EXHIBIT 8(d)
DWS Investments VIT Funds
AMENDMENT NO. 1
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to the
PARTICIPATION AGREEMENT
AMENDMENT to the Participation Agreement dated as of the 15th day of
October, 2002 (the "Agreement"), by and between Deutsche Investments VIT Funds,
(formerly Deutsche Asset Management VIT Funds) ("Trust"), Deutsche Investment
Management Americas Inc. (assignee by merger with Deutsche Asset management,
Inc.) ("Adviser"), and Ameritas Life Insurance Corp. (formerly Ameritas Variable
Life Insurance Company) ("Life Company").
WHEREAS, Trust, Life Company and Adviser wish to revise Appendix B to
the Agreement in its entirety;
NOW, THEREFORE, in accordance with Section 12.9 of the Agreement,
Trust, Adviser, and Life Company hereby agree as follows:
Appendix A to the Agreement is hereby amended, and restated in
its entirety, by the Appendix A attached to this Amendment.
Appendix B to the Agreement is hereby amended, and restated in
its entirety, by the Appendix B attached to this Amendment.
Except as expressly set forth above, all other terms and provisions of
the Agreement shall remain in full force and effect.
The Effective Date of this Amendment No. 1 is November 5, 2007.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Amendment as of the date and year first above written.
DWS INVESTMENTS VIT FUNDS AMERITAS LIFE INSURANCE CORP.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
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Title: President Title: Senior Vice President
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DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
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Title: COO
------------------------------------
Appendix A
to participation Agreement by and among Deutsche Investments VIT Funds, Deutsche
Investment Management Americas Inc., and Ameritas Life Insurance Corp.
List of Portfolios:
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DWS Investments VIT Funds - Small Cap Index Fund Class A
DWS Investments VIT Funds - Equity 500 Index Fund Class A
Appendix B
to Participation Agreement by and among Deutsche Investments VIT Funds, Deutsche
Investment Management Americas Inc., and Ameritas Life Insurance Corp.
List of Variable Separate Accounts:
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Ameritas Variable Separate Account V
("Separate Account V")
Ameritas Variable Separate Account VA-2
("Separate Account VA-2)
Ameritas Variable Separate Account VA
("Separate Account VA")
Ameritas Variable Separate Account VL
("Separate Account VL")
Novation to Participation Agreement
WHEREAS, on October 15, 2002, a Participation Agreement (the "Agreement") was
entered into by and among Ameritas Variable Life Insurance Company ("AVLIC"), on
its own behalf and on behalf of Ameritas Variable Separate Account VA and
Ameritas Variable Separate Account VL of AVLIC (the "Separate Accounts"),
Deutsche Asset Management VIT Funds (the "Fund") and Deutsche Asset Management,
Inc. (the "Adviser"), whereby AVLIC issues certain individual variable life
and/or variable annuity contracts (the "Contracts"), the Fund acts as the
underlying investment vehicle of such contracts and the Adviser serves as
investment adviser to the Fund. A copy of the Agreement is attached hereto and
made a part hereof. The Agreement, by its terms, provides for amendment upon the
written agreement of all parties; and
WHEREAS, the closing of the merger of AVLIC with and into Ameritas Life
Insurance Corp. ("Ameritas"), with Ameritas as the surviving company (the
"Merger") is currently scheduled to occur after the close of business on April
30, 2007; It is therefore agreed:
1. Substitution of Party - The Agreement is amended to provide for
Ameritas to act as the issuer of the Contracts in substitution of
AVLIC.
2. Performance of Duties - Ameritas hereby assumes and agrees to perform
the duties previously performed by AVLIC under the Agreement.
3. Assumption. of Rights - Ameritas hereby assumes the rights previously
held by AVLIC under the Agreement.
4. Effective Date - This Novation shall take effect as of the actual
closing date of the Merger, and such effectiveness is conditioned upon
the closing of the Merger. Ameritas will notify the other parties
hereto of any change in the scheduled closing date and of the actual
closing date.
In witness whereof the parties have signed this instrument.
Executed as of this 18th day of April, 2007.
AMERITAS VARIABLE LIFE DWS INVESTMENTS VIT FUNDS
INSURANCE COMPANY (effective February 6, 2006), formerly
Deutsche Asset Management VIT Funds
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------- -----------------------------------
Print: Xxxxxx X. Xxxxx Print: Xxxxxxx X. Xxxxx
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Title: Sr. Vice President Title: President
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AMERITAS LIFE INSURANCE CORP. DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC. (ASSIGNEE BY MERGER WITH
DEUTSCHE ASSET MANAGEMENT, INC. AS OF
DECEMBER 31, 2006)
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxx
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Print: Xxxxxx X. Xxxxx Print: Xxxxxxx Xxxxx
----------------------------- --------------------------------
Title: Sr. Vice President Title: COO
----------------------------- --------------------------------
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Print: Xxxxxxx Xxxxxxx
--------------------------------
Title: Director
--------------------------------
PARTICIPATION AGREEMENT AMONG
DEUTSCHE ASSET MANAGEMENT VIT FUNDS,
DEUTSCHE ASSET MANAGEMENT, INC. AND
AMERITAS VARIABLE LIFE INSURANCE COMPANY
THIS AGREEMENT made as of the 15th day of October, 2002 by and among
DEUTSCHE ASSET MANAGEMENT VIT FUNDS ("TRUST"), a Massachusetts business trust,
DEUTSCHE ASSET MANAGEMENT, INC. ("ADVISER"), a New York banking corporation, and
AMERITAS VARIABLE LIFE INSURANCE COMPANY ("AVLIC"), a life insurance company
organized under the laws of the Commonwealth of Virginia.
