Exhibit 1.(A)(9)(c)(2)
Participation Agreement between Phoenix Home Life Mutual Insurance Company
and ▇▇▇▇▇▇ Advisors Trust
As of January 1, 2001
Phoenix Home Life Mutual Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AMENDMENT NO. 2 TO LETTER DATED APRIL 18, 1995
CONCERNING CERTAIN ADMINISTRATION SERVICES
Ladies and Gentlemen:
This letter amends the agreement between ▇▇▇▇▇▇ Asset Management, L.P.
(currently known as Liberty ▇▇▇▇▇▇ Asset Management, L.P.) (the "Adviser") and
Phoenix Home Life Mutual Insurance Company (the "Company"), dated April 18,
1995, concerning certain administration services for the separate accounts of
the Company that invest in ▇▇▇▇▇▇ Advisors Trust (the "Trust") pursuant to the
Participation Agreement dated April 18, 1995, as amended December 16, 1996 (the
"Letter Agreement").
Paragraph 1 of the Letter Agreement is hereby amended to read as follows:
"2. Administration Expense Payments. In consideration of the
anticipated administration expense savings resulting to the Adviser from
the arrangements set forth in the Participation Agreement, the Adviser
agrees to pay to the Company on a monthly basis, from the bona fide
profits of the Adviser, the following amounts:
A. From January 1, 2001 through June 30, 2001:
o 20 basis points (0.20%) per annum for the aggregate amount
invested by the Company under the Participation Agreement as of
December 31, 2000 (as set forth in Schedule A thereto) (the
"Year-End Amount"); and
o 35 basis points (0.35%) per annum for aggregate amounts invested
by the Company under the Participation Agreement in excess of
the Year-End Amount.
B. As of July 1, 2001 through the term of this letter agreement:
o 35 basis points (0.35%) per annum of the average aggregate
amount invested by the Company under the Participation
Agreement.
For purposes of computing the payment to the Company contemplated
under this Paragraph 2, the average aggregate amount invested by the
Company over a one-month
period shall be computed by totaling the Company's aggregate investment
(share net asset value multiplied by total number of shares held by the
Company) on each business day during the month, and dividing by the total
number of business days during such month.
The payment contemplated by this Paragraph 2 shall be calculated by
the Adviser at the end of each calendar month and will be paid to the
Company within ten (10) business days thereafter. Payment will be
accompanied by a statement showing the calculation of the monthly amount
payable by the Adviser and such other supporting data as may be reasonably
requested by the Company."
If you agree to the above changes, please sign below and return a signed
copy of this letter to us.
Very truly yours,
Liberty ▇▇▇▇▇▇ Asset Management, L.P.
By its General Partner, WAM Acquisition GP, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Title: COO
-------------------
Acknowledged and Agreed:
Phoenix Home Life Mutual
Insurance Company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Title: E V.P.
-----------------------
Date:
-----------------------
SCHEDULE A
The Year-End Amount for purposes of Section 2 is $578,946,647.24 (see table
below for details)
PHOENIX HOME LIFE
-----------------
SHARES OUTSTANDING
FUND A/C NUMBER 12/31/2000 NAV VALUE
-------------------- --------------- ------------------------ --------- --------------------
▇▇▇▇▇▇ US Small Cap 635-13105019 9,954,151.362 $19.99 $198,983,485.73
▇▇▇▇▇▇ International 636-13105023 4,527,638.409 $28.49 $128,992,418.27
Small Cap
▇▇▇▇▇▇ Twenty 297-223735 431,926.084 $14.08 $6,081,519.26
▇▇▇▇▇▇ Foreign Forty 298-223739 443,590.207 $17.29 $7,669,674.68
--------------------
TOTAL VALUE $341,727,097.94
====================
PHL VARIABLE
------------
INSURANCE
---------
SHARES OUTSTANDING
FUND A/C NUMBER 12/31/2000 NAV VALUE
-------------------- --------------- ------------------------ --------- --------------------
▇▇▇▇▇▇ US Small Cap 635-13122255 6,860,784.093 $19.99 $137,147,074.02
▇▇▇▇▇▇ International 636-13122251 3,078,610.520 $28.49 $87,709,613.71
Small Cap
▇▇▇▇▇▇ Twenty 297-224181 377,894.989 $14.08 $5,320,761.45
▇▇▇▇▇▇ Foreign Forty 298-224185 407,293.240 $17.29 $7,042,100.12
--------------------
TOTAL VALUE $237,219,549.30
====================
TOTAL YEAR-END VALUE $578,946,647.24
====================
AMENDMENT NO. 1 TO THE PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 1 TO THE PARTICIPATION AGREEMENT ("Amendment No. 1"),
made and entered into as of this 16th day of December, 1996, supplementing and
amending the Participation Agreement made and entered into the 18th day of
April, 1995 (the "Original Participation Agreement," and together with this
Amendment No. 1, the "Agreement") by and between ▇▇▇▇▇▇ ADVISORS TRUST, an
unincorporated business trust formed under the laws of Massachusetts (the
"Trust"), and PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY, a New York life
insurance company (the "Company"), on its own behalf and on behalf of each
separate account of the Company identified in the Agreement.
WHEREAS, the Trust currently serves as an investment vehicle for certain
accounts of the Company pursuant to the Original Participation Agreement; and
WHEREAS, the Trust has applied for an order from the Securities and
Exchange Commission (the "SEC") (File No. 812-10198), granting Participating
Insurance Companies (as defined in the Original Participation Agreement) and
variable annuity and variable life separate accounts exemptions from the
provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act (as defined
in the Original Participation Agreement) and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Trust
and each Series thereof to be sold to and held by variable annuity and variable
life insurance separate accounts of life insurance companies that may or may not
be affiliated with one another and qualified pension and retirement plans
outside of the separate account context (the "Exemptive Order"); and
WHEREAS, the Company and the Trust have agreed to hereby supplement and
amend the Original Participation Agreement in order to reflect the conditions
and undertakings that are expected to be imposed on the Company and the Trust by
virtue of such Exemptive Order;
NOW, THEREFORE, in consideration of their mutual promises, the Trust and
the Company agree as follows:
SECTION 1. DEFINITIONS
-----------
For all purposes of this Amendment No. 1, except as otherwise expressly
provided or unless the context otherwise requires:
(1) All references in this Amendment No. 1 and the Original Participation
Agreement to designated "Articles" and other subdivisions are to the designated
Articles and other subdivisions of the Original Participation Agreement. The
words "herein," "hereof," "hereto," "hereby" and "hereunder" and other words of
similar import refer to this Amendment No. 1 as a whole and not to any
particular "Section" or other subdivision.
