PARTICIPATION AGREEMENT
AMONG
FIRST SECURITY BENEFIT LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
AND
AMERICAN CENTURY INVESTMENT SERVICES, INC.
THIS AGREEMENT, dated as of the 1st day of May, 2003, by and among First
Security Benefit Life Insurance and Annuity Company of New York, (the
"Company"), a stock life insurance company organized under the laws of the State
of New York, on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A hereto, as may be amended from time to time
(each an ("Account") and American Century Investment Services, Inc. (the
"Distributor"), a Missouri corporation.
WHEREAS, American Century Variable Portfolios, Inc. (the "Issuer") is
registered as an open-end management investment company under the Investment
Company Act of 1940 (the "1940 Act") and offer series of shares representing an
interest in a particular managed portfolio of securities (the "Funds"), which
are registered under the Securities Act of 1933, as amended (the "1933 Act");
and
WHEREAS, Distributor serves as principal underwriter of each of the Funds and
is duly registered as a broker/dealer with SEC; and
WHEREAS, American Century Investment Management, Inc., which serves as
investment advisor to the Fund, is duly registered as an investment advisor
under the Investment Advisers Act of 1940, as amended; and
WHEREAS, the Company has issued or will issue certain variable annuity
contracts supported wholly or partially by the Account (the "Contracts"), and
said Contracts are listed in Schedule A hereto, as it may be amended from time
to time by mutual written agreement; and
WHEREAS, the Account is duly established and maintained as a segregated asset
account, duly established by the Company, on the date shown for such Account on
Schedule A hereto, to set aside and invest assets attributable to the aforesaid
Contracts; and
WHEREAS, the Company intends to purchase Class II shares of the Funds listed
in Schedule A hereto, as it may be amended from time to time by mutual written
agreement (the "Designated Funds"), on behalf of the Account to fund the
aforesaid Contracts; and
WHEREAS, the Distributor desires to retain the Company to perform certain
services and the Company is willing and able to furnish such services.
NOW, THEREFORE, in consideration of their mutual promises, the Company, and
Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. Subject to Article IX hereof, the Distributor agrees to cause the Issuer
to make available to the Company for purchase on behalf of the Account, shares
of the Designated Funds, such purchases to be effected at net asset value in
accordance with Section 1.3 of this Agreement. Notwithstanding the foregoing,
(i) the Funds (other than those listed on Schedule A) in existence now or that
may be established in the future will be made available to the Company only as
the Issuer may so provide, and (ii) the Board of Directors of the Funds (the
"Board") may suspend or terminate the offering of shares of any Designated Fund
or class thereof, if such action is required by law or by regulatory authorities
having jurisdiction or if, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, suspension or termination is necessary and in the best interests of
the shareholders of such Designated Fund.
1.2. The Distributor shall cause the Funds to redeem, at the Company's
request, any full or fractional Designated Fund shares held by the Company on
behalf of the Account, such redemptions to be effected at net asset value in
accordance with Section 1.3 of this Agreement. Notwithstanding the foregoing,
any Fund may delay redemption of Fund shares of any Designated Fund to the
extent permitted by the 1940 Act, and any rules, regulations or orders
thereunder.
1.3. Purchase and Redemption Procedures
(a) The Distributor hereby appoints the Company as an agent of the Funds
for the limited purpose of receiving and accepting purchase and redemption
requests on behalf of the Account (but not with respect to any Fund shares that
may be held in the general account of the Company) for shares of those
Designated Funds made available hereunder, based on allocations of amounts to
the Account or subaccounts thereof under the Contracts and other transactions
relating to the Contracts or the Account. Receipt and acceptance of any such
request (or relevant transactional information therefor) on any day the New York
Stock Exchange is open for trading and on which a Designated Fund calculates its
net asset value (a "Business Day") pursuant to the rules of the Securities and
Exchange Commission ("SEC"), by the Company as such limited agent of the Fund
prior to the time that the Fund ordinarily calculates its net asset value as
described from time to time in the Fund's prospectus shall constitute receipt
and acceptance by the Designated Fund on that same Business Day, provided that
the Fund receives notice of such request by 9:30 a.m. Eastern Time on the next
following Business Day.
(b) The Company shall pay for shares of each Designated Fund on the same
Business Day that it notifies the Fund of a purchase request for such shares.
Payment for Designated Fund shares shall be made in federal funds transmitted to
the Fund or other designated person by wire to be received by 3:00 p.m. Eastern
Time on the Business Day the Fund is notified of the purchase request for
Designated Fund shares (unless the Fund determines and so advises the Company
that sufficient proceeds are available from redemption of shares of other
Designated Funds effected pursuant to redemption requests tendered by the
Company on behalf of the Account, or unless the Fund otherwise determines and so
advises the Company to delay the date of payment, to the extent the Fund may do
so under the 1940 Act). If federal funds are not received on time, such funds
will be invested, and Designated Fund shares purchased thereby will be issued,
as soon as practicable and the Company shall promptly, upon the Fund's request,
reimburse the Fund for any charges, costs, fees, interest or other expenses
incurred by the Fund in connection with any advances to, or borrowing or
overdrafts by, the Fund, or any similar expenses incurred by the Fund, as a
result of Fund transactions effected by the Fund based upon such purchase
request. Upon receipt of federal funds so wired, such funds shall cease to be
the responsibility of the Company and shall become the responsibility of the
Fund.