WHEREAS, TRUST is registered with the Securities and Exchange
Commission ("SEC") under the Investment Company Act of 1940, as amended (the "40
Act"), as an open-end, diversified management investment company; and
WHEREAS, TRUST is comprised of several series funds (each a
"Portfolio"), with those Portfolios currently available being listed on Appendix
A hereto; and
WHEREAS, TRUST was organized to act as the funding vehicle for certain
variable life insurance and/or variable annuity contracts ("Variable Contracts")
offered by life insurance companies through separate accounts ("Separate
Accounts") of such life insurance companies ("Participating Insurance
Companies"); and
WHEREAS, TRUST may also offer its shares to certain qualified pension
and retirement plans ("Qualified Plans"); and
WHEREAS, TRUST has received an order from the SEC, granting
Participating Insurance Companies and their separate accounts exemptions from
the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the `40 Act, and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Portfolios of the TRUST to be sold to and held by Variable
Contract Separate Accounts of both affiliated and unaffiliated Participating
Insurance Companies and Qualified Plans ("Exemptive Order"); and
WHEREAS, AVLIC has established or will establish one or more Separate
Accounts to offer Variable Contracts and is desirous of having TRUST as one of
the underlying funding vehicles for such Variable Contracts; and
WHEREAS, ADVISER is a "bank" as defined in the Investment Advisers Act
of 1940, as amended (the " Advisers Act") and as such is excluded from the
definition of "Investment Adviser" and is not required to register as an
investment adviser pursuant to the Advisers Act; and
WHEREAS, ADVISER serves as the TRUST's investment adviser; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, AVLIC intends to purchase shares of TRUST to fund the
aforementioned Variable Contracts and TRUST is authorized to sell such shares to
AVLIC at such shares' net asset value;
NOW, THEREFORE, in consideration of their mutual promises, AVLIC,
TRUST, and ADVISER agree as follows:
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Article I. SALE OF TRUST SHARES
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1.1 TRUST agrees to make available to the separate Accounts of AVLIC
shares of the selected portfolios as listed on Appendix B for investment of
purchase payments of Variable Contracts allocated to the designated Separate
Accounts as provided in TRUST's Registration Statement.
1.2 TRUST agrees to sell to AVLIC those shares of the selected
Portfolios of TRUST which AVLIC orders, executing such orders on a daily basis
at the net asset value next computed after receipt by TRUST or its designee of
the order for the shares of TRUST. For purposes of this Section 1.2, AVLIC shall
be the designee of TRUST for receipt of such orders from the designated separate
Account and receipt by such designee shall constitute receipt by TRUST; provided
that AVLIC receives the order by 4:00 p.m. New York time and TRUST receives
notice from AVLIC by telephone or facsimile (or by such other means as TRUST and
AVLIC may agree in writing) of such order by 8:00 a.m. New York time on the next
Business Day. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which TRUST calculates its net asset value
pursuant to the rules of the SEC.
1.3 TRUST agrees to redeem on AVLIC's request, any full or fractional
shares of TRUST held by AVLIC, executing such requests on a daily basis at the
net asset value next computed after receipt by TRUST or its designee of the
request for redemption, in accordance with the provisions of this Agreement and
TRUST's Registration statement. (In the event of a conflict between the
provisions of this Agreement and the Trust's Registration Statement, the
provisions of the Registration Statement shall govern.) For purposes of this
Section 1.3, AVLIC shall be the designee of TRUST for receipt of requests for
redemption from the designated Separate Account and receipt by such designee
shall constitute receipt by TRUST; provided that AVLIC receives the request for
redemption by 4:00 p.m. New York time and TRUST receives notice from AVLIC by
telephone or facsimile (or by such other means as TRUST and AVLIC may agree in
writing) of such request for redemption by 8:00 a.m. New York time on the next
Business Day.
1.4 TRUST shall furnish, as soon as it is announced by the applicable
Fund, and no later than each ex-dividend date, notice to AVLIC of any income
dividends or capital gain distributions payable on the shares of any Portfolio
of TRUST. AVLIC hereby elects to receive all such income dividends and capital
gain distributions as are payable on a Portfolio's shares in additional shares
of the Portfolio. TRUST shall notify AVLIC or its designee of the number of
shares so issued as payment of such dividends and distributions, and, as
applicable, ex-date, record date, payable date, distribution rate per share,
record date share balances, cash and invested payment amounts, and all other
information reasonably requested by AVLIC.
1.5 TRUST shall make the net asset value per share for the selected
Portfolio(s) available to AVLIC on a daily basis as soon as reasonably
practicable after the net asset value per share is calculated but shall use its
best efforts to make such net asset value available by 6:30 p.m. New York time.
