Exhibit (8)(nn)(ii)
FIRST AMENDMENT TO
PARTICIPATION AGREEMENT
THIS FIRST AMENDMENT TO PARTICIPATION AGREEMENT ("Amendment") is made and
entered into as of October 5, 2009, to the Participation Agreement ("Agreement")
dated October 5, 2009, by and among Xxxxxxx & Xxxx, Inc., ("W&R"), a Delaware
corporation, Ivy Funds Variable Insurance Portfolios ("Ivy Funds VIP"), and
Jefferson National Life Insurance Company ("Company").
WHEREAS, in accordance with Section 23 of the Agreement, the parties agree to
amend the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Section 11, MIXED AND SHARED FUNDING, shall be deleted in its entirety and
replaced with the following new Section 11 below:
"11. MIXED AND SHARED FUNDING.
(a) GENERAL. The SEC has granted an order to Ivy Funds VIP
exempting it from certain provisions of the 1940 Act and rules
thereunder so that Ivy Funds VIP may be available for
investment by certain other entities, including, without
limitation, separate accounts funding variable annuity
contracts or variable life insurance contracts, separate
accounts of insurance companies unaffiliated with Company, and
trustees of qualified pension and retirement plans
(collectively, "Mixed and Shared Funding"). The parties
recognize that the SEC has imposed terms and conditions for
such orders that are substantially identical to many of the
provisions of this Section 11. Sections 11(b) through 11(h)
below shall apply pursuant to the exemptive order granted to
Ivy Funds VIP. Ivy Funds VIP hereby notifies Company that it
may be appropriate to include in the prospectus pursuant to
which a Contract is offered disclosure regarding the potential
risks of Mixed and Shared Funding.
(b) DISINTERESTED TRUSTEES. Ivy Funds VIP agrees that its Board
shall at all times consist of trustees a majority of whom (the
"Disinterested Trustees") are not interested persons of Ivy
Funds VIP within the meaning of Section 2(a)(19) of the 1940
Act and the rules thereunder and as modified by any applicable
orders of the SEC, except that if this condition is not met by
reason of the death, disqualification, or bona fide
resignation of any trustee, then the operation of this
condition shall be suspended (a) for a period of forty-five
(45) days if the vacancy or vacancies may be filled by the
Board; (b) for a period of sixty (60) days if a vote of
shareholders is required to fill the vacancy or vacancies; or
(c) for such longer period as the SEC may prescribe by order
upon application.
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(c) MONITORING FOR MATIERAL IRRECONCILABLE CONFLICTS. Ivy Funds
VIP agrees that its Board will monitor for the existence of
any material irreconcilable conflict between the interests of
the participants in all separate accounts of Participating
Insurance Companies, including each Variable Account, and
participants in all qualified retirement and pension plans
investing in Ivy Funds VIP ("Participating Plans"). Company
agrees to inform the Board of the existence of any potential
for any such material irreconcilable conflicts of which it is
aware. The concept of a "material irreconcilable conflict" is
not defined by the 1940 Act or the rules thereunder, but the
parties recognize that such a conflict may arise for a variety
of reason, including without limitation:
(1) an action by any state insurance or other regulatory
authority;
(2) 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 action by insurance, tax or
securities regulatory authorities;
(3) an administrative or judicial decision in any relevant
proceeding;
(4) the manner in which the investments of any Portfolios
are being managed;
(5) a difference in voting instructions given by variable
annuity contract participants, variable life insurance
contract participants and trustees of Participating
Plans;
(6) a decision by a Participating Insurance Company to
disregard the voting instructions of participants; or
(7) a decision by a Participating Plan to disregard the
voting instructions of plan participants.
Consistent with the SEC's requirements in connection with
exemptive orders of the type referred to in Section 11(a)
hereof, Company will assist the Board in carrying out its
responsibilities by providing the Board with all information
reasonably necessary for the Board to consider any issue
raised, including information a to a decision by Company to
disregard voting instructions of participants. Company's
responsibilities in connection with the foregoing shall be
carried out with a view only to the interests of participants.
(d) CONFLICT REMEDIES.
