Exhibit 24 (8) (15)
Participation Agreement
Among
Universal Institutional Funds, Inc.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Distribution, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Inc.
and
Phoenix Life Insurance Company
PARTICIPATION AGREEMENT
AMONG
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DISTRIBUTION, INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.
AND
PHOENIX LIFE INSURANCE COMPANY
DATED AS OF
MAY 1, 2006
TABLE OF CONTENTS
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Page
ARTICLE I. Purchase and Redemption of Fund Shares 3
ARTICLE II. Representations and Warranties 4
ARTICLE III. Prospectuses, Reports to Shareholders
and Proxy Statements; Voting 6
ARTICLE IV.A. Sales Material and Information 8
ARTICLE IV.B. Excessive Trading Activity 10
ARTICLE V. Fees and Expenses 10
ARTICLE VI. Diversification 11
ARTICLE VII. Potential Conflicts 11
ARTICLE VIII. Indemnification 13
ARTICLE IX. Applicable Law 18
ARTICLE X. Termination 19
ARTICLE XI. Notices 20
ARTICLE XII. Miscellaneous 21
SCHEDULE A Separate Accounts and Associated Contracts A-1
SCHEDULE B Portfolios of The Universal Institutional Funds, Inc.
Available Under this Agreement B-1
SCHEDULE C Proxy Voting Procedures C-1
SCHEDULE D Operating Procedures D-1
THIS AGREEMENT is made and entered into as of the 1st day of May, 2006 by
and among PHOENIX LIFE INSURANCE COMPANY (referred to individually and
collectively herein as the "Company"), on its own behalf and on behalf of each
separate account of the Company set forth on Schedule A hereto as may be amended
from time to time (each such account referred to as an "Account"), THE UNIVERSAL
INSTITUTIONAL FUNDS, INC. (the "Fund"), a Maryland corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
DISTRIBUTION, INC. (the "Underwriter"), a Delaware corporation, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC. (the "Adviser"), a Delaware corporation.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as (i) the investment vehicle for separate
accounts established by insurance companies for individual and group life
insurance policies and annuity contracts with variable accumulation and/or
pay-out provisions (hereinafter referred to individually and/or collectively as
"Variable Insurance Products") and (ii) the investment vehicle for certain
qualified pension and retirement plans ("Qualified Plans"); and
WHEREAS, insurance companies desiring to utilize the Fund as an investment
vehicle under their Variable Insurance Products enter into participation
agreements with the Fund, the Underwriter and the Adviser (the "Participating
Insurance Companies"); and
WHEREAS, shares of the Fund are divided into several series of shares, each
representing the interest in a particular managed portfolio of securities and
other assets, any one or more of which may be made available under this
Agreement; and
WHEREAS, the Fund intends to offer shares of the series set forth on
Schedule B hereto (each such series referred to as a "Portfolio"), as such
Schedule may be amended from time to time by mutual agreement of the parties
hereto, to the Account(s) of the Company (all references herein to "shares" of a
Portfolio shall mean the class or classes of shares specifically identified on
Schedule B); and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission ("SEC"), dated September 19, 1996 (File No. 812-10118), granting
Participating Insurance Companies and Variable Insurance Product separate
accounts exemptions from the provisions of Sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940, as amended (the "1940 Act"), and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Fund to be sold to and held by Variable Insurance Product
separate accounts of both affiliated and unaffiliated life insurance companies
and Qualified Plans (the "Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and any applicable state securities
laws; and
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WHEREAS, the Adviser manages the Portfolios of the Fund; and
WHEREAS, the Underwriter is registered as a broker/dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") and serves as principal underwriter of the shares of the Fund; and
WHEREAS, the Company offers or proposes to offer certain Variable Insurance
Products that it has registered (or will register) under the 1933 Act (the
"Registered Contracts" or the "Contracts"); and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution or under authority of the Board of
Directors of the Company, on the date shown for such Account on Schedule A
hereto, to set aside and invest assets attributable to the Contracts; and
WHEREAS, the Company has registered (or will register) certain Accounts as
unit investment trusts under the 1940 Act that are attributable to the
Registered Contracts (the "Registered Accounts" or the "Accounts") each as set
forth on Schedule A hereto; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios, on behalf
of each Account or sub-Account thereof (together, as applicable, an "Account"),
to fund the Contracts and the Underwriter is authorized to sell such shares to
each such Account at net asset value; and
WHEREAS, the Fund, acting through the Fund's transfer agent, has
established a master account on its mutual fund shareholder account system (the
"T/A Account") reflecting the aggregate ownership of shares of the Fund and all
transactions involving such shares by the Company on behalf of the Accounts; and
WHEREAS, the Company, the Fund, the Underwriter and the Adviser wish to
permit the Fund to receive, and the Company to transmit, purchase and redemption
orders of Portfolio shares using the National Securities Clearing Corporation
("NSCC") Fund/SERV System ("Fund/SERV"); and
WHEREAS, in order to receive and transmit Fund shares via Fund/SERV, it is
intended that the Fund and the Company will establish an account using Fund/SERV
(the "Fund/SERV Account") that will reflect corresponding transactions and Fund
share balances in the T/A Account.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Underwriter and the Adviser agree as follows:
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ARTICLE I. PURCHASE AND REDEMPTION OF FUND SHARES
1.1. The Fund and the Underwriter agree to make available for purchase
by the Company shares of the Portfolio(s) and shall execute purchase orders
placed for each Account on each Business Day at the net asset value next
computed after receipt by the Fund or its designee of such purchase order. For
purposes of this Section 1.1, the Company shall be the designee of the Fund and
the Underwriter for receipt of such purchase orders from each Account and
receipt by such designee shall constitute receipt by the Fund; provided that
such purchase orders are received and transmitted in accordance with the
Operating Procedures attached hereto as Schedule D (the "Operating Procedures").
"Business Day" shall mean any day on which the New York Stock Exchange, Inc. is
open for trading and on which the Fund calculates its net asset value pursuant
to SEC rules.
1.2. The Fund, so long as this Agreement is in effect, agrees to make
shares of the Portfolios available for purchase at the applicable net asset
value per share by the Company and its Accounts on those days on which the Fund
calculates its net asset value pursuant to the SEC rules. The Fund shall use
reasonable efforts to calculate such net asset value on each day that the New
York Stock Exchange, Inc. is open for trading. Notwithstanding the foregoing,
the Board of Trustees of the Fund (the "Board") may refuse to permit the Fund to
sell shares of any Portfolio to any person, or suspend or terminate the offering
of shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the shareholders of
such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund will be
sold only to Participating Insurance Companies and their separate accounts and
to certain qualified plans. No shares of a Portfolio will be sold to the general
public.
