AMENDMENT TO PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
First Allmerica Financial Life Insurance Company
Epoch Securities, Inc.
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust"),
Franklin/Xxxxxxxxx Distributors, Inc. (the "Underwriter," and together with the
Trust, "we" or "us"), First Allmerica Financial Life Insurance Company (the
"Company" or "you"), and Epoch Securities, Inc., your distributor, on your
behalf and on behalf of certain Accounts, have previously entered into a
Participation Agreement dated September 25, 2006, as amended (the "Agreement").
The parties now desire to amend the Agreement by this amendment (the
"Amendment"). Unless otherwise indicated, the terms defined in the Agreement
shall have the same meaning in this Amendment.
AMENDMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Paragraphs of 6.1 through 6.7 of Section 6 are amended and restated in
their entirety as set forth in Attachment A to this Amendment. The
remaining paragraphs of Section 6 not amended herein shall be re-numbered.
2. All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized
officers to execute this Amendment effective as of August 16, 2010.
The Trust: FRANKLIN XXXXXXXXX VARlABLE INSURANCE
ONLY ON BEHALF OF PRODUCTS TRUST
EACH PORTFOLIO LISTED
ON SCHEDULE C OF By: /s/ Xxxxx X. Xxxxxxxx
THE AGREEMENT. -----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The Underwriter: FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
The Company: FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
The Distributor: EPOCH SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
2
ATTACHMENT A
6. SALES MATERIAL, INFORMATION AND TRADEMARKS
6.1 For purposes of this Section 6, "Sales Literature/ Promotional
Material" includes, but is not limited to, portions of the following that use
any logo or other trademark related to the Trust, or Underwriter or its
affiliates, or refer to the Trust: advertisements (such as material published or
designed for use in a newspaper, magazine or other periodical, radio,
television, telephone or tape recording, videotape display, signs or billboards,
motion pictures, web-sites and other electronic communications or other public
media), sales literature (I.E., any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, reprints or
excerpts or any other advertisement, sales literature or published article or
electronic communication), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees in any media, and disclosure documents, shareholder reports and proxy
materials.
6.2 You may use the name of the Trust and trademarks and the logo of the
Underwriter in Sales Literature/Promotional Material as reasonably necessary to
carry out your performance and obligations under this Agreement provided that
you comply with the provisions of this Agreement. You agree to abide by any
reasonable use guidelines regarding use of such trademarks and logos that we may
give from time to time. You shall, as we may request from time to time, promptly
furnish, or cause to be furnished to us or our designee, at least one complete
copy of each registration statement, prospectus, statement of additional
information, private placement memorandum, retirement plan disclosure
information or other disclosure documents or similar information, as applicable
(collectively "Disclosure Documents"), as well as any report, solicitation for
voting instructions, Sales Literature/Promotional Material created and approved
by you, and all amendments to any of the above that relate to the Contracts, the
Accounts, the Trust, or Underwriter or its affiliates.
6.3 You and your agents shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust,
the Underwriter or an Adviser, other than information or representations
contained in and accurately derived from the registration statement or
prospectus for the Trust shares (as such registration statement and prospectus
may be amended or supplemented from time to time), annual and semi-annual
reports of the Trust, Trust-sponsored proxy statements, or in Sales
Literature/Promotional Material created by us for the Trust and provided by the
Trust or its designee to you, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
6.4 You agree, represent and warrant that you are solely responsible for
any Sales Literature/ Promotional Material prepared by you and that such
material will: (a) conform to all requirements of any applicable laws or
regulations of any government or authorized agency having jurisdiction over the
offering or sale of shares of the Portfolios or Contracts; (b) be solely based
upon and not contrary to or inconsistent with the information or materials
provided to you by us or a Portfolio; and (c) be made available promptly to us
upon our
3
request. You agree to file any Sales Literature/Promotional Material prepared by
you with FINRA, or other applicable legal or regulatory authority, within the
timeframes that may be required from time to time by FINRA or such other legal
or regulatory authority. Unless otherwise expressly agreed to in writing, it is
understood that we will neither review nor approve for use any materials
prepared by you and will not be materially involved in the preparation of, or
have any responsibility for, any such materials prepared by you. You are not
authorized to modify or translate any materials we have provided to you.
6.5 You shall promptly notify us of any written customer complaint or
notice of any regulatory investigation or proceeding received by you relating to
any Disclosure Documents or Sales Literature/Promotional Material.
6.6 We shall not give any information or make any representations or
statements on behalf of you or concerning you, the Accounts or the Contracts
other than information or representations, including naming you as a Trust
shareholder, contained in and accurately derived from Disclosure Documents for
the Contracts (as such Disclosure Documents may be amended or supplemented from
time to time), or in materials approved by you for distribution, including Sales
Literature/ Promotional Material, except as required by legal process or
regulatory authorities or with your written permission.
