under this Agreement or otherwise or as to which
the Company failed to inform the Trust in accordance with Section 4.4 hereof.
This indemnification is in addition to any liability that the Trust may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is caused by the
willful misfeasance, bad faith, gross negligence or reckless disregard of duty
by the party seeking indemnification.
9.3. INDEMNIFICATION BY THE DISTRIBUTOR. The Distributor hereby agrees
to, and shall, indemnify and hold harmless the Company and each person who
controls or is affiliated with the Company within the meaning of such terms
under the 1933 Act or 1940 Act and any officer, director, employee or agent of
the foregoing, against any and all losses, claims, damages or liabilities, joint
or several (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amounts paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they or any of them may
become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Trust Registration Statement, any
Prospectus for Series or Classes or sales literature or other
promotional material of the Trust (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made;
provided that this obligation to indemnify shall not apply if
such statement or omission was made in reliance upon and in
conformity with information furnished in writing by the Company
to the Trust or Distributor for use in the Trust Registration
Statement, Trust Prospectus or sales literature or promotional
material for the Trust (or any amendment or supplement to any of
the
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foregoing) or otherwise for use in connection with the sale of
the Contracts or Trust shares; or
(b) arise out of any untrue statement of a material fact contained in
the Contracts Registration Statement, Contracts Prospectus or
sales literature or other promotional material for the Contracts
(or any amendment or supplement to any of the foregoing), or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made,
if such statement or omission was made in reliance upon
information furnished in writing by the Distributor to the
Company; or
(c) arise out of or are based upon wrongful conduct of or violation
of federal or state law by the Distributor or persons under its
control with respect to the sale of Trust shares; or
(d) arise as a result of any failure by the Distributor or persons
under its control to provide services, furnish materials or make
payments as required under the terms of this Agreement; or
(e) arise out of any material breach by the Distributor or persons
under its control of this Agreement (including any breach of
Section 6.1 of this Agreement and any warranties contained in
Article III hereof);
it being understood that in no way shall the Distributor be liable to the
Company with respect to any violation of insurance law, compliance with which is
a responsibility of the Company under this Agreement or otherwise or as to which
the Company failed to inform the Distributor in accordance with Section 4.4
hereof. This indemnification is in addition to any liability that the
Distributor may otherwise have; provided, however, that no party shall be
entitled to indemnification if such loss, claim, damage or liability is caused
by the willful misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
9.4. RULE OF CONSTRUCTION. It is the parties' intention that, in the
event of an occurrence for which the Trust has agreed to indemnify the Company,
the Company shall seek indemnification from the Trust only in circumstances in
which the Trust is entitled to seek indemnification from a third party with
respect to the same event or cause thereof.
9.5. INDEMNIFICATION PROCEDURES. After receipt by a party entitled to
indemnification ("indemnified party") under this Article IX of notice of the
commencement of any action, if a claim in respect thereof is to be made by the
indemnified party against any person obligated to provide indemnification under
this Article IX ("indemnifying party"), such indemnified party will notify the
indemnifying party in writing of the commencement thereof as soon as practicable
thereafter, provided that the omission to so notify the indemnifying party will
not relieve it from any liability under this Article IX, except to the extent
that the omission results in a failure of actual notice to the indemnifying
party and such indemnifying party is damaged solely as a result
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of the failure to give such notice. The indemnifying party, upon the request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX. The
indemnification provisions contained in this Article IX shall survive any
termination of this Agreement.
ARTICLE X
RELATIONSHIP OF THE PARTIES; TERMINATION
10.1. RELATIONSHIP OF PARTIES. 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 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 the Trust, as those terms variously are used
in the 1940 Act, the 1933 Act, and rules and regulations promulgated thereunder.