1.4. The Fund and the Underwriter agree to redeem for cash, on the
Company's request, any full or fractional shares of the Portfolio(s) held by the
Company, executing such redemption requests for each Account on each Business
Day at the net asset value next computed after receipt by the Fund or its
designee of the request for redemption. Subject to and in accordance with
applicable laws and regulations, however, the Fund reserves the right to redeem
shares of the Portfolios for assets other than cash. For purposes of this
Section 1.4, the Company shall be the designee of the Fund and the Underwriter
for receipt of requests for redemption from each Account and receipt by such
designee shall constitute receipt by the Fund; provided that such redemption
requests are received and transmitted in accordance with the Operating
Procedures.
1.5. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Fund shall be made in
accordance with the provisions of such prospectus.
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1.6. The Fund and the Company will settle all purchase and redemption
orders transmitted pursuant to Sections 1.1 and 1.4 of this Agreement,
respectively, in accordance with the Operating Procedures.
1.7. Issuance and transfer of the Fund's shares will be by book entry
only. Share certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate sub-account of each Account.
1.8. The Company shall not redeem Fund shares attributable to the
Contracts (as distinct from Fund shares attributable to the Company's 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(c) of the 1940 Act. Upon
request, the Company will promptly furnish to the Fund the opinion of counsel
for the Company (which counsel shall be reasonably satisfactory to the Fund) 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, the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund at least sixty (60) days prior written
notice of its intention to do so.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that: (i) it is an insurance
company duly organized and in good standing under applicable law; (ii) it is a
member in good standing of the NSCC, or is otherwise entitled to use Fund/SERV;
(iii) it will abide by the rules and regulations of the NSCC; (iv) it has
legally and validly established each Account prior to any issuance or sale
thereof as a segregated asset account under applicable laws and regulations; and
(v) it has registered or, prior to any issuance or sale of the Registered
Contracts, will register and will thereafter maintain the registration of each
Registered Account as a unit investment trust in accordance with the provisions
of the 1940 Act to serve as a segregated investment account for the Registered
Contracts. The Company further represents and warrants that: (i) the Registered
Contracts are or will be registered and shall remain registered under the 1933
Act; (ii) the Registered Contracts will be issued and sold in compliance in all
material respects with all applicable federal and state laws; and (iii) the sale
of the Registered Contracts shall comply in all material respects with state
insurance suitability requirements. The Company shall amend the registration
statement for the Registered Accounts and the Registered Contracts under the
1940 Act and the 1933 Act, respectively, from time to time as required in order
to effect the continuous offering of the Registered Contracts.
2.2. The Fund and the Underwriter represent and warrant that Fund shares
sold pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of the State of
Maryland and all applicable federal and state securities laws and that the Fund
is and shall remain registered under the 1940 Act. The Fund
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shall amend the registration statement for its shares under the 1933 Act and the
1940 Act from time to time as required in order to effect the continuous
offering of its shares. The Fund shall register and qualify the shares for sale
in accordance with the laws of the various states only if and to the extent
deemed advisable by the Fund.
2.3. The Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code"), and that it will use its reasonable efforts to maintain
such qualification (under Subchapter M or any successor or similar provision)
and that it will notify the Company immediately upon having a reasonable basis
for believing that it has ceased to so qualify.
2.4. The Company represents and warrants that each Account is and will
continue to be a "segregated asset account" under applicable provisions of the
Code and applicable Treasury Regulations promulgated thereunder and that each
Contract is and will continue to be treated as a "variable contract" under
applicable provisions of the Code and applicable Treasury Regulations
promulgated thereunder. The Company further represents and warrants that it will
make every effort to maintain such treatment and that it will notify the Fund
immediately upon having a reasonable basis for believing that any Account or
Contract has ceased to be so treated or that any Account or Contract might not
be so treated in the future.
2.5. The Fund represents that to the extent that it decides to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act, the Fund
undertakes to have the Board, at least a majority of whom are not interested
persons of the Fund, formulate and approve any plan under Rule 12b-1 to finance
distribution expenses.
2.6. The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states.
2.7. The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Maryland and that it does and will
comply in all material respects with the 1940 Act. The Fund represents and
warrants that it is a member in good standing of the NSCC, or is otherwise
entitled to use Fund/SERV, and will abide by the rules and regulations of the
NSCC.
2.8. The Adviser represents and warrants that it is and shall remain
duly registered in all material respects under all applicable federal and state
securities laws and that it will perform its obligations for the Fund in
compliance in all material respects with the laws of its state of domicile and
any applicable state and federal securities laws.
2.9. The Underwriter represents and warrants that it is and shall remain
duly registered in all material respects under all applicable federal and state
securities laws and that it will perform its obligations for the Fund in
compliance in all material respects with the laws of its state of domicile and
any applicable state and federal securities laws.
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2.10. The Fund represents and warrants that all of its directors,
officers, employees, and other individuals/entities dealing with the money
and/or securities of the Fund are and shall continue to be at all times covered
by a blanket fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than the minimum coverage as currently required by Rule 17g-1 of
the 1940 Act or related provisions as may be promulgated from time to time. The
aforesaid blanket fidelity bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Account(s) are and shall continue to be
at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Company and/or the Account(s) that is reasonable and customary in
light of the Company's obligations under this Agreement. The aforesaid includes
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company in an amount deemed reasonable by the Company. The Company agrees to
make all reasonable efforts to see that this bond or another bond containing
these provisions is always in effect, and agrees to notify the Fund, the
Underwriter and the Adviser in the event that such coverage no longer applies.
ARTICLE III. PROSPECTUSES, REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS; VOTING
3.1. The Fund or its designee shall provide the Company with as many
printed copies of the Fund's current prospectus and statement of additional
information as the Company may reasonably request. If requested by the Company,
in lieu of providing printed copies the Fund shall provide camera-ready film or
computer diskettes containing the Fund's prospectus and statement of additional
information, and such other assistance as is reasonably necessary in order for
the Company once each year (or more frequently if the prospectus and/or
statement of additional information for the Fund is amended during the year) to
have the prospectus or other disclosure document for the Contracts and the
Fund's prospectus (and statement of additional information for the Fund and the
statement of additional information for the Registered Contracts) printed
together in one document. Alternatively, the Company may print the Fund's
prospectus and/or its statement of additional information in combination with
other fund companies' prospectuses and statements of additional information.
