AMENDMENT TO PARTICIPATION AGREEMENT
Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust
Franklin/▇▇▇▇▇▇▇▇▇ Distributors, Inc.
MetLife Investors USA Insurance Company
MetLife Investors Distribution Company
Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust (the "Trust"),
Franklin/▇▇▇▇▇▇▇▇▇ Distributors, Inc. (the "Underwriter," and together with
the Trust, "we," "our," or "us"), MetLife Investors USA Insurance Company
Insurance Company, and MetLife Investors Distribution Company, your
distributor (collectively, the "Company" "you" or "your"), on your behalf and
on behalf of certain Accounts, (individually a "Party", collectively, the
"Parties") have previously entered into a Participation Agreement dated November
1, 2005, as amended (the "Agreement"). The parties now desire to amend the
Agreement by this amendment (the "Amendment"). Unless otherwise indicated, the
terms defined in the Agreement shall have the same meaning in this Amendment.
A M E N D M E N T
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Section 4.4 and Section 6 of the Agreement are amended and restated in
their entirety as set forth in Attachment A to this Amendment.
2. All other terms and provisions of the Agreement not amended herein
shall remain in full force and effect.
IN WITNESS WHEREOF, each of the Parties has caused their duly authorized
officers to execute this Amendment as of January 15, 2013.
The Trust: FRANKLIN ▇▇▇▇▇▇▇▇▇ VARIABLE INSURANCE
ONLY ON BEHALF OF EACH PRODUCTS TRUST
PORTFOLIO LISTED ON
SCHEDULE C OF THE
AGREEMENT. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
The Underwriter: FRANKLIN/▇▇▇▇▇▇▇▇▇ DISTRIBUTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
The Company: METLIFE INVESTORS USA INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
The Distributor: METLIFE INVESTORS DISTRIBUTION COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Vice President
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ATTACHMENT A TO AMENDMENT TO PARTICIPATION AGREEMENT
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4. FEES, EXPENSES, PROSPECTUSES, PROXY MATERIALS AND REPORTS
4.4 "Designated Portfolio Document" means the following documents we create
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with respect to each Portfolio and provide to you: (1) a Portfolio's prospectus,
including a summary prospectus (together, "Prospectus") if the Trust chooses to
create one for a Portfolio and we and you have signed the necessary
Participation Agreement Addendum; (2) its annual report to shareholders; (3) its
semi-annual report to shareholders; (4) amendments or supplements to any of the
foregoing if we direct you to deliver them to Contract owners; and (5) other
shareholder communications including, without limitation, proxy statements, if
we direct you to deliver them to Contract owners.
"Document Event" means (1) with respect to the Prospectus, the effectiveness of
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a new annual post-effective amendment to the Prospectus to update financial
statements and make other disclosure changes or other post-effective amendment
to the Prospectus; (2) with respect to the Trust's annual report and semi-annual
reports to shareholders, the Trust's creation of reports intended to satisfy the
requirements of Section 30(a) of the 1940 Act applicable to the Trust; or (3)
with respect to amendments or supplements to any of the foregoing or other
shareholder communications, the Trust's creation of such documents and provision
of them to you.
"Printing Expenses" means expenses of the physical creation of Designated
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Portfolio Documents, and not of their distribution to Contract owners
(including, without limitation, mailing and postage expenses) or the provision
of other services.
Each time there is a Document Event with respect to a Designated Portfolio
Document we shall, at your option, provide you with one of the following:
(1) one copy of the applicable Designated Portfolio Document for each
Contract owner with investments allocated to a subaccount
corresponding to the Portfolio before the date of the Designated
Portfolio Document (the "Contract Owner Recipients"); or
(2) a copy suitable for reproduction of such Designated Portfolio
Document, in which case we will reimburse you, as provided below
under "Reimbursement Procedures," for Printing Expenses you incur to
create Designated Portfolio Documents in sufficient quantity so that
one such Designated Portfolio Document is available for you to have
delivered to each Contract Owner Recipient.
REIMBURSEMENT PROCEDURES
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ROUTINE REIMBURSEMENTS. Within six months following the delivery
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date of the Designated Portfolio Document ("Delivery Date"), we must
receive your
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request for reimbursement and: (i) a statement of the number of
Contract Owner Recipients; (ii) copies of all printing company
invoices applicable to the Printing Expenses that you request we
reimburse; (iii) a description of the methodology used to determine
the amount of reimbursement requested; and (iv) your representation
that the reimbursement request covers only Printing Expenses covered
by Section 4.4 of this Agreement; the date we have received all
these items is the "Request Date." If we are able to validate your
request based on the information you provided as well as, among
other things we believe to be appropriate, our analysis of your
previous reimbursement requests, if applicable, and/or third party
industry benchmarking information, then we will reimburse you within
sixty days of the Request Date.