(c) Payment for Designated Fund shares redeemed by the Account or the
Company shall be made by the Fund in federal funds transmitted by wire to the
Company or any other designated person. The Funds shall use reasonable efforts
to wire such funds by 3 p.m. Eastern Time on the same Business Day the Fund is
properly notified of the redemption order of such shares (unless redemption
proceeds are to be applied to the purchase of shares of other Designated Funds
in accordance with Section 1.3(b) of this Agreement), except that the Fund
reserves the right to delay payment of redemption proceeds to the extent
permitted under Section 22(e) of the 1940 Act and any rules thereunder, and in
accordance with the procedures and policies of the Fund as described in the
then-current prospectus.
(d) Any purchase or redemption request for Designated Fund 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 Fund's receipt and acceptance of
such request, provided that, in the case of a purchase request, payment for Fund
shares so requested is received by the Fund in federal funds prior to close of
business for determination of such value, as defined from time to time in the
Fund's prospectus.
(e) If transactions in Fund shares are to be settled through the
National Securities Clearing Corporation's Mutual Fund Settlement, Entry, and
Registration Verification (Fund/SERV) system, the terms of the Fund/SERV and
Networking Agreement between the Company and American Century Services
Corporation, an affiliate of Distributor, will apply and supersede the
provisions set forth in this Section 1.3.
1.4. The Fund shall use reasonable efforts to make the net asset value per
share for each Designated Fund available to the Company by 6:30 p.m. Eastern
Time each Business Day, and in any event, as soon as reasonably practicable
after the net asset value per share for such Designated Fund is calculated, and
shall calculate such net asset value in accordance with the Fund's prospectus.
If any Fund provides the Company with materially incorrect share net asset value
information, the Company on behalf of the Account, shall be entitled to an
adjustment to the number of shares purchased or redeemed to reflect the correct
share net asset value. Any material error in the calculation of the net asset
value per share, dividend or capital gain information shall be reported promptly
to the Company upon discovery. In the event that any such material error is the
result of the gross negligence of the Fund, or its designated agent for
calculating the net asset value, any administrative or other costs or losses
incurred for correcting underlying Contract owner accounts shall be at the
Distributor's expense. Whether such an error is material shall be determined by
the Fund in accordance with the policy adopted by each fund's Board of
Directors.
1.5. The Fund shall use reasonable efforts to furnish notice (by wire or
telephone followed by written confirmation) to the Company of any income
dividends or capital gain distributions payable on any Designated Fund shares by
the record date, but in no event later than 6:30 p.m. Eastern Time on the
ex-dividend date. 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 Designated Fund shares in the form of additional shares of that Designated
Fund. 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. The Fund shall notify the Company promptly of the
number of Designated Fund shares so issued as payment of such dividends and
distributions.
1.6. Issuance and transfer of Fund shares shall be by book entry only. Share
certificates will not be issued to the Company or the Account. Purchase and
redemption orders for Fund shares shall be recorded in an appropriate ledger for
the Account or the appropriate subaccount of the Account.
1.7. (a) The parties hereto acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the Fund's shares may be sold to other parties,
including insurance companies and the cash value of the Contracts may be
invested in other investment companies.
(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.
(c) The Company shall not, without prior notice to the Distributor
(unless otherwise required by applicable law), induce Contract owners to change
or modify a Fund or change a Fund's investment advisor.
(d) The Company shall not, without prior notice to a Fund, induce
Contract owners to vote on any matter submitted for consideration by the
shareholders of such Fund in a manner other than as recommended by the Board.
1.8 (a) The Company covenants and agrees that all orders accepted and
transmitted by it hereunder will be based upon instructions that it received
from the Account owners, in proper form prior to the Close of Trading of the
Exchange on that Business Day. The Company shall time stamp all orders or
otherwise maintain records that will enable the Company to demonstrate
compliance with this provision.
(b) The Company covenants and agrees that all orders transmitted to the
Issuers, whether by telephone, telecopy, or other electronic transmission
acceptable to Distributor, shall be sent by or under the authority and direction
of a person designated by the Company as being duly authorized to act on behalf
of the owner of the Accounts, and is "an appropriate person" as used in Sections
8-107 and 8-401 of the Uniform Commercial Code. For purposes of this paragraph,
persons "duly authorized to act on behalf of the owner of the Accounts" shall
mean those persons set forth in Schedule B to this Agreement as it may be
amended from time to time.
ARTICLE II. Administrative Services. The Company shall be the sole shareholder
of Fund shares purchased for the Account pursuant to this Agreement (the "Record
Owner"). The Record Owner shall properly complete any applications or other
forms required by Distributor or the Issuers from time to time. The Company
agrees to provide all administrative services for the investors in the Account,
including but not limited to those services specified in Schedule C (the
"Administrative Services"). Neither Distributor nor the Issuer shall be required
to provide Administrative Services for the benefit of investors in the Account.
The Company agrees that it will maintain and preserve all records as required by
law to be maintained and preserved in connection with providing the
Administrative Services, and will otherwise comply in all material respects with
all laws, rules and regulations applicable to the provision of the
Administrative Services. Upon request, the Company will provide Distributor or
its representatives reasonable information regarding the quality of the
Administrative Services being provided and its compliance with the terms of this
Agreement.