3.2. Except as provided in this Section 3.2, all expenses of preparing,
setting in type, printing and distributing Fund prospectuses and statements of
additional information shall be the expense of the Company. For prospectuses and
statements of additional information provided by the Company to its Contract
owners who currently own shares of one or more Portfolios ("Existing Contract
Owners"), in order to update disclosure as required by the 1933 Act and/or the
1940 Act, the cost of printing shall be borne by the Fund. If the Company
chooses to receive in electronic format or computer diskettes in lieu of
receiving printed copies of the Fund's prospectus, the Fund shall bear the cost
of typesetting to provide the Fund's prospectus to the Company in the format in
which the Fund is accustomed to formatting prospectuses, and the Company shall
bear the expense of adjusting or changing the format to conform with any of its
prospectuses or other disclosure documents. In such event, the Fund will
reimburse the
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Company in an amount equal to the product of "x" and "y", where "x" is the
number of such disclosure documents distributed to Existing Contract Owners and
"y" is the Fund's per unit cost of printing the Fund's prospectus. The same
procedures shall be followed with respect to the Fund's statement of additional
information. The Company agrees to provide the Fund or its designee with such
information as may be reasonably requested by the Fund to assure that the Fund's
expenses do not include the costs of printing, typesetting or distributing any
prospectuses or statements of additional information other than the costs of
printing those prospectuses or statements of additional information actually
distributed to Existing Contract Owners.
3.3. The statement of additional information of the Fund shall be
obtainable from the Fund, the Underwriter, the Company or such other person as
the Fund may designate.
3.4. The Fund or its designee shall provide the Company with as many
printed copies of the Fund's current shareholder report as the Company may
reasonably request. If requested by the Company, in lieu of providing printed
copies the Fund shall provide camera-ready film or computer diskettes containing
the Fund's shareholder reports, and such other assistance as is reasonably
necessary in order for the Company twice each year (once for the Fund's
semi-annual report and once for the Fund's annual report) to have the reports
for the Contract Owners and the Fund's shareholder reports printed together in
one document. Alternately, the Company may print the Fund's shareholder reports
in combination with other fund companies' shareholder reports.
3.5. Except as provided in this Section 3.5, all expenses of preparing,
setting in type, printing and distributing Fund shareholder reports shall be the
expense of the Company. For Fund shareholder reports provided by the Company to
its Contract owners who currently own shares of one or more Portfolios
("Existing Contract Owners"), in order to deliver such reports as required by
the 1934 Act and/or the 1940 Act, the cost of printing shall be borne by the
Fund. If the Company chooses to receive camera-ready film or computer diskettes
in lieu of receiving printed copies of the Fund's shareholder reports, the Fund
shall bear the cost of typesetting to provide the Fund's shareholder reports to
the Company in the format in which the Fund is accustomed to formatting
shareholder reports, and the Company shall bear the expense of adjusting or
changing the format to conform with any of its reports to Contract Owners. In
such event, the Fund will reimburse the Company in an amount equal to the
product of "x" and "y", where "x" is the number of such shareholder reports
distributed to Existing Contract Owners and "y" is the Fund's per unit cost of
printing the Fund's shareholder reports. The Company agrees to provide the Fund
or its designee with such information as may be reasonably requested by the Fund
to assure that the Fund's expenses do not include the costs of printing,
typesetting or distributing any shareholder reports other than the costs of
printing those shareholder reports actually distributed to Existing Contract
Owners.
3.6 The Fund, at its expense, shall provide the Company with copies of
its proxy statements and other communications (except for prospectuses and
statements of additional information that are covered in Section 3.1 and reports
to shareholders that are covered in Section 3.4) to shareholders in such
quantity as the Company shall reasonably require for
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distributing to Existing Contract Owners. The Fund shall not pay any costs of
distributing such materials to prospective Contract owners.
3.7. If and to the extent required by law, the Company shall distribute
all proxy materials furnished by the Fund to Contract owners to whom voting
privileges are required to be extended and shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Portfolio shares in accordance with instructions
received from Contract owners; and
(iii) vote Portfolio shares for which no instructions have been
received in the same proportion as Portfolio shares 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. The Company
reserves the right to vote Portfolio shares held in any segregated asset account
in its own right, to the extent permitted by law. If the Company is required to
solicit voting instructions, the Fund and the Company shall follow the
procedures, and shall have the corresponding responsibilities, for the handling
of proxies and voting instruction solicitations, as set forth in Schedule C
attached hereto and incorporated herein by reference. Participating Insurance
Companies shall be responsible for ensuring that each of their separate accounts
participating in the Fund (and for which the soliciting of voting instructions
is required) calculates voting privileges in a manner consistent with the
standards set forth on Schedule C, which standards will also be provided to the
other Participating Insurance Companies.
3.8. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of the
▇▇▇▇ ▇▇▇) as well as with Section 16(a) of the 1940 Act and, if and when
applicable, Section 16(b) of the 1940 Act. Further, the Fund will act in
accordance with the SEC's interpretation of the requirements of Section 16(a) of
the 1940 Act with respect to periodic elections of directors and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE IV.A. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, each piece of sales literature or other promotional
material in which the Fund, the Underwriter or the Adviser is named, at least
ten (10) Business Days prior to its use. No such material shall be used without
the prior approval of the Fund or its designee. The Fund shall use its
reasonable best efforts to review any such material as soon as practicable after
receipt and no later than ten (10) Business Days after receipt of such material.
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4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement or prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund
which are in the public domain or approved by the Fund for distribution to Fund
shareholders, or in sales literature or other promotional material approved by
the Fund or its designee, except with the permission of the Fund.
4.3. The Fund or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company and/or its Account(s) or
Contract(s) are named at least ten (10) Business Days prior to its use. No such
material shall be used if the Company or its designee reasonably objects to such
use within ten (10) Business Days after receipt of such material.
4.4. Neither the Fund, the Underwriter nor the Adviser shall give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Contracts, other than the information or
representations contained in a registration statement, prospectus, offering
memorandum or other disclosure document for the Contracts, as such documents may
be amended or supplemented from time to time, or in reports or proxy statements
for each Account which are in the public domain or approved by the Company for
distribution to Contract owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission of
the Company.
4.5. The Fund will provide to the Company at least one complete copy of
all registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares and are relevant to
the Company or the Contracts.
4.6. The Company will provide to the Fund, to the extent applicable, at
least one complete copy of all registration statements, prospectuses, statements
of additional information, offering memoranda or other disclosure documents,
reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate to investment in
the Fund or the Portfolios under the Contracts.
4.7. For purposes of this Article IV.A., the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, 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 of
any other advertisement, sales literature, or published article), educational
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or training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
offering memoranda, prospectuses, statements of additional information or other
disclosure documents, shareholder reports, and proxy materials.
ARTICLE IV.B. EXCESSIVE TRADING ACTIVITY
4.1. The Fund may refuse to sell Shares of any Portfolios to any person,
or suspend or terminate the offering of the Shares of any Portfolios if such
action is required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of the Board of Trustees, deemed necessary, desirable
or appropriate. The Fund reserves right to reject any purchase order, including
those purchase orders with respect to shareholders or accounts whose trading has
been or may be disruptive to the Fund or that may otherwise adversely affect the
Fund. The Company agrees to use its reasonable best efforts to render assistance
to, and to cooperate with, the Fund to achieve compliance with the Fund's
policies and restrictions on short-term or excessive trading activity as they
may be amended from time to time, or to the extent required by applicable
regulatory requirements.