In the event that adjustments are required to correct any error in the
computation of the net asset value of Portfolio shares, TRUST shall promptly
notify AVLIC after discovering the need for any adjustments which result in a
reimbursement of $150 or more to the Account for a Portfolio. Notification may
be made orally or via direct or indirect systems access. The letter shall be
written on TRUST letterhead, or the letterhead of TRUST'S administrator, and
must state for each day for which an error occurred the incorrect price, the
correct price, and to the extent communicated to the Portfolio's shareholder,
the reason for the price change. TRUST agrees that AVLIC may send this in
writing, or a derivation thereof (so long as the deviation is approved in
advance by TRUST, which approval shall not unreasonable be withheld) to Contract
owners who are affected by the price change.
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1.6 If the Account received amounts in excess of the amounts to which
it would otherwise have been entitled prior to an adjustment for an error,
AVLIC, upon request by TRUST, will make a good faith attempt to collect such
excess amounts from the accounts of the Contract owners. In no event, however,
shall AVLIC be liable to TRUST for any such amounts.
1.7 If an adjustment is to be made in accordance with subsection 1.5
above to correct an error which has caused the Account to receive an amount less
that that to which it is entitled, TRUST shall make all necessary adjustments
(within the parameters specified in section 1.9) to the shares owned in the
Account and, to the extent of any underpayment, distribute to AVLIC the amount
of such underpayment for credit to the accounts of the Contract owners.
1.8 At the end of each Business Day, AVLIC shall use the information
described in Section 1.5 to calculate Separate Account unit values for the day.
Using these unit values, AVLIC shall process each such Business Day's Separate
Account transactions based on requests and premiums received by it by the close
of trading on the floor of the New York Stock Exchange (currently 4:00 p.m. New
York time) to determine the net dollar amount of TRUST shares which shall be
purchased or redeemed at that day's closing net asset value per share. The net
purchase or redemption orders so determined shall be transmitted to TRUST by
AVLIC by 8:00 a.m. New York Time on the Business Day next following AVLIC's
receipt of such requests and premiums in accordance with the terms of Sections
1.2 and 1.3 hereof.
1.9 If AVLIC's order requests the purchase of TRUST shares, AVLIC shall
pay for such purchase by wiring federal funds to TRUST or its designated
custodial account on the day the order is transmitted by AVLIC. If AVLIC's order
requests a net redemption resulting in a payment of redemption proceeds to
AVLIC, TRUST shall use its best efforts to wire the redemption proceeds to AVLIC
by the next Business Day, unless doing so would require TRUST to dispose of
Portfolio securities or otherwise incur additional costs. In any event, proceeds
shall be wired to AVLIC within the time period permitted by the `40 Act or the
rules, orders or regulations thereunder, and TRUST shall notify the person
designated in writing by AVLIC as the recipient for such notice of such delay by
3:00 p.m. New York Time on the same Business Day that AVLIC transmits the
redemption order to TRUST. If AVLIC's order requests the application of
redemption proceeds from the redemption of shares to the purchase of shares of
another Fund advised by ADVISER, TRUST shall so apply such proceeds on the same
Business Day that AVLIC transmits such order to TRUST.
1.10 TRUST agrees that all shares of the Portfolios of TRUST will be
sold only to Participating Insurance Companies which have agreed to participate
in TRUST to fund their Separate Accounts and/or to Qualified Plans, all in
accordance with the requirements of Section 817(h)(4) of the Internal Revenue
Code of 1986, as amended ("Code") and Treasury Regulation 1.817-5. Shares of the
TRUST's Portfolios will not be sold directly to the general public.
1.11 TRUST may refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of the shares of or liquidate any Portfolio of
TRUST if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board of Trustees of the TRUST
(the "Board"), acting in good faith and in light of its duties under federal and
any applicable state laws, deemed necessary, desirable or appropriate and in the
best interests of the shareholders of such Portfolios.
1.12 Issuance and transfer of Portfolio shares will be by book entry
only. Stock certificates will not be issued to AVLIC or the Separate Accounts.
Shares ordered from Portfolio will be recorded in appropriate book entry titles
for the Separate Accounts.
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1.13 TRUST agrees to provide AVLIC a statement of TRUST's assets as
soon as practicable and in any event within 30 days after the end of each
calendar quarter.
Article II. REPRESENTATIONS AND WARRANTIES
2.1 AVLIC represents and warrants that it is an insurance company duly
organized and in good standing under the laws of the Commonwealth of Virginia
and that it has legally and validly established each Separate Account as a
segregated asset account under such laws, and that The Advisors Group, the
principal underwriter for the Variable Contracts, is registered as a
broker-dealer under the Securities Exchange Act of 1934 (the "34 Act").
2.2 AVLIC represents and warrants that it has registered or, prior to
any issuance or sale of the Variable Contracts, will register each Separate
Account as a unit investment trust ("UIT") in accordance with the provisions of
the `40 Act and cause each Separate Account to remain so registered to serve as
a segregated asset account for the variable Contracts, unless an exemption from
registration is available.
2.3 AVLIC represents and warrants that the Variable Contracts will be
registered under the Securities Act of 1933 (the "33 Act") unless an exemption
from registration is available prior to any issuance or sale of the Variable
Contracts, and that the Variable Contracts will be issued and sold in compliance
in all material respects with all applicable federal and state laws (including
all applicable blue sky laws) and further that the sale of the Variable
Contracts shall comply in all material respects with applicable state insurance
law suitability requirements.
