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Exhibit 8(f)
PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT (the "Agreement") made by and between ▇▇▇▇▇▇▇
VARIABLE LIFE INVESTMENT FUND (the "Fund"), a Massachusetts business trust
created under a Declaration of Trust dated March 15, 1985, as amended, with a
principal place of business in Boston, Massachusetts, PROVIDENT MUTUAL LIFE
INSURANCE COMPANY OF PHILADELPHIA ("PMLIC"), a Pennsylvania corporation, with a
principal place of business in Philadelphia, Pennsylvania, and PROVIDENTMUTUAL
LIFE AND ANNUITY COMPANY OF AMERICA ("PLACA"), a Delaware corporation, with a
principal place of business in Newark, Delaware (together, the "Company"), on
behalf of the Provident Mutual Variable Annuity Separate Account, a separate
account of PMLIC, and Providentmutual Variable Annuity Separate Account, a
separate account of PLACA, and any other separate account of the Company as
designated by the Company from time to time, upon written notice to the Fund in
accordance with Section 10 herein (the "Account").
WHEREAS, PLACA is a wholly-owned subsidiary of PMLIC; and
WHEREAS, the Fund acts as the investment vehicle for the separate
accounts established for variable life insurance policies and variable annuity
contracts (collectively referred to herein as "Variable Insurance Products") to
be offered by insurance companies which have entered into participation
agreements substantially identical to this Agreement ("Participating Insurance
Companies") and their affiliated insurance companies; and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares of beneficial interest ("Shares"), and additional series of
Shares may be established, each designated a "Portfolio" and representing the
interest in a particular managed portfolio of securities; and
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WHEREAS, it is in the best interest of Participating Insurance
companies to make capital contributions if required so that the annual expenses
of each Portfolio of the Fund in which a Participating Insurance Company is a
shareholder will not exceed a fixed percentage of the Portfolio's average annual
net assets; and
WHEREAS, the Parties desire to evidence their agreement as to certain
other matters,
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Additional Definitions.
For the purposes of this Agreement, the following definitions shall
apply:
(a) The "expenses of a Portfolio" for any fiscal year shall
mean the expenses for such fiscal year as shown in the Statement of Operations
(or similar report) certified by the Fund's independent public accountants;
(b) A "Portfolio's average daily net assets" for each fiscal
year shall mean the sum of the net asset values determined throughout the year
for the purpose of determining net asset value per Share, divided by the number
of such determinations during such year;
(c) The Company's "Required Contribution" on behalf of the
Account in respect of a Portfolio for any fiscal year shall mean an amount equal
to the expenses of that Portfolio for such year minus the below-indicated
percentage of that Portfolio's average daily net assets for the year:
International Portfolio......................... 1.50%
Each other Portfolio............................ 0.75%
multiplied by a fraction the denominator of which is the average daily net
assets of that Portfolio and the numerator of which is the average daily net
asset value of the Shares of that Portfolio owned by the Account (referred to
herein as a "Participating Shareholder"). The Company's
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Required Contribution in respect of a Portfolio shall be pro-rated based on the
number of business days on which this Agreement is in effect for periods of less
than a fiscal year.
(d) The "average daily net asset value of the Shares of the
Portfolio" owned by the Account for any fiscal year of the Fund shall mean the
greater of (i) $500,000 or (ii) the sum of the aggregate net asset values of the
Shares so owned determined during the fiscal year, as of each determination of
the net asset value per Share, divided by the total number of determinations of
net asset value during such year.
(e) "Shares" means shares of beneficial interest, without par
value, of any Portfolio, now or hereafter created, of the Fund.
2. Capital Contribution.
The Company on behalf of the Account shall, within sixty days after the
end of each fiscal year of the Fund, make a capital contribution to the Fund in
respect of each Portfolio equal to the Required Contribution for that Portfolio
for such year; provided, however, that in the event that both clauses (i) and
(ii) of paragraph (d) of Section 1 of this Agreement or similar agreements are
applicable to different Participating Insurance Companies during the same fiscal
year, there shall be a proportionate reduction of the Required Contribution of
each Participating Insurance Company to which said clause (ii) is applicable so
that the total of all required capital contributions to the Fund on behalf of
any Portfolio is not greater than the excess of the expenses of that Portfolio
for that fiscal year less the percentage of that Portfolio's total expenses set
forth in paragraph (c) of Section 1 of this Agreement for such fiscal year.