4.2. To the extent required by applicable laws, rules, or regulations,
or in the event the Company has the ability to do so, the Company will provide
the Fund the Taxpayer Identification Number or other identifying information
contained in the Company's records, of any particular or all Contract owners
that purchased, redeemed, transferred, or exchanged Shares of the Portfolios,
and the amount and dates of such purchases, redemptions, transfers and exchanges
during the period covered by the request. The Company will also execute any
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Shares by a Contract owner who has been identified by the Company
or the Fund as having engaged in transactions in such Shares that violate the
Fund's policies and restrictions on short term or excessive trading activity.
The Company must provide written confirmation to the Fund that the instructions
have been executed. In addition, the Company understands that consistent with
federal and state laws, the Fund may impose redemption fees on the redemption of
Shares held for a short period of time as may be specified in the Fund's
prospectuses, and the Company agrees that, to the extent it may make such
Portfolio available, it will ensure that any redemption by a Contract owner will
comply with such requirements.
ARTICLE V. FEES AND EXPENSES
5.1. The Fund shall pay no fee or other compensation to the Company
under this Agreement, except that if the Fund or any Portfolio adopts and
implements a service plan and/or a plan pursuant to Rule 12b-1, then the
Underwriter may make payments to the Company or to the underwriter for the
Contracts pursuant to such plans if and in amounts agreed to by the Underwriter
in writing.
5.2. All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by
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the Fund, in accordance with applicable state laws prior to their sale. Except
as otherwise set forth in Section 3.2 of this Agreement, the Fund shall bear the
expenses for the cost of registration and qualification of the Fund's shares,
preparation and filing of the Fund's prospectus and registration statement,
proxy materials and reports, setting the prospectus in type, setting in type and
printing the proxy materials and reports to shareholders, the preparation of all
statements and notices required by any federal or state law, and all taxes on
the issuance or transfer of the Fund's shares.
5.3. The Company shall bear the expenses of distributing the Fund's
prospectus, statement of additional information, proxy materials and reports to
owners of Contracts issued by the Company.
ARTICLE VI. DIVERSIFICATION
6.1. The Fund will use its best efforts to at all times comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for annuity, endowment, or life insurance contracts
and any amendments or other modifications to such Section or Regulations. In the
event the Fund ceases to so qualify, it will take reasonable steps to (a) notify
the Company of such event and (b) adequately diversify the Fund so as to achieve
compliance within the time period afforded by Regulation 1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
7.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Fund. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Portfolio are being managed; (e) a difference in voting instructions given
by contract owners; or (f) a decision by a Participating Insurance Company to
disregard the voting instructions of contract owners. The Fund shall promptly
inform the Company if the Board determines that an irreconcilable material
conflict exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order by providing
the Board with all information reasonably necessary for the Board to consider
any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever Contract owner voting instructions are
disregarded. The Company agrees that these responsibilities will be carried out
with a view only to the interests of Contract owners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested members, that a material irreconcilable conflict exists, the
Company and other Participating
11
Insurance Companies shall, at their expense and to the extent reasonably
practicable (as determined by a majority of the disinterested directors), take
whatever steps are necessary to remedy or eliminate the irreconcilable material
conflict, up to and including: (1) withdrawing the assets allocable to some or
all of the separate accounts from the Fund or any Portfolio and reinvesting such
assets in a different investment medium, including (but not limited to) another
portfolio of the Fund, or submitting the question whether such segregation
should be implemented to a vote of all affected contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
contract owners, life insurance policy owners, or variable contract owners of
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected contract owners the option of making
such a change; and (2) establishing a new registered management investment
company or managed separate account. No charge or penalty will be imposed as a
result of such withdrawal. The Company agrees that it bears the responsibility
to take remedial action in the event of a Board determination of an
irreconcilable material conflict and the cost of such remedial action, and that
these responsibilities will be carried out with a view only to the interests of
Contract owners; provided, however, that if the irreconcilable material conflict
was caused by the action of the Fund, the Fund shall bear its reasonable share
of the cost of such remedial action.
7.4. If a material irreconcilable conflict arises because of a decision
by the Company to disregard contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such Account
(at the Company's expense); provided, however that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested members
of the Board. No charge or penalty will be imposed as a result of such
withdrawal. The Company agrees that it bears the responsibility to take remedial
action in the event of a Board determination of an irreconcilable material
conflict and the cost of such remedial action, and that these responsibilities
will be carried out with a view only to the interests of Contract owners.
7.5. For purposes of Sections 7.3 and 7.4 of this Agreement, a majority
of the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Fund be required to establish a new funding medium for the Contracts.
The Company shall not be required by Section 7.3 or 7.4 to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict.
7.6. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies,
as appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable; and (b) Sections 3.4,
12
3.5, 7.1, 7.2, 7.3 and 7.4 of this Agreement shall continue in effect only to
the extent that terms and conditions substantially identical to such Sections
are contained in such Rule(s) as so amended or adopted.
7.7. Each of the Company and the Adviser shall at least annually submit
to the Board such reports, materials or data as the Board may reasonably request
so that the Board may fully carry out the obligations imposed upon it by the
provisions hereof and in the Shared Funding Exemptive Order. Such reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Board.
ARTICLE VIII. INDEMNIFICATION
8.1. Indemnification by the Company
------------------------------
8.1(a). The Company agrees to indemnify and hold harmless the Fund, the
Underwriter, the Adviser and each member of the Board and each officer and
employee of the Fund, and each director, officer and employee of the Underwriter
and the Adviser, and each person, if any, who controls the Fund, the Underwriter
or the Adviser within the meaning of Section 15 of the 1933 Act (collectively,
the "Indemnified Parties" and individually, an "Indemnified Party," for purposes
of this Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or litigation (including reasonable legal and other expenses), to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the registration statement, prospectus, offering memorandum
or other disclosure document for the Contracts or contained
in the Contracts or sales or other promotional literature for
the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement
or omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the
Fund for use in the registration statement, prospectus,
offering memorandum or other disclosure document for the
Contracts or in the Contracts or sales or other promotional
literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Fund
shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement,
13
prospectus or sales literature of the Fund not supplied by
the Company, or persons under its control and other than
statements or representations authorized by the Fund, the
Underwriter or the Adviser) or unlawful conduct of the
Company or persons under its control, with respect to the
sale or distribution of the Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in a
registration statement, prospectus, or sales literature of
the Fund or any amendment thereof or supplement thereto or
the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading if such a statement or
omission was made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the
Company; or
(iv) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.1(b) and 8.1(c) below.
