AMENDMENT NUMBER 1 TO PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 1 TO THE PARTICIPATION AGREEMENT is made as of August 4,
2006, by and between Security Benefit Life Insurance Company ("Company"), and RS
Investment Trust (the "Trust") on behalf of its RS Partners Fund series (the
"Fund") and RS Investment Management, L.P. ("Adviser"). Capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the
Agreement (defined below).
WHEREAS, the Company, the Trust and the Adviser are parties to a
Participation Agreement dated July 1, 2003 (the "Agreement"); and
WHEREAS, terms of the Agreement contemplate that the Accounts eligible to
purchase Funds of the Trust under the Agreement may be changed from time to time
by amending Schedule A to the Agreement; and
WHEREAS, the parties wish to add certain Accounts to the Agreement by
deleting the existing Schedule A and replacing it with the Schedule A attached
hereto; and
WHEREAS, the Trust issues its shares in multiple series and the parties
hereto desire to amend the definition of "Fund" such that it encompasses all
series of the Trust; and
WHEREAS, all other terms of the Agreement shall remain in full force and
effect;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust and Adviser agree as follows:
1. The defined term "Fund" in the Agreement from this date forward shall
mean each series of the Trust set forth on Schedule A, as it may be amended from
time to time. Schedule A attached to the Agreement is hereby deleted in its
entirety and replaced with the Schedule A attached hereto.
2. One or more new series of the Trust may be established (each a "New
Fund"), not then represented on Schedule A hereto. Each such New Fund shall
become subject to the provisions of the Agreement to the same extent as the
existing Funds as reflected on Schedule A, except to the extent that such
provisions may be modified with respect to each additional New Fund in writing
by the parties at the time of the addition of the New Fund, and each such New
Fund shall be added to Schedule A.
3. All obligations of the Funds under this Agreement are several and not
joint.
4. In the event of a conflict between the terms of this Amendment No. 1 and
the Agreement, it is the intention of the parties that the terms of this
Amendment No. 1 shall control and the Agreement shall be interpreted on that
basis. To the extent the provisions of the Agreement have not been amended by
this Amendment No. 1, the parties hereby confirm and ratify the Agreement. The
Agreement dated July 1, 2003 and this Amendment No. 1 constitutes the entire
agreement among the parties with respect to the arrangements described herein.
5. This Amendment No. 1 may be executed in two or more counterparts, each
of which shall be an original and all of which together shall constitute one
instrument.
6. Except as expressly supplemented, amended or consented to hereby, all of
the representations, warranties, terms, covenants and conditions of the
Agreement dated July 1, 2003 shall remain unamended and shall continue to be in
full force and effect
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as
of the date first above written.
SECURITY BENEFIT LIFE INSURANCE COMPANY
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP
RS INVESTMENT TRUST
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
RS INVESTMENT MANAGEMENT, L.P.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
August 4, 2006
SCHEDULE A
ACCOUNT(S) CONTRACT(S) FUND
SBL VARIABLE ANNUITY ACCOUNT XIV V6029 RS Diversified Growth Fund
SBL VARIABLE ANNUITY ACCOUNT XVI GV9497 RS Emerging Growth Fund
RS Growth Fund
The Information Age Fund
RS Internet Age Fund
RS Mid Cap Opportunities Fund
RS Smaller Company Growth Fund
RS Global Natural Resources Fund
RS Investors Fund
RS Partners Fund
RS Value Fund
RS Core Equity Fund*
RS Large Cap Value Fund*
RS Small Cap Core Equity Fund*
RS Asset Allocation Fund*
RS International Growth Fund*
RS Emerging Markets Fund*
RS S&P 500 Index Fund*
RS Investment Quality Bond Fund*
RS High Yield Bond Fund*
RS Tax-Exempt Fund*
RS Low Duration Bond Fund*
RS Cash Management Fund*
* Former Guardian funds will be merged into RS Investment
Trust effective October 9, 2006.
ASSIGNMENT AND AMENDMENT NUMBER 2 TO PARTICIPATION AGREEMENT
THIS ASSIGNMENT AND AMENDMENT NO. 2 TO THE PARTICIPATION AGREEMENT is made
as of February 22, 2007, by and between Security Benefit Life Insurance Company
("Company"), and RS Investment Trust (the "Trust") on behalf of its constituent
Funds (the "Funds"), RS Investment Management, L.P. ("Adviser"), and Guardian
Investor Services LLC ("GIS"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Participation Agreement (defined
below).
ASSIGNMENT OF AGREEMENT
WHEREAS, the Company, the Trust and the Adviser are parties to a
Participation Agreement dated July 1, 2003 (the "Agreement"), as amended; and
WHEREAS, GIS is a Delaware corporation registered as a broker-dealer under
the Securities Exchange Act of 1934 and a member of the NASD;
WHEREAS, GIS has acquired a majority interest in RS Investment Management
Co. LLC (RS); and
WHEREAS, as a result of this acquisition RS is a subsidiary of GIS and GIS
has become principal distributor of the Funds; and
WHEREAS, the Trust and the Adviser wish to assign the Agreement to GIS;
NOW, THEREFORE, the Trust and the Adviser do hereby transfer and assign all
of their right, title and interest in and obligations under said Agreement,
effective as of October 9, 2006, to GIS and, by its signature below, Company
does hereby consent to said assignment.