(2) All terms used herein and not otherwise defined shall have the same
meanings as those given to such terms in the Original Participation Agreement,
and include the plural as well as the singular, and the Original Participation
Agreement is hereby amended to included any terms defined herein.
(3) Any references to the "Agreement" in the Original Participation
Agreement are hereby amended to include, collectively, the Original
Participation Agreement and this Amendment No. 1.
SECTION 2. AMENDMENT TO ARTICLE VII
------------------------
Article VII of the Original Participation Agreement is hereby amended to
read as follows:
"ARTICLE VII. Potential Conflicts and Compliance With
---------------------------------------
Exemptive Order
---------------
7.1. The Trust Board will monitor the Trust for the existence of any
material irreconcilable conflict between the interests of the Contract
Owners of all Participating Accounts and of Qualified Participants
investing in the Trust and each Series thereof. A material irreconcilable
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 Series are
managed; (e) a difference in voting instructions given by variable annuity
contract and variable life insurance contract owners; (f) a decision by a
Participating Insurance Company to disregard the voting instructions of
contract owners; or (g) if applicable, a decision by a Qualified Entity to
disregard the voting instructions of Qualified Participants. The Trust
Board shall promptly inform the Company in writing if it determines that a
material irreconcilable conflict exists and the implications thereof.
7.2 The Company shall report any potential or existing conflicts to
the Trust Board. The Company will be responsible for assisting the Trust
Board in carrying out its responsibilities by providing the Trust Board
with all information reasonably necessary for the Trust Board to consider
any issues raised. This responsibility includes, but is not limited to, an
obligation by the Company to inform the Trust Board whenever it has
determined to disregard Contract Owner voting instructions. Such
responsibilities shall be carried out by the Participants with a view only
to the interests of Contract Owners.
7.3. If it is determined by a majority of the Trust Board, or a
majority of the members of the Trust Board who are not interested persons
of the Trust, the Investment Adviser or any sub-adviser to any of the
Series (the "independent Trustees"), that a material irreconcilable
conflict exists between the interests of
2
the Contract Owners of the Company's Participating Accounts and of other
Participating Accounts and Qualified Participants investing in the Trust
and each Series thereof, the Company shall, at its expense and to the
extent reasonably practicable (as determined by a majority of the
Independent Trustees), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict. Such measures may include:
(a) withdrawing, without charge or penalty to the Company, the assets
allocable to some or all of the separate accounts from the Trust or any
Series and reinvesting such assets in a different investment medium, which
may include another Series of the Trust, or submitting the question of
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 contract
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 (b)
establishing a new registered management investment company or managed
separate account.
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 Trust's election, to
withdraw the Account's investment in the Trust and terminate this
Agreement and no charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place within six
(6) months after the Trust gives written notice that this provision is
being implemented, and until the end of that six month period the
Investment Adviser and the Trust shall continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the
Trust.
7.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company
will withdraw the Account's investment in the Trust and terminate this
Agreement within six months after the Trust Board informs the Company in
writing that it has determined that such decision has created a material
irreconcilable conflict, and that said conflict cannot be remedied by any
other means. Until the end of the foregoing six month period, the
Investment Adviser and the Trust shall continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the
Trust.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the Independent Trustees shall determine whether any proposed
action adequately remedies any material irreconcilable conflict, but in no
event will the Trust or the Investment Adviser be required to establish a
new funding medium for the Contracts. The Company shall not be required by
Section 7.3 to establish a new funding medium for the Contracts if an
offer to do so has been declined by
3
vote of a majority of Contract Owners materially adversely affected by the
material irreconcilable conflict. In the event that the Trust Board
determines that any proposed action does not adequately remedy any
material irreconcilable conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six
(6) months after the Trust Board informs the Company in writing of the
foregoing determination, without charge or penalty to the Company.
7.7. 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 Exemptive Order) on terms
and conditions materially different from those contained in the Exemptive
Order, then (a) the Trust and/or the Company, 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) Article V and Sections 7.1, 7.2, 7.3, 7.4, and 7.5 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.
7.8 The Company shall at least annually submit to the Trust Board
such reports, materials or data as the Trust Board may reasonably request
so that the Trust Board may fully carry out its obligations under the
Exemptive Order; provided, however, that the Board may require the
submission of such reports on data on a more frequent basis if it so deems
appropriate.
7.9 The Company, or any affiliate, will maintain at its home office,
available to the SEC, (a) a list of its officers, directors and employees
who participate directly in the management of administration of any
Account and/or (b) a list of its agents who, as registered
representatives, offer and sell Contracts."
SECTION 3. SCHEDULES
---------
Schedules 1, 2 and 3 to the Original Participation Agreement are hereby
amended to read as Schedules 1, 2 and 3 to this Amendment No.l, respectively.
SECTION 4. MISCELLANEOUS
-------------
4.1 The captions in this Amendment No. 1 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.
4.2 This Amendment No. 1 may be executed simultaneously in two or more
counterparts, each of which together shall constitute one and the same
instrument.
4
4.3 If any provision of this Amendment No. 1 shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
5
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
No. 1 to be executed in its name and behalf by its duly authorized office on the
date specified below.
PHOENIX HOME LIFE MUTUAL
INSURANCE COMPANY
(Company)
Date: 12/16/96 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President,
Individual Insurance and General
Counsel
▇▇▇▇▇▇ ADVISORS TRUST
(Trust)
Date: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------- ---------------------------------
Name:
Title:
6
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 18th day of April, 1995 by and
between ▇▇▇▇▇▇ ADVISORS TRUST, an unincorporated business trust formed under the
laws of Massachusetts (the "Trust"), and PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY, a New York life insurance company (the "Company"), on its own behalf
and on behalf of each separate account of the Company identified herein.
WHEREAS, the Trust is a series-type mutual fund offering shares of
beneficial interest (the "Trust shares") consisting of one or more separate
series ("Series") of shares ("Series shares"), each such series representing an
interest in a particular managed portfolio of securities and other assets; and
WHEREAS, the Trust was established for the purpose of serving as an
investment vehicle for (i) separate accounts supporting variable annuity
contracts and variable life insurance policies to be offered by insurance
companies, and (ii) certain pension and retirement plans receiving favorable tax
treatment under the Internal Revenue Code of 1986, as amended; and
WHEREAS, the Company desires that the Trust serve as an investment vehicle
for certain separate accounts of the Company;
NOW, THEREFORE, in consideration of their mutual promises, the Trust and
the Company agree as follows:
ARTICLE I. ADDITIONAL DEFINITIONS
1.1. "Account" -- each separate account of the Company described more
specifically in Schedule 1 to this Agreement.
