Exhibit 24.(B)8(K)
AMENDMENT
TO
PARTICIPATION AGREEMENT
This AMENDMENT (this "AMENDMENT") is dated as of April 16, 2007 by and
among M FUND, INC., a corporation organized and existing under the laws of the
State of Maryland (the "FUND"), M FINANCIAL ADVISERS, INC., a corporation
organized and existing under the laws of the State of Colorado (the "ADVISER"),
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 a
"Company" on behalf of its variable annuity and variable life insurance separate
accounts listed in Appendix A (each referred to herein as an "Intermediary" and
collectively as the "Intermediaries").
WHEREAS, the Fund, the Adviser and the Companies are parties to a
Participation Agreement entered into on January 19, 1996, as subsequently
amended (the "AGREEMENT");
WHEREAS, the parties wish to amend certain provisions of the Agreement as
set forth herein; and
WHEREAS, capitalized terms used, but not defined, in this Amendment have
the meanings assigned to such terms in the Agreement.
NOW THEREFORE, in consideration of the mutual promises, representations,
and warranties made herein, covenants and agreements hereinafter contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties agree as follows:
1. Article XIII of the Agreement is hereby redesignated as Article XIV, and
Sections 13.1 through 13.5 are hereby redesignated as Sections 14.1 through
14.5.
2. The Agreement is hereby amended to provide for a new Article XIII, which
contains the following provisions:
"ARTICLE XIII. Shareholder Information.
13.1 Definitions. For purposes of this Article XIII, the
following terms shall have the following meanings:
(a) "INTERMEDIARY" or "INTERMEDIARIES" means each Company on
behalf of the variable annuity and variable life separate
accounts listed in Appendix A for such Company, or such
other separate accounts as may be established by a
respective Company from time to time, which invest in the
Fund.
(b) "SHARES" means the interests of Contract Owners
corresponding to the redeemable securities of record issued
by the Fund under the 1940 Act that are held by the Company
on behalf of its separate accounts investing in the Series
of the Fund.
(c) "SHAREHOLDER" means the holder of interests in a Contract
with a beneficial interest in the Fund.
(d) The term "SHAREHOLDER-INITIATED TRANSFER" means a
transaction that is initiated or directed by a Shareholder
that results in a transfer of assets within a Contract to or
out of a Series of the Fund, but does not include
transactions that are executed: (1) automatically pursuant
to a contractual or systematic program or enrollment such as
a transfer of assets within a Contract to or out of a Series
of the Fund as a result of "dollar cost averaging" programs
or automatic rebalancing programs; (2) pursuant to a
Contract death benefit; (3) one-time step-up in Contract
value pursuant to a Contract death benefit; (4) allocation
of assets to a Series of the 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;
(5) pre-arranged transfers at the conclusion of a required
free look period; (6) as a result of any deduction of
charges or fees under a Contract; or (7) within a Contract
out of a Series of the Fund as a result of scheduled
withdrawals or surrenders from a Contract.
(e) "WRITTEN" includes electronic writings and facsimile
transmissions.
13.2. Agreement to Provide Information. Effective October 16,
2007, the Intermediaries will provide the Fund or its designee, upon
written request from the Fund or the Adviser, the taxpayer identification
number ("TIN"), the Individual/International Taxpayer Identification Number
("ITIN"), or other government-issued identifier ("GII") and the Contract
Owner number or participant account number associated with the Shareholder,
if known, of any or all Shareholder(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 Intermediary during the period covered by the
request. Unless otherwise
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specifically requested by the Fund, the Intermediaries shall only be
required to provide information relating to Shareholder-Initiated
Transfers.
13.3. Period Covered by Request. Requests must set forth a
specific period, not to exceed 90 calendar days prior to the date of the
request, for which transaction information is sought. The Fund or the
Adviser may request transaction information older than 90 calendar days
from the date of the request as it deems necessary to investigate
compliance with policies established by the Fund or Intermediary for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
13.4. Timing of Requests. Requests for Shareholder information
shall be made no more frequently than quarterly except as the Fund or the
Adviser deem necessary to investigate compliance with policies established
by the Fund or Intermediary for the purpose of eliminating or reducing any
dilution of the value of the outstanding shares issued by the Fund.