10.2. NON-EXCLUSIVITY AND NON-INTERFERENCE. The parties hereto
acknowledge that the arrangement contemplated by this Agreement is not
exclusive; the Trust shares may be sold to other insurance companies and
investors (subject to Section 2.8 hereof) and the cash value of the Contracts
may be invested in other investment companies, provided, however, that until
this Agreement is terminated pursuant to this Article X:
(a) the Company shall promote the Trust and the Funds made available
hereunder on the same basis as other funding vehicles available
under the Contracts;
(b) the Company shall not, without prior notice to the Distributor
(unless otherwise required by applicable law), take any action to
operate the Account as a management investment company under the
1940 Act;
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(c) the Company shall not, without the prior written consent of the
Distributor (unless otherwise required by applicable law),
solicit, induce or encourage Contract Owners to change or modify
the Trust to change the Trust's distributor or investment
adviser, to transfer or withdraw Contract Values allocated to a
Fund, or to exchange their Contracts for contracts not allowing
for investment in the Trust;
(d) the Company shall not substitute another investment company for
one or more Funds without providing written notice to the
Distributor at least 60 days in advance of effecting any such
substitution; and
(e) the Company shall not withdraw the Account's investment in the
Trust or a Fund of the Trust except as necessary to facilitate
Contract Owner requests and routine Contract processing.
10.3. TERMINATION OF AGREEMENT. This Agreement shall not terminate until
(i) the Trust is dissolved, liquidated, or merged into another entity, or (ii)
as to any Fund that has been made available hereunder, the Account no longer
invests in that Fund and the Company has confirmed in writing to the
Distributor, if so requested by the Distributor, that it no longer intends to
invest in such Fund. However, certain obligations of, or restrictions on, the
parties to this Agreement may terminate as provided in Sections 10.4 through
10.6 and the Company may be required to redeem Trust shares pursuant to Section
10.7 or in the circumstances contemplated by Article VIII. Article IX and
Sections 5.7, 10.8 and 10.9 shall survive any termination of this Agreement.
10.4. TERMINATION OF OFFERING OF TRUST SHARES. The obligation of the
Trust and the Distributor to make Trust shares available to the Company for
purchase pursuant to Article II of this Agreement shall terminate at the option
of the Distributor upon written notice to the Company as provided below:
(a) upon institution of formal proceedings against the Company, or
the Distributor's reasonable determination that institution of
such proceedings is being considered by the NASD, the SEC, the
insurance commission of any state or any other regulatory body
regarding the Company's duties under this Agreement or related to
the sale of the Contracts, the operation of the Account, the
administration of the Contracts or the purchase of Trust shares,
or an expected or anticipated ruling, judgment or outcome which
would, in the Distributor's reasonable judgment exercised in good
faith, materially impair the Company's or Trust's ability to meet
and perform the Company's or Trust's obligations and duties
hereunder, such termination effective upon 15 days prior written
notice;
(b) in the event any of the Contracts are not registered, issued or
sold in accordance with applicable federal and/or state law, such
termination effective immediately upon receipt of written notice;
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(c) if the Distributor shall determine, in its sole judgment
exercised in good faith, that either (1) the Company shall have
suffered a material adverse change in its business or financial
condition or (2) the Company shall have been the subject of
material adverse publicity which is likely to have a material
adverse impact upon the business and operations of either the
Trust or the Distributor, such termination effective upon 30 days
prior written notice;
(d) if the Distributor suspends or terminates the offering of Trust
shares of any Series or Class to all Participating Investors or
only designated Participating Investors, if such action is
required by law or by regulatory authorities having jurisdiction
or if, in the sole discretion of the Distributor acting in good
faith, suspension or termination is necessary in the best
interests of the shareholders of any Series or Class (it being
understood that "shareholders" for this purpose shall mean
Product Owners), such notice effective immediately upon receipt
of written notice, it being understood that a lack of
Participating Investor interest in a Series or Class may be
grounds for a suspension or termination as to such Series or
Class and that a suspension or termination shall apply only to
the specified Series or Class;
(e) upon the Company's assignment of this Agreement (including,
without limitation, any transfer of the Contracts or the Account
to another insurance company pursuant to an assumption
reinsurance agreement) unless the Trust consents thereto, such
termination effective upon 30 days prior written notice;
(f) if the Company is in material breach of any provision of this
Agreement, which breach has not been cured to the satisfaction of
the Trust within 10 days after written notice of such breach has
been delivered to the Company, such termination effective upon
expiration of such 10-day period;
(g) upon the determination of the Trust's Board to dissolve,
liquidate or merge the Trust as contemplated by Section 10.3(i),
upon termination of the Agreement pursuant to Section 10.3(ii),
or upon notice from the Company pursuant to Section 10.5 or 10.6,
such termination pursuant hereto to be effective upon 15 days
prior written notice; or
(h) at any time upon six months prior written notice.
