PARTICIPATION AGREEMENT
as of March 1, 2000
Franklin Templeton Variable Insurance Products Trust
Templeton Variable Products Series Fund
Franklin Templeton Distributors, Inc.
Allmerica Financial Life Insurance and Annuity Company
First Allmerica Financial Life Insurance Company
CONTENTS
PARAGRAPH SUBJECT MATTER
1. Parties and Purpose
2. Representations and Warranties
3. Purchase and Redemption of Trust Portfolio Shares
4. Fees, Expenses, Prospectuses, Proxy Materials and Reports
5. Voting
6. Sales Material, Information and Trademarks
7. Indemnification
8. Notices
9. Termination
10. Miscellaneous
SCHEDULES TO THIS AGREEMENT
A. The Company
B. Accounts of the Company
C. Available Portfolios and Classes of Shares of the Trust; Investment
Advisers
D. Contracts of the Company
E. Other Portfolios Available under the Contracts
F. Rule 12b-1 Plans of the Trust
G. Addresses for Notices
H. Shared Funding Order
1. PARTIES AND PURPOSE
This agreement (the "Agreement") is between Franklin Templeton Variable
Insurance Products Trust, an open-end management investment company organized as
a business trust under Massachusetts law ("FTVIP"), Templeton Variable Products
Series Fund, an open-end management investment company organized as a business
trust under Massachusetts law ("TVP," referred to in this Agreement together
with FTVIP as the "Trust"), Franklin Templeton
Distributors, Inc., a California corporation which is the principal underwriter
for the Trust (the "Underwriter," and together with the Trust, "we" or "us") and
the insurance company identified on Schedule A ("you"), on your own behalf and
on behalf of each segregated asset account maintained by you that is listed on
Schedule B, as that schedule may be amended from time to time ("Account" or
"Accounts").
On October 21 and 22, 1999, the FTVIP and TVP Boards of Trustees approved a
proposal to merge the funds of TVP into the corresponding funds of FTVIP (the
"Reorganization"). If approved by TVP shareholders, the Reorganization is
expected to be completed around May 1, 2000, after which it is anticipated that
TVP will deregister as an investment company and dissolve as a business trust.
You and we agree that, after the completion of the Reorganization, TVP will no
longer be a party to this Agreement and the representations and warranties of
the Trust provided in this Agreement will no longer be made by TVP and will be
made solely by FTVIP.
The purpose of this Agreement is to entitle you, on behalf of the Accounts,
to purchase the shares, and classes of shares, of portfolios of the Trust
("Portfolios") that are identified on Schedule C, solely for the purpose of
funding benefits of your variable life insurance policies or variable annuity
contracts ("Contracts") that are identified on Schedule D. This Agreement does
not authorize any other purchases or redemptions of shares of the Trust.
2. REPRESENTATIONS AND WARRANTIES
(A) REPRESENTATIONS AND WARRANTIES BY YOU
You represent and warrant that:
1. You are an insurance company duly organized and in good
standing under the laws of your state of incorporation.
2. All of your directors, officers, employees, and other
individuals or entities dealing with the money and/or securities of the Trust
are and shall be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Trust, in an amount not less than $5 million.
Such bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company. You agree to make all reasonable efforts
to see that this bond or another bond containing such provisions is always in
effect, and you agree to notify us in the event that such coverage no longer
applies.
3. Each Account is a duly organized, validly existing segregated
asset account under applicable insurance law and interests in each Account are
offered exclusively through the purchase of or transfer into a "variable
contract" within the meaning of such terms under Section 817 of the Internal
Revenue Code of 1986, as amended ("Code") and the regulations thereunder. You
will use your best efforts to continue to meet such definitional requirements,
and will notify us immediately upon having a reasonable basis for believing that
such requirements have ceased to be met or that they might not be met in the
future.
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4. Each Account either: (i) has been registered or, prior to any
issuance or sale of the Contracts, will be registered as a unit investment trust
under the Investment Company Act of 1940 ("1940 Act"); or (ii) has not been so
registered in proper reliance upon an exemption from registration under Section
3(c) of the 1940 Act; if the Account is exempt from registration as an
investment company under Section 3(c) of the 1940 Act, you will make every
effort to maintain such exemption and will notify us immediately upon having a
reasonable basis for believing that such exemption no longer applies or might
not apply in the future.
5. The Contracts or interests in the Accounts: (i) are or,
prior to any issuance or sale will be, registered as securities under the
Securities Act of 1933, as amended (the "1933 Act"); or (ii) are not registered
because they are properly exempt from registration under Section 3(a)(2) of the
1933 Act or will be offered exclusively in transactions that are properly exempt
from registration under Section 4(2) or Regulation D of the 1933 Act, in which
case you will make every effort to maintain such exemption and will notify us
immediately upon having a reasonable basis for believing that such exemption no
longer applies or might not apply in the future.
6. The Contracts: (i) will be sold by broker-dealers, or their
registered representatives, who are registered with the Securities and Exchange
Commission ("SEC") under the Securities and Exchange Act of 1934, as amended
(the "1934 Act") and who are members in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); (ii) will be issued and
sold in compliance in all material respects with all applicable federal and
state laws; and (iii) will be sold in compliance in all material respects with
state insurance suitability requirements and NASD suitability guidelines.
7. The Contracts currently are and will be treated as annuity
contracts or life insurance contracts under applicable provisions of the Code
and you will use your best efforts to maintain such treatment; you will notify
us immediately upon having a reasonable basis for believing that any of the
Contracts have ceased to be so treated or that they might not be so treated in
the future.
8. The fees and charges deducted under each Contract, in the
aggregate, are reasonable in relation to the services rendered, the expenses
expected to be incurred, and the risks assumed by you.
9. You will use shares of the Trust only for the purpose of
funding benefits of the Contracts through the Accounts.
10. Contracts will not be sold outside of the United States.
11. With respect to any Accounts which are exempt from
registration under the 1940 Act in reliance on 3(c)(1) or Section 3(c)(7)
thereof:
a. the principal underwriter for each such Account and any
subaccounts thereof is a registered broker-dealer with
the SEC under the 1934 Act;
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b. the shares of the Portfolios of the Trust are and will
continue to be the only investment securities held by
the corresponding subaccounts; and
c. with regard to each Portfolio, you, on behalf of the
corresponding subaccount; will:
(i) vote such shares held by it in the same
proportion as the vote of all other holders of
such shares; and
(ii) refrain from substituting shares of another
security for such shares unless the SEC has
approved such substitution in the manner
provided in Section 26 of the 1940 Act.
(B) REPRESENTATIONS AND WARRANTIES BY THE TRUST
The Trust represents and warrants that:
1. It is duly organized and in good standing under the laws of
the State of Massachusetts.