1.2. "Business Day" -- each day that the Trust is open for business as
provided in the Trust Prospectus.
1.3. "Code" -- the Internal Revenue Code of 1986, as amended.
1.4. "Contracts" -- the class or classes of variable annuity contracts or
variable life insurance contracts issued by the Company and described more
specifically on Schedule 2 to this Agreement.
1
1.5. "Contract Owners" -- the owners of the Contracts, as distinguished
from all Product Owners.
1.6. "Investment Adviser" -- the investment manager of the Trust.
1.7. "Participating Account" -- a separate account investing all or a
portion of its assets in the Trust, including the Account.
1.8. "Participating Insurance Company" -- any insurance company investing
in the Trust on its behalf or on behalf of a Participating Account, including
the Company.
1.9. "Products" -- variable annuity contracts and variable life insurance
policies supported by Participating Accounts investing assets attributable
thereto in the Trust, including the Contracts.
1.10. "Product Owners" -- owners of Products.
1.11. "Prospectus" -- with respect to a class of Contracts, each version
of the definitive prospectus or supplement thereto filed with the SEC pursuant
to Rule 497 under the 1933 Act ("Contracts Prospectus"). With respect to Trust
shares, each version of the definitive prospectus or supplement thereto filed
with the SEC pursuant to Rule 497 under the 1933 Act with respect to a series of
the Trust listed on Schedule 3 to this Agreement ("Trust Prospectus"). With
respect to any provision of this Agreement requiring a party to take action in
accordance with a Prospectus, such reference thereto shall be deemed to be to
the version last filed prior to the taking of such action. For purposes of
Article VIII, the term "Prospectus" shall include any statement of additional
information incorporated therein.
1.12. "Qualified Entity" -- A person or plan, including a pension or
retirement plan receiving favorable tax treatment under the Code, that qualifies
to purchase shares of the Trust under Section 817(h) of the Code. A natural
person having an indirect interest in the Trust by virtue of such natural
person's participation in a Qualified Entity is a "Qualified Participant."
1.13. "Registration Statement" -- with respect to the Trust Shares ("Trust
Registration Statement") or a class of Contracts ("Contracts Registration
Statement"), the registration
2
statement filed with the SEC to register the securities issued thereby under the
1933 Act, or the most recently filed amendment thereto, in either case in the
form in which it was declared or became effective. The Contracts Registration
Statement is described more specifically on Schedule 2 to this Agreement. The
Trust Registration Statement was filed on Form N-1A (File No. 33-83548).
1.14. "1940 Act Registration Statement" -- with respect to the Trust or
the Account, the registration statement filed with the SEC to register such
entity as an investment company under the 1940 Act, or the most recently filed
amendment thereto. The Account 1940 Act Registration Statement is described more
specifically on Schedule 2 to this Agreement. The Trust 1940 Act Registration
Statement was filed on Form N-1A (File No. 811-8748).
1.15. "Statement of Additional Information" -- with respect to the Trust
or a class of Contracts, each version of the definitive statement of additional
information or supplement thereto filed with the SEC pursuant to Rule 497 under
the ▇▇▇▇ ▇▇▇.
1.16. "SEC" -- the Securities and Exchange Commission.
1.17. "1933 Act" -- the Securities Act of 1933, as amended.
1.18. "1940 Act" -- the Investment Company Act of 1940, as amended.
ARTICLE II. SALE OF TRUST SHARES
2.1. The Trust shall make shares of those Series listed on Schedule 3 to
this Agreement available for purchase by the Company on behalf of the Account,
such purchases to be effected at net asset value in accordance with Section 2.3
of this Agreement. Notwithstanding the foregoing, (i) Trust Series in existence
now or that may be established in the future and not listed on Schedule 3 will
be made available to the Company only as the Trust and the Company may agree
pursuant to Article XI hereof, and (ii) the Board of Trustees of the Trust (the
"Trust Board") may suspend or terminate the offering of Trust shares of any
Series in any jurisdiction, if such action is required by law or by regulatory
authorities having jurisdiction or if, in the sole discretion of the Trust Board
acting in good faith and in
3
light of its fiduciary duties under Federal and any applicable state laws,
suspension or termination is necessary or in the best interests of the
shareholders of any Series (it being understood that "shareholders" for this
purpose shall mean Product Owners and Qualified Participants).
2.2. The Trust shall redeem, at the Company's request, any full or
fractional shares of the Trust held by the Company on behalf of the Account,
such redemptions to be effected at net asset value in accordance with Section
2.3 of this Agreement. Notwithstanding the foregoing, (i) the Company shall not
redeem Trust shares attributable to Contract Owners except in the circumstances
permitted in Section 2.7 of this Agreement, and (ii) the Trust may delay
redemption of Trust shares of any Series to the extent permitted by the 1940
Act, any rules, regulations or orders thereunder, or as described in the Trust
Prospectus.
2.3
(a) The Trust hereby appoints the Company as its designee for the
limited purpose of receiving purchase allocations of net amounts to the
Account or subaccounts thereof under the Contracts and other transactions
relating to the Contracts or the Account. Purchase and redemption requests
shall be processed by the Trust at the net asset value per share next
calculated after the Trust receives and accepts such request. The Trust
shall calculate its net asset value per share at the Trust's close of
business on each Business Day (as defined from time to time in the Trust
Prospectus, and which as of the date of execution of this Agreement is the
time of the close of regular session trading on the New York Stock
Exchange, which is generally 4:00 p.m. Eastern Time. Receipt of any such
request on any Business Day by the Company as designee of the Trust prior
to the Trust's close of business shall constitute receipt by the Trust on
that same Business Day, provided that the Trust receives notice of such
request by 10 a.m. Eastern Time on the next following Business Day.