2.4 AVLIC represents and warrants that the Variable Contracts are
currently and at the time of issuance will be treated as life insurance,
endowment or annuity contracts under applicable provisions of the Code, that it
will maintain such treatment and that it will notify TRUST immediately upon
having a reasonable basis for believing that the Variable Contracts have ceased
to be so treated or that they might not be so treated in the future.
2.5 LIFE COMPANY represents and warrants that it complies with all
applicable laws, rules and regulations designed to prevent 'money laundering'
and if required by law would allow the TRUST or ADVISER reasonable access to its
client and other records to assist in any investigation of suspected money
laundering activities by its clients.
2.6 TRUST represents and warrants that the Fund shares offered and sold
pursuant to this Agreement will be registered under the `33 Act and sold in
accordance with all applicable federal laws, and TRUST shall be registered under
the `40 Act prior to and at the time of any issuance or sale of such shares.
TRUST, subject to Section 1.9 above, shall amend its registration statement
under the `33Act and the `40 Act from time to time as required in order to
effect the continuous offering of its shares. TRUST shall register and qualify
its shares for sale in accordance with the laws of the various states only if
and to the extent deemed advisable by TRUST.
2.7 TRUST represents and warrants that each Portfolio will comply with
the diversification requirements set forth in Section 817(h) of the Code, and
the rules and regulations thereunder, including without limitation Treasury
Regulation 1.817-5, and will notify AVLIC immediately upon having a reasonable
basis for believing any Portfolio has ceased to comply and will immediately take
all reasonable steps to adequately diversify the Portfolio to achieve
compliance.
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2.8 TRUST represents and warrants that each Portfolio invested in by
the Separate Account will be treated as a "regulated investment company" under
Subchapter M of the Code, and will notify AVLIC immediately upon having a
reasonable basis for believing it has ceased to so qualify or might not so
qualify in the future.
2.9 ADVISER represents and warrants that it shall perform its
obligations hereunder in compliance in all material respects with any applicable
state and federal laws.
Article III. PROSPECTUS AND PROXY STATEMENTS
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3.1 TRUST shall prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of TRUST.
TRUST shall bear the costs of registration and qualification of shares of the
portfolios, preparation and filing of the documents listed in this Section 3.1
and all taxes and filing fees to which an issuer is subject on the issuance and
transfer of its shares.
3.2 TRUST or its designee shall provide AVLIC, free of charge, with as
many copies of the current prospectus (or prospectuses), statements of
additional information, annual and semi-annual reports and proxy statements for
the shares of the Portfolios as AVLIC may reasonably request for distribution to
existing Variable Contract owners whose Variable Contracts are funded by such
shares. TRUST or its designee shall provide AVLIC, at AVLIC's expense, with as
many copies of the current prospectus (or prospectuses) for the shares as AVLIC
may reasonably request for distribution to prospective purchasers of Variable
Contracts. If requested by AVLIC, TRUST or its designee shall provide such
documentation (including a "camera ready" copy of the current prospectus (or
prospectuses) as set in type or, at the request of AVLIC, as a diskette in the
form sent to the financial printer) and other assistance as is reasonably
necessary in order for the parties hereto once a year (or more frequently if the
prospectus (or prospectuses) for the shares is supplemented or amended) to have
the prospectus for the Variable Contracts and the prospectus (or prospectuses),
for the TRUST shares printed together in one document. The expenses of such
printing will be apportioned between AVLIC and TRUST in proportion to the number
of pages of the Variable Contract and TRUST prospectus, taking account of other
relevant factors affecting the expense of printing, such as covers, columns,
graphs and charts; TRUST shall bear the cost of printing the TRUST prospectus
portion of such document for distribution only to owners of existing Variable
Contracts funded by the TRUST shares and AVLIC shall bear the expense of
printing the portion of such documents relating to the Separate Account;
provided, however, AVLIC shall bear all printing expenses of such combined
documents where used for distribution to prospective purchasers or to owners of
existing Variable Contracts not funded by the shares. In the event that AVLIC
requests that TRUST or its designee provide TRUST's prospectus in a "camera
ready" or diskette format, TRUST shall be responsible for providing the
prospectus (or prospectuses) in the format in which it is accustomed to
formatting prospectuses and shall bear the expense of providing the prospectus
(or prospectuses) in such format (e.g. typesetting expenses), and AVLIC shall
bear the expense of adjusting or changing the format to conform with any of its
prospectuses.
3.3 TRUST will provide AVLIC with at least one complete copy of all
prospectuses, statements of additional information, annual and semi-annual
reports, proxy statements, exemptive applications and all amendments or
supplements to any of the above that relate to the Portfolios promptly after the
filing of each such document with the SEC or other regulatory authority. AVLIC
will provide TRUST with at least one complete copy of all prospectuses,
statements of additional information, annual and semi-annual reports, proxy
statements, exemptive applications and all amendments or supplements to
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any of the above that relate to a separate Account promptly after the filing of
each such document with the SEC or other regulatory authority.
Article IV .SALES MATERIALS
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4.1 AVLIC will furnish, or will cause to be furnished, to TRUST and
ADVISER, each piece of sales literature or other promotional material in which
TRUST or ADVISER is named, at least fifteen (15) Business Days prior to its
intended use. No such material will be used if TRUST or ADVISER objects to its
use in writing within ten (10) Business Days after receipt of such material.