2. All of its directors, officers, employees and others dealing
with the money and/or securities of a Portfolio are and shall be at all times
covered by a blanket fidelity bond or similar coverage for the benefit of the
Trust in an amount not less that the minimum coverage required by Rule 17g-1 or
other regulations under the 1940 Act. Such bond shall include coverage for
larceny and embezzlement and be issued by a reputable bonding company.
3. It is registered as an open-end management investment company
under the 1940 Act.
4. Each class of shares of the Portfolios of the Trust is
registered under the 1933 Act.
5. It will amend its registration statement under the 1933 Act
and the 1940 Act from time to time as required in order to effect the continuous
offering of its shares.
6. It will comply, in all material respects, with the 1933 and
1940 Acts and the rules and regulations thereunder.
7. It is currently qualified as a "regulated investment company"
under Subchapter M of the Code, it will make every effort to maintain such
qualification, and will notify you immediately upon having a reasonable basis
for believing that it has ceased to so qualify or that it might not so qualify
in the future.
8. The investments of each Portfolio will comply with the
diversification requirements for variable annuity, endowment or life insurance
contracts set forth in
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Section 817(h) of the Code, and the rules and regulations thereunder, including
without limitation Treasury Regulation 1.817-5. Upon having a reasonable basis
for believing any Portfolio has ceased to comply and will not be able to comply
within the grace period afforded by Regulation 1.817-5, the Trust will notify
you immediately and will take all reasonable steps to adequately diversify the
Portfolio to achieve compliance.
9. It currently intends for one or more classes of shares (each,
a "Class") to make payments to finance its distribution expenses, including
service fees, pursuant to a plan ("Plan") adopted under rule 12b-1 under the
1940 Act ("Rule 12b-1"), although it may determine to discontinue such practice
in the future. To the extent that any Class of the Trust finances its
distribution expenses pursuant to a Plan adopted under rule 12b-1, the Trust
undertakes to comply with any then current SEC interpretations concerning rule
12b-1 or any successor provisions.
(C) REPRESENTATIONS AND WARRANTIES BY THE UNDERWRITER
The Underwriter represents and warrants that:
1. It is registered as a broker dealer with the SEC under the
1934 Act, and is a member in good standing of the NASD.
2. Each investment adviser listed on Schedule C (each, an
"Adviser") is duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and any applicable state securities law.
(D) WARRANTY AND AGREEMENT BY BOTH YOU AND US
We received an order from the SEC dated November 16, 1993 (file no.
812-8546), which was amended by a notice and an order we received on September
17, 1999 and October 13, 1999, respectively (file no. 812-11698) (collectively,
the "Shared Funding Order," attached to this Agreement as Schedule H). The
Shared Funding Order grants exemptions from certain provisions of the 1940 Act
and the regulations thereunder to the extent necessary to permit shares of the
Trust to be sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance companies
and qualified pension and retirement plans outside the separate account context.
You and we both warrant and agree that both you and we will comply with the
"Applicants' Conditions" prescribed in the Shared Funding Order as though such
conditions were set forth verbatim in this Agreement, including, without
limitation, the provisions regarding potential conflicts of interest between the
separate accounts which invest in the Trust and regarding contract owner voting
privileges.
3. PURCHASE AND REDEMPTION OF TRUST PORTFOLIO SHARES
(a) We will make shares of the Portfolios available to the Accounts for
the benefit of the Contracts. The shares will be available for purchase at the
net asset value per share next computed after we (or our agent) receive a
purchase order, as established in accordance with the
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provisions of the then current prospectus of the Trust. Notwithstanding the
foregoing, the Trust's Board of Trustees ("Trustees") may refuse to sell shares
of any Portfolio to any person, or may suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or if, in the sole discretion of the Trustees,
they deem such action to be in the best interests of the shareholders of such
Portfolio. Without limiting the foregoing, the Trustees have determined that
there is a significant risk that the Trust and its shareholders may be adversely
affected by investors whose purchase and redemption activity follows a market
timing pattern, and have authorized the Trust, the Underwriter and the Trust's
transfer agent to adopt procedures and take other action (including, without
limitation, rejecting specific purchase orders) as they deem necessary to
reduce, discourage or eliminate market timing activity. You agree to cooperate
with us to assist us in implementing the Trust's restrictions on purchase and
redemption activity that follows a market timing pattern.
(b) We agree that shares of the Trust will be sold only to life
insurance companies which have entered into fund participation agreements with
the Trust ("Participating Insurance Companies") and their separate accounts or
to qualified pension and retirement plans in accordance with the terms of the
Shared Funding Order. No shares of any Portfolio will be sold to the general
public.
(c) You agree that all net amounts available under the Contracts shall
be invested in the Trust or in your general account. Net amounts available under
the Contracts may also be invested in an investment company other than the Trust
if: (i) such other investment company, or series thereof, has investment
objectives or policies that are substantially different from the investment
objectives and policies of the Portfolios; or (ii) you give us forty-five (45)
days written notice of your intention to make such other investment company
available as a funding vehicle for the Contracts; or (iii) such other investment
company is available as a funding vehicle for the Contracts at the date of this
Agreement and you so inform us prior to our signing this Agreement (a list of
such investment companies appears on Schedule E to this Agreement); or (iv) we
consent in writing to the use of such other investment company.
(d) You shall be the designee for us for receipt of purchase orders and
requests for redemption resulting from investment in and payments under the
Contracts ("Instructions"). The Business Day on which such Instructions are
received in proper form by you and time stamped by the close of trading will be
the date as of which Portfolio shares shall be deemed purchased, exchanged, or
redeemed as a result of such Instructions. Instructions received in proper form
by you and time stamped after the close of trading on any given Business Day
shall be treated as if received on the next following Business Day. You warrant
that all orders, Instructions and confirmations received by you which will be
transmitted to us for processing on a Business Day will have been received and
time stamped prior to the Close of Trading on that Business Day. Instructions we
receive after 9 a.m. Eastern Time shall be processed 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 the Trust calculates its net asset value pursuant to
the rules of the SEC and its current prospectus.
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(e) We shall calculate the net asset value per share of each Portfolio
on each Business Day, and shall communicate these net asset values to you or
your designated agent on a daily basis as soon as reasonably practical after the
calculation is completed (normally by 6:30 p.m. Eastern time).
(f) You shall submit payment for the purchase of shares of a Portfolio
on behalf of an Account no later than the close of business on the next Business
Day after we receive the purchase order. Payment shall be made in federal funds
transmitted by wire to the Trust or to its designated custodian.
(g) We will redeem any full or fractional shares of any Portfolio, when
requested by you on behalf of an Account, at the net asset value next computed
after receipt by us (or our agent) of the request for redemption, as established
in accordance with the provisions of the then current prospectus of the Trust.
We shall make payment for such shares in the manner we establish from time to
time, but in no event shall payment be delayed for a greater period than is
permitted by the 1940 Act. Payments for the purchase or redemption of shares by
you may be netted against one another on any Business Day for the purpose of
determining the amount of any wire transfer on that Business Day.