8.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party 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 or duties under this Agreement.
8.1(c). The Company 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 Company 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 Company of any
such claim shall not relieve the Company 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 Company shall be entitled to participate,
at its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company'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
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred
14
by such party independently in connection with the defense thereof other than
reasonable costs of investigation.
8.1(d). The Fund, the Underwriter or the Adviser, as applicable, will
promptly notify the Company of the commencement of any litigation or proceedings
against an Indemnified Party in connection with this Agreement, the issuance or
sale of the Fund shares or the Contracts, or the operation of the Fund.
8.2. Indemnification by the Underwriter
----------------------------------
8.2(a). The Underwriter agrees to indemnify and hold harmless the Company
and each of its directors, officers and employees, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party," for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Underwriter) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of shares of a Portfolio and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement or prospectus or sales literature
of the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement
or omission was made in reliance upon and in conformity with
information furnished to the Fund, the Underwriter or the
Adviser by or on behalf of the Company for use in the
registration statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Portfolio
shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in
registration statement, prospectus, offering memorandum,
other disclosure document or sales or other promotional
literature for the Contracts not supplied by the Fund or the
Underwriter or persons under their respective control and
other than statements or representations authorized by the
Company) or unlawful conduct of the Fund or the Underwriter
or persons under their respective control, with respect to
the sale or distribution of the Contracts or Portfolio
shares; or
15
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in a
registration statement, prospectus, offering memorandum,
other disclosure document or sales or other promotional
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 the Company by or on
behalf of the Fund or the Underwriter; or
(iv) arise as a result of any failure by the Underwriter to
provide the services and furnish the materials under the
terms of this Agreement; or
(v) 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 or result from any other
material breach of this Agreement by the Underwriter.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.2(b) and 8.2(c) below.
8.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party 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.
8.2(c). 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. 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 fees and 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.
16
8.2(d). The Company will promptly notify the Underwriter of the
commencement of any litigation or proceedings against an Indemnified Party in
connection with this Agreement, the issuance or sale of the Contracts or the
operation of the Account(s).
8.3. Indemnification by the Adviser
------------------------------
8.3(a). The Adviser agrees to indemnify and hold harmless the Company and
each of its directors, officers and employees, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party," for purposes of this Section 8.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Adviser) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of shares of a Portfolio and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement or prospectus or sales literature
of the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement
or omission was made in reliance upon and in conformity with
information furnished to the Fund, the Underwriter or the
Adviser by or on behalf of the Company for use in the
registration statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Portfolio
shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, offering memorandum,
other disclosure document or sales or other promotional
literature for the Contracts not supplied by the Fund or the
Adviser or persons under their respective control and other
than statements or representations authorized by the Company)
or unlawful conduct of the Fund or the Adviser or persons
under their respective control, with respect to the sale or
distribution of the Contracts or Portfolio shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in a
registration statement, prospectus, offering memorandum,
other disclosure document or sales or other promotional
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
17
statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to
the Company by or on behalf of the Fund or the Adviser; or
(iv) arise as a result of any failure by the Adviser to provide
the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Adviser.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.3(b) and 8.3(c) below.
8.3(b). The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party 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.
8.3(c). The Adviser 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 Adviser 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 Adviser of any
such claim shall not relieve the Adviser 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 Adviser will be entitled to participate, at
its own expense, in the defense thereof. The Adviser also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Adviser to such party of the Adviser'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 Adviser 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.
8.3(d). The Company will promptly notify the Adviser of the commencement of
any litigation or proceedings against an Indemnified Party in connection with
this Agreement, the issuance or sale of the Contracts or the operation of the
Account(s).
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
18
9.2. This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Shared Funding Exemptive Order) and the
terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. TERMINATION
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by sixty (60) days advance
written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio based upon
the Company's determination that shares of such Portfolio are not
reasonably available to meet the requirements of the Contracts;
provided, however, that said termination shall become effective ten
(10) days after receipt of notice unless the Fund makes available a
sufficient number of shares of the Portfolio to reasonably meet the
requirements of the Contracts within said ten (10) day period; or
(c) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the event
that any of the Portfolio's shares are not registered, issued or sold
in accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment media of
the Contracts issued or to be issued by the Company; or
(d) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the event
that such Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code or under any successor or
similar provision; or
(e) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the event
that such Portfolio fails to meet the diversification requirements
specified in Article VI hereof; or
(f) termination by the Fund, the Underwriter or the Adviser by written
notice to the Company if the Fund, the Underwriter or the Adviser, as
applicable, shall determine, in its sole judgment exercised in good
faith, that the Company and/or its affiliated companies has suffered a
material adverse change in its business, operations, financial
condition or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(g) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser, if the Company shall determine, in its
sole judgment exercised in good
19
faith, that the Fund, the Underwriter or the Adviser has suffered a
material adverse change in its business, operations, financial
condition or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(h) termination by the Fund, the Underwriter or the Adviser by written
notice to the Company, if the Company gives the Fund, the Underwriter
and the Adviser the written notice specified in Section 1.5 hereof and
at the time such notice was given there was no notice of termination
outstanding under any other provision of this Agreement; provided,
however, any termination under this Section 10.1(h) shall be effective
forty-five (45) days after the notice specified in Section 1.5 was
given; or
(i) termination by any party to this Agreement upon another party's
material breach of any provision of this Agreement.
10.2. Notwithstanding any termination of this Agreement with respect to a
Portfolio, the Fund and the Underwriter shall at the option of the Company
continue to make available additional shares of the Portfolio, pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (the "Existing Contracts"),
unless such further sale of Portfolio shares is proscribed by law, regulation or
applicable regulatory authority, or unless the Board determines that liquidation
of the Portfolio following termination of this Agreement is in the best
interests of the Portfolio. Specifically, subject to the foregoing, the owners
of the Existing Contracts shall be permitted to direct reallocation of
investments in the Portfolio, redemption of investments in the Portfolio and/or
investment in the Portfolio upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 10.2 shall not
apply to any terminations under Article VII and the effect of such Article VII
terminations shall be governed by Article VII of this Agreement.
10.3. At the option of the Company, the Company may substitute shares of
another investment company or series thereof for shares of a Portfolio in
accordance with the terms of the Contracts, provided that the Company has given
at least forty-five days prior written notice to the Fund of the date of
substitution.
ARTICLE XI. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail, or by express mail delivery, to the other party at the address
of such party set forth below or at such other address as such party may from
time to time specify in writing to the other party.