4.2 TRUST and ADVISER will furnish, or will cause to be furnished, to
AVLIC, each piece of sales literature or other promotional material in which
AVLIC or its separate Accounts are named, at least fifteen (15) Business Days
prior to its intended use. No such material will be used if AVLIC objects to its
use in writing within ten (10) Business Days after receipt of such material.
4.3 TRUST and its affiliates and agents shall not give any information
or make any representations on behalf of AVLIC or concerning AVLIC, the Separate
Accounts, or the Variable Contracts issued by AVLIC, other than the information
or representations contained in a registration statement or prospectus for such
Variable Contracts, as such registration statement and prospectus may be amended
or supplemented from time to time, or in reports of the Separate Accounts or
reports prepared for distribution to owners of such Variable Contracts, or in
sales literature or other promotional material approved by AVLIC or its
designee, except with the written permission of AVLIC.
4.4 AVLIC and its affiliates and agents shall not give any information
or make any representations on behalf of TRUST or concerning TRUST other than
the information or representations contained in a registration statement or
prospectus for TRUST, as such registration statement and prospectus may be
amended or supplemented from time to time, or in sales literature or other
promotional material approved by TRUST or its designee, except with the written
permission of TRUST.
4.5 For purposes of this Agreement, the phrase "sales literature or
other promotional material" or words of similar import include, without
limitation, 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 or other
public media), sales literature (such as any written communication distributed
or made generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts, or
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 or employees, registration
statements, prospectuses, statements of additional information, shareholder
reports and proxy materials, and any other material constituting sales
literature or advertising under National Association of Securities Dealers, Inc.
("NASD") rules, the `40 Act, the `33 Act or rules thereunder.
Article V. POTENTIAL CONFLICTS
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5.1 The parties acknowledge that TRUST has received an order from the
SEC granting relief from various provisions of the `40 Act and the rules
thereunder to the extent necessary to permit TRUST shares to be sold to and held
by Variable Contract separate accounts of both affiliated and unaffiliated
Participating Insurance Companies and Qualified Plans. The Exemptive Order
requires TRUST and each participating Insurance Company to comply with
conditions and undertakings substantially as provided in
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this Section 5. The TRUST will not enter into a participation agreement with any
other Participating Insurance Company unless it imposes the same conditions and
undertakings as are imposed on AVLIC hereby.
5.2 The Board will monitor TRUST for the existence of any material
irreconcilable conflict between the interests of Variable Contract owners of all
separate accounts and with participants of Qualified Plans investing in TRUST.
An irreconcilable material conflict may arise for a variety of reasons, which
may include: (a) an action by any state insurance regulatory authority; (b) a
change in applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling or any similar action by
insurance, tax or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of TRUST are being managed; (e) a difference in voting instructions
given by Variable Contract owners; (f) a decision by a Participating Insurance
Company to disregard the voting instructions of Variable Contract owners and (g)
if applicable, a decision by a Qualified Plan to disregard the voting
instructions of plan participants.
5.3 AVLIC will report any potential or existing conflicts of which it
becomes aware to the Board. AVLIC will be responsible for assisting the Board in
carrying out its duties in this regard by providing the Board with all
information reasonably necessary for the Board to consider any issues raised.
The responsibility includes, but is not limited to, an obligation by the AVLIC
to inform the Board whenever it has determined to disregard Variable Contract
owner voting instructions. These responsibilities of AVLIC will be carried out
with a view only to the interests of the Variable Contract owners.
5.4 If a majority of the Board or majority of its disinterested
Trustees, determines that a material irreconcilable conflict exists affecting
AVLIC, AVLIC, at its expense and to the extent reasonably practicable (as
determined by a majority of the Board's disinterested Trustees), will take any
steps necessary to remedy or eliminate the irreconcilable material conflict,
including; (a) withdrawing the assets allocable to some or all of the Separate
Accounts from TRUST or any Portfolio thereof and reinvesting those assets in a
different investment medium, which may include another portfolio of TRUST, or
another investment company; (b) submitting the question as to whether such
segregation should be implemented to a vote of all affected variable Contract
owners and as appropriate, segregating the assets of any appropriate group
(i.e., variable annuity or variable life insurance Contract owners of one or
more Participating Insurance Companies) that votes in favor of such segregation,
or offering to the affected Variable Contract owners the option of making such a
change; and (c) establishing a new registered management investment company (or
series thereof) or managed separate account. If a material irreconcilable
conflict arises because of AVLIC's decision to disregard Variable Contract owner
voting instructions, and that decision represents a minority position or would
preclude a majority vote, AVLIC may be required, at the election of TRUST, to
withdraw the separate Account's investment in TRUST, and no charge or penalty
will be imposed as a result of such withdrawal. The responsibility to take such
remedial action shall be carried out with a view only to the interests of the
Variable Contract owners.
For the purposes of this Section 5.4, a majority of the disinterested
members of the Board shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
TRUST or ADVISER (or any other investment adviser of TRUST) be required to
establish a new funding medium for any Variable Contract. Further, AVLIC shall
not be required by this Section 5.4 to establish a new funding medium for any
Variable contracts if any offer to do so has been declined by a vote of a
majority of Variable Contract owners materially and adversely affected by the
irreconcilable material conflict.