ARTICLE III. Representations and Warranties
3.1. The Company represents and warrants that the Contracts (a) are, or prior
to issuance will be, registered under the 1933 Act, or (b) are not registered
because they are properly exempt from registration under the 1933 Act or will be
offered exclusively in transactions that are properly exempt from registration
under the 1933 Act. The Company further represents and warrants that the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal securities and state securities and insurance laws. The
Company further represents and warrants that it is an insurance company duly
organized and in good standing under applicable law, that it has legally and
validly established the Account as a segregated asset account under New York
insurance laws, and that it (a) has registered or, prior to any issuance or sale
of the Contracts, will register the Account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts, or alternatively (b) has not registered
the Account in proper reliance upon an exclusion from registration under the
0000 Xxx.
3.2. The Company represents and warrants that the Contracts are currently and
at the time of issuance will be treated as life insurance or annuity contracts
under applicable provisions of the Code and that it will maintain such treatment
and that it will notify the Fund 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.
3.3. The Distributor represents and warrants that Designated Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act, shall be duly
authorized for issuance and sold in compliance with applicable state and federal
securities laws and that each is and shall remain registered under the 1940 Act.
The Distributor shall cause the Funds to amend the registration statements for
their shares under the 1933 Act and the 1940 Act from time to time as required
in order to effect the continuous offering of its shares and shall cause the
Funds to register and qualify the shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Funds.
3.4. The Distributor represents that the Issuer is lawfully organized and
validly existing under the laws of the state in which it is registered and that
they do and will comply in all material respects with the 1940 Act.
3.5. The Company represents and warrants that (a) this Agreement has been
duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; and (b) the activities of the
Company contemplated by this Agreement comply in all material respects with all
provisions of federal and state securities laws applicable to such activities.
3.6. The Distributor represents and warrants that (a) this Agreement has been
duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Distributor, enforceable in accordance with its terms; and (b) the activities of
the Distributor and the Funds contemplated by this Agreement comply in all
material respects with all provisions of federal and state securities laws
applicable to such activities.
3.7. The Distributor represents and warrants that all of their
trustees/directors, officers, employees, and other individuals or entities
dealing with the money and/or securities of the Funds are and shall continue to
be at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Funds in an amount not less than the minimum coverage as required
currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company.
3.8. The Company represents and warrants that all of its directors, officers,
employees, and other individuals/entities employed or controlled by the Company
dealing with the money and/or securities of the Account are covered by a blanket
fidelity bond or similar coverage for the benefit of the Account, in an amount
not less than $5 million. The aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company.
3.9. The Distributor represents and warrants that it is duly registered as a
broker/dealer with the SEC and is a member in good standing of the NASD.
ARTICLE IV. Prospectuses and Proxy Statements; Voting
4.1. The Distributor shall provide the Company with as many printed copies of
the current prospectus, current Statement of Additional Information ("SAI"),
supplements, proxy statements, and annual or semi-annual reports of each
Designated Fund (for distribution to Contract owners with value allocated to
such Designated Funds) as the Company may reasonably request to deliver to
existing Contract owners. If requested by the Company in lieu thereof, the
Distributor shall provide such documents (including a "camera-ready" copy of
such documents as set in type, a diskette in the form sent to the financial
printer, or an electronic copy of the documents in a format suitable for posting
on the Company's web-site, all as the Company may reasonably request) and such
other assistance as is reasonably necessary in order for the Company to have
prospectuses, SAIs, supplements and annual or semi-annual reports for the
Contracts and the Fund printed together in a single document or posted on the
Company's web-site or printed individually by the Company if it so chooses. The
expenses associated with printing and providing such documentation shall be as
set forth in Article V.
4.2. Each Fund's prospectus shall state that the current SAI for the Fund is
available.
4.3. The Distributor shall provide the Company with information regarding
each Fund's expenses, which information may include a table of fees and related
narrative disclosure for use in any prospectus or other descriptive document
relating to a Contract. The Company agrees that it will use such information
substantially in the form provided. The Company shall provide prior written
notice of any proposed modification of such information, which notice will
describe the manner in which the Company proposes to modify the information, and
agrees that it may not modify such information in any way without the prior
consent of the Fund, which consent shall not be unreasonably withheld.
4.4. The Distributor will pay or cause to be paid the expenses associated
with text composition, printing, mailing, distributing, and tabulation of proxy
statements and voting instruction solicitation materials to Contract owners with
respect to proxies related to the Fund, consistent with applicable provisions of
the 1940 Act.
4.5. So long as, and to the extent the SEC continues to interpret the 1940
Act to require pass-through voting privileges for variable contract owners, or
to the extent otherwise required by law, the Company shall provide a list of
Contract owners with value allocated to a Designated Fund as of the record date
to the Fund or its agent in order to facilitate the Fund's solicitation of
voting instructions from Contract owners. The Company shall also provide such
other information to the Fund as is reasonably necessary in order for the Fund
to properly tabulate votes for Fund initiated proxies. The Company reserves the
right to vote Fund shares held in its general account in its own right, to the
extent permitted by applicable laws.