(b) The Company shall pay for shares of each Series on the same day
that it notifies the Trust of a purchase request for such shares. Payment
for Series shares shall be made in Federal funds transmitted to
4
the Trust by wire to be received by the Trust by 12:00 p.m. Eastern Time
on the day the Trust is notified of the purchase request for Series shares
(unless the Trust determines and so advises the Company that sufficient
proceeds are available from redemption of shares of other Series effected
pursuant to redemption requests tendered by the Company on behalf of the
Account). If payment in Federal funds for any purchase is not received, or
is received by the Trust after 3 p.m. Eastern Time on such Business Day,
the Company shall promptly, upon the Trust's request, reimburse the Trust
for any charges, costs, fees, interest or other expenses incurred by the
Trust in connection with any advances to, or borrowings or overdrafts by,
the Trust, or any similar expenses incurred by the Trust, as a result of
non-payment or late payment.
(c) Payment for Series shares redeemed by the Account or the Company
shall be made in Federal funds transmitted by wire to the Company or any
other designated person by 3 p.m. Eastern Time on the next Business Day
after the Trust is properly notified of the redemption order of Series
shares (unless redemption proceeds are to be applied to the purchase of
Trust shares of other Series in accordance with Section 2.3(b) of this
Agreement), except that (i) if payment of the redemption proceeds would
require the Trust to dispose of portfolio securities or otherwise incur
additional costs, proceeds shall be wired to the Company within seven days
and the Trust shall notify the Company of such delay by 3 p.m. Eastern
Time on such Business Day; and (ii) the Trust reserves the right to delay
payment of redemption proceeds to the extent permitted under Section 22(e)
of the 1940 Act; and (iii) the Trust reserves the right to effect payment
of redemptions in kind, but only to the extent described in the Trust
Prospectus. The Trust shall not bear any responsibility whatsoever for the
proper disbursement or crediting of redemption proceeds by the Company;
the Company alone shall be responsible for such action.
2.4. The Trust shall use reasonable efforts to make the net asset
value per share for each Series available to the Company by 7 p.m. Eastern
Time each Business Day, and in any event, as soon
5
as reasonably practicable after the net asset value per share for such
Series is calculated, and shall calculate such net asset value in
accordance with the Trust Prospectus. Neither the Trust, any Series, the
Investment Adviser, nor any of their affiliates shall be liable for any
information provided to the Company pursuant to this Agreement which
information is based on incorrect information supplied by the Company or
any other Participating Company to the Trust or the Investment Adviser.
2.5. The Trust shall furnish notice to the Company as soon as
reasonably practicable of any income dividends or capital gain
distributions payable on any Series shares. The Trust shall notify the
Company promptly of the number of Series shares so issued as payment of
such dividends and distributions. The Company, on its behalf and on behalf
of the Account, hereby elects to receive all such dividends and
distributions as are payable on any Series shares in the form of
additional shares of that Series. The Company reserves the right, on its
behalf and on behalf of the Account, to revoke this election and to
receive all such dividends in cash.
2.6. Issuance and transfer of Trust shares shall be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Purchase and redemption orders for Trust shares shall be recorded in an
appropriate ledger for the Account or the appropriate subaccount of the
Account.
2.7.
(a) The Company shall invest amounts available for investment
under the Contracts in the Series of the Trust specified in Schedule
3 in accordance with allocation instructions received from Contract
Owners, it being understood that no changes shall be made to
Schedule 3 without the prior written consent of the Trust and the
Investment Adviser. The Company may withdraw the Account's
investment in the Trust or a Series of the Trust only: (i) as
necessary to facilitate Contract Owner requests; (ii) upon a
determination by a majority of the Trust Board, or a majority of
disinterested Trust Board members, that an irreconcilable material
conflict exists among the interests of (x) some or all Product
Owners or (y) the interests of some or all of the Participating
Insurance Companies and/or Qualified Entities investing in the
6
Trust; or (iii) in the event that the shares of another investment
company are substituted for series shares in accordance with the
terms of the Contracts upon the (x) requisite vote of the Contract
Owners having an interest in the affected Series and the written
consent of the Trust (unless otherwise required by applicable law);
(y) upon issuance of an SEC exemptive order pursuant to Section
26(b) of the 1940 Act permitting such substitution; or (z) as may
otherwise be permitted under applicable law.
(b) The Company shall not, without the prior written consent
of the Trust (unless otherwise required by applicable law), take any
action to operate the Account as a management investment company
under the 1940 Act.
(c) The Trust shall not, without the prior written consent of
the Company (unless otherwise required by applicable law), take any
action to operate the Trust as a unit investment trust under the
1940 Act.
(d) The Company shall not, without the prior written consent
of the Trust (unless otherwise required by applicable law), solicit,
induce or encourage Contract Owners to change or modify the Trust or
change the Trust's investment adviser.
(e) The Company and the Trust acknowledge that the arrangement
contemplated by this Agreement is not exclusive; Trust shares may be
sold to other insurance companies; and the cash value of the
Contracts may be invested in other investment companies, provided,
however, that (a) such other investment company, or series thereof,
has investment objectives or policies that are substantially
different from the investment objectives and policies of the Trust;
or (b) the Company gives the Trust 45 days written notice of its
intention to make such other investment company available as a
funding vehicle for the Contracts; or (c) such other investment
company was available as a funding vehicle for the Contracts prior
to the date of this Agreement and the Company so informs the Trust
prior to the execution of this Agreement; or (d) the
7
Trust consents to the use of such other investment company, such
consent not to be unreasonably withheld.
2.8. The Trust shall sell Trust shares only to Participating
Insurance Companies and their separate accounts and to Qualified
Entities. The Trust shall not sell Trust shares to any insurance
company or separate account unless an agreement complying with
Article VII of this Agreement is in effect to govern such sales.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1. The Company represents and warrants that: (i) the Company is an
insurance company duly organized and in good standing under applicable law; (ii)
the Account is a validly existing separate account, duly established and
maintained in accordance with applicable law; (iii) the Account 1940 Act
Registration Statement has been filed with the SEC in accordance with the
provisions of the 1940 Act and the Account is duly registered as a unit
investment trust thereunder; (iv) the Contracts Registration Statement has been
declared effective by the SEC; (v) the Contracts will be issued in compliance in
all material respects with all applicable Federal and state laws; and (vi) the
Contracts currently are and at the time of issuance will be treated as annuity
contracts under applicable provisions of the Code.