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5.5 The Board's determination of the existence of an irreconcilable
material conflict and its implications shall be made known promptly and in
writing to AVLIC.
5.6 No less than annually, AVLIC shall submit to the Board such
reports, materials or data as the Board may reasonably request so that the Board
may fully carry out its obligations. Such reports, materials, and data shall be
submitted more frequently if deemed appropriate by the Board.
Article VI. VOTING
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6.1 AVLIC will provide pass-through voting privileges to all Variable
Contract owners so long as the SEC continues to interpret the `40 Act as
requiring pass-through voting privileges for Variable Contract owners.
Accordingly, AVLIC, where applicable, will vote shares of the Portfolio held in
its Separate Accounts in a manner consistent with voting instructions timely
received from its Variable Contract owners. AVLIC will be responsible for
assuring that each of its Separate Accounts that participates in TRUST
calculates voting privileges in a manner consistent with other Participating
Insurance Companies. AVLIC will vote shares for which it has not received timely
voting instructions, as well as shares it owns, in the same proportion as its
votes those shares for which it has received voting instructions.
6.2 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended, or if
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the `40
Act or the rules thereunder with respect to mixed and shared funding on terms
and conditions materially different from any exemptions granted in the Exemptive
Order, then TRUST, and/or the participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rule 6e-2 and Rule
6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such Rules are
applicable.
Article VII. MARKET TIMERS
-------------
7.1 LIFE COMPANY will develop, implement and maintain policies and
procedures to discourage use of the Separate Accounts by market timers in
consultation with TRUST. If LIFE COMPANY proposes to modify such policies and
procedures following their implementation, LIFE COMPANY will first discuss its
proposal with TRUST and will not modify such policies and procedures so as to
make them less effective in deterring short-term redemptions without TRUST's
written consent.
7.2 LIFE COMPANY will develop, implement and maintain procedures as
necessary or applicable to further any market timing policies and procedures
established by a Portfolio.
7.3 If a Portfolio or TRUST advises LIFE COMPANY that a pattern or
patterns of transactions involving short-term trading in one or more Separate
Accounts is having an adverse effect on the Portfolio, LIFE COMPANY will
promptly develop and implement mutually acceptable policies and procedures to
prevent such trading. The parties hereto acknowledge that, if necessary, such
policies and procedures may include the identification of Separate Account
participants engaged in such short-term trading and the imposition of complete
or partial restrictions on their requests to purchase certain Shares.
7.4 LIFE COMPANY will monitor Separate Account participant activity in
the Separate Accounts to control short-term trading and market-timing activity,
and to further each Portfolio's policies regarding such trading activity.
8
Article VIII. 5% SHAREHOLDERS
---------------
In the event that a Separate Account of Life Company with any Portfolio
comes to hold more than five percent (5%) of the outstanding Shares of such
Portfolio, it will be TRUST's responsibility to request that LIFE COMPANY
confirm its status as shareholder of record and advise TRUST whether any
Separate Account participant beneficially owns more than five percent (5%) of
the outstanding Shares of such Portfolio through LIFE COMPANY's accounts. For
this purpose, TRUST will indicate in its inquiry the number of Shares that
currently equals five percent (5%) of the outstanding Shares of such Portfolio.
LIFE COMPANY will respond promptly, accurately and completely to any such
inquiry. Whenever TRUST or a Portfolio advises LIFE COMPANY that it is required
by law to obtain the name and other identifying information of a Separate
Account participant who beneficially owns more than five percent (5%) of the
outstanding Shares of a Portfolio, LIFE COMPANY will provide such information to
the extent within its possession or control. TRUST will not use or disclose such
information received from LIFE COMPANY except to comply with applicable laws.
Article IX. INDEMNIFICATION
---------------
9.1 Indemnification by AVLIC. AVLIC agrees to indemnify and hold
harmless TRUST, ADVISER and each of their Trustees, directors, principals,
officers, employees and agents and each person, if any, who controls TRUST or
ADVISER within the meaning of Section 15 of the `33 Act (Collectively, the
"Indemnified Parties") against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of AVLIC, which
consent shall not be unreasonably withheld) or litigation or threatened
litigation (including 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 TRUST's shares or the Variable Contracts and:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the Registration
Statement or prospectus for the Variable Contracts or contained in the
Variable Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged 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 in writing to AVLIC by or on behalf of TRUST for
use in the registration statement or prospectus for the Variable
Contracts or in the Variable Contracts or sales literature (or any
amendment or supplement) or otherwise for use in connection with the
sale of the Variable Contracts or TRUST shares; or
(b) arise out of or result from (i) statements or representations
(other than statements or representations contained in the registration
statement, prospectus or sales literature of TRUST not supplied by
AVLIC, or persons under its control) or (ii) wrongful conduct of AVLIC
or persons under its control, with respect to the sale or distribution
of the Variable Contracts or TRUST shares; or
(c) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, or
sales literature of TRUST or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading if such statement or
9
omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished in writing to TRUST
by or on behalf of AVLIC; or
(d) arise as a result of any failure by AVLIC to provide substantially
the services and furnish the materials under the terms of this
Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by AVLIC in this Agreement or arise
out of or result from any other material breach of this Agreement by
AVLIC.