4.6. The Company represents and warrants that in the event it chooses to post
any Fund's prospectus, periodic report or other information on its web-site, it
will promptly update such information and will not post outdated prospectuses,
reports or information at any time. If a prospectus is supplemented at any time,
the Company will promptly post such supplement with the prospectus.
ARTICLE V. Sales Material and Information
5.1 The Company shall furnish, or shall cause to be furnished, to the
Distributor or its designee, each piece of sales literature or other promotional
material that the Company develops and in which the Issuer (or a Designated Fund
thereof) or the Distributor is named. No such material shall be used until
approved by the Distributor or its designee, and the Distributor will use its
best efforts for it or its designee to review such sales literature or
promotional material within ten (10) Business Days after receipt of such
material. The Distributor or its designee reserves the right to reasonably
object to the continued use of any such sales literature or other promotional
material in which the Issuer (or a Designated Fund thereof) or the Distributor
is named, and no such material shall be used if the Distributor or its designee
so objects.
5.2 The Company shall not give any information or make any representations or
statements on behalf of a Fund or concerning a Fund or the Distributor in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus or SAI for
the Fund shares, as such registration statement and prospectus or SAI may be
amended or supplemented from time to time, or in reports or proxy statements for
the Fund, or in sales literature or other promotional material approved by the
Distributor or its designee, except with the permission of the Distributor or
its designee.
5.3 The Distributor or its designee, shall furnish, or cause to be furnished,
to the Company, each piece of sales literature or other promotional material
that it develops and in which the Company, and/or the Account, is named. No such
material shall be used until approved by the Company, and the Company will use
its best efforts to review such sales literature or promotional material within
ten (10) Business Days after receipt of such material. The Company reserves the
right to reasonably object to the continued use of any such sales literature or
other promotional material in which the Company and/or its Account is named, and
no such material shall be used if the Company so objects.
5.4 The Distributor 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 a
registration statement, prospectus (which shall include an offering memorandum,
if any, if the Contracts issued by the Company or interests therein are not
registered under the 1933 Act), or SAI for the Contracts, as such registration
statement, prospectus, or SAI may be amended or supplemented from time to time,
or in published reports for the Account which are in the public domain or
approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
5.5 The Distributor will provide to the Company at least one complete copy of
all registration statements, prospectuses, SAIs, reports, proxy statements,
sales literature and other promotional materials, and all amendments to any of
the above, that relate to the Designated Funds or their shares, promptly after
the effectiveness of such document(s) filed with the SEC or other regulatory
authorities.
5.6 The Company will provide to the Distributor at least one complete copy of
all registration statements, prospectuses (which shall include an offering
memorandum, if any, if the Contracts issued by the Company or interests therein
are not registered under the 1933 Act), SAIs, reports, solicitations for voting
instructions, sales literature and other promotional materials, and all
amendments to any of the above, that relate to the Contracts or the Account,
promptly after the filing of such document(s) with the SEC or other regulatory
authorities. The Company shall provide to the Distributor any complaints
received from the Contract owners pertaining to the Fund or a Designated Fund.
5.7 The Distributor will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Designated Fund, and of
any material change in the Fund's registration statement, particularly any
change resulting in a change to the registration statement or prospectus for any
Account. The Distributor will work with the Company so as to enable the Company
to solicit proxies from Contract owners, or to make changes to its prospectus or
registration statement, in an orderly manner. The Distributor will make
reasonable efforts to attempt to have changes affecting Contract prospectuses
become effective simultaneously with the annual updates for such prospectuses.
ARTICLE VI. Fees and Expenses
6.1. All expenses incident to performance by the Funds under this Agreement
shall be paid by the Funds. The Distributor shall see to it that all Fund shares
are registered and authorized for issuance in accordance with applicable federal
law and, if and to the extent deemed advisable by the such Fund, in accordance
with applicable state laws prior to their sale. The Funds shall bear the
expenses for the cost of registration and qualification of the Funds' shares,
preparation and filing of the Funds' prospectuses and registration statements,
proxy materials and reports, setting the prospectuses in type, setting in type
and printing the proxy materials and reports to shareholders (including the
costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices required by any federal or state law,
and all taxes on the issuance or transfer of the each Fund's shares. The Fund
shall bear the expenses of distributing the Fund's proxy materials and reports
to existing Contract owners.
6.2. The Company shall bear the expense of distributing all prospectuses and
reports to shareholders (whether for existing Contract owners or prospective
Contract owners). The Company shall bear the expense of printing copies of the
prospectus for the Contracts for use with prospective Contract owners. The
Company shall bear the expenses incident to (including the costs of printing)
sales literature and other promotional material that the Company develops and in
which the Issuer (or a Designated Fund thereof) is named.
6.3. Distributor acknowledges that it will derive a substantial savings in
administrative expenses, such as reduction in expenses related to postage,
shareholder communications and recordkeeping, by virtue of having a single
shareholder account per Fund for the Accounts rather than having each
Participant as a shareholder. In consideration of performance of the
Administrative Services by the Company, Distributor will pay the Company a fee
(the "Administrative Services Fee") of 25 basis points (0.25%) of the average
aggregate amount of Class II shares of the Funds held in the Account under this
Agreement. Distributor will calculate the amount of the payment to be made
pursuant to this Section 6.3 at the end of each calendar quarter and will make
such payment to the Company within 30 days thereafter. The parties acknowledge
that the payments received by the Company under this Section 6.3 are for
administrative and shareholder services only and do not constitute payment in
any manner for investment advisory services or for costs of distribution.
