Amendment No. 5 to Participation Agreement
As of March 1, 2008
by and among
Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust
Franklin/▇▇▇▇▇▇▇▇▇ Distributors, Inc.
PHL Variable Insurance Company
Phoenix Life Insurance Company
Phoenix Life and Annuity Company
Phoenix Equity Planning Corporation
Franklin ▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust (the "Trust"),
Franklin/▇▇▇▇▇▇▇▇▇ Distributors, Inc. (the "Underwriter," and together with the
Trust, "we" or "us"), and Phoenix Life Insurance Company and PHL Variable
Insurance Company ("you"), on your behalf and on behalf of certain Accounts,
have previously entered into a Participation Agreement dated May 1, 2000, and
amended as of the same date and subsequently amended as of May 3, 2004, May 1,
2006 and May 1, 2007 (the "Agreement"). The parties now desire to amend the
Agreement in this amendment (the "Amendment").
Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect. Unless otherwise indicated, the terms
defined in the Agreement shall have the same meaning in this Amendment.
A M E N D M E N T
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. The term "National Association of Securities Dealers, Inc. (the "NASD") is
hereby replaced with "Financial Industry Regulatory Authority ("FINRA")"
throughout the Agreement in sections 2.1.6, 2.3.1, 10.7, 10.8 and Schedule
F, respectively.
2. Section 10.12 is amended and restated in its entirety as follows:
"10.12 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by
both parties. Notwithstanding the foregoing: (i) the Site Terms may be
separately amended as provided therein and, as so amended and in effect from
time to time, shall be a part of this Agreement; and (ii) Schedule C may be
separately amended as provided therein and, as so amended shall be a part of
this Agreement."
3. Schedules B, C, D and F of the Agreement are deleted and replaced in their
entirety with the Schedules B, C, D and F attached hereto, respectively.
4. All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
This Amendment is executed effective as of March 1, 2008.
THE TRUST: FRANKLIN ▇▇▇▇▇▇▇▇▇ VARIABLE
Only on behalf of each INSURANCE PRODUCTS TRUST
Portfolio listed on
Schedule C hereof
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE UNDERWRITER: FRANKLIN/▇▇▇▇▇▇▇▇▇ DISTRIBUTORS,INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
THE COMPANY: PHOENIX LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
PHOENIX LIFE AND ANNUITY COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
PHL VARIABLE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
THE DISTRIBUTOR: PHOENIX EQUITY PLANNING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
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Schedule B
Accounts of the Company
SEC Registration
Name of Account Yes/No
--------------- ----------------
Phoenix Life Variable Accumulation Account.................... Yes
Phoenix Life Variable Universal Life Account.................. Yes
PHL Variable Accumulation Account............................. Yes
PHL Variable Universal Life Account........................... Yes
Phoenix Life and Annuity Variable Universal Life Account...... Yes
PHL Variable Accumulation Account II.......................... Yes
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Schedule C
Available Portfolios and Classes of Shares of the Trust
1. Franklin Flex Cap Growth Securities Fund - Class 2
2. Franklin Global Communications Securities Fund - Class 2
3. Franklin High Income Securities Fund - Class 2
4. Franklin Income Securities Fund - Class 2
5. Franklin Small Cap Value Securities Fund - Class 2
6. Franklin Small-Mid Cap Growth Securities Fund - Class 2
7. Franklin Strategic Income Securities Fund - Class 2
8. Franklin U.S. Government Fund - Class 2
9. Mutual Discovery Securities Fund - Class 2
10. Mutual Shares Securities Fund - Class 2
11. ▇▇▇▇▇▇▇▇▇ Developing Markets Securities Fund - Class 2
12. ▇▇▇▇▇▇▇▇▇ Foreign Securities Fund - Class 2
13. Templeton Global Asset Allocation Fund - Class 2
14. ▇▇▇▇▇▇▇▇▇ Global Income Securities Fund - Class 2
15. ▇▇▇▇▇▇▇▇▇ Growth Securities Fund - Class 2
In addition to portfolios and classes of shares listed above , any additional
Portfolios and classes of shares are included in this Schedule C listing
provided that:
(1) the Legal Department of the Trust receives from a person authorized by
you a written notice in the form attached (which may be electronic mail
or sent by electronic mail) ("Notice") identifying this Agreement as
provided in the Notice and specifying: (i) the names and classes of
shares of additional Portfolios that you propose to offer as investment
options of the Separate Accounts under the Contracts; and (ii) the date
that you propose to begin offering Separate Account interests investing
in the additional Portfolios under the Contracts; and
(2) we do not within ten (10) Business Days following receipt of the Notice
send you a writing (which may be electronic mail) objecting to your
offering such Separate Accounts investing in the additional Portfolios
and classes of shares under the Contracts.
Provided that we do not object as provided above, your Notice shall amend,
supplement and become a part of this Schedule C and the Agreement.
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FORM OF NOTICE PURSUANT TO SCHEDULE C OF PARTICIPATION AGREEMENT
To: ▇▇▇▇▇ ▇▇▇ (▇▇▇▇@▇▇▇.▇▇▇;) or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇@▇▇▇.▇▇▇)
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Franklin ▇▇▇▇▇▇▇▇▇ Investments
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇. ▇▇▇, 2/nd/ Floor
San Mateo, CA 94402
With respect to the following agreement(s) (altogether, the "Agreement")
(please reproduce and complete table for multiple agreements):
Date of Participation Agreement:
Insurance Company(ies):
Insurance Company Distributor(s):
As provided by Schedule C of the Agreement, this Notice proposes to Franklin
▇▇▇▇▇▇▇▇▇ Variable Insurance Products Trust, and Franklin/▇▇▇▇▇▇▇▇▇
Distributors, Inc. the addition as of the offering date(s) listed below of the
following Portfolios as additional investment options listed on Schedule C:
Names and Classes of Shares of Additional Portfolios Offering Date(s)
Listing of current classes for your reference:
Class 1 (no 12b-1 fee);
Class 2 (12b-1 fee of 25 bps);
Class 3 (redemption fee and 12b-1 fee of 25 bps) or
Class 4 (12b-1 fee of 35 bps).