13.5. Form and Timing of Response.
(a) Intermediary will provide, no later than 30 business
days or as mutually agreed upon by the parties, upon request of the
Fund or its designee, the requested information specified in Section
13.2. If requested by the Fund, the Adviser or their designee,
Intermediary will use its best efforts to determine promptly whether
any specific person about whom the Fund has received the
identification and transaction information specified in Section 13.2
is itself a financial intermediary, as defined in Rule 22c-2 under the
1940 Act (an "indirect intermediary"), and, upon further request of
the Fund, the Adviser or their designee, promptly either (1) provide
(or arrange to have provided) the information set forth in Section
13.2 for those shareholders who hold an account with the indirect
intermediary, or (2) restrict or prohibit the indirect intermediary
from purchasing, in nominee name on behalf of other persons,
securities issued by the Fund. In such instances, the Intermediary
agrees to inform the Fund whether it plans to perform (1) or (2).
(b) Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the
Fund, the Adviser or their designee and the Intermediary.
(c) The parties shall mutually agree upon the format for any
transaction information provided to the Fund.
13.6. Limitations on Use of Information. The Fund will not use
the information received pursuant to this Article XIII for any purpose
other than as necessary to comply with the provisions of Rule 22c-2 under
the 1940 Act or to fulfill other regulatory or legal requirements subject
to the privacy provisions of
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Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and comparable
state laws. This provision survives termination of the Agreement.
13.7 Agreement to Enforce Short-Term Trading Policy. Each
Intermediary has established the short-term trading policy attached hereto
as Appendix B (the "SHORT-TERM TRADING POLICY") and agrees to enforce its
Short-Term Trading Policy during the term of this Agreement. The Short-Term
Trading Policy may be amended from time to time and the Intermediaries will
promptly amend Appendix B of the Agreement upon such amendment.
13.8. Agreement to Restrict Trading. During the term of this
Agreement each Intermediary agrees that it shall enforce its Short-Term
Trading Policy with respect to Shareholders. Where an Intermediary or the
Fund or the Adviser has determined that a Shareholder has engaged in
potentially harmful market timing or frequent trading in violation of the
Short-Term Trading Policy, then the Intermediary shall execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Shares by such Shareholder. Instructions must be sent to the
Intermediary at the following address, or such other address that the
Intermediary may communicate to the Fund in writing from time to time,
including, if applicable, the following e-mail and facsimile number:
Xxxxxxxx X. Xxxxxxxxxx
AVP & Counsel
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
000-000-0000
000-000-0000 (fax)
xxxxxxxxxxx@xxxxxxxx.xxx
13.9. 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 Shareholder, if known, and
the specific restriction(s) to be executed. Such instructions shall also
include how long the restriction(s) is(are) to remain in place. If the TIN,
ITIN, GII or the specific individual Contract Owner number or participant
account number associated with the Shareholder is not known, the
instructions must include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon information to which the
instruction relates.
13.10. Timing of Response. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not later than 10
business days after receipt of the instructions by the Intermediary, or as
mutually agreed upon by the parties in writing.
13.11. Confirmation by Intermediary. Intermediary must provide
written confirmation to the Fund that instructions have been executed.
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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.
13.12. Construction of this Article XIII. To the extent that the
terms of this Article XIII conflict with the other terms of this Agreement,
the terms of this Article XIII shall control.
3. The Agreement is hereby amended to provide for a new Section 14.6, which
contains the following provisions:
14.6 Customer Identification. The parties acknowledge that
Federal law requires that the Fund obtain, verify and record information
that identities each person who opens an account with the Fund, including
the Company on behalf of each Account. In connection with the opening of an
account with the Fund, the Fund will request certain identifying
information, including, but not limited to (1) the name of the account
owner, (2) the address of the account owner's principal place of business,
and (3) the account owner's Taxpayer Identification Number (TIN).
4. The headings contained in this Amendment are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Amendment.
5. This Amendment may be executed simultaneously in two or more
counterparts, each of which together shall constitute one and the same
instrument.
6. This Amendment shall be governed by and construed in accordance with the
Laws of the State of Maryland, without giving effect to the principles of
conflicts of laws.
7. Except as provided in Section 13.2, this Amendment shall become
effective on April 16, 2007.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their duly authorized officers, as of the day and year
first above written.
M FUND, INC.
BY: /s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx, President
M FINANCIAL ADVISERS, INC.
BY: /s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx, President
XXXX XXXXXXX LIFE INSURANCE COMPANY
(U.S.A.)
(on behalf of its Separate Accounts)
By:
---------------------------------
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:
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President, U.S.
Insurance
XXXX XXXXXXX LIFE INSURANCE COMPANY
(on behalf of its Separate Accounts)
By:
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
XXXX XXXXXXX VARIABLE LIFE INSURANCE
COMPANY
(on behalf of its Separate Accounts)
By:
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their duly authorized officers, as of the day and year
first above written.
M FUND, INC.
By:
------------------------------------
Xxxxxx Xxxxxx, President
M FINANCIAL ADVISERS, INC.