6.4. In consideration of performance of the Distribution Services specified
on Schedule D which the Company shall cause its affiliated broker/dealer
(Security Distributors, Inc. ("SDI")) and underwriter of the Contracts to
perform, Distributor will pay SDI a fee (the "Distribution Fee") of 25 basis
points (0.25%) of the average aggregate amount invested by the Company in Class
II shares of the Funds under this Agreement. Distributor will calculate the
amount of the payment to be made pursuant to this Section 6.4 at the end of each
calendar quarter and will make such payment to SDI within 30 days thereafter.
Although SDI is not a party to this Agreement, the Distributor agrees that SDI
is a third-party beneficiary of this Section 6.4.
6.5. For the purposes of computing the payment to the Company and SDI as
contemplated by this Article 6, the average aggregate amount invested by the
Account in the Funds over a one month period shall be computed by totaling the
Account's aggregate investment (share net asset value multiplied by total number
of shares of the Funds held by the Account) on each Business Day during the
month and dividing by the total number of Business Days during such month.
6.6. Distributor will calculate the amount of the payment to be made pursuant
to this Article 6, at the end of each calendar quarter and will make such
payment to the Company or SDI as applicable, within 30 days thereafter. The
check for such payment will be accompanied by a statement showing the
calculation of the amounts being paid by Distributor for the relevant months and
such other supporting data as may be reasonably requested by the Company and
shall be mailed as follows:
For payments under 6.3, to:
First Security Benefit Life Insurance
and Annuity Company of New York
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One Security Benefit Place
-------------------------------------
Xxxxxx, XX 00000
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Attention: Xxxxx Xxxxxxxxxx - Finance
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Phone No.: (000) 000-0000
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Fax No.: (000) 000-0000
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For payments under Section 6.4, to:
Security Distributors, Inc.
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One Security Benefit Place
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Xxxxxx, XX 00000
-------------------------------------
Attention: Xxxxx Xxxxxxxxxx - Finance
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Phone No.: (000) 000-0000
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Fax No.: (000) 000-0000
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ARTICLE VII. Qualification
7.1 The Distributor represents and warrants that the Funds are qualified as
regulated investment companies under Subchapter M of the Internal Revenue Code
of 1986, as amended (the "Internal Revenue Code,") and that they will maintain
such qualification (under Subchapter M or any successor or similar provisions)
and that they will notify the Company immediately upon having a reasonable basis
for believing that they have ceased to so qualify or that they might not so
qualify in the future.
7.2 The Distributor represents and warrants that each of the Funds will
comply and will maintain each Fund's compliance with the diversification
requirements set forth in Section 817(h) of the Internal Revenue Code (or any
successor or similar provisions and Section 1.817-5(b) of the regulations under
the Code (or any successor or similar provisions). The Distributor will notify
the Company immediately upon having a reasonable basis for believing that a Fund
has ceased to so comply or that a Fund might not comply in the future. In the
event of a breach of this Section 7.2, the Distributor will take all reasonable
steps to adequately diversify the affected Fund so as to achieve compliance
within the grace period afforded by Section 1.817-5 of the regulations under the
Internal Revenue Code.
ARTICLE VIII. Potential Conflicts.
8.1 The Company has received a copy of an application for exemptive relief,
as amended, filed by the Issuer on December 21, 1987, with the SEC and the order
issued by the SEC in response thereto (the "Shared Funding Exemptive Order").
The Company has reviewed the conditions to the requested relief set forth in
such application for exemptive relief. As set forth in such application, the
Board of Directors of the Issuer (the "Board") will monitor the Issuer for the
existence of any material irreconcilable conflict between the interests of the
contract owners of all separate accounts ("Participating Companies") investing
in funds of the Issuer. An irreconcilable material conflict may arise for a
variety of reasons, including: (i) an action by any state insurance regulatory
authority; (ii) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar actions by insurance, tax or
securities regulatory authorities; (iii) an administrative or judicial decision
in any relevant proceeding; (iv) the manner in which the investments of any
portfolio are being managed; (v) a difference in voting instructions given by
variable annuity contract owners and variable life insurance contract owners; or
(vi) a decision by an insurer to disregard the voting instructions of contract
owners. The Board shall promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications thereof.
8.2 The Company will report any potential or existing conflicts of which it
is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order by providing the Board
with all information reasonably necessary for the Board to consider any issues
raised. This includes, but is not limited to, an obligation by the Company to
inform the Board whenever contract owner voting instructions are disregarded.
8.3 If a majority of the Board, or a majority of its disinterested Board
members, determines that a material irreconcilable conflict exists with regard
to contract owner investments in a Fund, the Board shall give prompt notice to
all Participating Companies. If the Board determines that the Company is
responsible for causing or creating said conflict, the Company shall at its sole
cost and expense, and to the extent reasonably practicable (as determined by a
majority of the disinterested Board members), take such action as is necessary
to remedy or eliminate the irreconcilable material conflict. Such necessary
action may include but shall not be limited to:
(a) withdrawing the assets allocable to the Accounts from the Fund and
reinvesting such assets in a different investment medium or submitting the
question of whether such segregation should be implemented to a vote of all
affected contract owners and as appropriate, segregating the assets of any
appropriate group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Companies) that
votes in favor of such segregation, or offering to the affected contract owners
the option of making such a change; and/or
(b) establishing a new registered management investment company or
managed separate account.