9.2 AVLIC shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation incurred or
assessed against an Indemnified party to the extent that such losses, claims,
damages, liabilities or litigation are attributable to 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 obligations or duties under this Agreement.
9.3 AVLIC 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 AVLIC 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 AVLIC of any such claim shall not relieve AVLIC
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, AVLIC shall be
entitled to participate at its own expense in the defense of such action. AVLIC
also shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from AVLIC to such party of
AVLIC's election to assume the defense thereof, the Indemnified party shall bear
the fees and expenses of any additional counsel retained by it, and AVLIC 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.
9.4 Indemnification by TRUST. TRUST agrees to indemnify and hold
harmless AVLIC and each of its directors, officers, employees, and agents and
each person, if any, who controls AVLIC within the meaning of Section 15 of the
`33 Act (collectively, the "Indemnified Parties") against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of TRUST which consent shall not be unreasonably withheld) or
litigation or threatened 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 are
related to the sale or acquisition of TRUST's shares or the variable Contracts
and:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement or prospectus or sales literature of TRUST (or any amendment
or supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged 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 in writing to ADVISER or TRUST by
or on behalf of AVLIC for use in the registration statement or
prospectus for TRUST or in sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the
Variable Contracts or TRUST shares; or
10
(b) arise out of or result from (i) statements or representations
(other than statements or representations contained in the registration
statement, prospectus or sales literature for the Variable Contracts
not supplied by ADVISER or TRUST or persons under its control) or (ii)
gross negligence or wrongful conduct or willful misfeasance of TRUST or
persons under its control, with respect to the sale or distribution of
the Variable Contracts or TRUST shares; or
(c) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, or
sales literature covering the Variable Contracts, or any amendment
thereof or supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such
statement or omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished in writing
to AVLIC for inclusion therein by or on behalf of TRUST; or
(d) arise as a result of (i) a failure by TRUST to provide
substantially the services and furnish the materials under the terms of
this Agreement; or (ii) a failure by a Portfolio(s) invested in by the
Separate Account to comply with the diversification requirements of
Section 817(h) of the Code; or (iii) a failure by a Portfolio(s)
invested in by the Separate Account to qualify as a "regulated
investment company" under Subchapter M of the Code; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by TRUST in this Agreement or arise
out of or result from any other material breach of this Agreement by
TRUST .
9.5 TRUST shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation incurred or
assessed against an Indemnified Party to the extent that such losses, claims,
damages, liabilities or litigation are attributable to 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 obligations and duties under this Agreement.
9.6 TRUST 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 TRUST 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 TRUST of any such claim shall not relieve TRUST
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 parties, TRUST shall
be entitled to participate at its own expense in the defense thereof. TRUST also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from TRUST to such party of TRUST's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and TRUST 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.
Article X. TERM: TERMINATION
-----------------
10.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions herein.
11
10.2 This Agreement shall terminate in accordance with the
following provisions:
(a) At the option of AVLIC or TRUST at any time from the date hereof
upon 180 days' notice, unless a shorter time is agreed to by the
parties;
(b) At the option of AVLIC, if TRUST shares are not reasonably
available to meet the requirements of the Variable Contracts as
determined by AVLIC. Prompt notice of election to terminate shall be
furnished by AVLIC, said termination to be effective ten days after
receipt of notice unless TRUST makes available a sufficient number of
shares to reasonably meet the requirements of the Variable Contracts
within said ten-day period;
(c) At the option of AVLIC, upon the institution of formal proceedings
against TRUST by the SEC, the NASD, or any other regulatory body, the
expected or anticipated ruling, judgment or outcome of which would, in
AVLIC's reasonable judgment, materially impair TRUST's ability to meet
and perform TRUST's obligations and duties hereunder. prompt notice of
election to terminate shall be furnished by AVLIC with said termination
to be effective upon receipt of notice;
(d) At the option of TRUST, upon the institution of formal proceedings
against AVLIC and/or its broker-dealer affiliates by the SEC, the NASD,
or any other regulatory body, the expected or anticipated ruling,
judgment or outcome of which would, in TRUST's reasonable judgment,
materially impair AVLIC's ability to meet and perform its obligations
and duties hereunder. prompt notice of election to terminate shall be
furnished by TRUST with said termination to be effective upon receipt
of notice;
(e) In the event TRUST's shares are not registered, issued or sold in
accordance with applicable state or federal law, or such law precludes
the use of such shares as the underlying investment medium of Variable
Contracts issued or to be issued by AVLIC. Termination shall be
effective upon such occurrence without notice; (f) At the option of
TRUST if the Variable Contracts cease to qualify as annuity contracts
or life insurance contracts, as applicable, under the Code, or if TRUST
reasonably believes that the Variable Contracts may fail to so qualify.