6.7 Except as provided in Section 6.2, you shall not use any designation
comprised in whole or part of the names or marks "Franklin" or "Xxxxxxxxx" or
any logo or other trademark relating to the Trust or the Underwriter without
prior written consent, and upon termination of this Agreement for any reason,
you shall cease all use of any such name or xxxx as soon as reasonably
practicable.
6.8 You shall furnish to us ten (10) Business Days prior to its first
submission to the SEC or its staff, any request or filing for no-action
assurance or exemptive relief naming, pertaining to, or affecting, the Trust,
the Underwriter or any of the Portfolios.
6.9 You agree that any posting of Designated Portfolio Documents on your
website or use of Designated Portfolio Documents in any other electronic format
will result in the Designated Portfolio Documents: (i) appearing identical to
the hard copy printed version or .pdf format file provided to you by us (except
that you may reformat .pdf format prospectus files in order to delete blank
pages and to insert .pdf format prospectus supplement files provided by us to
you); (ii) being clearly associated with the particular Contracts in which they
are available and posted in close proximity to the applicable Contract
prospectuses; (iii) having no less prominence than prospectuses of any other
underlying funds available under the Contracts; (iv) in compliance with any
statutory prospectus delivery requirements and (v) being used in an authorized
manner. Notwithstanding the above, you understand and agree that you are
responsible for ensuring that participation in the Portfolios, and any website
posting, or other use, of the Designated Portfolio Documents is in compliance
with this Agreement and applicable state and federal securities and insurance
laws and regulations, including as they relate to paper or electronic delivery
or use of fund prospectuses. We reserve the right to inspect and review your
website if any Designated Portfolio Documents and/or other Trust documents are
posted on your website and you shall, upon our reasonable
4
request, provide us timely access to your website materials to perform such
inspection and review.
In addition, you agree to be solely responsible for maintaining and
updating the Designated Portfolio Documents' .pdf files and removing and/or
replacing promptly any outdated prospectuses and other documents, as necessary,
ensuring that any accompanying instructions by us, for using or stopping use,
are followed. You agree to designate and make available to us a person to act as
a single point of communication contact for these purposes. We are not
responsible for any additional costs or additional liabilities that may be
incurred as a result of your election to place the Designated Portfolio
Documents on your website. We reserve the right to revoke this authorization, at
any time and for any reason, although we may instead make our authorization
subject to new procedures.
5
AMENDMENT TO PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
Commonwealth Annuity and Life Insurance Company
Epoch Securities, Inc.
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust"),
Franklin/Xxxxxxxxx Distributors, Inc. (the "Underwriter," and together with the
Trust, "we" or "us"), Commonwealth Annuity and Life Insurance Company (the
"Company" or "you"), and Epoch Securities, Inc., your distributor, on your
behalf and on behalf of certain Accounts, have previously entered into a
Participation Agreement dated September 25, 2006, as amended (the "Agreement").
The parties now desire to amend the Agreement by this amendment (the
"Amendment"). Unless otherwise indicated, the terms defined in the Agreement
shall have the same meaning in this Amendment.
AMENDMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Paragraphs of 6.1 through 6.7 of Section 6 are amended and restated in
their entirety as set forth in Attachment A to this Amendment. The
remaining paragraphs of Section 6 not amended herein shall be re-numbered.
2. All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized
officers to execute this Amendment effective as of August 16, 2010.
The Trust: FRANKLIN XXXXXXXXX VARIABLE INSURANCE
ONLY ON BEHALF OF PRODUCTS TRUST
EACH PORTFOLIO LISTED
ON SCHEDULE C OF
THE AGREEMENT.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The Underwriter: FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
The Company: COMMONWEALTH ANNUITY AND LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
The Distributor: EPOCH SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
2
ATTACHMENT A
6. SALES MATERIAL, INFORMATION AND TRADEMARKS
6.1 For purposes of this Section 6, "Sales Literature/ Promotional
Material" includes, but is not limited to, portions of the following that use
any logo or other trademark related to the Trust, or Underwriter or its
affiliates, or refer to the Trust: advertisements (such as material published or
designed for use in a newspaper, magazine or other periodical, radio,
television, telephone or tape recording, videotape display, signs or billboards,
motion pictures, web-sites and other electronic communications or other public
media), sales literature (I.E., any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, reprints or
excerpts or any other advertisement, sales literature or published article or
electronic communication), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees in any media, and disclosure documents, shareholder reports and proxy
materials.