8.4 If a material irreconcilable conflict arises as a result of a decision by
the Company to disregard its contract owner voting instructions and said
decision represents a minority position or would preclude a majority vote by all
of its contract owners having an interest in the Issuer, the Company at its sole
cost, may be required, at the Board's election, to withdraw an Account's
investment in the Issuer and terminate this Agreement; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
8.5 For the purpose of this Article VIII, a majority of the disinterested
Board members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the Issuer
be required to establish a new funding medium for any Contract. The Company
shall not be required by this Article VIII 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.
ARTICLE IX. Indemnification
9.1 Indemnification by the Company
9.1 (a). The Company agrees to indemnify and hold harmless each of the
Funds and the Distributor and each of their trustees/directors and officers, and
each person, if any, who controls the Fund or Distributor within the meaning of
Section 15 of the 1933 Act or who is under common control with the Fund or the
Distributor (collectively, the "Indemnified Parties" for purposes of this
Section 9.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or
litigation (including legal and other expenses), to which the Indemnified
Parties may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement of any
material fact contained in the registration statement, prospectus (which
shall include a written description of a Contract that is not registered
under the 1933 Act), or SAI for the Contracts or contained in the
Contracts or sales literature for the Contracts (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,
provided that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the Fund or the
Distributor specifically for use in the registration statement,
prospectus or SAI for the Contracts or in the Contracts or sales
literature (or any amendment or supplement) or ; or
(ii) arise out of or as a result of statements or
representations by or on behalf of the Company (other than statements or
representations contained in the registration statement, prospectus,
SAI, or sales literature of the Fund not supplied by the Company or
persons under its control) or wrongful conduct of the Company or its
agents or persons under the Company's authorization or control, with
respect to the sale or distribution of the Contracts, or
(iii) arise out of any untrue statement of a material fact
contained in a registration statement, prospectus, SAI, or sales
literature of the Fund or any amendment thereof or supplement thereto or
the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading if
such a statement or omission was made in reliance upon information
furnished to the Fund by or on behalf of the Company specifically for
use therein; or
(iv) arise as a result of any material failure by the Company
to provide the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Company;
as limited by and in accordance with the provisions of Sections 9.1(b) and
9.1(c) hereof.
9.1 (b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of its obligations or duties under this Agreement.
9.1 (c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against an Indemnified Party, the Company shall be entitled to participate, at
its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
the party named in the action. After notice from the Company to such party of
the Company's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Company will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
9.1 (d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund shares or the Contracts or the operation of the
Fund.
9.2 Indemnification by the Distributor
9.2(a). The Distributor agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 9.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Distributor) or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements:
(vi) arise out of or are based upon any untrue statement of any
material fact contained in the registration statement or prospectus or
SAI or sales literature of the Fund (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, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if
such statement or omission was made in reliance upon and in conformity
with information furnished to the Distributor or a Fund by or on behalf
of the Company for use in the registration statement, prospectus or SAI
for the Fund or in sales literature (or any amendment or supplement) or
(vii) arise out of or as a result of statements or
representations by or on behalf of the Fund or the Distributor (other
than statements or representations contained in the registration
statement, prospectus, SAI or sales literature for the Contracts not
supplied by the Fund or the Distributor) or wrongful conduct of the
Distributor or the Fund with respect to the sale or distribution of the
Contracts or Fund shares; or
(viii) arise out of any untrue statement of a material fact
contained in a registration statement, prospectus, SAI or sales
literature covering the Contracts, or any amendment thereof or
supplement thereto, or the omission to state therein a material fact
required to be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission was
made in reliance upon information furnished to the Company by or on
behalf of the Distributor or the Fund specifically for use therein; or
(ix) arise as a result of any failure by the Fund or the
Distributor to provide the services and furnish the materials under the
terms of this Agreement (including a failure of the Fund, whether
unintentional or in good faith or otherwise, to comply with the
diversification and other qualification requirements specified in
Article VII of this Agreement); or
(x) arise out of or result from any material breach of any
representation and/or warranty made by or on behalf of the Distributor
or the Fund in this Agreement or arise out of or result from any other
material breach of this Agreement by or on behalf of the Distributor or
the Fund;
as limited by and in accordance with the provisions of Sections 9.2(b) and
9.2(c) hereof.
9.2 (b). The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance or such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
the Company or the Account, whichever is applicable.
9.2 (c). The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Party, the Distributor will be entitled to participate,
at its own expense, in the defense thereof. The Distributor also shall be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
the party named in the action. After notice from the Distributor to such party
of the Distributor's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Distributor will not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
9.2 (d). The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
9.3 After any party notifies the other parties of an action in which
indemnification under this Article 9 may be required, the parties will review
the action in question to determine (i) if it claims that an untrue statement or
omission of a material fact exists in documents created by Company or in a
Fund's registration statement, and (ii) if so, whether the party who created the
document in question is required to indemnify hereunder. Any such decision shall
not be an admission of liability but rather a determination of what party should
properly bear the costs of defense until the case is finally adjudicated. The
decision of a court with proper jurisdiction over the parties and the matter at
hand shall be determinative of who should bear such costs.