3. Duty of Fund to Sell.
The Fund shall make its Shares available for purchase at the applicable
net asset value per Share by Participating Insurance Companies and their
affiliates and separate accounts on those
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days on which the Fund calculates its net asset value pursuant to rules of the
Securities and Exchange Commission; provided, however, that the Trustees of the
Fund may refuse 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 Trustees, necessary in the best interest of the shareholders
of any Portfolio.
4. Requirement to Execute Participation Agreement; Requests.
Each Participating Insurance Company shall, prior to purchasing Shares
in the Fund, execute and deliver a participation agreement in a form
substantially identical to this Agreement.
The Fund shall make available, upon written request from the
Participating Insurance Company given in accordance with Paragraph 10, to each
Participating Insurance Company which has executed an Agreement and which
Agreement has not been terminated pursuant to Paragraph 8(i) a list of all other
Participating Insurance Companies, and (ii) a copy of the Agreement as executed
by any other Participating Insurance Company.
The Fund shall also make available upon request to each Participating
Insurance Company which has executed an Agreement and which Agreement has not
been terminated pursuant to Paragraph 8, the net asset value of any Portfolio of
the Fund as of any date upon which the Fund calculates the net asset value of
its Portfolios for the purpose of purchase and redemption of Shares.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Fund
and each of its Trustees and officers and each person, if any, who controls the
Fund within the meaning of Section 15 of the Securities Act of 1933 (the "Act")
against any and all losses, claims, damages,
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liabilities or litigation (including legal and other expenses), arising out of
the acquisition of any Shares by any person, to which the Fund or such Trustees,
officers or controlling person may become subject under the Act, under any other
statute, at common law or otherwise, which (i) may be based upon any wrongful
act by the Company, any of its employees or representatives, any affiliate of or
any person acting on behalf of the Company or a principal underwriter of its
insurance products, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a registration statement or
prospectus covering Shares 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 information furnished to
the Fund by the Company, or (iii) may be based on any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement or prospectus covering insurance products sold by the Company or any
insurance company which is an affiliate thereof, or any amendments 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, unless such statement or omission was made in reliance
upon information furnished to the Company or such affiliate by or on behalf of
the Fund; provided, however, that in no case (i) is the Company's indemnity in
favor of a Trustee or officer or any other person deemed to protect such Trustee
or officer or other person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties or by reason of his reckless
disregard of obligations and duties under this Agreement or (ii) is the Company
to be liable under its indemnity agreement contained in this Paragraph 5 with
respect to any claim made against the Fund or any
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person indemnified unless the Fund or such person, as the case may be, shall
have notified the Company in writing pursuant to Paragraph 10 within a
reasonable time after the summons or other first legal process giving
information of the nature of the claims shall have been served upon the Fund or
upon such person (or after the Fund or such person 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 has to the
Fund or any person against whom such action is brought otherwise than on account
of its indemnity agreement contained in this Paragraph 5. The Company shall be
entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any such liability,
but, if it elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Fund, to its officers and Trustees,
or to any controlling person or persons, defendant or defendants in the suit. In
the event that the Company elects to assume the defense of any such suit and
retain such counsel, the Fund, such officers and Trustees or controlling person
or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them, but, in case the Company
does not elect to assume the defense of any such suit, the Company will
reimburse the Fund, such officers and Trustees or controlling person or persons,
defendant or defendants in such suit, for the reasonable fees and expenses of
any counsel retained by them. The Company agrees promptly to notify the Fund
pursuant to Paragraph 10 of the commencement of any litigation or proceedings
against it in connection with the issue and sale of any Shares.