AMENDMENT NO. 2 TO AGREEMENT
In consideration of their mutual promises, the parties hereby amend the
Agreement by adding the following provisions to Article XI:
11.9. INFORMATION TO BE PROVIDED.
Company agrees that, in the event that it should come to its attention that any
of its variable contract owners is engaging in a pattern of purchases,
redemptions and/or exchanges of Funds that is inconsistent with the trading
parameters established by the Trust and communicated to Company, Company shall
immediately notify GIS of such pattern and shall cooperate fully with GIS in any
investigation and, if deemed necessary or appropriate by GIS, terminating any
such pattern of trading, including, without limitation, by refusing such owner's
orders to purchase shares of the Funds.
11.10 ANTI MONEY LAUNDERING PROVISIONS.
(a) Company represents and certifies that it has adopted and implemented, and
agrees that it will maintain, policies, procedures, and internal controls
reasonably designed to comply with the applicable provisions of the Bank Secrecy
Act, as amended by the USA PATRIOT Act of 2001, its
implementing regulations, Money Laundering Abatement Act, and any other
Anti-Money Laundering law, rule or regulation applicable to it, including but
not limited to, rules requiring it to implement an anti-money laundering program
and a customer identification program ("CIP"). Subject to legal restrictions,
Company will, upon GIS's request, promptly provide to GIS or the respective
Fund, evidence of those policies and procedures and its compliance therewith
and/or evidence establishing the identities and sources of funds for each
purchase of shares of the Funds.
(b) Further, Company will, upon GIS's reasonable request, not more than
once each year, certify to GIS that it remains in compliance with such rules;
specifically, that it or its agents (i) provide notice of its CIP to all new
customers, (ii) obtains required identifying data elements for each customer,
(iii) reasonably verifies the identity of each new customer (using the data
elements), (iv) takes appropriate action with respect to persons the identities
of whom it can not verify, and (v) retains all records for required time
periods, each at least to an extent required by relevant USA PATRIOT Act of 2001
regulation.
(c) Company also hereby certifies to GIS that it is in compliance with the
economic sanctions programs administered by the U.S. Treasury Department's
Office of Foreign Assets Control ("OFAC"), and has an OFAC compliance program
that satisfies all applicable laws and regulations. Company understands that GIS
will be relying on the foregoing certifications in administering the Funds'
anti-money laundering compliance program. Company hereby undertakes to notify
GIS promptly if any of the foregoing certifications cease to be true and correct
in any material respect.
11.11. PRIVACY
(a) Company agrees to comply with all applicable federal, state and/or
local law or regulation related to privacy.
(b) Each party represents and warrants to the other that it has implemented
and currently maintains an effective information security program to protect
customer information, which program includes administrative, technical and
physical safeguards to ensure the security and confidentiality of the Nonpublic
Personal Information, to protect against any threats or hazards to the security
and integrity of the Nonpublic Personal Information, and to protect against
unauthorized access to or use of the Nonpublic Personal Information.
11.12. CERTIFICATIONS.
Company hereby certifies that to the best of its knowledge after reasonable
inquiry, it is following all requirements, rules and regulations in connection
with its handling of orders for transactions in the Funds, including, but not
limited to,:
o Rule 22c-1(a) under the Investment Company Act of 1940 (the "1940 Act"), as
amended;
o The provisions of Company's agreement with GIS or its affiliates that
relate to offering shares of the Funds in accordance with prospectus
requirements and the placement of orders with GIS or the Funds' transfer
agent for purchases or redemptions of Fund shares;
o The Funds' prospectus provisions regarding the purchase and redemption of
Fund shares and market timing policies; and
o Company's internal policies and procedures that it believes to be
appropriate and sufficient with regard to the handling of Fund orders on a
timely basis.
11.13. SHAREHOLDER INFORMATION
11.13.a. AGREEMENT TO PROVIDE INFORMATION. Company agrees to provide the
Fund, upon written request, the taxpayer identification number
("TIN"), the Individual/International Taxpayer Identification
Number ("ITIN"), or other government-issued identifier ("GII"),
if known, of any or all Contract owner(s) and the name or other
identifier of any investment professional(s) associated with the
Contract owner(s) or account (if known), 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, or a variable annuity or
variable life insurance contract issued by, the Company during
the period covered by the request.
PERIOD COVERED BY REQUEST. Requests must set forth a specific
period, not to exceed ninety (90) calendar days from the date of
the request, for which transaction information is sought. The
Fund may request transaction information older than ninety (90)
days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for
the purpose of eliminating or reducing any dilution of the value
of the outstanding shares issued by the Fund, as set forth in
Rule 22c-2 of the Investment Company Act of 1940 ("SEC Rule
22c-2").