6.2 You may use the name of the Trust and trademarks and the logo of the
Underwriter in Sales Literature/Promotional Material as reasonably necessary to
carry out your performance and obligations under this Agreement provided that
you comply with the provisions of this Agreement. You agree to abide by any
reasonable use guidelines regarding use of such trademarks and logos that we may
give from time to time. You shall, as we may request from time to time, promptly
furnish, or cause to be furnished to us or our designee, at least one complete
copy of each registration statement, prospectus, statement of additional
information, private placement memorandum, retirement plan disclosure
information or other disclosure documents or similar information, as applicable
(collectively "Disclosure Documents"), as well as any report, solicitation for
voting instructions, Sales Literature/Promotional Material created and approved
by you, and all amendments to any of the above that relate to the Contracts, the
Accounts, the Trust, or Underwriter or its affiliates.
6.3 You and your agents shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust,
the Underwriter or an Adviser, other than information or representations
contained in and accurately derived from the registration statement or
prospectus for the Trust shares (as such registration statement and prospectus
may be amended or supplemented from time to time), annual and semi-annual
reports of the Trust, Trust-sponsored proxy statements, or in Sales
Literature/Promotional Material created by us for the Trust and provided by the
Trust or its designee to you, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
6.4 You agree, represent and warrant that you are solely responsible for
any Sales Literature/ Promotional Material prepared by you and that such
material will: (a) conform to all requirements of any applicable laws or
regulations of any government or authorized agency having jurisdiction over the
offering or sale of shares of the Portfolios or Contracts; (b) be solely based
upon and not contrary to or inconsistent with the information or materials
provided to you by us or a Portfolio; and (c) be made available promptly to us
upon our
3
request. You agree to file any Sales Literature/Promotional Material prepared by
you with FINRA, or other applicable legal or regulatory authority, within the
timeframes that may be required from time to time by FINRA or such other legal
or regulatory authority. Unless otherwise expressly agreed to in writing, it is
understood that we will neither review nor approve for use any materials
prepared by you and will not be materially involved in the preparation of, or
have any responsibility for, any such materials prepared by you. You are not
authorized to modify or translate any materials we have provided to you.
6.5 You shall promptly notify us of any written customer complaint or
notice of any regulatory investigation or proceeding received by you relating to
any Disclosure Documents or Sales Literature/Promotional Material.
6.6 We shall not give any information or make any representations or
statements on behalf of you or concerning you, the Accounts or the Contracts
other than information or representations, including naming you as a Trust
shareholder, contained in and accurately derived from Disclosure Documents for
the Contracts (as such Disclosure Documents may be amended or supplemented from
time to time), or in materials approved by you for distribution, including Sales
Literature/ Promotional Material, except as required by legal process or
regulatory authorities or with your written permission.
6.7 Except as provided in Section 6.2, you shall not use any designation
comprised in whole or part of the names or marks "Franklin" or "Xxxxxxxxx" or
any logo or other trademark relating to the Trust or the Underwriter without
prior written consent, and upon termination of this Agreement for any reason,
you shall cease all use of any such name or xxxx as soon as reasonably
practicable.
6.8 You shall furnish to us ten (10) Business Days prior to its first
submission to the SEC or its staff, any request or filing for no-action
assurance or exemptive relief naming, pertaining to, or affecting, the Trust,
the Underwriter or any of the Portfolios.
6.9 You agree that any posting of Designated Portfolio Documents on your
website or use of Designated Portfolio Documents in any other electronic format
will result in the Designated Portfolio Documents: (i) appearing identical to
the hard copy printed version or .pdf format file provided to you by us (except
that you may reformat .pdf format prospectus files in order to delete blank
pages and to insert .pdf format prospectus supplement files provided by us to
you); (ii) being clearly associated with the particular Contracts in which they
are available and posted in close proximity to the applicable Contract
prospectuses; (iii) having no less prominence than prospectuses of any other
underlying funds available under the Contracts; (iv) in compliance with any
statutory prospectus delivery requirements and (v) being used in an authorized
manner. Notwithstanding the above, you understand and agree that you are
responsible for ensuring that participation in the Portfolios, and any website
posting, or other use, of the Designated Portfolio Documents is in compliance
with this Agreement and applicable state and federal securities and insurance
laws and regulations, including as they relate to paper or electronic delivery
or use of fund prospectuses. We reserve the right to inspect and review your
website if any Designated Portfolio Documents and/or other Trust documents are
posted on your website and you shall, upon our reasonable
4
request, provide us timely access to your website materials to perform such
inspection and review.
In addition, you agree to be solely responsible for maintaining and
updating the Designated Portfolio Documents' .pdf files and removing and/or
replacing promptly any outdated prospectuses and other documents, as necessary,
ensuring that any accompanying instructions by us, for using or stopping use,
are followed. You agree to designate and make available to us a person to act as
a single point of communication contact for these purposes. We are not
responsible for any additional costs or additional liabilities that may be
incurred as a result of your election to place the Designated Portfolio
Documents on your website. We reserve the right to revoke this authorization, at
any time and for any reason, although we may instead make our authorization
subject to new procedures.
5