3.2. The Trust represents and warrants that: (i) the Trust is an
unincorporated business trust duly formed under Massachusetts law; (ii) the
Trust 1940 Act Registration Statement has been filed with the SEC in accordance
with the provisions of the 1940 Act and the Trust is duly registered as an
open-end management investment company thereunder; (iii) the Trust Registration
Statement has been declared effective by the SEC; (iv) Trust shares sold
pursuant to this Agreement have been duly authorized for issuance in accordance
with applicable law; (v) the Trust believes that it (x) currently qualifies as a
"regulated investment company" under Subchapter M of the Code and (y) currently
complies with Section 817(h) of the Code and regulations thereunder; and (vi)
the Trust's investment policies are in material compliance with any investment
restrictions set forth on Schedule 4 to this Agreement. The Trust, however,
makes no representation as to whether any aspect of its operations (including,
but not limited to, fees and expenses and investment policies) otherwise
complies with the insurance laws or regulations of any state.
8
3.3. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party, and, when so executed and delivered, this Agreement will be the
valid and binding obligation of such party enforceable in accordance with its
terms.
ARTICLE IV. FILINGS, INFORMATION AND EXPENSES
4.1. The Trust shall amend the Trust Registration Statement and the Trust
1940 Act Registration Statement from time to time as required in order to effect
the continuous offering of Trust shares and to maintain the Trust's registration
under the 1940 Act for so long as Trust shares are sold.
4.2. The Company shall amend the Contracts Registration Statement and the
Account 1940 Act Registration Statement from time to time as required in order
to effect the continuous offering of the Contracts or as may otherwise be
required by applicable law. The Company shall maintain a current effective
Contracts Registration Statement and the Account's registration under the 1940
Act for so long as the Contracts are outstanding, unless (a) a no-action letter
from the SEC has been obtained by the Company to the effect that such
registration statement need no longer be maintained; or (b) the Company has
supplied the Trust with an opinion of counsel to the effect that maintaining
such registration statement is no longer required; or (c) the Company has
notified the Trust in writing that, with respect to such registration statement,
the Company meets the terms and conditions of, and is relying on, Great West
Life & Annuity Insurance Company (pub. avail. Oct. 23, 1990), and any subsequent
no-action letter released by the staff of the SEC addressing the same subject
matter. The Company shall file, register, qualify and obtain approval of the
Contracts for sale to the extent required by applicable insurance and securities
laws of the various states.
4.3 The Trust shall provide the Company with as many copies of the Trust
Prospectus as the Company may reasonably request. If requested by the Company in
lieu thereof, the Trust shall provide such documentation (including a final copy
of the Trust Prospectus as set in type at the Trust's expense) and other
assistance as is reasonably necessary in order for the Company once each year
(or more frequently if the Trust Prospectus is
9
more frequently amended) to have the Contracts Prospectus and Trust Prospectus
printed together in one document.
4.4 The Company shall deliver Contracts, Contracts and Trust Prospectuses,
Contracts and Trust Statements of Additional Information, and all amendments or
supplements to any of the foregoing to Contract Owners and prospective Contract
Owners, as required by applicable federal securities laws.
4.5. The Company shall:
(a) inform the Trust of any state in which the Trust is required
under such state's securities laws to register the offering of its shares
pursuant to this participation agreement; and
(b) inform the Trust of any investment restrictions imposed by state
insurance law that may become applicable to the Trust from time to time as
a result of the Account's investment therein (including, but not limited
to, restrictions with respect to fees and expenses and investment
policies), other than those set forth on Schedule 4 to this Agreement.
4.6. Upon receipt of information from the Company pursuant to Section
4.5(b), the Trust shall determine whether it is in the best interests of
shareholders (it being understood that "shareholders" for this purpose shall
mean Product Owners and Qualified Participants) to comply with any such
restrictions. If the Trust determines that it is not in the best interests of
shareholders, the Trust shall so inform the Company, and the Trust and the
Company shall discuss alternative accommodations in the circumstances. If the
Trust determines that it is in the best interests of shareholders to comply with
such restrictions, the Trust and the Company shall amend Schedule 4 to this
Agreement to reflect such restrictions.
4.7. All expenses incident to each party's performance under this
Agreement (including expenses expressly assumed by such party pursuant to this
Agreement) shall be paid by the such party to the extent permitted by law.
(a) Expenses assumed by the Trust include, but are not limited to,
the costs of: registration and qualification of the Trust shares under the
federal securities laws; preparation and filing with the SEC of
10
the Trust Prospectus, Trust Registration Statement, Trust proxy materials
and shareholder reports; the printing and mailing of all proxy statements
and periodic reports; the preparation of camera-ready copy of Trust
Prospectuses and Statements of Additional Information required to be
provided by the Trust to its then-current shareholders; preparation of all
statements and notices required by any Federal or state securities law;
all taxes on the issuance or transfer of Trust shares; and any expenses
permitted to be paid or assumed by the Trust pursuant to a plan, if any,
under Rule 12b-1 under the 1940 Act. The Trust shall pay no fee or other
compensation to the Company under this Agreement, and shall not be charged
for the costs of printing and mailing to prospective Contract Owners
copies of the Trust Prospectus, Trust Statement of Additional Information,
notices, proxy statements, periodic reports, or other printed materials.
(b) Expenses assumed by the Company include, but are not limited to,
the costs of: registration and qualification of the Contracts under the
federal securities laws; preparation and filing with the SEC of the
Contracts Prospectus, Contracts Registration Statement, and Contract Owner
reports; and the printing and mailing of all periodic reports, Contracts
Prospectuses, Statements of Additional Information, and notices to current
and prospective Contract Owners required by any Federal or state insurance
law other than those paid for by the Trust.
4.8. No piece of advertising or sales literature or other promotional
material in which the Trust is named shall be used, except with the prior
written consent of the Trust. Any such piece shall be furnished to the Trust for
such consent prior to its use. The Trust shall respond to any request for
written consent on a prompt and timely basis, but failure to respond shall not
relieve the Company of the obligation to obtain the prior written consent of the
Trust. The Trust may at any time in its sole discretion revoke such written
consent, and upon notification of such revocation, the Company shall no longer
use the material subject to such revocation. The Trust may delegate its rights
and responsibilities under this provision to the Investment Adviser.
11
4.9. The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust
other than the information or representations contained in the Trust
Registration Statement or Trust Prospectus or in reports or proxy statements for
the Trust which are in the public domain or approved in writing by the Trust for
distribution to Contract Owners, or in sales literature or other promotional
material approved in accordance with Section 4.8 of this Agreement, except with
the prior written consent of the Trust.