(h) Issuance and transfer of the Portfolio shares will be by book entry
only. Stock certificates will not be issued to you or the Accounts. Portfolio
shares purchased from the Trust will be recorded in the appropriate title for
each Account or the appropriate subaccount of each Account.
(i) We shall furnish, on or before the ex-dividend date, notice to you
of any income dividends or capital gain distributions payable on the shares of
any Portfolio. You hereby elect to receive all such income dividends and capital
gain distributions as are payable on shares of a Portfolio in additional shares
of that Portfolio, and you reserve the right to change this election in the
future. We will notify you of the number of shares so issued as payment of such
dividends and distributions.
4. FEES, EXPENSES, PROSPECTUSES, PROXY MATERIALS AND REPORTS
(a) We shall pay no fee or other compensation to you under this
Agreement except as provided on Schedule F, if attached.
(b) We 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 the Trust.
We shall bear the costs of preparation and filing of the documents listed in the
preceding sentence, registration and qualification of the Trust's shares of the
Portfolios.
(c) We shall use reasonable efforts to provide you, on a timely basis,
with such information about the Trust, the Portfolios and each Adviser, in such
form as you may
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reasonably require, as you shall reasonably request in connection with the
preparation of disclosure documents and annual and semi-annual reports
pertaining to the Contracts.
(d) At your request, we shall provide you with camera ready copy, in a
form suitable for printing, of portions of the Trust's current prospectus,
annual report, semi-annual report and other shareholder communications,
including any amendments or supplements to any of the foregoing, pertaining
specifically to the Portfolios. We shall delete information relating to series
of the Trust other than the Portfolios to the extent practicable. We shall
provide you with a copy of the Trust's current statement of additional
information, including any amendments or supplements, in a form suitable for you
to duplicate. The expenses of furnishing such documents shall be borne by you.
You shall bear the costs of distributing prospectuses and statements of
additional information to Contract owners.
(e) We shall provide you, at our expense, with copies of any
Trust-sponsored proxy materials in such quantity as you shall reasonably require
for distribution to Contract owners who are invested in a designated subaccount.
You shall bear the costs of distributing proxy materials (or similar materials
such as voting solicitation instructions) to Contract owners.
(f) You assume sole responsibility for ensuring that the Trust's
prospectuses, shareholder reports and communications, and proxy materials are
delivered to Contract owners in accordance with applicable federal and state
securities laws.
5. VOTING
(a) All Participating Insurance Companies shall have the obligations and
responsibilities regarding pass-through voting and conflicts of interest
corresponding to those contained in the Shared Funding Order.
(b) If and to the extent required by law, you shall: (i) solicit voting
instructions from Contract owners; (ii) vote the Trust shares in accordance with
the instructions received from Contract owners; and (iii) vote Trust shares for
which no instructions have been received in the same proportion as Trust shares
of such Portfolio for which instructions have been received; so long as and to
the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners. You reserve the
right to vote Trust shares held in any Account in your own right, to the extent
permitted by law.
(c) So long as, and to the extent that, the SEC interprets the 1940 Act
to require pass-through voting privileges for Contract owners, you shall provide
pass-through voting privileges to Contract owners whose Contract values are
invested, through the Accounts, in shares of one or more Portfolios of the
Trust. We shall require all Participating Insurance Companies to calculate
voting privileges in the same manner and you shall be responsible for assuring
that the Accounts calculate voting privileges in the manner established by us.
With respect to each Account, you will vote shares of each Portfolio of the
Trust held by an Account and for which no timely voting instructions from
Contract owners are received in the same proportion as those shares held by that
Account for which voting instructions are received. You and your agents will in
no way recommend or oppose or interfere with the solicitation of proxies for
Portfolio shares held to
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fund the Contracts without our prior written consent, which consent may be
withheld in our sole discretion.
6. SALES MATERIAL, INFORMATION AND TRADEMARKS
(a) For purposes of this Section 6, "Sales literature or other
Promotional material" includes, but is not limited to, portions of the following
that use any logo or other trademark related to the Trust or Underwriter or
refer to the Trust or affiliates of 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, electronic communication 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.
(b) You shall furnish, or cause to be furnished to us or our designee,
at least one complete copy of each registration statement, prospectus, statement
of additional information, private placement memorandum, retirement plan
disclosure information or other disclosure documents or similar information, as
applicable (collectively "disclosure documents"), as well as any report,
solicitation for voting instructions, Sales literature or other Promotional
materials, and all amendments to any of the above that relate to the Contracts
or the Accounts prior to its first use. You shall furnish, or shall cause to be
furnished, to us or our designee each piece of Sales literature or other
Promotional material in which the Trust or an Adviser is named, at least fifteen
(15) Business Days prior to its proposed use. No such material shall be used
unless we or our designee approve such material and its proposed use.
(c) 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
or other Promotional material approved by the Trust or its designee, except as
required by legal process or regulatory authorities or with the written
permission of the Trust or its designee.
(d) 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 accurately derived
from disclosure documents for the Contracts (as such disclosure documents may be
amended or supplemented from time to time), or in materials approved by you for
distribution, including Sales literature or other Promotional materials, except
as required by legal process or regulatory authorities or with your written
9
permission. We may use the names of you, the Accounts and the Contracts in our
sales literature and disclosure documents.
(e) Except as provided in Section 6(b), you shall not use any
designation comprised in whole or part of the names or marks "Franklin" or
"Templeton" 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 mark as
soon as reasonably practicable.
7. INDEMNIFICATION
(A) INDEMNIFICATION BY YOU
1. You agree to indemnify and hold harmless the Underwriter, the
Trust and each of its Trustees, officers, employees and agents and each person,
if any, who controls the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually the "Indemnified
Party" for purposes of this Section 7) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with your written
consent, which consent shall not be unreasonably withheld) or expenses
(including the reasonable costs of investigating or defending any alleged loss,
claim, damage, liability or expense and reasonable legal counsel fees incurred
in connection therewith) (collectively, "Losses"), to which the Indemnified
Parties may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses are related to the sale or acquisition of
shares of the Trust or the Contracts and
a. arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a
disclosure document for the Contracts or in the Contracts themselves
or in sales literature generated or approved by you on behalf of the
Contracts or Accounts (or any amendment or supplement to any of the
foregoing) (collectively, "Company Documents" for the purposes of this
Section 7), 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 indemnity 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 was accurately
derived from written information furnished to you by or on behalf of
the Trust for use in Company Documents or otherwise for use in
connection with the sale of the Contracts or Trust shares; or
b. arise out of or result from statements or representations
(other than statements or representations contained in and accurately
derived from Trust Documents as defined below in Section 7(b)) or
wrongful conduct of you or persons under your control, with respect to
the sale or acquisition of the Contracts or Trust shares; or
c. arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Trust
Documents as defined below in
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Section 7(b) 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 was
made in reliance upon and accurately derived from written information
furnished to the Trust by or on behalf of you; or
d. arise out of or result from any failure by you to provide
the services or furnish the materials required under the terms of this
Agreement;
e. arise out of or result from any material breach of any
representation and/or warranty made by you in this Agreement or arise
out of or result from any other material breach of this Agreement by
you; or
f. arise out of or result from a Contract failing to be
considered a life insurance policy or an annuity Contract, whichever
is appropriate, under applicable provisions of the Code thereby
depriving the Trust of its compliance with Section 817(h) of the Code.