Except in the case of an option exercised under clause (b), (d) or (g), the
obligations shall terminate only as to new Contracts and the Distributor shall
continue to make Trust shares available to the extent necessary to permit owners
of Contracts in effect on the effective date of such termination (hereinafter
referred to as "Existing Contracts") to reallocate investments in the Trust,
redeem investments in the Trust and/or invest in the Trust upon the making of
additional purchase payments under the Existing Contracts.
10.5. TERMINATION OF INVESTMENT IN A FUND. The Company may elect to
cease investing in a Fund, promoting a Fund as an investment option under the
Contracts, or withdraw
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its investment or the Account's investment in a Fund, subject to compliance with
applicable law, upon written notice to the Trust within 15 days of the
occurrence of any of the following events (unless provided otherwise below):
(a) if the Trust informs the Company pursuant to Section 4.4 that it
will not cause such Fund to comply with investment restrictions
as requested by the Company and the Trust and the Company are
unable to agree upon any reasonable alternative accommodations;
(b) if shares in such Fund are not reasonably available to meet the
requirements of the Contracts as determined by the Company
(including any non-availability as a result of notice given by
the Distributor pursuant to Section 10.4(d)), and the
Distributor, after receiving written notice from the Company of
such non-availability, fails to make available, within 10 days
after receipt of such notice, a sufficient number of shares in
such Fund or an alternate Fund to meet the requirements of the
Contracts;
(c) if such Fund fails to meet the diversification requirements
specified in Section 817(h) of the Code and any regulations
thereunder and the Trust, upon written request, fails to provide
reasonable assurance that it will take action to cure or correct
such failure;
(d) if such Fund ceases to qualify as a regulated investment company
under Subchapter M of the Code, as defined therein, or any
successor or similar provision, or if the Company reasonably
believes that the Fund may fail to so qualify, and the Trust,
upon written request, fails to provide reasonable assurance that
it will take action to cure or correct such failure within 30
days;
(e) upon the Trust's or the Distributor's assignment of this
Agreement, unless the Company consents thereto, or unless the
assignment is to an affiliate as a result of a merger, a change
in control or a reorganization into another jurisdiction, such
termination effective upon 30 days prior written notice; or
(f) at any time upon six months prior notice.
Such termination shall apply only as to the affected Fund and shall not apply to
any other Fund in which the Company or the Account invests.
10.6. TERMINATION OF INVESTMENT BY THE COMPANY. The Company may elect to
cease investing in all Series or Classes of the Trust made available hereunder,
promoting the Trust as an investment option under the Contracts, or withdraw its
investment or the Account s investment in the Trust, subject to compliance with
applicable law, upon written notice to the Trust within 15 days of the
occurrence of any of the following events (unless provided otherwise below):
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(a) upon institution of formal proceedings against the Trust or the
Distributor (but only with regard to the Trust) by the NASD, the
SEC or any state securities or insurance commission or any other
regulatory body; or
(b) if the Trust or Distributor is in material breach of a provision
of this Agreement, which breach has not been cured to the
satisfaction of the Company within 10 days after written notice
of such breach has been delivered to the Trust or the
Distributor, as the case may be.
10.7. COMPANY REQUIRED TO REDEEM. The parties understand and acknowledge
that it is essential for compliance with Section 817(h) of the Code that the
Contracts qualify as annuity contracts or life insurance policies, as
applicable, under the Code. Accordingly, if any of the Contracts cease to
qualify as annuity contracts or life insurance policies, as applicable, under
the Code, or if the Trust reasonably believes that any such Contracts may fail
to so qualify, the Trust shall have the right to require the Company to redeem
Trust shares attributable to such Contracts upon notice to the Company and the
Company shall so redeem such Trust shares in order to ensure that the Trust
complies with the provisions of Section 817(h) of the Code applicable to
ownership of Trust shares. Notice to the Company shall specify the period of
time the Company has to redeem the Trust shares or to make other arrangements
satisfactory to the Trust and its counsel, such period of time to be determined
with reference to the requirements of Section 817(h) of the Code. In addition,
the Company may be required to redeem Trust shares pursuant to action taken or
request made by the Trust Board in accordance with the Exemptive Order described
in Article VIII or any conditions or undertakings set forth or referenced
therein, or other SEC rule, regulation or order that may be adopted after the
date hereof. The Company agrees to redeem shares in the circumstances described
herein and to comply with applicable terms and provisions. Also, in the event
that the Distributor suspends or terminates the offering of a Series or Class
pursuant to Section 10.4(d) of this Agreement, the Company, upon request by the
Distributor, will cooperate in taking appropriate action to withdraw the
Account's investment in the respective Fund.