20
If to the Fund:
The Universal Institutional Funds, Inc.
c/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
If to the Underwriter:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Distribution, Inc.
c/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Adviser:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Company:
Phoenix Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇ ▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Secretary
With a copy to:
Phoenix Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇ ▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Second Vice President
ARTICLE XII. MISCELLANEOUS
12.1. All persons dealing with the Fund must look solely to the property
of the Fund for the enforcement of any claims against the Fund, as neither the
Board, officers, agents or shareholders of the Fund assume any personal
liability for obligations entered into on behalf of the Fund.
21
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential any "non-public
personal information" about any "consumer" of another party (as such terms are
defined in SEC Regulation S-P) and any other information reasonably identified
as confidential in writing by another party ("Confidential Information"). Each
party agrees not to disclose, disseminate or utilize another party's
Confidential Information except: (i) as permitted by this Agreement, (ii) upon
the written consent of the other party, (iii) where the Confidential Information
comes into the public domain through no fault of the party receiving the
information, or (iv) as otherwise required or permitted under applicable law.
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
National Association of Securities Dealers 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. Notwithstanding the generality of the
foregoing, each party hereto further agrees to furnish state insurance
authorities with any information or reports in connection with services provided
under this Agreement which such authorities may request in order to ascertain
whether the insurance operations of the Company are being conducted in a manner
consistent with applicable law and regulations.
12.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Adviser may assign this Agreement or any
rights or obligations hereunder to any affiliate of or company under common
control with the Adviser, if such assignee is duly licensed and registered to
perform the obligations of the Adviser under this Agreement.
12.9. If requested by the Fund, the Underwriter or the Adviser, the
Company shall furnish, or shall cause to be furnished, to the requesting party
or its designee copies of the following documents:
22
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles ("GAAP"), if any), as
soon as practical and in any event within ninety (90) days
after the end of each fiscal year;
(b) the Company's quarterly statements (prepared under statutory
accounting principles and GAAP, if any), as soon as practical
and in any event within forty-five (45) days after the end of
each quarterly period;
(c) any financial statement, proxy statement, notice or report of
the Company sent to stockholders and/or policyholders, as soon
as practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the SEC or any state
insurance regulator, as soon as practical after the filing
thereof; and
(e) any other report submitted to the Company by independent
accountants in connection with any annual, interim or special
audit made by them of the books of the Company, as soon as
practical after the receipt thereof.
12.10. Unless otherwise specifically provided in this Agreement, no
provision of this Agreement may be amended or modified in any manner except by a
written agreement executed by all parties.
[Remainder of Page Intentionally Left Blank]
23
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified above.
PHOENIX LIFE INSURANCE COMPANY
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
-------------------------------
NAME: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
TITLE: SENIOR VICE PRESIDENT
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: PRESIDENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DISTRIBUTION, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: VICE PRESIDENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: MANAGING DIRECTOR
24
SCHEDULE A
SEPARATE ACCOUNTS
-----------------
PHOENIX LIFE INSURANCE COMPANY
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED BY BOARD OF DIRECTORS
-------------------------------------------------------------------
Phoenix Life Variable Accumulation Account was established by the Board of
Directors June 21, 1982.
Phoenix Life Variable Universal Life Account was established by the Board of
Directors August 17, 1998.
and all underlying registered contracts in which they invest.*
* Company shall promptly provide a complete list of all such underlying
registered contracts upon request by the Fund, Adviser or Underwriter.
A-1
SCHEDULE B
PORTFOLIOS OF THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
AVAILABLE UNDER THIS AGREEMENT
------------------------------
Equity and Income Portfolio - Class II Shares
B-1
SCHEDULE C
PROXY VOTING PROCEDURES
-----------------------
The following is a list of procedures and corresponding responsibilities for the
handling of proxies and voting instructions relating to the Fund. The defined
terms herein shall have the meanings assigned in the Participation Agreement
except that the term "Company" shall also include the department or third party
assigned by the Company to perform the steps delineated below.
o The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting to
enable the Company to consider and prepare for the solicitation of voting
instructions from Contract owners and to facilitate the establishment of
tabulation procedures. At this time the Fund will inform the Company of the
Record, Mailing and Meeting dates. This will be done verbally approximately
two months before the shareholder meeting.
o Promptly after the Record Date, the Company will perform a "tape run", or
other activity, which will generate the names, addresses and number of
units which are attributed to each Contract owner/policyholder (the
"Customer") as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of the
Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to call in
the number of Customers to the Fund, as soon as possible, but no later than
two weeks after the Record Date.
o The Fund's Annual Report must be sent to each Customer by the Company
either before or together with the Customers' receipt of voting instruction
solicitation material. The Fund will provide the last Annual Report to the
Company pursuant to the terms of Section 3.4 of the Participation Agreement
to which this Schedule relates.
o The text and format for the Voting Instruction Cards ("Cards" or "Card") is
provided to the Company by the Fund. The Company, at its expense, shall
produce and personalize the Voting Instruction Cards. The Fund or its
affiliate must approve the Card before it is printed. Allow approximately
2-4 Business Days for printing information on the Cards. Information
commonly found on the Cards includes:
- name (legal name as found on account registration)
- address
- fund or account number
- coding to state number of units
- individual Card number for use in tracking and verification of votes
(already on Cards as printed by the Fund).
C-1
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
o During this time, the Fund will develop, produce and pay for the Notice of
Proxy and the Proxy Statement (one document). Printed and folded notices
and statements will be sent to Company for insertion into envelopes
(envelopes and return envelopes are provided and paid for by the Company).
Contents of envelope sent to Customers by the Company will include:
- Voting Instruction Card(s)
- One proxy notice and statement (one document)
- return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
- "urge buckslip" - optional, but recommended (this is a small, single
sheet of paper that requests Customers to vote as quickly as possible
and that their vote is important; one copy will be supplied by the
Fund.)
- cover letter - optional; supplied by Company and reviewed and approved
in advance by the Fund
o The above contents should be received by the Company approximately 3-5
Business Days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to the Fund.
o Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the Company
as the shareowner. (A 5-week period is recommended.) Solicitation time
is calculated as calendar days from (but not including,) the shareholder
meeting, counting backwards.
o Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry.
Note: Postmarks are not generally needed. A need for postmark information
would be due to an insurance company's internal procedure and has not been
required by the Fund in the past.
o Signatures on Card checked against legal name on account registration that
was printed on the Card.
Note: For Example, if the account registration is under "▇▇▇▇ ▇. ▇▇▇▇▇,
Trustee," then that is the exact legal name to be printed on the Card and
is the signature needed on the Card.