ARTICLE X. Applicable Law
10.1 This Agreement shall be subject to the applicable provisions of the 1933
and 1940 Acts as well as the applicable provisions of the Exchange Act of 1934,
and the rules and regulations and rulings thereunder, including such exemptions
from those statutes, rules and regulations as the SEC may grant, and the terms
hereof shall be interpreted and construed in accordance therewith.
ARTICLE XI. Termination
11.1 This Agreement shall continue in full force and effect until the first
to occur of:
(a) termination by any party, for any reason with respect to some or
all Designated Portfolios, by four (4) months advance written
notice delivered to the other parties; or
(b) termination by the Company by written notice to the other parties
based upon the Company's determination that shares of a Fund are
not reasonably available to meet the requirements of the Contracts;
or
(c) termination by the Company by written notice to the other parties
in the event any of the Designated Fund's shares are not
registered, issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such shares as
the underlying investment media of the Contracts issued or to be
issued by the Company; or
(d) termination by the Distributor in the event that formal
administrative proceedings are instituted against the Company by
the National Association of Securities Dealers, Inc. (the "NASD"),
the SEC, the Insurance Commissioner or like official 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 any Account, or the purchase of the Designated Funds'
shares; provided, however, that the Fund or Distributor determines
in its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon
the ability of the Company to perform its obligations under this
Agreement; or
(e) termination by the Company in the event that formal administrative
proceedings are instituted against a Fund or Distributor by the SEC
or any state securities department or any other regulatory body;
provided, however, that the Company determines in its sole judgment
exercised in good faith, that any such administrative proceedings
will have a material adverse effect upon the ability of the Fund or
Distributor to perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the other parties
in the event that (i) any Designated Fund ceases to qualify as a
regulated investment company under Subchapter M of the Internal
Revenue Code of 1986, or if the Company reasonably believes that
any such Fund may fail to so qualify or comply or (ii) any
Designated Fund fails to meet the diversification requirements
specified in Article VII hereof or if the Company reasonably
believes that any Designated Fund may fail to meet such
diversification requirements; or
(g) termination by the Distributor by written notice to the other
parties, if the Distributor shall determine, in its sole judgment
exercised in good faith, that the Company has suffered a material
adverse change in its business, operations, financial condition, or
prospects since the date of this Agreement or is the subject of
material adverse publicity; or
(h) termination by the Company by written notice to the other parties,
if the Company shall determine, in its sole judgment exercised in
good faith, that a Fund or the Distributor has suffered a material
adverse change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity;
(i) termination by the Company upon any substitution of the shares of
another investment company or series thereof for shares of a
Designated Fund in accordance with the terms of the Contracts,
provided that the Company has given at least 45 days prior written
notice to the Fund and Distributor of the date of substitution; or
(j) termination upon assignment by either party,
(k) termination of Section 6.4 which relates to the Fund's Rule 12b-1
plan by a vote of a majority of independent directors of the Funds.
11.2 Notwithstanding any termination of this Agreement, the Fund and the
Distributor shall, at the option of the Company, continue to make available
additional shares of the Fund pursuant to the terms and conditions of this
Agreement, for all Contracts in effect on the effective date of termination of
this Agreement (hereinafter referred to as "Existing Contracts"), unless the
Company seeks an order pursuant to Section 26(b) of the 1940 Act to permit the
substitution of other securities for the shares of the Designated Funds.
Specifically, the owners of the Existing Contracts may be permitted to
reallocate investments in the Fund, redeem investments in the Fund and/or invest
in the Fund upon the making of additional purchase payments under the Existing
Contracts (subject to any such election by the Company).
11.3 Notwithstanding any termination of this Agreement, each party's
obligation under Article VIII to indemnify the other parties shall survive.
ARTICLE XII. Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Company: First Security Benefit Life Insurance
and Annuity Company of New York
Attention General Counsel
One Security Benefit Place
Topeka, Kansas 66636 - 0001
If to the Funds or the Distributor: American Century Investment Services,
Inc. 0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
ARTICLE XIII. Miscellaneous
13.1 All persons dealing with the Funds must look solely to the property of
the respective Designated Funds listed on Schedule A hereto for the enforcement
of any claims against the Fund. The parties agree that neither the Board,
officers, agents or shareholders of a Fund assume any personal liability or
responsibility for obligations entered into by or on behalf of a Fund.
13.2 Subject to the requirements of legal process and regulatory authority,
the Funds and the Distributor shall treat as confidential the names and
addresses of the owners of the Contracts. Each party shall treat as confidential
all information reasonably identified as confidential in writing by any other
party hereto and, except as permitted by this Agreement, shall not disclose,
disseminate or utilize such information without the express written consent of
the affected party until such time as such information has come into the public
domain.
13.3 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.
13.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.5 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.
13.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the New York Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable insurance
operations of the Company are being conducted in a manner consistent with the
New York insurance laws and regulations and any other applicable law or
regulations.
13.7 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.