10.8. CONFIDENTIALITY. A party will keep confidential any information
acquired as a result of this Agreement regarding the business and affairs of the
other parties to this Agreement and their affiliates. In addition, the Trust and
the Distributor shall not, directly or indirectly, disclose or use any nonpublic
personal information regarding the consumers or customers of the Company (as the
terms "consumer" and "customer" are defined in Rule 3(g) and 3(j), respectively,
of Regulation S-P of the Securities and Exchange Commission) ("Confidential
Information"), other than to carry out the functions contemplated by this
Agreement. The foregoing obligation of confidentiality shall not extend to any
portion of the Confidential Information that is, or becomes, generally available
to the general public from: (a) federal, State or local governmental records,
(b) widely distributed media, or (c) disclosures to the general public that are
required to be made by federal, State or local law.
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ARTICLE XI
APPLICABILITY TO NEW ACCOUNTS AND NEW CONTRACTS
The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect, as appropriate, changes in or relating to the
Contracts, any Series or Class, additions of new classes of Contracts to be
issued by the Company and separate accounts therefor investing in the Trust.
Such amendments may be made effective by executing the form of amendment
included on each schedule attached hereto. The provisions of this Agreement
shall be equally applicable to each such class of Contracts, Series, Class or
separate account, as applicable, effective as of the date of amendment of such
Schedule, unless the context otherwise requires. The parties to this Agreement
may amend this Agreement from time to time by written agreement signed by all of
the parties.
ARTICLE XII
NOTICE, REQUEST OR CONSENT
Any notice, request or consent to be provided pursuant to this Agreement
is to be made in writing and shall be given:
If to the Trust:
Xxxxx XxXxxxxx
President
Xxxxxxx Sachs Variable Insurance Trust
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
If to the Distributor:
Xxxxx XxXxxxxx
Vice President
Xxxxxxx Sachs & Co.
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
If to the Company:
Xxxx Xxxxxxxxx
National Sales and Marketing Manager
Farmers New World Life Insurance Company
0000 00xx Xxxxxx, XX
Xxxxxx Xxxxxx, XX 00000
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with a copy to:
Xxxxx X. Xxxxxxx, Xx., Esq.
Corporate Counsel
Farmers Insurance Group
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
or at such other address as such party may from time to time specify in writing
to the other party. Each such notice, request or consent to a party shall be
sent by registered or certified United States mail with return receipt requested
or by overnight delivery with a nationally recognized courier, and shall be
effective upon receipt. Notices pursuant to the provisions of Article II may be
sent by facsimile to the person designated in writing for such notices.
ARTICLE XIII
MISCELLANEOUS
13.1. INTERPRETATION. This Agreement shall be construed and the
provisions hereof interpreted under and in accordance with the laws of the state
of Delaware, without giving effect to the principles of conflicts of laws,
subject to the following rules:
(a) This Agreement shall be subject to the provisions of the 1933
Act, 1940 Act and Securities Exchange Act of 1934, as amended,
and the rules, regulations and rulings thereunder, including such
exemptions from those statutes, rules, and regulations as the SEC
may grant, and the terms hereof shall be limited, interpreted and
construed in accordance therewith.
(b) The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or
effect.
(c) If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
the Agreement shall not be affected thereby.
(d) The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights,
remedies and obligations, at law or in equity, which the parties
hereto are entitled to under state and federal laws.
13.2. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which together shall constitute one and the same
instrument.
13.3. NO ASSIGNMENT. Neither this Agreement nor any of the rights and
obligations hereunder may be assigned by the Company, the Distributor or the
Trust without the prior written consent of the other parties.