2. You shall not be liable under this indemnification provision
with respect to any Losses to which an Indemnified Party would otherwise be
subject by reason of 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 or to the Trust or Underwriter, whichever is applicable.
You shall also not be liable under this indemnification provision with respect
to any claim made against an Indemnified Party unless such Indemnified Party
shall have notified you 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 you of any such claim shall not relieve you 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, you shall be entitled to
participate, at your own expense, in the defense of such action. Unless the
Indemnified Party releases you from any further obligations under this Section
7(a), you also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from you to such
party of the your election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
you 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.
3. The Indemnified Parties will promptly notify you of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Trust shares or the Contracts or the operation of
the Trust.
(B) INDEMNIFICATION BY THE UNDERWRITER
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1. The Underwriter agrees to indemnify and hold harmless you, and
each of your directors and officers and each person, if any, who controls you
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" and individually an "Indemnified Party" for purposes of this Section
7(b)) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Underwriter, which
consent shall not be unreasonably withheld) or expenses (including the
reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection
therewith) (collectively, "Losses") to which the Indemnified Parties may become
subject under any statute, at common law or otherwise, insofar as such Losses
are related to the sale or acquisition of the shares of the Trust or the
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, prospectus or sales literature of the Trust
(or any amendment or supplement to any of the foregoing)
(collectively, the "Trust Documents") 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 of such alleged statement or omission was made in reliance
upon and in conformity with information furnished to us by or on
behalf of you for use in the Registration Statement or prospectus for
the Trust or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Trust shares; or
b. arise out of or as a result of statements or
representations (other than statements or representations contained in
the disclosure documents or sales literature for the Contracts not
supplied by the Underwriter or persons under its control) or wrongful
conduct of the Trust, Adviser or Underwriter or persons under their
control, with respect to the sale or distribution of the Contracts or
Trust shares; or
c. arise out of any untrue statement or alleged untrue
statement of a material fact contained in a disclosure document or
sales literature covering the 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 statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
to you by or on behalf of the Trust; or
d. arise as a result of any failure by us to provide the
services and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or
otherwise, to comply with the qualification representation specified
above in Section 2(b)(7) and the diversification requirements
specified above in Section 2(b)(8); or
e. arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this
Agreement or arise out of
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or result from any other material breach of this Agreement by the
Underwriter; as limited by and in accordance with the provisions of
Sections 7(b)(2) and 7(b)(3) hereof.
2. The Underwriter shall not be liable under this indemnification
provision with respect to any Losses to which an Indemnified Party would
otherwise be subject by reason of 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 or to you or the Accounts, whichever
is applicable.
3. The Underwriter 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 the Underwriter 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 the Underwriter of
any such claim shall not relieve the Underwriter 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, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. Unless the Indemnified
Party releases the Underwriter from any further obligations under this Section
7(b), the Underwriter also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Underwriter to such party of the Underwriter's election to assume the defense
thereof, the Indemnified Party shall bear the expenses of any additional counsel
retained by it, and the Underwriter 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.
4. You agree promptly to notify the Underwriter of the
commencement of any litigation or proceedings against you or the Indemnified
Parties in connection with the issuance or sale of the Contracts or the
operation of each Account.
(C) INDEMNIFICATION BY THE TRUST
1. The Trust agrees to indemnify and hold harmless you, and each
of your directors and officers and each person, if any, who controls you within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 7(c)) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Trust, which consent shall not be unreasonably withheld) or
litigation (including legal and other expenses) to which the Indemnified Parties
may become subject under any statute, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements result from the gross negligence, bad faith or willful
misconduct of the Board or any member thereof, are related to the operations of
the Trust, and arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or arise out
of or result from any other material breach of
13
this Agreement by the Trust; as limited by and in accordance with the provisions
of Sections 7(c)(2) and 7(c)(3) hereof. It is understood and expressly
stipulated that neither the holders of shares of the Trust nor any Trustee,
officer, agent or employee of the Trust shall be personally liable hereunder,
nor shall any resort be had to other private property for the satisfaction of
any claim or obligation hereunder, but the Trust only shall be liable.
2. The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against any Indemnified Party as such may arise from 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 or to
you, the Trust, the Underwriter or each Account, whichever is applicable.
3. The 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 the Trust in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claims 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 the Trust of any
such claim shall not relieve the 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, the Trust will be entitled to participate, at
its own expense, in the defense thereof. Unless the Indemnified Party releases
the Trust from any further obligations under this Section 7(c), the Trust also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Trust to such party of the
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 the 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.
4. You agree promptly to notify the Trust of the commencement
of any litigation or proceedings against you or the Indemnified Parties in
connection with this Agreement, the issuance or sale of the Contracts, with
respect to the operation of the Account, or the sale or acquisition of shares of
the Trust.
8. NOTICES
Any notice shall be sufficiently given when sent by registered or certified mail
to the other party at the address of such party set forth in Schedule G below or
at such other address as such party may from time to time specify in writing to
the other party.
9. TERMINATION
(a) This Agreement may be terminated by any party in its entirety or
with respect to one, some or all Portfolios for any reason by sixty (60) days
advance written notice delivered to
14
the other parties, and shall terminate immediately in the event of its
assignment, as that term is used in the 1940 Act.
(b) This Agreement may be terminated immediately by us upon written
notice to you if:
1. you notify the Trust or the Underwriter that the exemption
from registration under Section 3(c) of the 1940 Act no longer applies,
or might not apply in the future, to the unregistered Accounts, or that
the exemption from registration under Section 4(2) or Regulation D
promulgated under the 1933 Act no longer applies or might not apply in
the future, to interests under the unregistered Contracts; or
2. either one or both of the Trust or the Underwriter
respectively, shall determine, in their sole judgment exercised in good
faith, that you have suffered a material adverse change in your
business, operations, financial condition or prospects since the date
of this Agreement or are the subject of material adverse publicity; or
3. you give us the written notice specified above in Section
3(c) and at the same time you give us such notice there was no notice
of termination outstanding under any other provision of this Agreement;
provided, however, that any termination under this Section 9(b)(3)
shall be effective forty-five (45) days after the notice specified in
Section 3(c) was given; or
4. upon your assignment of this Agreement without our prior
written approval.