FORM AND TIMING OF RESPONSE. (a) Company agrees to provide,
promptly upon request of the Fund, the requested information
specified in 11.13. If requested by the Fund or its designee,
Company agrees to use best efforts to determine promptly whether
any transactions include transactions effected by an Indirect
Intermediary through the Company and, upon further request of the
Fund or its designee, promptly either (i) provide (or arrange to
have provided) the information set forth in 11.13 for those
Contract owners who hold an account with the Fund through the
Indirect Intermediary or (ii) restrict or prohibit the Indirect
Intermediary from purchasing, in nominee name on behalf of other
persons, securities issued by the Fund. Company additionally
agrees to inform the Fund whether it plans to perform (i) or
(ii).
(b) Responses required by this paragraph must be communicated in
writing and in a format mutually agreed upon by the parties; and
(c) To the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the
NSCC Standardized Data Reporting Format.
LIMITATIONS ON USE OF INFORMATION. The Fund agrees not to use the
information received for marketing or any other similar purpose
without the prior written consent of the Intermediary.
11.13.b. AGREEMENT TO RESTRICT TRADING. Company agrees, upon direction of
the Fund, to execute written instructions from the Fund to
restrict or prohibit further purchases or exchanges of shares by
a Contract owner that has been identified by the Fund as having
engaged in transactions of the Fund's Shares (directly or
indirectly through the
Company's Account) that violate policies established or utilized
by the Fund for the purpose of eliminating or reducing any
dilution of the value of the outstanding Shares issued by the
Fund, as set forth in SEC Rule 22c-2.
FORM OF INSTRUCTIONS. Instructions to restrict or prohibit
trading must include the TIN, ITIN, or GII, if known, and the
specific restriction(s) to be executed. If the TIN, ITIN, or GII
is not known, the instructions must include an equivalent
identifying number of the Contract owner(s) or account(s) or
other agreed upon information to which the instruction relates.
TIMING OF RESPONSE. Intermediary agrees to execute instructions
from the Fund to restrict or prohibit trading as soon as
reasonably practicable, but not later than five business days
after receipt of the instructions by the Company.
CONFIRMATION BY COMPANY. Company must provide written
confirmation to the Fund that instructions from the Fund to
restrict or prohibit trading have been executed. Company agrees
to provide confirmation as soon as reasonably practicable, but
not later than ten business days after the instructions have been
executed.
11.13.c. DEFINITIONS. For purposes of this Section 11.13:
The term "Fund" includes the fund's principal underwriter, distributor, and
transfer agent or their designee(s). The term not does include any
"excepted funds" as defined in SEC Rule 22c-2(b).
The term "Shares" means the interests of Contract owners corresponding to
the redeemable securities of record issued by the Fund under the Investment
Company Act of 1940 that are held by the Intermediary.
The term "Contract owner" means the holder of interests in a variable
annuity or variable life insurance contract issued by the Company.
The term "written" includes electronic writings and facsimile
transmissions.
The term "purchase" does not include the automatic reinvestment of
dividends.
The term "promptly" as used in 11.13 shall mean as soon as practicable but
in no event later than five business days from the Intermediary's receipt
of the request for information from the Fund or its designee.
The term "Indirect Intermediary" shall mean a person that (a) is an
intermediary as defined in SEC Rule 22c-2 and (b) holds an account with the
Fund through a "financial intermediary" as defined in SEC Rule 22c-2.
11.13.d.. Section 11.13 of the Agreement shall go into effect on October 16,
2007 or any such later date as SEC Rule 22c-2 may deem and shall survive
the termination of this Agreement.
Prior to the effective date of this Agreement, the Fund and Company agree
that any request made to Company by the Fund for shareholder transaction
information of the Company, and Company's response to such request, shall
be governed by whatever practices the Fund and Company had utilized in the
absence of a formal agreement, if any, to govern such requests.
11.13.e.. In the event of conflict between Section 11.13 and the remainder of
the Agreement, Section 11.13 shall take precedence.
3. All obligations of the Funds under this Agreement are several and not
joint.
4. In the event of a conflict between the terms of this Assignment and
Amendment No. 2 and the Agreement, it is the intention of the parties that the
terms of this Amendment No. 2 shall control and the Agreement shall be
interpreted on that basis. To the extent the provisions of the Agreement have
not been amended by this Assignment and Amendment No. 2, the parties hereby
confirm and ratify the Agreement. The Agreement dated July 1, 2003, Amendment
No. 1 dated August 4, 2006 and this Assignment and Amendment No. 2 constitutes
the entire agreement among the parties with respect to the arrangements
described herein.
5. This Assignment and Amendment No. 2 may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Assignment and
Amendment No. 2 as of the date first above written.
SECURITY BENEFIT LIFE INSURANCE COMPANY
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By:
Title:
RS INVESTMENT TRUST
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By:
Title:
RS INVESTMENT MANAGEMENT, L.P.
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By:
Title:
GUARDIAN INVESTOR SERVICES LLC
By:__________________________________
Title:_______________________________