C-2
o If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter and a
new Card and return envelope. The mutilated or illegible Card is
disregarded and considered to be not received for purposes of vote
tabulation. Any Cards that have been "kicked out" (e.g. mutilated,
illegible) of the procedure are "hand verified," i.e., examined as to why
they did not complete the system. Any questions on those Cards are usually
remedied individually.
o There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
o The actual tabulation of votes is done in units which is then converted to
shares. (It is very important that the Fund receives the tabulations stated
in terms of a percentage and the number of shares.) The Fund must review
and approve tabulation format.
o Final tabulation in shares is verbally given by the Company to the Fund on
the morning of the shareholder meeting not later than 10:00 a.m. Eastern
time. The Fund may request an earlier deadline if reasonable and if
required to calculate the vote in time for the shareholder meeting.
o A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
The Fund will provide a standard form for each Certification.
o The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, the Fund will be
permitted reasonable access to such Cards.
o All approvals and "signing-off" may be done orally, but must always be
followed up in writing.
C-3
SCHEDULE D
OPERATING PROCEDURES
--------------------
Unless otherwise defined below, all capitalized terms have the meanings
specified in the Participation Agreement, each of which this Exhibit is a part.
I. FUND/SERV PROCEDURES
A. FUND/SERV ACCOUNT ESTABLISHMENT. All parties hereto agree and
acknowledge that the Company may not open or establish any new Fund/SERV
Accounts without the prior written consent of the Fund. The Company further
acknowledges that the Fund reserves the right to reject any new Fund/SERV
Accounts established by the Company that have not been previously approved by
the Fund in writing.
B. TRANSMITTAL OF PORTFOLIO INFORMATION. With respect to each
Portfolio, the Fund will provide the Company with (i) the net asset value per
share of the Portfolio (the "Share Price") on each Business Day, determined as
of the time specified in the Portfolio's prospectus ("Close of Trading"); (ii)
dividend and capital gains distribution information on ex-date, but no later
than the first Business Day following each ex-date established for the payment
of dividends or capital gains distributions by the Portfolio; and (iii) in the
case of fixed income and money market Portfolios which declare dividends daily,
the daily accrual interest rate factor. The Fund will use its best efforts to
communicate such information to the Company or its designee by 7:00 p.m. Eastern
Time each Business Day; however, the Fund reserves the right to communicate the
Share Price at a time later than 7:00 p.m. Eastern Time due to extraordinary or
unforeseen circumstances.
C. TRANSMITTAL OF ORDERS. The Company agrees that, unless otherwise
agreed to in writing with the Fund, orders for the purchase or redemption of
Fund shares ("Instructions") received by the Company prior to the Close of
Trading on any Business Day ("Day 1") will be transmitted to the Fund via
Fund/SERV and accepted by Fund/SERV prior to 12:00 a.m. Eastern Time on the
following Business Day ("Day 2") (such orders are referred to as "Day 1
Trades"). Each transmission by the Company of a purchase or redemption order
relating to a Business Day ("Order") will constitute a representation by the
Company that such Order was based on Instructions that the Company received and
accepted as being in good order prior to the Close of Trading on that Business
Day, and that the Order included all purchase and redemption Instructions so
received by the Company.
In the event that Orders for any Business Day are not transmitted to the
Fund via Fund/SERV and accepted by Fund/SERV prior to 12:00 a.m. Eastern Time on
Day 2, the Company shall transmit such Orders to the Fund in accordance with the
Manual Procedures below. If such Orders are not transmitted to the Fund in
accordance with the Manual Procedures, the Fund reserves the right, in its sole
discretion, to reject, reverse or re-price the Orders (notwithstanding that the
Company may have received Fund/Serv confirmation of the Orders)
D-1
and the Company will be responsible for reimbursement of any loss sustained
by the Fund that may arise out of the improper transmittal of such Orders.
All Orders transmitted to the Fund via Fund/SERV will be communicated in
accordance with Fund/SERV rules and procedures. The Company acknowledges that
certain cash flows may be known on or before a trade date, and the Company
agrees to use its reasonable efforts to notify the Fund of such cash flows
before such trade date.
D. FUND/SERV CONFIRMATION. All Orders transmitted in accordance with
Section C of these Fund/Serv Procedures are subject to acceptance by the Fund
and shall become effective only upon confirmation by the Fund. The Fund reserves
the right, in its sole discretion, (i) to reject any Order, and (ii) to require
any Order to be settled outside of Fund/SERV, in which case the Fund shall not
confirm such Order via Fund/SERV and such Order shall settle in accordance with
the Manual Procedures discussed below.
E. PRICING OF ORDERS. Day 1 Trades communicated to the Fund as
provided under Section C of these Fund/SERV Procedures will be effected at the
Share Price for the applicable Portfolio on Day 1.
F. SETTLEMENT. Day 1 Trades confirmed by the Fund via Fund/SERV will
settle in U.S. dollars in accordance with the Fund's profile within Fund/SERV
applicable to the Company.
G. DIVIDENDS AND OTHER DISTRIBUTIONS. The Fund will furnish the
Company or its designee notice of any dividends or other distributions payable
on the shares of each Portfolio via Fund/SERV. Dividends and distributions with
respect to a Portfolio will be automatically reinvested in additional shares of
the Portfolio held by the Account(s) and the Fund will notify the Company or its
designee as to the number of shares so issued.
H. CONFIRMATIONS AND VERIFICATION. If the Company chooses to
participate in and utilize Fund/SERV's Networking application when trading with
the Fund in accordance with the procedures herein, the Fund or its designee will
transmit or make available to the Company via Fund/SERV, as applicable: (i)
confirmations of Orders received from the Company, and (ii) the share balance
for each T/A Account in accordance with Fund/SERV's Networking guidelines. The
Company will promptly review and verify this information on Fund/SERV and
immediately advise the Fund or its designee in writing of any discrepancies
between the Company's records and the balance in the Fund/SERV Account or the
T/A Account.
If the Company chooses to utilize Fund/SERV without the Networking
application when trading with the Fund in accordance with the procedures herein,
the Fund or its designee will deliver to the Company: (i) physical confirmations
of Orders received from the Company, and (ii) a physical statement for the
preceding calendar month reflecting the shares of each Portfolio held by the
Account(s) as of the end of such preceding month and all purchases and
redemptions by the Company of shares of a Portfolio during such preceding month.
The Company will immediately on receipt of any physical confirmation or
statement concerning an Account verify the information contained therein against
the information contained on the Company's record-
D-2
keeping system and immediately advise the Fund in writing of any discrepancies
between such information.
The Fund and the Company will cooperate to resolve any such discrepancies
mentioned in this Section H as soon as reasonably practicable.
I. PROCESSING ADJUSTMENTS.
(a) In the event of any error or delay with respect to these
Fund/SERV Procedures that is caused by the Fund, the Fund will make any
adjustments on its (or its transfer agent's) accounting system necessary to
correct such error or delay. The Company will make the corresponding
adjustments on its record-keeping system. The Company and the Fund will
each provide the other with prompt notice of any errors or delays of the
type referred to in these Fund/SERV Procedures.