Name and title of authorized person of insurance company:
Contact Information:
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Schedule D
Contracts of the Company
All variable life and variable annuity contracts issued by separate accounts
listed on Schedule B of this Agreement.
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Schedule F
Rule 12b-1 Plans of the Trust
Compensation
Each Class 2 Portfolio named or referenced on Schedule C of this Agreement
may pay a maximum annual payment rate of 0.25% stated as a percentage per year
of that Portfolio's Class 2 average daily net assets, pursuant to the terms and
conditions of its Class 2 Rule 12b-1 distribution plan. Each Class 4 Portfolio
named or referenced on Schedule C of this Agreement may pay a maximum annual
payment rate of 0.35% stated as a percentage per year of that Portfolio's
Class 4 average daily net assets, pursuant to the terms and conditions of its
Class 4 Rule 12b-1 distribution plan
Agreement Provisions
If the Company, on behalf of any Account, purchases Trust Portfolio shares
("Eligible Shares") that are subject to a Rule 12b-1 plan adopted under the
1940 Act (the "Plan"), the Company on behalf of its Distributor, may
participate in the Plan.
To the extent the Company or its affiliates, agents or designees
(collectively "you") provide any activity or service that is primarily intended
to assist in the promotion, distribution or account servicing of Eligible
Shares ("Rule 12b-1 Services") or variable contracts offering Eligible Shares,
the Underwriter, the Trust or their affiliates (collectively, "we") may pay you
a Rule 12b-1 fee. "Rule 12b-1 Services" may include, but are not limited to,
printing of prospectuses and reports used for sales purposes, preparing and
distributing sales literature and related expenses, advertisements, education
of dealers and their representatives, and similar distribution-related
expenses, furnishing personal services to owners of Contracts which may invest
in Eligible Shares ("Contract Owners"), education of Contract Owners, answering
routine inquiries regarding a Portfolio, coordinating responses to Contract
Owner inquiries regarding the Portfolios, maintaining such accounts or
providing such other enhanced services as a Trust Portfolio or Contract may
require, or providing other services eligible for service fees as defined under
FINRA rules.
Your acceptance of such compensation is your acknowledgment that eligible
services have been rendered. All Rule 12b-1 fees, shall be based on the value
of Eligible Shares owned by the Company on behalf of its Accounts, and shall be
calculated on the basis and at the rates set forth in the compensation
provision stated above. The aggregate annual fees paid pursuant to each Plan
shall not exceed the amounts stated as the "annual maximums" in the Portfolio's
prospectus, unless an increase is approved by shareholders as provided in the
Plan. These maximums shall be a specified percent of the value of a Portfolio's
net assets attributable to Eligible Shares owned by the Company on behalf of
its Accounts (determined in the same manner as the Portfolio uses to compute
its net assets as set forth in its effective Prospectus). The Rule 12b-1 fee
will be paid to you within thirty (30) days after the end of the three-month
periods ending in January, April, July and October.
You shall furnish us with such information as shall reasonably be requested
by the Trust's Boards of Trustees ("Trustees") with respect to the Rule 12b-1
fees paid to you pursuant
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to the Plans. We shall furnish to the Trustees, for their review on a quarterly
basis, a written report of the amounts expended under the Plans and the
purposes for which such expenditures were made.
The Plans and provisions of any agreement relating to such Plans must be
approved annually by a vote of the Trustees, including the Trustees who are not
interested persons of the Trust and who have no financial interest in the Plans
or any related agreement ("Disinterested Trustees"). Each Plan may be
terminated at any time by the vote of a majority of the Disinterested Trustees,
or by a vote of a majority of the outstanding shares as provided in the Plan,
on sixty (60) days' written notice, without payment of any penalty, or as
provided in the Plan. Continuation of the Plans is also conditioned on
Disinterested Trustees being ultimately responsible for selecting and
nominating any new Disinterested Trustees. Under Rule 12b-1, the Trustees have
a duty to request and evaluate, and persons who are party to any agreement
related to a Plan have a duty to furnish, such information as may reasonably be
necessary to an informed determination of whether the Plan or any agreement
should be implemented or continued. Under Rule 12b-1, the Trust is permitted to
implement or continue Plans or the provisions of any agreement relating to such
Plans from year-to-year only if, based on certain legal considerations, the
Trustees are able to conclude that the Plans will benefit each affected Trust
Portfolio and class. Absent such yearly determination, the Plans must be
terminated as set forth above. In the event of the termination of the Plans for
any reason, the provisions of this Schedule F relating to the Plans will also
terminate. You agree that your selling agreements with persons or entities
through whom you intend to distribute Contracts will provide that compensation
paid to such persons or entities may be reduced if a Portfolio's Plan is no
longer effective or is no longer applicable to such Portfolio or class of
shares available under the Contracts.
Any obligation assumed by the Trust pursuant to this Agreement shall be
limited in all cases to the assets of the Trust and no person shall seek
satisfaction thereof from shareholders of the Trust. You agree to waive payment
of any amounts payable to you by Underwriter under a Plan until such time as
the Underwriter has received such fee from the Trust.
The provisions of the Plans shall control over the provisions of the
Participation Agreement, including this Schedule F, in the event of any
inconsistency. You agree to provide complete disclosure as required by all
applicable statutes, rules and regulations of all rule 12b-1 fees received from
us in the prospectus of the Contracts.
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