4.10. The Trust shall not give any information or make any representations
on behalf of the Company or concerning the Company, the Account or the Contracts
other than the information or representations contained in the Contracts
Registration Statement or Contracts Prospectus or in reports of the Account
which are in the public domain or approved in writing by the Company for
distribution to Contract Owners, or in sales literature or other promotional
material approved in writing by the Company, except with the prior written
consent of the Company.
4.11. Each party shall provide to the other at least one complete copy of
all Registration Statements, Prospectuses, Statements of Additional Information,
periodic and other shareholder or Contract Owner reports, proxy statements,
solicitations of voting instructions, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments or supplements to any of the above, that relate to the Trust, the
Contracts or the Account, as the case may be, promptly after the filing by or on
behalf of such party of such document with the SEC or other regulatory
authorities.
4.12. Each party shall provide to the other upon request copies of draft
versions of any Registration Statements, Prospectuses, Statements of Additional
Information, periodic and other shareholder or Contract Owner reports, proxy
statements, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments or supplements to any of the above, to the extent
that the other party reasonably needs such information for purposes of preparing
a report or other filing to be filed with or submitted to a regulatory agency.
If a party requests any such information before it has been filed,
12
the other party will provide the requested information if then available and in
the version then available at the time of such request.
4.13. Each party hereto shall cooperate with the other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit each other and 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. However, such access shall not extend to attorney-client
privileged information.
4.14. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any material
constituting sales literature or advertising under the NASD rules, the 1940 Act
or the 1933 Act.
ARTICLE V. VOTING OF TRUST SHARES
With respect to any matter put to vote by the holders of Trust shares or
Series shares ("Voting Shares"), the Company shall:
(a) solicit voting instructions from Contract Owners to which Voting
Shares are attributable;
(b) vote Voting Shares of each Series attributable to Contract
Owners in accordance with instructions or proxies timely received from
such Contract Owners;
(c) unless permitted under applicable law, vote Voting Shares of
each Series attributable to Contract Owners for which no instructions have
been received in the same proportion as Voting Shares of such Series for
which instructions have been timely received; and
(d) unless permitted under applicable law, vote Voting Shares of
each Series held by the Company on its own behalf or on behalf of the
Account that are not attributable to Contract Owners in the same
proportion as Voting Shares of such Series for which instructions have
been timely received.
13
The Company shall be responsible for assuring that voting privileges for
the Account are calculated in a manner consistent with the provisions set forth
above.
ARTICLE VI. COMPLIANCE WITH CODE
6.1. The Trust undertakes to comply with Section 817(h) of the Code, and
all regulations issued thereunder.
6.2. The Trust undertakes to maintain its qualification as a registered
investment company (under Subchapter M or any successor or similar provision),
and undertakes to notify the Company immediately upon having a reasonable basis
for believing that it has ceased to so qualify or that it might not so qualify
in the future.
6.3. The Company undertakes to maintain the treatment of the Contracts as
annuity contracts or life insurance policies, whichever is appropriate, under
applicable provisions of the Code and shall notify the Trust immediately upon
having a reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future.
ARTICLE VII. POTENTIAL CONFLICTS
The parties to this Agreement acknowledge that the Trust may file an
application with the SEC to request an order granting relief from various
provisions of the 1940 Act and the rules thereunder to the extent necessary to
permit Trust shares to be sold to and held by variable annuity and variable life
insurance separate accounts of both affiliated and unaffiliated Participating
Insurance Companies, as well as by Qualified Entities. Any conditions or
undertakings that may be imposed on the Company and the Trust by virtue of such
order shall be incorporated herein by this reference, as of the date such order
is granted, as though set forth herein in full, and the parties to this
Agreement shall comply with such conditions and undertakings to the extent
applicable to each such party. The Trust will not enter into a participation
agreement with any other Participating Insurance Company unless it imposes the
same conditions and undertakings imposed by virtue of such order and
incorporated by reference herein on the parties to such agreement.
14
ARTICLE VIII. INDEMNIFICATION
---------------
8.1. The Company shall indemnify and hold harmless the Trust and each
person who controls or is associated with the Trust within the meaning of such
terms under the federal securities laws (but not any Participating Insurance
Companies or Qualified Entities) and any officer, trustee, director, employee or
agent of the foregoing, against any and all losses, claims, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they or any of them may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Contracts
Registration Statement, Contracts Prospectus, sales literature or other
promotional material for the Contracts or the Contracts themselves (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 in light of the circumstances in which
they were made; provided that this obligation to indemnify shall not apply
if such statement or omission or such alleged statement or alleged
omission was made in reliance upon and in conformity with information
furnished in writing to the Company by the Trust for use in the Contracts
Registration Statement, Contracts Prospectus or in the Contracts or sales
literature or promotional material for the Contracts (or any amendment or
supplement to any of the foregoing) or otherwise for use in connection
with the sale of the Contracts or Trust shares; or
(b) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the Trust Registration Statement, Trust
Prospectus or sales literature or other promotional material of the Trust
(or any amendment or supplement to any of the foregoing), 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
15
misleading in light of the circumstances in which they were made, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Trust by or on behalf of the
Company; or
(c) arise out of or are based upon any wrongful conduct of the
Company or persons under its control (or subject to its authorization or
supervision) with respect to the sale or distribution of the Contracts or
Trust shares; or
(d) arise as a result of any failure by the Company to perform its
obligations under the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to comply with the
undertaking specified in Article VI of this Agreement, unless such failure
is a result of the Trust's material breach of this Agreement); or
(e) arise out of any material breach by the Company of this
Agreement, including but not limited to any failure to transmit a request
for redemption or purchase of Trust shares on a timely basis in accordance
with the procedures set forth in Article II.
This indemnification will be in addition to any liability that the Company
may otherwise have; provided, however, that no person otherwise entitled to
indemnification pursuant to this Section 8.1 shall be entitled to
indemnification if such loss, claim, damage or liability is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
person seeking indemnification.