(b) If the Fund provides materially incorrect net asset value per
share information to the Company, through no fault of the Company, the
Account(s) shall be entitled to an adjustment with respect to the Portfolio
shares purchased or redeemed to reflect the correct net asset value per
share. The determination of the circumstances that require such an
adjustment of Portfolio shares shall be consistent with the Securities and
Exchange Commission's informal position regarding the correction of net
asset value per share errors, as expressed by senior staff members from
time to time ("Staff Guidelines"). The Fund agrees to provide the Company
with prompt notice of any material error in net asset value per share
information that requires an adjustment of Portfolio shares maintained in
the Account(s). The correction of any material net asset value per share
error shall be made by the Fund at the Account level and shall be carried
out in accordance with Staff Guidelines regarding such errors. The Company
and the Fund agree to use reasonable efforts to take such action as may be
appropriate to avoid or mitigate costs or losses related to the correction
of net asset value per share information.
J. FUND/SERV UNAVAILABILITY. If the Fund/SERV system is unavailable
for any reason, or if it is otherwise impracticable to operate in accordance
with these Fund/SERV Procedures, transactions shall be processed in accordance
with the Manual Procedures below.
II. MANUAL PROCEDURES
A. TRANSMITTAL OF PORTFOLIO INFORMATION. With respect to each
Portfolio, the Fund will provide the Company with (i) the Share Price determined
as of the Close of Trading on each Business Day; (ii) dividend and capital gains
distribution information on ex-date, but no later than the first Business Day
following each ex-date established for the payment of dividends or capital gains
distributions by the Portfolio; and (iii) in the case of fixed income and money
market Portfolios which declare dividends daily, the daily accrual interest rate
factor. The Fund will use its best efforts to communicate such information to
the Company or its designee by 7:00 p.m. Eastern Time each Business Day;
however, the Fund reserves the right to communicate the Share Price at a time
later than 7:00 p.m. Eastern Time due to extraordinary or unforeseen
circumstances.
D-3
B. TRANSMITTAL OF ORDERS. The Company agrees that, unless otherwise
agreed to in writing with the Fund, Instructions received by the Company prior
to the Close of Trading on any Business Day ("Day 1") will be transmitted to the
Fund by facsimile no later than 8:00 a.m. Eastern Time on the following Business
Day ("Day 2") (such Orders are referred to as "Day 1 Trades"). Each transmission
by the Company of a purchase or redemption order relating to a Business Day
("Order") will constitute a representation by the Company that such Order was
based on Instructions that the Company received and accepted as being in good
order prior to the Close of Trading on that Business Day, and that the Order
included all purchase and redemption Instructions so received by the Company.
All Orders transmitted to the Fund will be communicated in U.S. dollars and
will indicate the date of the transaction. On Business Days where there are no
Orders, or where the net dollar amount for purchases and redemptions for an
Account equals zero, the communication will so indicate. The Company
acknowledges that certain cash flows may be known on or before a trade date, and
the Company agrees to use its reasonable efforts to notify the Fund of such cash
flows before such trade date.
C. PRICING OF ORDERS. Day 1 Trades communicated to the Fund by 8:00
a.m. Eastern Time on Day 2 will be effected at the Share Price for the
applicable Portfolio on Day 1.
D. SETTLEMENT.
1. PURCHASE ORDERS. In the case of Day 1 Trades that constitute a net
purchase order, the Company will arrange for a federal funds wire transfer
of the net purchase amount to a custodial account designated by the Fund by
12:00 p.m. Eastern Time on Day 2.
2. REDEMPTION ORDERS. In the case of Day 1 Trades that constitute a
net redemption order, the Fund will arrange for a federal funds wire
transfer of the net redemption amount to a custodial account designated by
the Company on Day 2, or in no instance later than the time provided for in
the applicable Portfolio's Prospectus.
3. GENERALLY. Settlements will be in U.S. dollars, except that each
Portfolio reserves the right, in cases of substantial liquidations, to pay
redemption proceeds in whole or in part by a distribution in-kind of
readily marketable securities that it holds in lieu of cash in accordance
with applicable law, and the Portfolio's redemption policy as described in
the Prospectus. On any Business Day when the Federal Reserve Wire Transfer
System is closed, all communication and processing rules will be suspended
for the settlement of Orders. Orders will be settled on the next Business
Day on which the Federal Reserve Wire Transfer System is open. Transactions
that are the subject of such Orders will be processed at the Share Price
for the applicable Portfolio on the Business Day to which the Orders
originally relate.
E. DIVIDENDS AND OTHER DISTRIBUTIONS. The Fund will furnish the
Company or its designee notice of any dividends or other distributions payable
on the shares of each Portfolio.
D-4
Dividends and distributions with respect to a Portfolio will be automatically
reinvested in additional shares of the Portfolio held by the Account(s) and the
Fund will notify the Company or its designee as to the number of shares so
issued.
F. CONFIRMATIONS AND VERIFICATION. The Fund or its designee will
deliver to the Company: (i) confirmations of Orders received from the Company,
and (ii) a statement for the preceding calendar month reflecting the shares of
each Portfolio held by the Account(s) as of the end of such preceding month and
all purchases and redemptions by the Company of shares of a Portfolio during
such preceding month. The Company will immediately on receipt of any
confirmation or statement concerning an Account verify the information contained
therein against the information contained on the Company's record-keeping system
and immediately advise the Fund in writing of any discrepancies between such
information. The Fund and the Company will cooperate to resolve any such
discrepancies as soon as reasonably practicable.
G. PROCESSING ADJUSTMENTS.
(a) In the event of any error or delay with respect to these Manual
Procedures that is caused by the Fund the Fund will make any adjustments on
its (or its transfer agent's) accounting system necessary to correct such
error or delay. The Company will make the corresponding adjustments on its
record-keeping system. The Company and the Fund will each provide the other
with prompt notice of any errors or delays of the type referred to in these
Manual Procedures.
(b) If the Fund provides materially incorrect net asset value per
share information to the Company, through no fault of the Company, the
Account(s) shall be entitled to an adjustment with respect to the Portfolio
shares purchased or redeemed to reflect the correct net asset value per
share. The determination of the circumstances that require such an
adjustment of Portfolio shares shall be consistent with the Securities and
Exchange Commission's informal position regarding the correction of net
asset value per share errors, as expressed by senior staff members from
time to time ("Staff Guidelines"). The Fund agrees to provide the Company
with prompt notice of any material error in net asset value per share
information that requires an adjustment of Portfolio shares maintained in
the Account(s). The correction of any material net asset value per share
error shall be made by the Fund at the Account level and shall be carried
out in accordance with Staff Guidelines regarding such errors. The Company
and the Fund agree to use reasonable efforts to take such action as may be
appropriate to avoid or mitigate costs or losses related to the correction
of net asset value per share information.
D-5