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13.4. DECLARATION OF TRUST. A copy of the Declaration of Trust of the
Trust is on file with the Secretary of State of the State of Delaware, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as trustees, and is not binding upon any of the Trustees,
officers or shareholders of the Trust individually, but binding only upon the
assets and property of the Trust. No Series of the Trust shall be liable for the
obligations of any other Series of the Trust.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
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:
FARMERS NEW WORLD LIFE INSURANCE COMPANY
(Company)
Date: By:
------------- Name: C. Xxxx Xxxxxx
Title: President
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SCHEDULE 1
Accounts of the Company
Investing in the Trust
Effective as of the date the Agreement was executed, the following separate
accounts of the Company are subject to the Agreement:
=================================================================================================
Date Established by
Name of Account and Board of Directors of SEC 1940 Act Type of Product
Subaccounts the Company Registration Number Supported by Account
-------------------------------------------------------------------------------------------------
Farmers Annuity April 6, 1999 811-09547 Variable Annuity
Separate Account A
-------------------------------------------------------------------------------------------------
Farmers Variable April 6, 1999 811-09507 Variable Life
Universal Life Separate
Account A
=================================================================================================
--------------------------------------------------------------------------------
[Form of Amendment to Schedule 1]
Effective as of _____, the following separate accounts of the Company are hereby
added to this Schedule 1 and made subject to the Agreement:
=================================================================================================
Date Established by
Name of Account and Board of Directors of SEC 1940 Act Type of Product
Subaccounts the Company Registration Number Supported by Account
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
=================================================================================================
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 1 in accordance with Article XI of the Agreement.
-------------------------------------- -----------------------------------
Xxxxxxx Sachs Variable Insurance Trust Farmers New World Life Insurance
Company
--------------------------------------
Xxxxxxx, Xxxxx & Co.
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SCHEDULE 2
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Effective as of the date the Agreement was executed, the following classes of
Contracts are subject to the Agreement:
=================================================================================================
SEC 1933 Act
Policy Marketing Name Registration Number Contract Form Number Annuity or Life
-------------------------------------------------------------------------------------------------
Farmers Annuity 333-85183 Farmers Individual Annuity
Separate Account A Premium Flexible
Variable Annuity K
2000-398
-------------------------------------------------------------------------------------------------
Farmers Variable 333-84023 Farmers Individual Life
Universal Life Separate Flexible Premium
Account A Variable Universal
Life Policy
=================================================================================================
--------------------------------------------------------------------------------
[Form of Amendment to Schedule 2]
Effective as of _______, the following classes of Contracts are hereby added to
this Schedule 2 and made subject to the Agreement:
=================================================================================================
SEC 1933 Act Name of Supporting
Policy Marketing Name Registration Number Account Annuity or Life
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
=================================================================================================
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 2 in accordance with Article XI of the Agreement.
-------------------------------------- -----------------------------------
Xxxxxxx Sachs Variable Insurance Trust Farmers New World Life Insurance
Company
--------------------------------------
Xxxxxxx, Xxxxx & Co.
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SCHEDULE 3
Trust Classes and Series
Available Under
Each Class of Contracts
Effective as of the date the Agreement was executed, the following Trust Classes
and Series are available under the Contracts:
=======================================================================================
Contracts Marketing Name Trust Classes and Series
---------------------------------------------------------------------------------------
Farmers Annuity Separate Account A VIT CORE SMALL CAP EQUITY
VIT MID CAP VALUE
VIT CAPITAL GROWTH
---------------------------------------------------------------------------------------
Farmers Variable Universal Life Separate VIT CORE SMALL CAP EQUITY
Account A VIT MID CAP VALUE
VIT CAPITAL GROWTH
=======================================================================================
--------------------------------------------------------------------------------
[Form of Amendment to Schedule 3]
Effective as of __________________, this Schedule 3 is hereby amended to reflect
the following changes in Trust Classes and Series:
=======================================================================================
Contracts Marketing Name Trust Classes and Series
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
=======================================================================================
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 3 in accordance with Article XI of the Agreement.
-------------------------------------- -----------------------------------
Xxxxxxx Sachs Variable Insurance Trust Farmers New World Life Insurance
Company
--------------------------------------
Xxxxxxx, Xxxxx & Co.
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SCHEDULE 4
Investment Restrictions
Applicable to the Trust
Effective as of the date the Agreement was executed, the following investment
restrictions are applicable to the Trust:
--------------------------------------------------------------------------------
[Form of Amendment to Schedule 4]
Effective as of ___________________, this Schedule 4 is hereby amended to
reflect the following changes:
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 4 in accordance with Article XI of the Agreement.
-------------------------------------- -----------------------------------
Xxxxxxx Sachs Variable Insurance Trust Farmers New World Life Insurance
Company
--------------------------------------
Xxxxxxx, Xxxxx & Co.
