EXHIBIT 24(b)(8)(iii)(F)
RULE 22C-2 AMENDMENT TO PARTICIPATION AGREEMENT
AMENDMENT entered into as of April 16, 2007, by and between Allianz Global
Investors Distributors LLC ("AGID"), the principal underwriter for PIMCO
Variable Insurance Trust (the "Trust") and Xxxx Xxxxxxx Life Insurance Company
(U.S.A.) ("JHUSA"), Xxxx Xxxxxxx Life Insurance Company of New York ("JHNY"),
Xxxx Xxxxxxx Life Insurance Company ("JHLICO") and Xxxx Xxxxxxx Variable Life
Insurance Company ("JHVLICO"), each on behalf its variable annuity and variable
life insurance separate accounts listed in Appendix A or such other separate
accounts as may be established by their respective depositors from time to time
(each referred to herein as an "Intermediary" and collectively as the
"Intermediaries").
WHEREAS, the Intermediaries, pursuant to a Participation Agreement (as
defined below), purchase Shares of the Trust to fund certain variable life
insurance or variable annuity contracts issued by JHUSA, JHNY, JHLICO or JHVLICO
("Contracts"); and
WHEREAS, AGID and each Intermediary (each a "Party" and, together, the
"Parties") seek to enter into this Amendment in order for the Trust, AGID and
the Intermediaries to comply with the requirements of Rule 22c-2 ("Rule 22c-2")
under the Investment Company Act of 1940, as amended (the "1940 Act"), and to
make other changes to the Participation Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, AGID and the Intermediaries hereby
agree as follows:
A. CONTRACTHOLDER INFORMATION
A.1. AGREEMENT TO PROVIDE INFORMATION. Effective October 16, 2007, the
Intermediaries agree to provide Fund Agent, upon written request, the
taxpayer identification number ("TIN"), the Individual/International
Taxpayer Identification Number ("ITIN"), or other government-issued
identifier ("GII"), if known, and the Contract owner number or participant
account number, if known, of any or all Contractholder(s) of the account,
and the amount, date and transaction type (purchase, redemption, transfer,
or exchange) of every purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the Intermediaries during the period
covered by the request. Unless otherwise specifically requested by the Fund
Agent, the Intermediaries shall only be required to provide information
relating to Contractholder-Initiated Transfer Purchases or
Contractholder-Initiated Transfer Redemptions.
A.1.1. PERIOD COVERED BY REQUEST. Requests must set forth a specific
period, not to exceed 90 calendar days from the date of the request,
for which
transaction information is sought. Each request must be in writing,
and a separate request must be made for each specific period for
which transaction information is sought. Fund Agent will not request
transaction information more often than quarterly, and shall not
request transaction information that is older than 90 calendar days
from the date of the request, unless the Fund Agent deems it
necessary to investigate compliance with policies established or
utilized by the Trust or Intermediary for the purpose of eliminating
or reducing any dilution of the value of the outstanding shares
issued by a Fund.
A.1.2. FORM AND TIMING OF RESPONSE. Upon request of Fund Agent, the
Intermediaries agree to provide, no later than 30 business days or
as mutually agreed upon by the parties, the requested information
specified in Section A.1. If requested by the Fund Agent, each
Intermediary agrees to use its best efforts to determine promptly
whether any specific person about whom it has received the
identification and transaction information specified in Section A.1
is itself a "financial intermediary," as that term is defined in
Rule 22c-2 (an "Indirect Intermediary") and, upon further request of
Fund Agent, promptly either (i) provide (or arrange to have
provided) the information set forth in Section A.1 for those
Contractholders who hold an account with an Indirect Intermediary or
(ii) restrict or prohibit the Indirect Intermediary from purchasing
Shares in nominee name on behalf of other persons. Intermediary
additionally agrees to inform Fund Agent whether it plans to perform
(i) or (ii) above. Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the
Parties. The parties shall mutually agree upon the format for any
Contractholder and transaction information provided to Fund Agent.
A.1.3. LIMITATIONS ON USE OF INFORMATION. Fund Agent agrees not to use the
information received hereunder for any purpose other than as
necessary to comply with the provisions of Rule 22c-2 or to fulfill
other regulatory or legal requirements subject to the privacy
provisions of Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law
106-102) and comparable state laws. This provision survives
termination of the Agreement. .
B. EXECUTION OF TRADING RESTRICTION INSTRUCTIONS
B.1. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from Fund Agent to restrict or prohibit further purchases or
exchanges of Shares by a Contractholder that has been identified by Fund
Agent as having engaged in transactions in Shares (directly or indirectly
through Intermediary's account) that violate policies established or
utilized by a Trust or Fund Agent for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares issued by a
Fund. Unless otherwise directed by Fund Agent, any such restrictions or
prohibitions shall only apply to Contractholder-Initiated Transfer
Purchases or Contractholder-
Initiated Transfer Redemptions that are effected directly or indirectly
through Intermediary.
B.1.1. FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN or GII
and the specific individual Contract owner number or participant
account number associated with the Contractholder, if known, and the
specific restriction(s) to be executed. If the TIN, ITIN, GII or the
specific individual Contract owner number or participant account
number associated with the Contractholder is not known, the
instructions must include an equivalent identifying number of the
Contractholder(s) or account(s) or other agreed upon information to
which the instruction relates.
B.1.2. TIMING OF RESPONSE. The Intermediaries agree to execute instructions
from Fund Agent as soon as reasonably practicable, but not later
than 10 business days after receipt of the instructions by
Intermediary, or as mutually agreed upon by the parties in writing.
B.1.3. CONFIRMATION BY INTERMEDIARY. The Intermediaries must provide
written confirmation to Fund Agent that Fund Agent's instructions to
restrict or prohibit trading have been executed. Intermediary agrees
to provide confirmation as soon as reasonably practicable, but not
later than ten (10) business days after the instructions have been
executed, or as mutually agreed upon by the parties in writing.