By:
------------------------------------
Xxxxxx Xxxxxx, 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
XXXX XXXXXXX VARIABLE LIFE INSURANCE
COMPANY
(on behalf of its Separate Accounts)
BY: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their duly authorized officers, as of the day and year
first above written.
M FUND, INC.
BY: /s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx, President
M FINANCIAL ADVISERS, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx, President
XXXX XXXXXXX LIFE INSURANCE COMPANY
(U.S.A.)
(on behalf of its Separate Accounts)
By:
---------------------------------
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:
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President, U.S.
Insurance
XXXX XXXXXXX LIFE INSURANCE COMPANY
(on behalf of its Separate Accounts)
By:
---------------------------------
Name: Xxxxx X. Xxxxx
Title; Executive Vice President
XXXX XXXXXXX VARIABLE LIFE INSURANCE
COMPANY
(on behalf of its Separate Accounts)
By:
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
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APPENDIX A
INTERMEDIARIES / SEPARATE ACCOUNTS
JH USA
Separate Account A
Separate Account H
Separate Account N
JHNY
Separate Account B
JHLICO
Separate Account UV
JHVLICO
Separate Account S
Separate Account U
Separate Account V
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APPENDIX B
SHORT-TERM TRADING POLICY FOR EACH INTERMEDIARY
1. In order to deter market timing, each Intermediary restricts transfers to two
per month per insurance contract or qualified plan participant. (For purposes of
this restriction, all transfers made by a contract owner/participant during the
period from the opening of trading each day the net asset value of the shares
are determined (usually 9 a.m.) to the close of trading that day (the close of
day-time trading of the New York Stock Exchange (usually 4 p.m.)) are considered
one transfer.) Contract owners/participants may, however, transfer to the Money
Market Trust of the Fund even if the two transfers per month limit has been
reached if 100% of the assets in the variable investment option are transferred
to the Money Market Trust. If such a transfer to the Money Market Trust is made,
for a 30 day period after such transfer, no subsequent transfers from the Money
Market Trust to another portfolio of the Fund may be made. (Certain group
annuity contracts owned by qualified plans use the Xxxx Xxxxxxx Stable Value
Fund instead of the Money Market Trust. Participants in those plans may make
such a transfer to the Xxxx Xxxxxxx Stable Value Fund subject to the same
conditions.) In certain contracts or plans, certain transfers are excluded from
this policy as described in Section 3. Special provisions apply to corporate
owned life insurance polices as noted below.
Corporate Owned Life Insurance Policies. In lieu of the restrictions above,
each Intermediary restricts corporate owned life insurance policy owners as
follows:
corporate owned life insurance policy owners may rebalance the investment
options in their policies within the following limits: (i) during the 10
calendar day period after any policy values are transferred from one
investment account into a second investment account, the values can only be
transferred out of the second investment account if they are transferred
into the Money Market B investment account; and (ii) any policy values that
would otherwise not be transferable by application of the 10 day limit
described above and that are transferred into the Money Market B investment
account may not be transferred out of the Money Market B investment account
into any other accounts (fixed or investment) for 30 calendar days.
2. In addition to the above, if any Intermediary determines, in its sole
discretion, that any exchange may disrupt or be potentially disruptive to an
Account or sub-account, it reserves the right to impose additional restrictions,
as permitted under the Variable Contract, including, but not limited to, the
following:
a. restricting the number of exchanges made during a defined period;
b. restricting the dollar amount of exchange;
c. restricting the method used to submit requests for purchases and
exchanges (e.g. requiring purchase and exchange requests to be
submitted in writing via regular U.S. mail); and,
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d. restricting exchanges into and out of certain separate accounts and
sub-accounts.
3. Certain transactions, including, but not limited to, the following, shall not
be subject to the restrictions of the above short-term trading policy:
a. purchases of Shares as a result of plan Participant payroll or
employer contributions or loan repayments;
b. distributions, loans, and in-service withdrawals from a qualified
retirement plan;
c. redemptions or transfers of Shares as a result of a qualified plan
termination or at the direction of a qualified plan;
d. purchases of Shares by reinvestment of dividends or capital gains
distributions, as applicable;
e. transfers or rollovers in a qualified plan;
f. conversions of Shares within one sub-account due to a movement from
one share class to another in the Fund; and
g. redemptions of Shares to pay underlying mutual fund, separate account,
or sub- account fees, or plan-level fees.
h. transfers pursuant to automated or pre-established programs
i. transfers made within a prescribed period before and after a
substitution of underlying funds in an insurer's separate account.
j. transfers made during an annuity contract's payout phase.
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