(b) The Fund agrees to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act against any and all losses,
claims, damages, liabilities or
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litigation (including legal and other expenses) to which it or such directors,
officers or controlling person may become subject under the Act, under any other
statute, at common law or otherwise, arising out of the acquisition of any
Shares by any person which (i) may be based upon any wrongful act by the Fund,
any of its employees or representatives or a principal underwriter of the Fund,
or (ii) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus covering
Shares 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 unless such statement or
omission was made in reliance upon information furnished to the Fund by the
Company or (iii) may be based on any untrue statement or alleged untrue
statement of a material fact contained in a registration statement or prospectus
covering insurance products sold by the Company, or any amendment 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; provided,
however, that in no case (i) is the Fund's indemnity in favor of a director or
officer or any other person deemed to protect such director or officer or other
person against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard of obligations
and duties under this Agreement or (ii) is the Fund to be liable under its
indemnity agreement contained in this Paragraph 5 with respect to any claims
made against the Company or any such director, officer or controlling person
unless it or such director, officer or controlling person, as the case may be,
shall have notified the Fund in writing pursuant to
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Paragraph 10 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 it or upon such director, officer or controlling person (or after the
Company or such director, officer or controlling person shall have received
notice of such service on any designated agent), but failure to notify the Fund
of any claim shall not relieve it from any liability which it may have to the
person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this Paragraph. The Fund will be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any such liability, but if the Fund
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Company, its directors, officers or controlling
person or persons, defendant or defendants, in the suit. In the event the Fund
elects to assume the defense of any such suit and retain such counsel, the
Company, its directors, officers or controlling person or persons, defendant or
defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them, but, in case the Fund does not elect to assume the
defense of any such suit, it will reimburse the Company or such directors,
officers or controlling person or persons, defendant or defendants in the suit,
for the reasonable fees and expenses of any counsel retained by them. The Fund
agrees promptly to notify the Company pursuant to Paragraph 10 of the
commencement of any litigation or proceedings against it or any of its officers
or Trustees in connection with the issuance or sale of any Shares.
6. Procedure for Resolving Irreconcilable Conflicts.
(a) The Trustees of the Fund will monitor the operations of
the Fund for the existence of any material irreconcilable conflict among the
interests of all the contract holders and policy owners of Variable Insurance
Products (the "Participants") of all separate accounts
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investing in the Fund. An irreconcilable material conflict may arise, among
other things, from: (a) an action by any state insurance regulatory authority;
(b) a change in applicable insurance laws or regulations; (c) a tax ruling or
provision of the Internal Revenue Code or the regulations thereunder; (d) any
other development relating to the tax treatment of insurers, contract holders or
policy owners or beneficiaries of Variable Insurance Products; (e) the manner in
which the investments of any Portfolio are being managed; (f) a difference in
voting instructions given by variable annuity contract holders, on the one
hand,. and variable life insurance policy owners, on the other hand, or by the
contract holders or policy owners of different participating insurance
companies; or (g) a decision by an insurer to override the voting instructions
of Participants.
(b) The Company will be responsible for reporting any
potential or existing conflicts to the Trustees of the Fund. The Company will be
responsible for assisting the Trustees in carrying out their responsibilities
under this Paragraph 6(b) and Paragraph 6(a), by providing the Trustees with all
information reasonably necessary for the Trustees to consider the issues raised.
The Fund will also request its investment adviser to report to the Trustees any
such conflict which comes to the attention of the adviser.
(c) If it is determined by a majority of the Trustees of the
Fund, or a majority of its disinterested Trustees, that a material
irreconcilable conflict exists involving the Company, the Fund shall promptly
inform the Company that a material irreconcilable conflict exists. The Company
shall, at its expense, and to the extent reasonably practicable (as determined
by a majority of the disinterested Trustees), take whatever steps are necessary
to eliminate the irreconcilable material conflict, including 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 another Portfolio of the Fund, offering to the affected Participants
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the option of making such a change or establishing a new funding medium
including a registered investment company.
For purposes of this Paragraph 6(c), the Trustees, or the disinterested
Trustees, shall determine whether or not any proposed action adequately remedies
any irreconcilable material conflict. In the event of a determination of the
existence of an irreconcilable material conflict, the Trustees shall cause the
Fund to take such action, such as the establishment of one or more additional
Portfolios, as they in their sole discretion determine to be in the interest of
all shareholders and Participants in view of all applicable factors, such as
cost, feasibility, tax, regulatory and other considerations. In no event will
the Fund be required by this Paragraph 6(c) to establish a new funding medium
for any variable contract or policy.