(c) If this Agreement is terminated for any reason, except as required
by the Shared Funding Order or pursuant to Section 9(b)(1), above, we shall, at
your option, continue to make available additional shares of any Portfolio and
redeem shares of any Portfolio pursuant to all of the terms and conditions of
this Agreement for all Contracts in effect on the effective date of termination
of this Agreement. If this Agreement is terminated as required by the Shared
Funding Order, its provisions shall govern.
(d) The provisions of Sections 2 (Representations and Warranties) and
7 (Indemnification) shall survive the termination of this Agreement. All other
applicable provisions of this Agreement shall survive the termination of this
Agreement, as long as shares of the Trust are held on behalf of Contract owners
in accordance with Section 9(c), except that we shall have no further obligation
to sell Trust shares with respect to Contracts issued after termination.
(e) You shall not redeem Trust shares attributable to the Contracts
(as opposed to Trust shares attributable to your assets held in the Account)
except: (i) as necessary to implement Contract owner initiated or approved
transactions; (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally Required Redemption"); or (iii) as permitted by an order of the
SEC pursuant to Section 26(b) of the 1940 Act. Upon request, you shall promptly
furnish to us the opinion of
15
your counsel (which counsel shall be reasonably satisfactory to us) to the
effect that any redemption pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the terms of the
Contracts, you shall not prevent Contract owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first giving
us ninety (90) days notice of your intention to do so.
10. MISCELLANEOUS
(a) The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions of this
Agreement or otherwise affect their construction or effect.
(b) This Agreement may be executed simultaneously in two or more
counterparts, all of which taken together shall constitute one and the same
instrument.
(c) 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.
(d) This Agreement shall be construed and its provisions interpreted
under and in accordance with the laws of the State of California. It shall also
be subject to the provisions of the federal securities laws and the rules and
regulations thereunder, to any orders of the SEC on behalf of the Trust granting
it exemptive relief, and to the conditions of such orders. We shall promptly
forward copies of any such orders to you.
(e) The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Trust and that no Trustee, officer, agent or holder of shares of
beneficial interest of the Trust shall be personally liable for any such
liabilities.
(f) Each party to this Agreement 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.
(g) Each party to this Agreement shall treat as confidential all
information reasonably identified as confidential in writing by any other party
to this Agreement, and, except as permitted by this Agreement or as required by
legal process or regulatory authorities, shall not disclose, disseminate, or use
such names and addresses and other confidential information until such time as
they may come into the public domain, without the express written consent of the
affected party. Without limiting the foregoing, no party to this Agreement shall
disclose any information that such party has been advised is proprietary, except
such information that such party is required to disclose by any appropriate
governmental authority (including, without limitation, the SEC, the NASD, and
state securities and insurance regulators).
16
(h) 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 to this Agreement are
entitled to under state and federal laws.
(i) The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect, except as provided above in
Section 3(c).
(j) Neither this Agreement nor any rights or obligations created by it
may be assigned by any party without the prior written approval of the other
parties.
(k) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties.
17
IN WITNESS WHEREOF, each of the parties have caused their duly authorized
officers to execute this Agreement.
The Company: FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
------------------------------------------------------
By: ___________________________________________
Name: _________________________________________
Title: __________________________________________
ALLMERICA FINANCIAL LIFE INSURANCE AND ANNUITY COMPANY
------------------------------------------------------
By: ___________________________________________
Name: _________________________________________
Title: __________________________________________
FTVIP: Franklin Templeton Variable Insurance Products Trust
------------------------------------------------------
By:
--------------------------------------------------
Name: Karen L. Skidmore
-------------------
Title: Assistant Vice President, Assistant Secretary
-----------------------------------------------
TVP: Templeton Variable Products Series Fund
---------------------------------------
By:
--------------------------------------------------
Name: Karen L. Skidmore
-------------------
Title: Assistant Vice President, Assistant Secretary
-----------------------------------------------
The Underwriter: Franklin Templeton Distributors, Inc.
--------------------------------------
18
By:
--------------------------------------------------
Name: Philip J. Kearns
----------------
Title: Vice President
----------------
19
SCHEDULE A
THE COMPANY
1. First Allmerica Financial Life Insurance Company
440 Lincoln Street
Worcester, MA 01653
Organized as a corporation under Massachusetts law
2. Allmerica Financial Life Insurance and Annuity Company
440 Lincoln Street
Worcester, MA 01653
Organized as a corporation under Delaware law
20
SCHEDULE B
ACCOUNTS OF THE COMPANY
1. Name: FUVUL Separate Account of Allmerica Financial
Life Insurance and Annuity Company
Date Established: 12.17.99
SEC Registration Number: 811-333-93031
2. Name: FUVUL Separate Account of First Allmerica
Financial Life Insurance Company
Date Established: Pending
SEC Registration Number: Pending
3. Name: Separate Account VA-P of First Allmerica
Financial Life Insurance Company
Date Established: 6.13.96
SEC Registration Number: 811-8872
4. Name: Separate Account VA-P of Allmerica Financial Life
Insurance and Annuity Company
Date Established: 6.13.96
SEC Registration Number 811-8848
5. Name: Separate Account VA-K of Allmerica Financial Life
Insurance and Annuity Company
Date Established: 6.13.96
SEC Registration Number 811-6293
6. Name: Separate Account VA-K of First Allmerica
Financial Life Insurance Company
Date Established: 6.13.96
SEC Registration Number 811-8114
7. Name: Separate Account VA-K (Delaware) of Allmerica
Financial Life Insurance and Annuity Company
Date Established: 6.13.96
SEC Registration Number 811-6293
8. Name: Separate Account VA-P of First Allmerica
Financial Life Insurance Company
Date Established: 6.13.96
SEC Registration Number 811-8114
21
SCHEDULE C
PORTFOLIOS AVAILABLE
- -------------------------------------------------------------- -------------------------------------------------------
PORTFOLIO NAME Advisor
- -------------------------------------------------------------- -------------------------------------------
- -------------------------------------------------------------- -------------------------------------------
Templeton Asset Allocation Fund, Class 2* Templeton Investment Counsel, Inc
*As of May 1, 2000, Templeton Asset Strategy Fund
- -------------------------------------------------------------- -------------------------------------------
Templeton International Fund, Class 2** Templeton Investment Counsel, Inc
**As of May 1, 2000, Templeton International Securities Fund
- -------------------------------------------------------------- -------------------------------------------
Franklin Small Cap Fund, Class 2 Franklin Advisers, Inc.
- -------------------------------------------------------------- -------------------------------------------
Templeton International Smaller Companies Fund Class 2 Templeton Investment Counsel, Inc.