C. DEFINITIONS
For purposes of this Amendment, certain terms are used as defined in the
preamble or body of this Amendment. The following terms shall have the following
meanings, unless a different meaning is clearly required by the context:
C.1. The term "Contractholder" means the holder of interests in a Contract or a
participant in an employee benefit plan with a beneficial interest in a
Contract.
C.2. The term "Contractholder-Initiated Transfer Purchase" means a transaction
that is initiated or directed by a Contractholder that results in a
transfer of assets within a Contract to a Fund, but does not include
transactions that are executed: (i) automatically pursuant to a contractual
or systematic program or enrollment such as a transfer of assets within a
Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic
rebalancing programs; (ii) pursuant to a Contract death benefit; (iii) as a
result of a one-time step-up in Contract value pursuant to a Contract death
benefit; (iv) as a result of an allocation of assets to a Fund through a
Contract as a result of payments such as loan repayments, scheduled
contributions, retirement plan salary reduction contributions, or planned
premium payments to the Contract; or (v) pre-arranged transfers at the
conclusion of a required "free look" period.
The term "Contractholder-Initiated Transfer Redemption" means a transaction
that is initiated or directed by a Contractholder that results in a
transfer of assets within a Contract out of a Fund, but does not include
transactions that are executed: (i) automatically pursuant to a contractual
or systematic program or enrollments such as transfers of assets within a
Contract out of a Fund as a result of annuity payouts, loans, systematic
withdrawal programs, insurance company approved asset allocation programs
and automatic rebalancing programs; (ii) as a result of any deduction of
charges or fees under a Contract; (iii) as a result of scheduled
withdrawals or surrenders from a Contract; or (iv) as a result of payment
of a death benefit from a Contract.
C.3. The term "Funds" shall mean the constituent series of the Trust, but for
purposes of Section A of this Amendment shall not include Funds excepted
from the requirements of paragraph (a) of Rule 22c-2 by paragraph (b) of
Rule 22c-2.
C.4. The term "Fund Agent" shall mean AGID or such other persons or entities as
may be designated as such by the Trusts for purposes of this Amendment from
time to time.
C.5. The term "Participation Agreement" shall mean the Participation Agreement
and/or other similar agreement(s) relating to transactions in Shares to
which Intermediary or any of Intermediary's predecessors, successors or
affiliates is a party.
C.6. The term "Shares" means the interests of Contractholders corresponding to
the redeemable securities of record issued by a Fund.
C.7. The term "written" includes electronic writings and facsimile
transmissions.
In addition, for purposes of this Amendment, the term "purchase" does not
include the automatic reinvestment of dividends or distributions.
D. SCOPE OF AMENDMENT
The Intermediaries acknowledge and agree that this Amendment shall apply to
the handling of all transactions in Shares, whether authorized under the
Participation Agreement or any other agreement between or among the
Intermediaries and the Trust, any transfer agent of a Trust, AGID, any other
Fund Agent or any of their affiliates, and further acknowledges and agrees that
the Participation Agreement and any other such agreement is hereby modified to
the extent necessary to reflect the agreements herein.
E. EFFECTIVE DATE
Except as provided in A.1, this Amendment shall be effective upon its
execution hereof or, if later, upon the effectiveness of the provisions of Rule
22c-2 relating to agreements with "financial intermediaries" (as such term is
defined in Rule 22c-2). Prior to the effective date of this Amendment, AGID and
the Intermediaries agree that any
request made to an Intermediary by AGID for Contractholder transaction
information, and an Intermediary's response to such request, shall be governed
by whatever practices AGID and Intermediary had utilized in the absence of a
formal agreement, if any, to govern such requests.
F. ADDITIONAL OBLIGATIONS
It shall be each Intermediary's obligation to make any required
notification(s) to its clients of the provisions of this Amendment and
Intermediary agrees to do so.
G. AMENDMENTS TO COMPLY WITH RULE 22C-2
Without limiting any other provisions of this Amendment, including those
provisions set forth in Exhibit C hereto, the Parties agree that they may, upon
30 days' written notice, further amend or modify the Participation Agreement in
order to comply with Rule 22c-2, as such rule may be revised or interpreted by
the Securities and Exchange Commission or its staff. Notice for these purposes
shall be deemed to be given when mailed or electronically transmitted to
Intermediary.
H. NOTICES
Requests under Sections A.1 and B.2 must be received by the Intermediary at
the following address, or such other address that the Intermediaries may
communicate to AGID in writing from time to time:
Xxxxxxxx X. Xxxxxxxxxx
AVP & Counsel
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
000-000-0000
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
executed as of the date first above written.
ALLIANZ GLOBAL INVESTORS
DISTRIBUTORS LLC
By: /s/ Xxxx Xxxxx
------------------------------------
Title: Vice President
---------------------------------
XXXX XXXXXXX LIFE INSURANCE COMPANY (U.S.A.)
(on behalf of its Separate Accounts)
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President, U.S. Insurance
XXXX XXXXXXX LIFE INSURANCE COMPANY
OF NEW YORK
(on behalf of its Separate Accounts)
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President, U.S. Insurance
XXXX XXXXXXX LIFE INSURANCE COMPANY
(on behalf of its Separate Accounts)
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President, U.S. Insurance
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
(on behalf its Separate Accounts)
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
APPENDIX A
INTERMEDIARIES / SEPARATE ACCOUNTS
JH USA
Separate Account A
Separate Account H
Separate Account N
JHNY
Separate Account A
Separate Account B
JHLICO
Separate Account UV
JHVLICO
Separate Account S
Separate Account U