The Company shall not be required by this Paragraph 6(c) to establish a
new funding medium for any variable contract or policy if an offer to do so has
been declined by a vote of a majority of the Participants materially adversely
affected by the material irreconcilable conflict. The Company will recommend to
its Participants that they decline an offer to establish a new funding medium
only if the Company believes it is in the best interest of the Participants.
(d) The Trustees' determination of the existence of an
irreconcilable material conflict and its implications promptly shall be
communicated to all Participating Insurance Companies by written notice thereof
delivered or mailed, first class postage prepaid.
7. Voting Privileges.
The Company shall be responsible for assuring that its separate account
or accounts participating in the Fund shall use a calculation method of voting
procedures substantially the same as the following: those Participants permitted
to give instructions and the number of Shares for which instructions may be
given will be determined as of the record date for the Fund
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shareholders' meeting, which shall not be more than 60 days before the date of
the meeting. Whether or not voting instructions are actually given by a
particular Participant, all Fund shares held in any separate account or
sub-account thereof and attributable to policies will be voted for, against, or
withheld from voting on any proposition in the same proportion as (i) the
aggregate record date cash value held in such sub-account for policies giving
instructions, respectively, to vote for, against, or withhold votes on such
proposition, bears to (ii) the aggregate record date cash value held in the
sub-account for all policies for which voting instructions are received.
Participants continued in effect under lapse options will not be permitted to
give voting instructions. Shares held in any other insurance company general or
separate account or sub-account thereof will be voted in the proportion
specified in the second preceding sentence for shares attributable to policies.
8. Duration and Termination.
This Agreement shall remain in force for the period ending five years
from the date of its execution (such date and any anniversary of such date being
hereinafter called a "Renegotiation Date"), and from year to year thereafter
provided that neither the Company nor the Fund shall have given written notice
to the other within thirty (30) days prior to a Renegotiation Date that it
desires to renegotiate the amount of contribution to capital due hereunder
("Renegotiation Notice"). If a Renegotiation Notice is properly given as
aforesaid and the Fund and the Company shall fail, within sixty (60) days after
the Renegotiation Date, either to enter into an amendment to this Agreement or a
written acknowledgment that the Agreement shall continue in effect, this
Agreement shall terminate as of the one hundred twentieth day after such
Renegotiation Date. If this Agreement is so terminated, the Fund may, at any
time thereafter, redeem the Shares of any Portfolio held by a Participating
Shareholder. The Fund agrees that it
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will not effect such redemption during the period following the Company's filing
of a notice with the Securities and Exchange Commission (the "SEC") to obtain
approval to make a substitution for the Shares provided, however, the Company
has filed such notice with the SEC promptly following the sixtieth day after the
Renegotiation Date. This Agreement may be terminated at any time, at the option
of either of the Company or the Fund, when neither the company, any insurance
company nor the separate account or accounts of such insurance company which is
an affiliate thereof which is not a Participating Insurance Company own any
Shares of the Fund or may be terminated by either party to the Agreement upon a
determination by a majority of the Trustees of the Fund, or a majority of its
disinterested Trustees, following certification thereof by a Participating
Insurance Company given in accordance with Paragraph 10 that an irreconcilable
conflict exists among the interests of (i) all contract holders and
policyholders of Variable Insurance Products of all separate accounts or (ii)
the interests of the Participating Insurance Companies investing in the Fund.
Notwithstanding anything to the contrary in this Agreement or its termination as
provided herein, the Company's obligation to make a capital contribution to the
Fund in accordance with this Agreement at the time in effect shall continue (i)
following a properly given Renegotiation Notice, in the absence of agreement
otherwise, until termination of this Agreement, and (ii) (except termination due
to the existence of an irreconcilable conflict), following termination of this
Agreement, until the later of the fifth anniversary of the date of this
Agreement or the date on which the company, its separate account(s) or the
separate account(s) of any affiliated insurance company owns no Shares.
9. Compliance.
The Fund will comply with the provisions of Section 4240(a) of the New
York Insurance Law.
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Each Portfolio of the Fund will comply with the provisions of Section
817(h) of the Internal Revenue Code of 1986, as amended (the "Code"), relating
to diversification requirements for variable annuity, endowment and life
insurance contracts. Specifically, each Portfolio will comply with either (i)
the requirement of Section 817(h)(1) of the Code that its assets be adequately
diversified, or (ii) the "Safe Harbor for Diversification" specified in Section
817(h)(2) of the Code, or (iii) the diversification requirement of Section
817(h)(1) of the Code by having all or part of its assets invested in U.S.