13.8 This Agreement or any of the rights and obligations hereunder may not be
assigned by any party.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative.
First Security Benefit Life Insurance
and Annuity Company of New York By its authorized officer
By: XXXXXX XXXX, XX.
------------------------
Title: Vice President
------------------------
American Century Investment Services, Inc. By its authorized officer
By: XXXXXXX X. XXXXX
------------------------
Title: Executive Vice President
------------------------
May 1 , 2003
SCHEDULE A
Account(s) Contract(s) Designated Fund(s)
Variable Annuity Account B FSB234 American Century VP Ultra Fund,
Class II
American Century VP Value Fund,
Class II
SCHEDULE B
Authorized contact persons: The following persons are authorized on behalf of
the Company to effect transactions in each Account:
Name: Xxxxx Xxxxxxxxx Phone: 000-000-0000
Name: Xxxxx Xxxx Phone: 000-000-0000
Name: Xxxx Xxxxx Phone: 000-000-0000
Name: Xxxxx Xxxxxxxxxx Phone: 000-000-0000
SCHEDULE C
Administrative Services
Pursuant to the Agreement to which this is attached, the Company shall
perform all administrative and shareholder services with respect to investors in
the Account, including, but not limited to, the following:
1. Maintain separate records for each investor, which records shall reflect
the shares purchased and redeemed and share balances of such investors. The
Company will maintain a single master account with each Fund on behalf of the
Account and such account shall be in the name of the Company (or its nominee) as
the record owner of shares owned by the Account.
2. Disburse or credit to the investors all proceeds of redemptions of shares
of the Funds and all dividends and other distributions not reinvested in shares
of the Funds.
3. Prepare and transmit to the investors as required by law periodic
statements showing the total number of units owned by the investors as of the
statement closing date, purchases and redemptions of Fund shares by the
investors during the period covered by the statement and the dividends and other
distributions paid during the statement period (whether paid in cash or
reinvested in Fund shares), and such other information as may be required, from
time to time, by the investors.
4. Transmit purchase and redemption orders to the Funds on behalf of the
investors in the Account in accordance with the procedures set forth in the
Agreement.
5. Distribute to the investors copies of the Funds' prospectus, proxy
materials, periodic fund reports to shareholders and other materials that the
Funds are required by law or otherwise to provide to their shareholders or
prospective shareholders.
6. Maintain and preserve all records as required by law to be maintained and
preserved in connection with providing the Administrative Services for the
Account.
SCHEDULE D
Distribution Services
Pursuant to the Agreement to which this is attached, the Company shall cause
SDI to perform distribution services for Class II shares of the Funds,
including, but not limited to, the following:
1. Receive and answer correspondence from prospective shareholders, including
distributing prospectuses, statements of additional information, and
shareholder reports.
2. Provide facilities to answer questions from prospective investors about Fund
shares.
3. Assist investors in completing application forms and selecting dividend and
other account options.
4. Provide other reasonable assistance in connection with the distribution of
Fund shares.
AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT ("Amendment") is made as of
this 10th day of November, 2004, by and between FIRST SECURITY BENEFIT LIFE
INSURANCE AND ANNUITY COMPANY OF NEW YORK (the "Company") and AMERICAN CENTURY
INVESTMENT SERVICES, INC. (the "Distributor). Capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Agreement (defined
below).
WHEREAS, the Company and Distributor are parties to a Participation Agreement
dated May 1, 2003 (the "Agreement"); and
WHEREAS, terms of the Agreement contemplate that Accounts and Contracts of
the Company that are eligible to purchase Funds of the Issuer may be changed
from time to time by amending Schedule A to the Agreement; and
WHEREAS, the parties wish to add certain Accounts and Contracts to the
Agreement by deleting the existing Schedule A and replacing it with the Schedule
A attached hereto.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
parties hereto agree as follows:
1. SCHEDULE A. Schedule A is hereby deleted in its entirety and is replaced
by Schedule A, attached hereto.
2. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a conflict
between the terms of this Amendment and the Agreement, it is the intention of
the parties that the terms of this Amendment shall control and the Agreement
shall be interpreted on that basis. To the extent the provisions of the
Agreement have not been amended by this Amendment, the parties hereby confirm
and ratify the Agreement.
3. COUNTERPARTS. This Amendment may be executed in two or more counterparts,
each of which shall be an original and all of which together shall constitute
one instrument.
4. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms, covenants
and conditions of the Agreement shall remain unamended and shall continue to be
in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of
the date first above written.
FIRST SECURITY BENEFIT LIFE INSURANCE
AND ANNUITY COMPANY OF NEW YORK By its authorized officer
By: XXXXXX XXXX, XX.
-----------------------
Printed Name: Xxxxxx Xxxx, Xx.
Title: Vice President and
Chief Marketing Officer
AMERICAN CENTURY INVESTMENT
SERVICES, INC. By its authorized officer
By: XXXXXXX X. XXXXX
-----------------------
Printed Name: Xxxxxxx X. Xxxxx
Title: President
SCHEDULE A
ACCOUNT(s) CONTRACT(s) DESIGNATED FUND(s)
--------------------------------------------------------------------------------
Variable Annuity Account B FSB234 and American Century VP Value Fund,
FSB236 Class II
American Century VP Ultra Fund,
Class II