- -------------------------------------------------------------- -------------------------------------------
Templeton Global Growth Fund, Class 2*** Templeton Global Advisors Limited
***As of May 1, 2000, Templeton Growth Securities Fund
- -------------------------------------------------------------- -------------------------------------------
Franklin Mutual Shares Securities Fund, Class 2 Franklin Mutual Advisors, LLC
- -------------------------------------------------------------- -------------------------------------------
Franklin Natural Resources Securities Fund, Class 2 Franklin Advisers, Inc.
- -------------------------------------------------------------- -------------------------------------------
Templeton Developing Markets Fund Class 2**** Templeton Asset Management, Ltd.
****As of May 1, 2000, Templeton Developing Markets
Securities Fund Class 2
- -------------------------------------------------------------- -------------------------------------------
22
SCHEDULE D
CONTRACTS OF THE COMPANY
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT 1 CONTRACT 2 CONTRACT 3
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT/PRODUCT To Be Determined To Be Determined Pioneer Vision
NAME
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REGISTERED (Y/N) Pending Pending Y
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION 333-93031 Pending 33-86664
NUMBER
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REPRESENTATIVE 1036-99 1036-99 A3025-96
FORM NUMBERS
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEPARATE ACCOUNT FUVUL Separate FUVUL Separate Separate Account VA-P
NAME/DATE Account of Allmerica Account of First of First Allmerica
ESTABLISHED Financial Life Insurance Allmerica Financial Life Financial Life Insurance
and Annuity Company / Insurance and Annuity Company / 6.13.96
12.17.99 Company / Pending
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION 811-09731 Pending 811-8872
NUMBER
- --------------------------- ------------------------------- -------------------------------- -------------------------------
23
- --------------------------- ------------------------------- -------------------------------- -------------------------------
PORTFOLIOS AND Templeton International Templeton International Franklin Small Cap
CLASSES -ADVISER Fund, Class 2 - Fund, Class 2 - Fund, Class 2 -
Templeton Investment Templeton Investment Franklin Advisers, Inc.
Counsel, Inc Counsel, Inc
(AFTER MAY 1, 2000 (AFTER MAY 1, 2000 Templeton International
Templeton International Templeton International Smaller Companies,
Securities Fund, Class 2 - Securities Fund, Class 2 Class 2 - Templeton
Templeton Investment - Templeton Investment Investment Counsel,
Counsel, Inc.) Counsel, Inc.) Inc.
Templeton Asset Templeton Asset Templeton Asset
Allocation Fund, Class 2 Allocation Fund, Class 2 Allocation Fund, Class 2
- Templeton Investment - Templeton Investment - Templeton Investment
Counsel, Inc. Counsel, Inc. Counsel, Inc.
(AFTER MAY 1, 2000 (AFTER MAY 1, 2000 (AFTER MAY 1, 2000
Templeton Asset Templeton Asset Templeton Asset
Strategy Fund, Class 2 - Strategy Fund, Class 2 - Strategy Fund, Class 2 -
Templeton Investment Templeton Investment Templeton Investment
Counsel, Inc.) Counsel, Inc.) Counsel, Inc.)
- --------------------------- ------------------------------- -------------------------------- -------------------------------
24
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT 4 CONTRACT 5 CONTRACT 6
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT/PRODUCT Pioneer Vision Pioneer C-Vision Pioneer C-Vision
NAME
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REGISTERED (Y/N) Y Y Y
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION 333-64831 333-64833 333-64831
NUMBER
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REPRESENTATIVE A3025-96 A3027-98 A3027-98
FORM NUMBERS
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEPARATE ACCOUNT Separate Account VA-P Separate Account VA-P Separate Account VA-P
NAME/DATE of Allmerica Financial of First Allmerica of Allmerica Financial
ESTABLISHED Life Insurance and Financial Life Insurance Life Insurance and
Annuity Company / Company / 6.13.96 Annuity Company /
6.13.96 6.13.96
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION 811-8848 811-8872 811-8848
NUMBER
- --------------------------- ------------------------------- -------------------------------- -------------------------------
25
- --------------------------- ------------------------------- -------------------------------- -------------------------------
PORTFOLIOS AND Franklin Small Cap Franklin Small Cap Franklin Small Cap
CLASSES - ADVISER Fund, Class 2 - Fund, Class 2 - Fund, Class 2 -
Franklin Advisers, Inc. Franklin Advisers, Inc. Franklin Advisers, Inc.
Templeton International Templeton International Templeton International
Smaller Companies, Smaller Companies, Smaller Companies,
Class 2 - Templeton Class 2 - Templeton Class 2 - Templeton
Investment Counsel, Investment Counsel, Investment Counsel,
Inc. Inc. Inc.
Templeton Asset Templeton Asset Templeton Asset
Allocation Fund, Class 2 Allocation Fund, Class 2 Allocation Fund, Class 2
- Templeton Investment - Templeton Investment - Templeton Investment
Counsel, Inc. Counsel, Inc. Counsel, Inc.
(AFTER MAY 1, 2000 (AFTER MAY 1, 2000 (AFTER MAY 1, 2000
Templeton Asset Templeton Asset Templeton Asset
Strategy Fund, Class 2 - Strategy Fund, Class 2 - Strategy Fund, Class 2 -
Templeton Investment Templeton Investment Templeton Investment
Counsel, Inc.) Counsel, Inc.) Counsel, Inc.)
- --------------------------- ------------------------------- -------------------------------- -------------------------------
26
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT 7 CONTRACT 8 CONTRACT 9
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT/PRODUCT Pioneer XtraVision Pioneer - To Be Pioneer - To Be
NAME Determined Determined
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REGISTERED (Y/N) Y Y Y
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION 333-81017 333-90535 333-90537
NUMBER
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REPRESENTATIVE A3028-99 A3030-99 A3030-99
FORM NUMBERS
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEPARATE ACCOUNT Separate Account VA-P of Separate Account VA-P Separate Account VA-P
NAME/DATE Allmerica Financial of Allmerica Financial of First Allmerica
ESTABLISHED Life Insurance and Life Insurance and Financial Life Insurance
Annuity Company / Annuity Company / Company / 6.13.96
6.13.96 6.13.96
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION 811-8848 811-8848 811-8872
NUMBER
- --------------------------- ------------------------------- -------------------------------- -------------------------------
27
- --------------------------- ------------------------------- -------------------------------- -------------------------------
PORTFOLIOS AND Franklin Small Cap Franklin Small Cap Franklin Small Cap
CLASSES - ADVISER Fund, Class 2 - Fund, Class 2 - Fund, Class 2 -
Franklin Advisers, Inc. Franklin Advisers, Inc. Franklin Advisers, Inc.
Templeton International Templeton International Templeton International
Smaller Companies, Smaller Companies, Smaller Companies,
Class 2 - Templeton Class 2 - Templeton Class 2 - Templeton
Investment Counsel, Investment Counsel, Investment Counsel,
Inc. Inc. Inc.