Treasury securities which qualify for the "Special Rule for Investments in
United States Obligations" specified in Section 817(h)(3) of the Code.
The provisions of Paragraphs 6 and 7 of this Agreement shall be
interpreted in a manner consistent with any Rule or order of the Securities and
Exchange Commission under the Investment Company Act of 1940, as amended,
applicable to the parties hereto.
No Shares of any Portfolio of the Fund may be sold to the general
public.
10. 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 Fund:
▇▇▇▇▇▇▇ Variable Life Investment Fund
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
If to the Company:
Provident Mutual Life Insurance Company of Philadelphia
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
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and
Providentmutual Life and Annuity Company of America
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
11. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
12. Miscellaneous.
The name "▇▇▇▇▇▇▇ Variable Life Investment Fund" is the designation of
the Trustees for the time being under a Declaration of Trust dated March 15,
1989, as amended, and 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 Trustees, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund. No Portfolio shall
be liable for any obligations properly attributable to any other Portfolio.
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. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
13. Entire Agreement.
This Agreement incorporates the entire understanding and agreement
among the parties hereto, and supersedes any and all prior understandings and
agreements between the parties hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the 21st day of
July, 1993.
SEAL ▇▇▇▇▇▇▇ VARIABLE LIFE
INVESTMENT FUND
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
President
SEAL PROVIDENT MUTUAL LIFE INSURANCE
COMPANY OF PHILADELPHIA
By: /s/ Illegible
---------------------------------
Its: Chairman, President & CEO
--------------------------------
SEAL PROVIDENTMUTUAL LIFE AND ANNUITY
COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Its: President
--------------------------------
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▇▇▇▇▇▇▇ Investor Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
PARTICIPATING CONTRACT AND POLICY AGREEMENT
Ladies and Gentlemen:
We (sometimes hereinafter referred to as "Investor Services") are the
Principal Underwriter of shares of ▇▇▇▇▇▇▇ Variable Life Investment Fund (the
"Fund"), a no-load, open-end, diversified registered management investment
company established in 1985 as a Massachusetts business trust. The Fund is a
series fund consisting of the Money Market Portfolio, Bond Portfolio, Capital
Growth Portfolio, Balanced Portfolio and the International Portfolio
(individually or collectively hereinafter referred to as the "Portfolio" or the
"Portfolios"). Additional Portfolios may be created from time to time. The Fund
is the funding vehicle for variable annuity contracts and variable life
insurance policies ("Participating Contracts and Policies") to be offered to the
separate accounts (the "Accounts") of certain life insurance companies
("Participating Insurance Companies"). Owners of Participating Contracts and
Policies will designate a portion of their premium to be invested in insurance
company separate accounts or sub-accounts which invest in, or represent an
investment in, directly or indirectly, shares of beneficial interest ("Shares")
of the Portfolios of the Fund. You are a registered broker-dealer which intends
to offer and sell Participating Contracts and Policies. In connection with such
offer and sale you will be obligated to deliver the prospectuses of such
Participating Contracts and Policies and, contemporaneously therewith, the
prospectus of the Fund. Sales of Shares to Participating Insurance Companies or
their affiliates or the separate accounts of either shall be effected solely by
us as principal underwriter of the Fund, and not by you; provided, however, that
you shall be our agent in connection with the receipt of purchase
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orders for Fund Shares and not in connection with their offer and sale. The
relationship between us shall be further governed by the following terms and
conditions:
1. To the extent, if any, that your activities or the activities
of the Participating Insurance Companies in connection with
the sale of Participating Contracts and Policies may
constitute the sale of Shares, you and we agree that (i) we
are the sole "principal underwriter" of the Fund and the sole
"underwriter" of the Shares as those terms are defined in the
Investment Company Act of 1940 (the "1940 Act") and the
Securities Act of 1933 (the "1933 Act"), respectively, and
(ii) neither you nor the Participating Insurance Companies or
the Accounts shall be deemed to be "principal underwriters" of
the Fund or "underwriters" of the Fund within the meaning of
the 1940 Act and the 1933 Act, respectively.