Termination shall be effective upon receipt of notice by AVLIC;
(g) At the option of AVLIC, upon TRUST's breach of any material
provision of this Agreement, which breach has not been cured to the
satisfaction of AVLIC within ten days after written notice of such
breach is delivered to TRUST;
(h) At the option of TRUST, upon AVLIC's breach of any material
provision of this Agreement, which breach has not been cured to the
satisfaction of TRUST within ten days after written notice of such
breach is delivered to AVLIC;
(i) At the option of TRUST, if the Variable Contracts are not
registered, issued or sold in accordance with applicable federal and/or
state law. Termination shall be effective immediately upon such
occurrence without notice;
In the event this Agreement is assigned without the prior written
consent of AVLIC, TRUST, and ADVISER, termination shall be effective immediately
upon such occurrence without notice.
10.3 Notwithstanding any termination of this Agreement pursuant to
Section 10.2 hereof, TRUST at its option may elect to continue to make available
additional TRUST shares, as provided
12
below, for so long as TRUST desires pursuant to the terms and conditions of this
Agreement, for all Variable Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, if TRUST so elects to make additional TRUST
shares available, the owners of the Existing Contracts or AVLIC, whichever shall
have legal authority to do so, shall be permitted to reallocate investments in
TRUST, redeem investments in TRUST and/or invest in TRUST upon the payment of
additional premiums under the Existing Contracts. In the event of a termination
of this Agreement pursuant to Section 10.2 hereof, TRUST and ADVISER, as
promptly as is practicable under the circumstances, shall notify AVLIC whether
TRUST elects to continue to make TRUST shares available after such termination.
If TRUST shares continue to be made available after such termination, the
provisions of this Agreement shall remain in effect and thereafter either TRUST
or AVLIC may terminate the Agreement, as so continued pursuant to this Section
10.3, upon sixty (60) days' prior written notice to the other party.
10.4 Except as necessary to implement Variable Contract owner initiated
transactions, or as required by state insurance laws or regulations, AVLIC shall
not redeem the shares attributable to the Variable Contracts (as opposed to the
shares attributable to AVLIC'S assets held in the Separate Accounts), and AVLIC
shall not prevent Variable Contract owners from allocating payments to a
Portfolio that was otherwise available under the Variable Contracts until thirty
(30) days after AVLIC shall have notified TRUST of its intention to do so.
Article XI. NOTICES
-------
Any notice hereunder shall be given by registered or certified mail
return receipt requested 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 TRUST:
Deutsche Asset Management VIT Funds
c/o PFPC Global Fund Services
0000 Xxxxxxx Xxxxx
Xxxx xx Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx, Legal Department
and
c/o Deutsche Asset Management Mutual Fund Services
One South Street, Mail Stop 1-18-6
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
If to ADVISER:
Deutsche Asset Management, Inc.
000 Xxxxxxx Xxxxxx, Mail Stop 2355
Xxx Xxxx, XX 00000
Attn: Mutual Fund Marketing
13
If to AVLIC:
Ameritas Variable Life Insurance Company
0000 "X" Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Article XII. MISCELLANEOUS
-------------
12.1 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.
12.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.3 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.
12.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York. It
shall also be subject to the provisions of the federal securities laws and the
rules and regulations thereunder and to any orders of the SEC granting exemptive
relief therefrom and the conditions of such orders.
12.5 It is understood and expressly stipulated that neither the
shareholders of shares of any Portfolio nor the Trustees or officers of TRUST or
any Portfolio shall be personally liable hereunder. No Portfolio shall be liable
for the liabilities of any other Portfolio. All persons dealing with TRUST or a
Portfolio must look solely to the property of TRUST or that Portfolio,
respectively, for enforcement of any claims against TRUST or that Portfolio. It
is also understood that each of the Portfolios shall be deemed to be entering
into a separate Agreement with AVLIC so that it is as if each of the Portfolios
had signed a separate Agreement with AVLIC and that a single document is being
signed simply to facilitate the execution and administration of the Agreement.
12.6 Each party 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.
12.7 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.
12.8 If the Agreement terminates, the parties agree that Article IX and
Sections 12.5, 12.6 and 12.7 shall remain in effect after termination.
12.9 No provision of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by TRUST,
ADVISER and the AVLIC.
12.10 No failure or delay by a party in exercising any right or remedy
under this Agreement will operate as a waiver thereof and no single or partial
exercise of rights shall preclude a further or
14
subsequent exercise. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by law.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Fund Participation Agreement as of the date and year
first above written.
DEUTSCHE ASSET MANAGEMENT VIT FUNDS
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
--------------------------------------------------------
Title: Assistant Secretary
-------------------------------------------------------
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, III
--------------------------------------------------------
Title: Managing Director and Senior Counsel
-------------------------------------------------------
AMERITAS VARIABLE LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and COO
15
Appendix A
to participation Agreement by and among Deutsche Asset Management VIT Funds,
Deutsche Asset Management, Inc., and Ameritas Variable Life Insurance Company
List of Portfolios:
-------------------
Deutsche Asset Management VIT Funds - Small Cap Index Fund
Deutsche Asset Management VIT Funds - Equity 500 Index Fund
Deutsche Asset Management VIT Funds - EAFE Equity Index Fund
00
Xxxxxxxx X
to Participation Agreement by and among Deutsche Asset Management VIT Funds,
Deutsche Asset Management, Inc., and Ameritas Variable Life Insurance Company.
List of Variable Separate Accounts:
-----------------------------------
Ameritas Variable Separate Account VA
("Separate Account VA")
Ameritas Variable Separate Account VL
("Separate Account VL")
17