REIMBURSEMENTS REQUIRING ADDITIONAL INFORMATION. If we cannot
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validate your reimbursement request based on the information you
have provided to us and our analysis described in the preceding
paragraph, then we will request additional information from you and
work with you to validate your request.
EXPENSES NOT SUBJECT TO REIMBURSEMENT. We will not reimburse
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expenses related to: (1) creation or provision of any Designated
Portfolio Document for or to a person who is not a Contract Owner
Recipient of such document; (2) creation or provision of any
Designated Portfolio Document to a person accompanying, or at the
time of the delivery of, a confirmation of their purchase of or
exchange into subaccount shares corresponding to a Portfolio; (3)
posting any Designated Portfolio Document on your website; or (4)
electronic filing of Designated Portfolio Documents or other
documents with the Securities and Exchange Commission (using its
▇▇▇▇▇ or other system).
STATEMENT OF ADDITIONAL INFORMATION. We shall provide you with a copy of the
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Trust's current statement of additional information, including any amendments or
supplements to it ("SAI"), in a form suitable for reproduction, but we will not
pay Printing Expenses or other expenses with respect to the SAI.
6. SALES MATERIAL, INFORMATION AND TRADEMARKS
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6.1 "Sales Literature/ Promotional Material" includes, but is not limited
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to, portions of the following that use any logo or other trademark related to
the Trust, or Underwriter or its affiliates, or refer to the Trust:
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, web-sites and other
electronic communications 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,
form letters, seminar texts, reprints or excerpts or any other advertisement,
sales literature or published article or electronic communication), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees in any media, and disclosure
documents, shareholder reports and proxy materials. "Disclosure Documents"
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shall mean
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each item of the following if prepared, approved or used by you and relating to
a Contract, an Account, or a Portfolio, and any amendments or revisions to such
document: registration statements, prospectuses, statements of additional
information, private placement memoranda, retirement plan disclosure information
or other disclosure documents or similar information, as well as any
solicitation for voting instructions.
6.2 You may use the name of the Trust and trademarks and the logo of the
Underwriter in Sales Literature/Promotional Material as reasonably necessary to
carry out your performance and obligations under this Agreement provided that
you comply with the provisions of this Agreement. You agree to abide by any
reasonable use guidelines regarding use of such trademarks and logos that we may
give from time to time. You shall, as we may request from time to time, promptly
furnish, or cause to be furnished to us or our designee, one complete copy of
each item of the following: (i) Sales Literature/Promotional Material prepared,
approved or used by you; and (ii) Disclosure Documents.
6.3 You and your agents shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust,
the Underwriter or an Adviser, other than information or representations
contained in and accurately derived from the registration statement or
prospectus for the Trust shares (as such registration statement and prospectus
may be amended or supplemented from time to time), annual and semi-annual
reports of the Trust, Trust-sponsored proxy statements, or in Sales
Literature/Promotional Material created by us for the Trust and provided by the
Trust or its designee to you, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
6.4 You agree, represent and warrant that you are solely responsible for
any Sales Literature/ Promotional Material prepared by you and that such
material will: (a) conform to all requirements of any applicable laws or
regulations of any government or authorized agency having jurisdiction over the
offering or sale of shares of the Portfolios or Contracts; (b) be solely based
upon and not contrary to or inconsistent with the written information or
materials provided to you by us or a Portfolio, including the Trust's prospectus
and statement of additional information; and (c) be made available promptly to
us upon our request. You agree to file any Sales Literature/Promotional Material
prepared by you with FINRA, or other applicable legal or regulatory authority,
within the timeframes that may be required from time to time by FINRA or such
other legal or regulatory authority. Unless otherwise expressly agreed to in
writing, it is understood that we will neither review nor approve for use any
materials prepared by you and will not be materially involved in the preparation
of, or have any responsibility for, any such materials prepared by you. You are
not authorized to modify or translate any materials we have provided to you.
6.5 You shall promptly notify us of any written customer complaint or
notice of any regulatory investigation or proceeding received by you relating to
any Sales Literature/Promotional Material.
6.6 Other than naming you as a Trust shareholder, we shall not give any
information or make any representations or statements on behalf of you or
concerning you, the Accounts or the Contracts other than information or
representations contained in and
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accurately derived from Disclosure Documents (as such Disclosure Documents may
be amended or supplemented from time to time), or in materials approved by you
for distribution, including Sales Literature/ Promotional Material, except as
required by legal process or regulatory authorities or with your written
permission.
6.7 Except as provided in Section 6.2, you shall not use any designation
comprised in whole or part of the names or marks "Franklin" or "▇▇▇▇▇▇▇▇▇" or
any logo or other trademark relating to the Trust or the Underwriter without
prior written consent, and upon termination of this Agreement for any reason,
you shall cease all use of any such name or ▇▇▇▇ as soon as reasonably
practicable.