(1) It is agreed that if it is determined by a majority of the
members of the Board or a majority of the Disinterested
Trustees that a material irreconcilable conflict exists,
Company will, if it is a Participating Insurance Company for
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which a material irreconcilable conflict is relevant, at its
own expense and to the extent reasonably practicable (as
determined by a majority of the Disinterested Trustees), take
whatever steps are necessary to remedy or eliminate the
material irreconcilable conflict, which steps may include, but
are not limited to:
(ii) withdrawing the assets allocable to some or all of
the Variable Accounts from Ivy Funds VIP or any
Portfolio and reinvesting such assets in a different
investment medium, including another Portfolio, or
submitting the question whether such segregation should
be implemented to a vote of all affected participants
and, as appropriate, segregating the assets of any
particular group (e.g., annuity participants, life
insurance participants or all participants) that votes
in favor of such segregation, or offering to the
affected participants the option of making such a
change; and
(ii) establishing a new registered investment company of
the type defined as a "management company" in Section
4(3) of the 1940 Act or a new separate account that is
operated as a management company.
(2) If the material irreconcilable conflict arises because of
Company's decision to disregard participant voting
instructions and that decision represents a minority position
or would preclude a majority vote, Company may be required at
Ivy Funds VIP's election, to withdraw each Variable Account's
investment in Ivy Funds VIP or any Portfolio. No charge or
penalty will be imposed as a result of such withdrawal. Any
such withdrawal must take place within six (6) months after
Ivy Funds VIP gives notice to Company that this provision is
being implemented, and until such withdrawal Ivy Funds VIP
shall continue to accept and implement orders by Company for
the purchase and redemption of shares of Ivy Funds VIP.
(3) If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to
Company conflicts with the majority of other state regulators,
then Company will withdraw each Variable Account's investment
in Ivy Funds VIP within six (6) months after the Board informs
Company that it has determined that such decision has created
a material irreconcilable conflict, and until such withdrawal
Ivy Funds VIP shall continue to accept and implement orders by
Company for the purchase and redemption of shares of Ivy Funds
VIP. No charge or penalty will be imposed as a result of such
withdrawal.
(4) Company agrees that any remedial action taken by it in
resolving any material irreconcilable conflict will be carried
out at its expense and with a view only to the interests of
participants.
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(5) For purposes hereof, a majority of the Disinterested
Trustees will determine whether or not any proposed action
adequately remedies any material irreconcilable conflict. In
no event, however, will Ivy Funds VIP or any of its affiliates
be required to establish a new funding medium for any
Contracts. Company will not be required by the terms hereof to
establish a new funding medium for any Contracts if an offer
to do so has been declined by vote of a majority of
participants materially adversely affected by the material
irreconcilable conflict.
(e) NOTICE TO COMPANY. Ivy Funds VIP will promptly make known in writing
to Company the Board's determination of the existence of a material
irreconcilable conflict, a description of the facts that give rise
to such conflict and the implications of such conflict.
(f) INFORMATION REQUESTED BY BOARD. Company and Ivy Funds VIP (or its
investment adviser) will at least annually submit to the Board such
reports, materials or data as the Board may reasonably request so
that the Board may fully carry out the obligations imposed upon it
by the provisions hereof or any exemptive order granted by the SEC
to permit Mixed and Shared Funding, and said reports, materials and
data will be submitted at any reasonable time deemed appropriate by
the Board. All reports received by the Board of potential or
existing conflicts, and all Board actions with regard to determining
the existence of a conflict, notifying Participating Insurance
companies and Participating Plans of a conflict, and determining
whether any proposed action adequately remedies a conflict, will be
properly recorded in the minutes of the Board or other appropriate
records, and such minutes or other records will be made available to
the SEC upon request.
(g) COMPLIANCE WITH SEC RULES. If, at any time during which Ivy Funds
VIP is serving as an investment medium for variable life insurance
Contracts, 1940 Act Rules 6e-3(T) or, if applicable 6e-2 are amended
or Rule 6e-3 is adopted to provide exemptive relief with respect to
Mixed and Shared Funding, Ivy Funds VIP agrees that it will comply
with the terms and conditions thereof and that the terms of this
Section 11 shall be deemed modified if and only to the extent
required in order also to comply with the terms and conditions of
such exemptive relief that is afforded by any of said rules that are
applicable.
(h) OTHER REQUIREMENTS. Ivy Funds VIP will require that each
Participating Insurance Company and Participating Plan enter into an
agreement with Ivy Funds VIP that contains in substance the same
provisions as are set forth in Sections 2(c), 2(d), 7(d), 9(b) and
11 of this Agreement.
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IN WITNESS WHEREOF, this Amendment is made effective as of the date first above
written.
XXXXXXX & XXXX, INC.
By: _____________________________
Xxxxxx X. Xxxxx
President
IVY FUNDS VARIABLE INSURANCE PORTFOLIOS
By: _____________________________
Xxxxx X. Xxxxxxxx
President
JEFFERSON NATIONAL LIFE INSURANCE COMPANY
By: _____________________________
Name: __________________________
Title: ___________________________
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