Templeton Asset Templeton Asset Templeton Asset
Allocation Fund, Class 2 Allocation Fund, Class 2 Allocation Fund, Class 2
- Templeton Investment - Templeton Investment - Templeton Investment
Counsel, Inc. Counsel, Inc. Counsel, Inc.
(AFTER MAY 1, 2000 (AFTER MAY 1, 2000 (AFTER MAY 1, 2000
Templeton Asset Templeton Asset Templeton Asset
Strategy Fund, Class 2 - Strategy Fund, Class 2 - Strategy Fund, Class 2 -
Templeton Investment Templeton Investment Templeton Investment
Counsel, Inc.) Counsel, Inc.) Counsel, Inc.)
- --------------------------- ------------------------------- -------------------------------- -------------------------------
28
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT 10 CONTRACT 11 CONTRACT 12
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT/PRODUCT Agency - To Be Determined Agency - To Be Determined Agency Replacement
NAME
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REGISTERED (Y/N) Y Y Pending
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION 333-87099 333-87105 Pending
NUMBER
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REPRESENTATIVE A3030-99 A3030-99 Pending
FORM NUMBERS
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEPARATE ACCOUNT Separate Account VA-K of Separate Account VA-K Separate Account VA-K
NAME/DATE Allmerica Financial of First Allmerica Financial of Allmerica Financial
ESTABLISHED Life Insurance and Life Insurance Company / Life Insurance and
Annuity Company / 6.13.96 Annuity Company /
6.13.96 6.13.96
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION 811-6293 811-8114 811-6293
NUMBER
- --------------------------- ------------------------------- -------------------------------- -------------------------------
PORTFOLIOS AND Franklin Small Cap Franklin Small Cap Franklin Natural
CLASSES - ADVISER Fund, Class 2 - Fund, Class 2 - Resources Securities
Franklin Advisers, Inc. Franklin Advisers, Inc. Fund, Class 2 - Franklin
Advisers, Inc
Templeton Developing Templeton Developing
Markets Fund Class 2- Markets Fund Class 2 -
Templeton Asset Templeton Asset
Management, Ltd Management, Ltd
(AS OF MAY 1, 2000, (AS OF MAY 1, 2000,
Templeton Developing Templeton Developing
Markets Securities Fund Markets Securities Fund
Class 2) Class 2)
- --------------------------- ------------------------------- -------------------------------- -------------------------------
29
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT 13 CONTRACT 14 CONTRACT 15
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT/PRODUCT NAME Agency Replacement Delaware Medallion Delaware Medallion
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REGISTERED (Y/N) Pending Y Y
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION NUMBER Pending 33-44830 33-71054
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REPRESENTATIVE FORM Pending A3025-99 A3025-99
NUMBERS
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEPARATE ACCOUNT Separate Account VA-K of Separate Account VA-P of Separate Account VA-P of
NAME/DATE ESTABLISHED First Allmerica Financial Allmerica Financial Life First Allmerica Financial
Life Insurance Company / Insurance and Annuity Company Life Insurance Company /
6.13.96 / 6.13.99 6.13.99
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION NUMBER 333-87105 33-44830 33-71054
30
- ----------------------------------------------------------------------------------------------------------------------------
PORTFOLIOS AND CLASSES Franklin Natural Resources Franklin Small Cap Franklin Small Cap
- -ADVISER Securities Fund, Class 2 - Fund, Class 2 - Fund, Class 2 -
Franklin Advisers, Inc Franklin Advisers, Inc. Franklin Advisers, Inc.
Franklin Mutual Shares Franklin Mutual Shares
Securities, Class 2 - Securities, Class 2 -
Franklin Mutual Franklin Mutual
Advisers, LLC Advisers, LLC
Templeton Global Templeton Global
Growth Fund, Class 2 - Growth Fund, Class 2 -
Templeton Global Templeton Global
Advisors Limited Advisors Limited
*ON MAY 1, 2000 the *ON MAY 1, 2000 the
fund's name will change fund's name will change
to Templeton Growth to Templeton Growth
Securities Fund Securities Fund
Templeton International Templeton International
Fund, Class 2 - Fund, Class 2 -
Templeton Investment Templeton Investment
Counsel, Inc Counsel, Inc
(AFTER MAY 1, 2000 (AFTER MAY 1, 2000
Templeton Investment Templeton Investment
Securities Fund, Class 2 Securities Fund, Class 2
- Templeton Investment - Templeton Investment
Counsel, Inc.) Counsel, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------
31
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT 16 CONTRACT 17 CONTRACT 18
- --------------------------- ------------------------------- -------------------------------- -------------------------------
CONTRACT/PRODUCT NAME Delaware Golden Medallion Delaware - To Be Determined Delaware - To Be Determined
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REGISTERED (Y/N) Y Y Y
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION NUMBER 333-81281 333-90543 333-90545
- --------------------------- ------------------------------- -------------------------------- -------------------------------
REPRESENTATIVE FORM A3028-98 A3030-99 A3030-99
NUMBERS
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEPARATE ACCOUNT Separate Account VA-P of Separate Account VA-P of Separate Account VA-P of
NAME/DATE ESTABLISHED Allmerica Financial Life Allmerica Financial Life First Allmerica Financial
Insurance and Annuity Company Insurance and Annuity Company Life Insurance Company /
/ 6.13.99 / 6.13.99 6.13.99
- --------------------------- ------------------------------- -------------------------------- -------------------------------
SEC REGISTRATION NUMBER 33-44830 33-44830 33-71054
- --------------------------- ------------------------------- -------------------------------- -------------------------------
32
- --------------------------------------------------------------------------------------------------------------
PORTFOLIOS AND CLASSES Franklin Small Cap Franklin Small Cap Franklin Small Cap
- -ADVISER Fund, Class 2 - Fund, Class 2 - Fund, Class 2 -
Franklin Advisers, Inc. Franklin Advisers, Inc. Franklin Advisers, Inc.
Franklin Mutual Shares Franklin Mutual Shares Franklin Mutual Shares
Securities, Class 2 - Securities, Class 2 - Securities, Class 2 -
Franklin Mutual Franklin Mutual Franklin Mutual
Advisers, LLC Advisers, LLC Advisers, LLC
Templeton Global Templeton Global Templeton Global
Growth Fund, Class 2 - Growth Fund, Class 2 - Growth Fund, Class 2 -
Templeton Global Templeton Global Templeton Global
Advisors Limited Advisors Limited Advisors Limited
*ON MAY 1, 2000 the *ON MAY 1, 2000 the *ON MAY 1, 2000 the
fund's name will change fund's name will change fund's name will change
to Templeton Growth to Templeton Growth to Templeton Growth
Securities Fund Securities Fund Securities Fund
Templeton International Templeton International Templeton International
Fund, Class 2 - Fund, Class 2 - Fund, Class 2 -
Templeton Investment Templeton Investment Templeton Investment
Counsel, Inc Counsel, Inc Counsel, Inc
(AFTER MAY 1, 2000 (AFTER MAY 1, 2000 (AFTER MAY 1, 2000
Templeton Investment Templeton Investment Templeton Investment
Securities Fund, Class 2 Securities Fund, Class 2 Securities Fund, Class 2
- Templeton Investment - Templeton Investment - Templeton Investment
Counsel, Inc.) Counsel, Inc.) Counsel, Inc.)