8.2. The Trust shall indemnify and hold harmless the Company and each
person who controls or is associated with the Company within the meaning of such
terms under the federal securities laws and any officer, director, employee or
agent of the foregoing, against any and all losses, claims, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they or any of them may become subject under any statute or regulation, at
common law or
16
Otherwise, insofar as such losses, claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Trust Registration
Statement, Trust Prospectus or sales literature or other promotional
material of the Trust (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they were made; provided that this obligation to
indemnify shall not apply if such statement or omission or alleged
statement or alleged omission was made in reliance upon and in conformity
with information furnished in writing by the Company to the Trust for use
in the Trust Registration Statement, Trust Prospectus or sales literature
or promotional material for the Trust (or any amendment or supplement to
any of the foregoing); or
(b) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the Contracts Registration Statement,
Contracts Prospectus or sales literature or other promotional material for
the Contracts (or any amendment or supplement to any of the foregoing), 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 in light of the circumstances in which they were made, if such
statement or omission was made in reliance upon information furnished in
writing by the Trust to the Company; or
(c) arise out of or are based upon wrongful conduct of the Trust
with respect to the sale of Trust shares; or
(d) arise as a result of any failure by the Trust to perform its
obligations under the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to comply with the
undertakings specified in Article VI of this Agreement,
17
unless such failure is a result of the Company's material breach of this
Agreement); or
(e) arise out of any material breach by the Trust of this Agreement.
This indemnification will be in addition to any liability that the Trust
may otherwise have; provided, however, that no person otherwise entitled to
indemnification pursuant to this Section 8.2 shall be entitled to
indemnification if such loss, claim, damage or liability is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
person seeking indemnification.
8.3. After receipt by a party entitled to indemnification ("indemnified
party") under this Article VIII of notice of the commencement of any action, if
a claim in respect thereof is to be made by the indemnified party against any
person obligated to provide indemnification under this Article VIII
("indemnifying party"), such indemnified party will notify the indemnifying
party in writing of the commencement thereof as soon as practicable thereafter,
provided that the failure to so notify the indemnifying party will not relieve
the indemnifying party from any liability under this Article VIII, except to the
extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
the failure to give such notice. The indemnifying party, upon the request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but if
settled with such consent, or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the
18
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
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 Commonwealth of
Massachusetts, without giving effect to the principles of conflicts of laws.
9.2. This Agreement shall be subject to the provisions of the 1933 Act,
1940 Act and Securities Exchange Act of 1934, as amended, and the rules and
regulations and rulings thereunder, including such exemptions from those
statutes, rules and regulations as the SEC may grant, and the terms hereof shall
be limited, interpreted and construed in accordance therewith.
ARTICLE X. TERMINATION
-----------
10.1 This Agreement shall not terminate until the Trust is dissolved,
liquidated, or merged into another entity, or, as to any Series of the Trust, an
Account no longer invests in that Series. However, certain obligations of, or
restrictions on, the parties to this Agreement may terminate as provided in
Sections 10.2 and 10.3.
10.2. The obligation of the Trust to sell shares to the Company pursuant
to Article II of this Agreement shall terminate at the option of the Trust upon
30 days notice to the Company:
(a) upon institution of formal proceedings against the Company by
the NASD, the SEC, the insurance commission of any state or any other
regulatory body regarding the Company's duties under this Agreement or
related to the sale of the Contracts, the operation of the Account, the
administration of the Contracts or the purchase of Trust shares, or an
expected or anticipated ruling, judgment or outcome which would, in the
Trust's reasonable judgment, materially impair the Company's ability to
meet and perform the Company's obligations and duties hereunder;
19
(b) in the event any of the Contracts are not registered, issued or
sold in accordance with applicable Federal and/or state law;
(c) if the Contracts cease to qualify as annuity contracts under the
Code, or if the Trust reasonably believes that the Contracts may fail to
so qualify;
(d) if the Trust shall determine, in its sole judgment exercised in
good faith, that either (1) the Company shall have suffered a material
adverse change in its business or financial condition or (2) the Company
shall have been the subject of material adverse publicity which is likely
to have a material adverse impact upon the business and operations of the
Trust;
(e) upon the Company's assignment of this Agreement (including,
without limitation, any transfer of the Contracts or the Account to
another insurance company pursuant to an assumption reinsurance agreement)
unless the Trust consents thereto; or
(f) upon termination pursuant to Section 10.1 or notice from the
Company pursuant to Section 10.3.
In exercising its option to terminate its obligation to sell Shares to the
Company, the Trust shall continue to make its shares available to the extent
required by applicable law and may elect to continue to make Trust shares
available to the extent necessary to permit owners of Contracts in effect on the
effective date of such termination (hereinafter referred to as "Existing
Contracts") to reallocate investments in the Trust, redeem investments in the
Trust and/or invest in the Trust upon the making of additional purchase payments
under the Existing Contracts. The Trust shall promptly notify the Company
whether the Trust is electing to make Trust shares so available after
termination.
10.3. The restrictions on the Company under Section 2.7 of this Agreement
shall terminate at the option of the Company upon 30 days notice to the Trust:
(a) if shares of any Series are not reasonably available to meet the
requirements of the Contracts as determined by the Company, and the Trust,
after receiving written notice from the Company of such non-
20
availability, fails to make available a sufficient number of Trust shares
to meet the requirements of the Contracts within 5 days after receipt
thereof;
(b) upon institution of formal proceedings against the Trust by the
NASD, the SEC or any state securities or insurance commission or any other
regulatory body;
(c) if the Trust ceases to qualify as a Regulated Investment Company
under Subchapter M of the Code, or under any successor or similar
provision, or if the Company reasonably believes based on an opinion of
counsel satisfactory to the Trust that the Trust may fail to so qualify,
and the Trust, upon written request, fails to provide reasonable assurance
that it will take action to cure or correct such failure;
(d) if the Trust fails to meet the diversification requirements
specified in Section 817(h) of the Code and any regulations thereunder and
the Trust, upon written request, fails to provide reasonable assurance
that it will take action to cure or correct such failure; or
(e) if the Trust informs the Company pursuant to Section 4.6 that
the Trust will not comply with investment restrictions as requested by the
Company and the Trust and the Company are unable to agree upon any
reasonable alternative accommodations.
10.4. This Article X shall not apply to any termination made pursuant to
Article VII or any conditions or undertakings incorporated by reference in
Article VII, and the effect of such Article VII termination shall be governed by
the provisions set forth or incorporated by reference therein.
ARTICLE XI. APPLICABILITY TO NEW ACCOUNTS AND NEW CONTRACTS
The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect, as appropriate, changes in or relating to the
Contracts or Series, or additions of new classes of Contracts to be issued by
the Company through separate accounts investing in the Trust. The provisions of
this Agreement shall be equally applicable to each such class of Contracts,
Series and Accounts, effective as of the date of
21
amendment of such Schedule, unless the context otherwise requires.