6.8 You shall furnish to us ten (10) Business Days prior to its first
submission to the SEC or its staff, any request or filing for no-action
assurance or exemptive relief naming, pertaining to, or affecting, the Trust,
the Underwriter or any of the Portfolios.
6.9 You agree that any posting of Designated Portfolio Documents on your
website or use of Designated Portfolio Documents in any other electronic format
will result in the Designated Portfolio Documents: (i) appearing identical to
the hard copy printed version or .pdf format file provided to you by us (except
that you may reformat .pdf format prospectus files in order to delete blank
pages and to insert .pdf format prospectus supplement files provided by us to
you); (ii) being clearly associated with the particular Contracts in which they
are available and posted in close proximity to the applicable Contract
prospectuses; (iii) having no less prominence than prospectuses of any other
underlying funds available under the Contracts; (iv) in compliance with any
statutory prospectus delivery requirements and (v) being used in an authorized
manner. Notwithstanding the above, you understand and agree that you are
responsible for ensuring that participation in the Portfolios, and any website
posting, or other use, of the Designated Portfolio Documents is in compliance
with this Agreement and applicable state and federal securities and insurance
laws and regulations, including as they relate to paper or electronic delivery
or use of fund prospectuses. We reserve the right to inspect and review your
website if any Designated Portfolio Documents and/or other Trust documents are
posted on your website and you shall, upon our reasonable request, provide us
timely access to your website materials to perform such inspection and review.
In addition, you agree to be solely responsible for maintaining and
updating the Designated Portfolio Documents' .pdf files and removing and/or
replacing promptly any outdated prospectuses and other documents, as necessary,
ensuring that any accompanying instructions by us, for using or stopping use,
are followed. You agree to designate and make available to us a person to act as
a single point of communication contact for these purposes. We are not
responsible for any additional costs or additional liabilities that may be
incurred as a result of your election to place the Designated Portfolio
Documents on your website. We reserve the right to revoke this authorization, at
any time and for any reason, although we may instead make our authorization
subject to new procedures.
6.10 Each of your and your distributor's registered representatives,
agents, independent contractors and employees, as applicable, will have access
to our websites at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and such other URLs through which we
may permit you to conduct
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business concerning the Portfolios from time to time (referred to collectively
as the "Site") as provided herein: (i) upon registration by such individual on a
Site, (ii) if you cause a Site Access Request Form (an "Access Form") to be
signed by your authorized supervisory personnel and submitted to us, as a
Schedule to, and legally a part of, this Agreement, or (iii) if you provide such
individual with the necessary access codes or other information necessary to
access the Site through any generic or firm-wide authorization we may grant you
from time to time. Upon receipt by us of a completed registration submitted by
an individual through the Site or a signed Access Form referencing such
individual, we shall be entitled to rely upon the representations contained
therein as if you had made them directly hereunder and we will issue a user
identification, express number and/or password (collectively, "Access Code").
Any person to whom we issue an Access Code or to whom you provide the necessary
Access Codes or other information necessary to access the Site through any
generic or firm-wide authorization we may grant you from time to time shall be
an "Authorized User."
We shall be entitled to assume that such person validly represents you and
that all instructions received from such person are authorized, in which case
such person will have access to the Site, including all services and information
to which you are authorized to access on the Site. All inquiries and actions
initiated by you (including your Authorized Users) are your responsibility, are
at your risk and are subject to our review and approval (which could cause a
delay in processing). You agree that we do not have a duty to question
information or instructions you (including Authorized Users) give to us under
this Agreement, and that we are entitled to treat as authorized, and act upon,
any such instructions and information you submit to us. You agree to take all
reasonable measures to prevent any individual other than an Authorized User from
obtaining access to the Site. You agree to inform us if you wish to restrict or
revoke the access of any individual Access Code. If you become aware of any loss
or theft or unauthorized use of any Access Code, you agree to contact us
immediately. You also agree to monitor your (including Authorized Users') use of
the Site to ensure the terms of this Agreement are followed. You also agree that
you will comply with all policies and agreements concerning Site usage,
including without limitation the Terms of Use Agreement(s) posted on the Site
("Site Terms"), as may be revised and reposted on the Site from time to time,
and those Site Terms (as in effect from time to time) are a part of this
Agreement. Your duties under this section are considered "services" required
under the terms of this Agreement. You acknowledge that the Site is transmitted
over the Internet on a reasonable efforts basis and we do not warrant or
guarantee their accuracy, timeliness, completeness, reliability or
non-infringement. Moreover, you acknowledge that the Site is provided for
informational purposes only, and is not intended to comply with any requirements
established by any regulatory or governmental agency.
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