2. You hereby represent and warrant to us as follows:
(a) You are a corporation duly organized and validly
existing in good standing under the laws of the State
of Pennsylvania and have full power and authority to
enter into this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by you and is a valid and binding
obligation enforceable against you in accordance with
its terms.
(c) Your compliance with the provisions of this Agreement
will not conflict with or result in a violation of
the provisions of your charter or by-laws, or any
statute or any judgment, decree, order, rule or
regulation of any court or governmental agency or
body having jurisdiction.
3. We hereby represent and warrant to you as follows:
(a) A registration statement (File No. 2-96461) on Form
N-1A with respect to the Shares (x) has been prepared
by the Fund in conformity with the requirements of
the 1940 Act and the 1933 Act and all applicable
published instructions, rules and regulations (the
"Rules and Regulations") of the securities and
Exchange Commission (the "Commission"), (y) has been
filed with the Commission, and (z) is currently
effective. The registration statement, including
financial statements and exhibits, and the final
prospectus, including the statement of additional
information, as subsequently amended and
supplemented, are herein respectively referred to as
the "Registration Statement" and the "Prospectus."
(b) The Registration Statement and the Prospectus and any
amendment or supplement thereto will contain all
statements required to be stated therein and will
comply in all material respects with the requirements
of the 1940 Act, the 1933 Act and the Rules and
Regulations, and the Registration
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Statement and any post-effective amendment thereto
will not contain or incorporate by reference any
untrue statement of a material fact or omit to state
any material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading, and the Prospectus and any amendment or
supplement thereto will not contain or incorporate by
reference any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which
they were made, not misleading.
(c) We are a corporation duly organized and validly
existing in good standing under the laws of The
Commonwealth of Massachusetts and have full power and
authority to enter into this Agreement.
(d) This Agreement has been duly authorized, executed and
delivered by us and is a valid and binding obligation
enforceable against us in accordance with its terms.
(e) Our compliance with all of the provisions of this
Agreement will not conflict with or result in a
violation of the provisions of our charter or
by-laws, or any statute or any judgment, decree,
order, rule or regulation of any court or
governmental agency or body having jurisdiction over
us.
4. You hereby covenant and agree with us as follows:
(a) You shall be an independent contractor and neither
you nor any of your directors, partners, officers or
employees as such, is or shall be an employee of us
or of the Fund. You are responsible for your own
conduct and the employment, control and conduct of
your agents and employees and for injury to such
agents or employees or to others through your agents
or employees.
(b) You or one or more Participating Insurance Companies
will be responsible for insuring compliance with all
applicable laws and regulations of any regulatory
body having jurisdiction over you or Participating
Contracts and Policies.
(c) No person is authorized to make any representations
concerning Shares except those contained in the
prospectus and statement of additional information
relating thereto and in such printed information as
issued by us for use as information supplemental to
the prospectus. In offering Participating Contracts
and Policies you shall, with respect to the Fund and
the shares, rely solely on the representations
contained in the prospectus and statement of
additional information and in the above-mentioned
supplemental information.
-3-
19
(d) You are not entitled to any compensation whatsoever
from us or the Fund with respect to offers of
Participating Contracts and Policies.
5. We hereby covenant and agree with you as follows:
(a) If, at any time when a prospectus relating to the
Shares is required to be delivered under the 1940
Act, the 1933 Act or the Rules and Regulations, we
become aware of the occurrence of any event as a
result of which the Prospectus as then amended or
supplemented would include any untrue statement of a
material fact, or omit to state a material fact
necessary to make the statements therein, in light of
the circumstances under which made, not misleading,
or if we become aware that it has become necessary at
any time to amend or supplement the Prospectus to
comply with the 1940 Act, the 1933 Act or the Rules
and Regulations, we will promptly notify you and
promptly request the Fund to prepare and to file with
the Commission an amendment to the Registration
Statement or supplement to the Prospectus which will
correct such statement or omission or an amendment or
supplement which will effect such compliance, and
deliver to you copies of any such amendment or
supplement.
(b) We will cooperate with you in taking such action as
may be necessary to qualify the Shares for offering
and sale under the securities or Blue Sky laws of any
state or jurisdiction as you may request and will
continue such qualification in effect so long as is
required by applicable law in connection with the
distribution of Shares.
