Exhibit (8)(ll)(ii)
FIRST AMENDMENT
TO
PARTICIPATION AGREEMENT
This FIRST AMENDMENT ("Amendment") is made and entered into as of the ____
day of_________, 2010 by and among JEFFERSON NATIONAL LIFE INSURANCE COMPANY
(the "Company"), a Texas stock life insurance company; FIDELITY DISTRIBUTORS
CORPORATION (the "Underwriter"), a Massachusetts corporation; and each of
VARIABLE INSURANCE PRODUCTS FUND, VARIABLE INSURANCE PRODUCTS FUND II, VARIABLE
INSURANCE PRODUCTS FUND III, VARIABLE INSURANCE PRODUCTS FUND IV and VARIABLE
INSURANCE PRODUCTS V, each an unincorporated business trust organized under the
laws of the Commonwealth of Massachusetts (each, a "Fund")
WHEREAS, the Company, on its own behalf and on behalf of each Account, the
Underwriter and the Fund are parties to an Participation Agreement dated as of
___________, 2010 (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. Section 1.11 A (c) is hereby amended by adding the following to the
end of the sentence: "or similar language. "
2. Section 1.11 C (b) is hereby amended by striking the word "five" and
replacing it with "ten".
3. Section 1.12 B is hereby amended by adding the word "reasonable"
after the word "undertake" and before the word "inquiry" in the
first line.
4. Section 1.12 D is hereby amended by adding the following to the
beginning of the Section, "Unless prohibited by applicable law, rule
or regulation,".
5. Section 2.11 is hereby amended by deleting the last sentence and
replacing it with the following:
"The Company agrees to make all reasonable efforts to see that this
bond or another bond containing similar provisions is always in
effect, and agrees to notify the Fund and the Underwriter in the
event that such coverage no longer applies."
6. Section 4.6 is hereby deleted in its entirety and replaced with the
following:
"4.6 The Company will provide to the Fund at least one complete copy of
all registration statements, Disclosure Documents, Statements of Additional
Information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for no
action letters, and all amendments to any of the above, that relate to or affect
the Fund, contemporaneously with the filing of such document with the SEC or
other regulatory authorities or, if a Contract and its associated Account are
exempt from registration, at the time such documents are first published."
5. Section 4.7 is hereby deleted in its entirety and replaced with the
following:
"4.7. For purposes of this Article IV, the phrase "sales literature
or other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, telephone directories (other than
routine listings), electronic or other public media), sales literature (i.e.,
any written communication distributed or made generally available to customers
or the public, including brochures, circulars, research reports, market letters,
performance reports or summaries, form letters, telemarketing scripts, seminar
texts, reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other communications
distributed or made generally available to some or all agents, and registration
statements, Disclosure Documents, Statements of Additional Information,
shareholder reports, and proxy materials."
6. Section 8.1 (a) is hereby deleted in its entirety and replaced with the
following:
"8.1(a). The Company agrees to indemnify and hold harmless the Fund
and each trustee of the Board and officers and each person, if any, who controls
the Fund within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company) or litigation (including reasonable legal
and other expenses), to which the Indemnified Parties may become subject under
any statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of, or investment in, the
Fund's shares or the Contracts and:"
7. Section 8.2(a) is hereby deleted in its entirety and replaced with the
following:
"8.2(a). The Underwriter 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
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this Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Underwriter) or litigation (including reasonable legal and other expenses) to
which the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of, or investment in, the Fund's shares or the Contracts and:"
8. Section 9.1 is hereby amended by striking "Commonwealth of
Massachusetts" and replacing it with "State of New York".
9. The first sentence of Section 10.3 is hereby deleted in its entirety
and replaced with the following:
"The provisions of Articles II (Representations and Warranties), VIII
(Indemnification), IX (Applicable Law) and XII (Miscellaneous) shall survive
termination of this Agreement for a time period equal to the applicable statute
of limitations from the date Company no longer owns any shares."
10. The last sentence of Section 10.4 is hereby amended by striking the
phrase "90 days" and replacing it with "30 days".
11. Section 12.9 is hereby deleted in its entirety and replaced with the
following:
"12.9. Upon reasonable written request and to the extent publicly available, the
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee copies of the following reports:
(a) the Company's most recent annual statement (prepared under
statutory accounting principles) and annual report (prepared
under generally accepted accounting principles ("GAAP"), if
any);
(b) the Company's most recent quarterly statement (statutory) (and
GAAP, if any):
(c) any financial statement, proxy statement, notice or report of
the Company sent to stockholders and/or policyholders, as soon
as practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the Securities and Exchange
Commission or any state insurance regulator;
(e) any other report submitted to the Company by independent
accountants in connection with any annual, interim or special
audit made by them of the books of the Company."
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12. This Amendment shall be deemed to have been executed and effective
simultaneously with the Agreement.
13. This Amendment may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to be executed in its name and on its behalf by its duly authorized
representative.
JEFFERSON NATIONAL LIFE INSURANCE COMPANY
By: _________________________
Name: _________________________
Its: _________________________
VARIABLE INSURANCE PRODUCTS FUND,
VARIABLE INSURANCE PRODUCTS FUND II
VARIABLE INSURANCE PRODUCTS FUND III
VARIABLE INSURANCE PRODUCTS FUND IV, and
VARIABLE INSURANCE PRODUCTS V
By: ________________________
Name: Xxxxx Xxxxxxxx
Their: Deputy Treasurer
FIDELITY DISTRIBUTORS CORPORATION
By: _______________________
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
Date: _________________
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