ARTICLE XII. NON-LIABILITY OF TRUSTEES AND SHAREHOLDERS
Any obligation of the Trust hereunder shall be binding only upon the
assets of the Trust (or applicable Series thereof) and shall not be binding upon
any trustee, officer, employee, agent or shareholder of the Trust. Neither the
authorization of any action by the Trust Board or shareholders of the Trust, nor
the execution of this Agreement on behalf of the Trust, shall impose any
liability upon any trustee, officer, or shareholder of the Trust.
ARTICLE XIII. NOTICES
-------
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Trust:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ Advisors Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
Name: ▇▇▇▇▇ ▇▇▇
Title: Senior Vice President
Phoenix Home Life Mutual Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ARTICLE XIV. MISCELLANEOUS
-------------
14.1. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
22
14.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which together shall constitute one and the same
instrument.
14.3. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and behalf by its duly authorized officer on the date
specified below.
PHOENIX HOME LIFE MUTUAL
INSURANCE COMPANY
(Company)
Date: 4/21/95 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------- ---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇ ADVISORS TRUST
(Trust)
Date: 4/18/95 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
23
SCHEDULE 1
----------
Accounts of the Company
Investing in the Trust
Effective as of the date the Agreement was executed, the following separate
accounts are subject to the Agreement:
==========================================================================================
Name of Account Date Established by SEC 1940 Act Type of Product
and Subaccounts Board of Directors of Registration Number Supported by
the Company Account
====================== ===================== =================== ===================
Phoenix Home Life June 21, 1982 811-3488 Variable Annuity
Variable Accumulation
Account
---------------------- --------------------- ------------------- -------------------
==========================================================================================
Effective as of December 18, 1996, the following separate accounts are hereby
added to this Schedule 1 and made subject to the Agreement:
=================================================================================================
Name of Account Date Established by SEC 1940 Act Type of Product
and Subaccounts Board of Directors of Registration Number Supported by
the Company Account
====================== ===================== =================== ==========================
Phoenix Home Life July 21, 1988 811-4721 Variable Universal Life
Variable Universal Life
Account
---------------------- --------------------- ------------------- --------------------------
=================================================================================================
IN WITNESS WHEREOF, the Trust and the Company hereby amend this Schedule 1 in
accordance with Article XI of the Agreement.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ---------------------------
▇▇▇▇▇▇ Advisors Trust Phoenix Home Life Mutual
Insurance Company
24
SCHEDULE 2
----------
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Effective as of the date the Agreement was executed, the following classes of
Contracts are subject to the Agreement:
==============================================================================
SEC 1933 Act Name of Supporting
Contract Marketing Name Registration Number Account
====================== ===================== =============================
Big Edge 2-78020 Phoenix Home Life Variable
Accumulation Account
---------------------- --------------------- -----------------------------
Big Edge Plus 2-78020 Phoenix Home Life Variable
Accumulation Account
---------------------- --------------------- -----------------------------
==============================================================================
Effective as of January 1, 1996, the following classes of Contracts are hereby
added to this Schedule 2 and made subject to the Agreement:
==============================================================================
SEC 1933 Act Name of Supporting
Contract Marketing Name Registration Number Account
======================== =================== =============================
Group Strategic Edge 2-78020 Phoenix Home Life Variable
Accumulation Account
------------------------ ------------------- -----------------------------
==============================================================================
* Continued on following page. *
25
Effective as of December 18, 1996, the following classes of Contracts are
hereby added to this Schedule 2 and made subject to the Agreement:
==============================================================================
SEC 1933 Act Name of Supporting
Contract Marketing Name Registration Number Account
======================== =================== =============================
Flex Edge 33-23251 Phoenix Home Life Variable
Universal Life Account
======================== =================== =============================
Flex Edge Success 33-23251 Phoenix Home Life Variable
Universal Life Account
======================== =================== =============================
Joint Edge 33-23251 Phoenix Home Life Variable
Universal Life Account
------------------------ ------------------- -----------------------------
Phoenix Edge 33-6793 Phoenix Home Life Variable
Universal Life Account
==============================================================================
IN WITNESS WHEREOF, the Trust and the Company hereby amend this Schedule 2 in
accordance with Article XI of the Agreement.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ---------------------------
▇▇▇▇▇▇ Advisors Trust Phoenix Home Life Mutual
Insurance Company
26
SCHEDULE 3
----------
Trust Series Available Under
Each Class of Contracts
Effective as of the date the Agreement was executed, the following Trust Series
are available under the Contracts:
==============================================================================
Contracts Marketing Name Trust Series
======================== ===================================================
Big Edge ▇ ▇▇▇▇▇▇ U.S. Small Cap Advisor
▇ ▇▇▇▇▇▇ International Small Cap Advisor
------------------------ ---------------------------------------------------
Big Edge Plus ▇ ▇▇▇▇▇▇ U.S. Small Cap Advisor
▇ ▇▇▇▇▇▇ International Small Cap Advisor
==============================================================================
Effective as of January 1, 1996 this Schedule 3 is hereby amended to reflect the
following changes in Trust Series or Contracts:
==============================================================================
Contracts Marketing Name Trust Series
======================== ===================================================
Group Strategic Edge ▇ ▇▇▇▇▇▇ U.S. Small Cap Advisor
▇ ▇▇▇▇▇▇ International Small Cap Advisor
------------------------ ---------------------------------------------------
==============================================================================
* Continued on following page. "
27
Effective as of December 18, 1996 this Schedule 3 is hereby amended to reflect
the following changes in Trust Series or Contracts:
==============================================================================
Contracts Marketing Name Trust Series
======================== ===================================================
Flex Edge ▇ ▇▇▇▇▇▇ U.S. Small Cap Advisor
▇ ▇▇▇▇▇▇ International Small Cap Advisor
------------------------ ---------------------------------------------------
Flex Edge Success ▇ ▇▇▇▇▇▇ U.S. Small Cap Advisor
▇ ▇▇▇▇▇▇ International Small Cap Advisor
------------------------ ---------------------------------------------------
Joint Edge ▇ ▇▇▇▇▇▇ U.S. Small Cap Advisor
▇ ▇▇▇▇▇▇ International Small Cap Advisor
------------------------ ---------------------------------------------------
Phoenix Edge ▇ ▇▇▇▇▇▇ U.S. Small Cap Advisor
▇ ▇▇▇▇▇▇ International Small Cap Advisor
==============================================================================
IN WITNESS WHEREOF, the Trust and the Company hereby amend this Schedule 3 in
accordance with Article XI of the Agreement.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ---------------------------
▇▇▇▇▇▇ Advisors Trust Phoenix Home Life Mutual
Insurance Company
28