- --------------------------------------------------------------------------------------------------------------
33
SCHEDULE E
OTHER PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
[names of other portfolios]
To Be Determined
34
SCHEDULE F
RULE 12b-1 PLANS
COMPENSATION SCHEDULE
Each Portfolio named below shall pay the following amounts pursuant to the terms
and conditions referenced below under its Class 2 Rule 12b-1 Distribution Plan,
stated as a percentage per year of Class 2's average daily net assets
represented by shares of Class 2.
Portfolio Name Maximum Annual Payment Rate
-------------- ---------------------------
Templeton Asset Allocation Fund* 0.25%
*As of May 1, 2000, Templeton Asset Strategy Fund
Templeton International Fund** 0.25%
**As of May 1, 2000, Templeton International Securities Fund
Franklin Small Cap Fund 0.25%
Templeton International Smaller Companies Fund 0.25%
Templeton Global Growth Fund*** 0.25%
***As of May 1, 2000, Templeton Growth Securities Fund
Mutual Shares Securities Fund 0.25%
Franklin Natural Resources Securities Fund 0.25%
Templeton Developing Markets Fund**** 0.25%
****As of May 1, 2000, Templeton Developing Markets Securities Fund
AGREEMENT PROVISIONS
If the Company, on behalf of any Account, purchases Trust Portfolio shares
("Eligible Shares") which are subject to a Rule 12b-1 plan adopted under the
1940 Act (the "Plan"), the Company may participate in the Plan.
To the extent the Company or its affiliates, agents or designees
(collectively "you") provide administrative and other services which assist in
the promotion and distribution of Eligible Shares or variable contracts offering
Eligible Shares, the Underwriter, the Trust or their affiliates (collectively,
"we") may pay you a Rule 12b-1 fee. "Administrative and other services" may
include, but are not limited to, furnishing personal services to owners of
Contracts which may invest in Eligible Shares ("Contract Owners"), answering
routine inquiries regarding a Portfolio, coordinating responses to Contract
Owner inquiries regarding the Portfolios, maintaining such accounts or providing
such other enhanced services as a Trust Portfolio or Contract may require, or
providing other services eligible for service fees as defined under NASD rules.
Your acceptance of such compensation is your acknowledgment that eligible
services have been rendered. All Rule 12b-1 fees, shall be based on the value of
Eligible Shares owned by the Company on behalf of its Accounts, and shall be
calculated on the basis and at the rates set forth in the Compensation
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Schedule stated above. The aggregate annual fees paid pursuant to each Plan
shall not exceed the amounts stated as the "annual maximums" in the Portfolio's
prospectus, unless an increase is approved by shareholders as provided in the
Plan. These maximums shall be a specified percent of the value of a Portfolio's
net assets attributable to Eligible Shares owned by the Company on behalf of its
Accounts (determined in the same manner as the Portfolio uses to compute its net
assets as set forth in its effective Prospectus). The Rule 12b-1 fee will be
paid to you within thirty (30) days after the end of the three-month periods
ending in January, April, July and November.
You shall furnish us with such information as shall reasonably be requested
by the Trust's Boards of Trustees ("Trustees") with respect to the Rule 12b-1
fees paid to you pursuant to the Plans. We shall furnish to the Trustees, for
their review on a quarterly basis, a written report of the amounts expended
under the Plans and the purposes for which such expenditures were made.
The Plans and provisions of any agreement relating to such Plans must be
approved annually by a vote of the Trustees, including the Trustees who are not
interested persons of the Trust and who have no financial interest in the Plans
or any related agreement ("Disinterested Trustees"). Each Plan may be terminated
at any time by the vote of a majority of the Disinterested Trustees, or by a
vote of a majority of the outstanding shares as provided in the Plan, on sixty
(60) days' written notice, without payment of any penalty. The Plans may also be
terminated by any act that terminates the Underwriting Agreement between the
Underwriter and the Trust, and/or the management or administration agreement
between Franklin Advisers, Inc. and its affiliates and the Trust. Continuation
of the Plans is also conditioned on Disinterested Trustees being ultimately
responsible for selecting and nominating any new Disinterested Trustees. Under
Rule 12b-1, the Trustees have a duty to request and evaluate, and persons who
are party to any agreement related to a Plan have a duty to furnish, such
information as may reasonably be necessary to an informed determination of
whether the Plan or any agreement should be implemented or continued. Under Rule
12b-1, the Trust is permitted to implement or continue Plans or the provisions
of any agreement relating to such Plans from year-to-year only if, based on
certain legal considerations, the Trustees are able to conclude that the Plans
will benefit each affected Trust Portfolio and class. Absent such yearly
determination, the Plans must be terminated as set forth above. In the event of
the termination of the Plans for any reason, the provisions of this Schedule F
relating to the Plans will also terminate. You agree that your selling
agreements with persons or entities through whom you intend to distribute
Contracts will provide that compensation paid to such persons or entities may be
reduced if a Portfolio's Plan is no longer effective or is no longer applicable
to such Portfolio or class of shares available under the Contracts.
Any obligation assumed by the Trust pursuant to this Agreement shall be limited
in all cases to the assets of the Trust and no person shall seek satisfaction
thereof from shareholders of the Trust. You agree to waive payment of any
amounts payable to you by Underwriter under a Plan until such time as the
Underwriter has received such fee from the Trust.
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The provisions of the Plans shall control over the provisions of the
Participation Agreement, including this Schedule F, in the event of any
inconsistency.
You agree to provide complete disclosure as required by all applicable statutes,
rules and regulations of all rule 12b-1 fees received from us in the prospectus
of the Contracts.
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SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: First Allmerica Financial Life Insurance Company
440 Lincoln Street
Worcester, MA 01653
Attention: Richard M. Reilly, President
Or
Allmerica Financial Life Insurance and Annuity Company
440 Lincoln Street
Worcester, MA 01653
Attention: Richard M. Reilly, President
To the Trust: Franklin Templeton Variable Insurance Products Trust
777 Mariners Island Boulevard
San Mateo, California 94404
Attention: Karen L. Skidmore, Assistant Secretary
and Assistant Vice President
To the Underwriter: Franklin Templeton Distributors, Inc.
777 Mariners Island Boulevard
San Mateo, California 94404
Attention: Philip J. Kearns, Vice President
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SCHEDULE H
SHARED FUNDING ORDER
39