6. We reserve the right in our discretion, without notice, to
suspend sales or withdraw the offering of Shares entirely, as
to any person or generally. We reserve the right to amend this
agreement at any time and you agree that the sale of
Participating Contracts and Policies, after notice of any such
amendment has been sent to you, shall constitute your
agreement to any such amendment.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any prospectus
and statement of additional information relating to the Shares
and printed information supplemental thereto, we shall furnish
you with such copies as you reasonably request upon the
payment of reasonable charges therefor by you or one or more
Participating Insurance Companies. If we elect not to provide
such copies of such documents, you or one or more
Participating Insurance companies shall bear the entire cost
of printing copies for your use. You shall not use such copies
of such documents printed by you or one or more Participating
Insurance Companies until you shall have furnished us with a
copy thereof and we either have given you written approval for
use or twenty days shall have elapsed following our receipt
thereof and we have not objected thereto in writing. We agree
not to favor one Participating Insurance Company over another,
and will have a reasonable basis for treating Participating
Insurance Companies in a different manner.
-4-
20
8. (a) You will indemnify and hold harmless Investor
Services and each of its directors and officers and
each person, if any, who controls Investor Services
within the meaning of Section 15 of the 1933 Act,
against any loss, liability, damages, claim or
expense (including the reasonable cost of
investigating or defending any alleged loss,
liability, damages, claim or expense and reasonable
counsel fees incurred in connection therewith),
arising by reason of any person's acquiring any
Shares, which may be based upon the 1933 Act or any
other statute or common law, and which (i) may be
based upon any wrongful act by you, any of your
employees or representatives, any affiliate of or any
person acting on behalf of you, or (ii) may be based
upon any untrue statement or alleged untrue statement
of a material fact contained in a registration
statement or prospectus covering Shares 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 information furnished to us or the
Fund by you, or (iii) may be based on any untrue
statement or alleged untrue statement of a material
fact contained in a registration statement or
prospectus covering insurance products sold by you,
or any amendments 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, unless such statement or omission was
made in reliance upon information furnished to you or
a Participating Insurance Company by or on behalf of
Investor Services or the Fund; provided, however,
that in no case (i) is the indemnity by you in favor
of any person indemnified to be deemed to protect
Investor Services or any such person against any
liability to which Investor Services or any such
person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in
the performance of its or his duties or by reason of
its or his reckless disregard of its obligations and
duties under this Agreement, or (ii) are you to be
liable under your indemnity agreement contained in
this paragraph with respect to any claim made against
Investor Services or any person indemnified unless
Investor Services or such person, as the case may be,
shall have notified you in writing within a
reasonable time after the summons or other first
legal process giving information of the nature of the
claim shall have been served upon Investor Services
or upon such person (or after Investor Services or
such person shall have received notice of such
service on any designated agent), but failure to
notify you of any such claim shall not relieve you
from any liability which you may have to Investor
Services or any person against whom such action is
brought otherwise than on account of your indemnity
agreement contained in this paragraph. You shall be
entitled to participate, at your own expense, in the
defense, or, if you so elect, to assume the defense
of any suit brought to enforce any such liability,
but, if you elect to assume the defense, such defense
shall be
-5-
21
conducted by counsel chosen by you and satisfactory
to Investor Services, or to its officers or
directors, or to any controlling person or persons,
defendant or defendants in the suit. In the event
that you assume the defense of any such suit and
retain such counsel, Investor Services or such
officers or directors or controlling person or
persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel
retained by them, but, in case you do not elect to
assume the defense or any such suit, you shall
reimburse Investor Services and such officers,
directors or controlling person or persons, defendant
of defendants in such suit, for the reasonable fees
and expenses of any counsel retained by them. You
agree promptly to notify Investor Services of the
commencement of any litigation or proceedings against
it in connection with the offer, issue and sale of
any shares.
(b) Investor Services will indemnify and hold harmless
you and each of your directors and officers and each
person, if any, who controls you within the meaning
of Section 15 of the 1933 Act, against any loss,
liability, damages, claim or expense (including the
reasonable cost of investigating or defending any
alleged loss, liability, damages, claim or expense
and reasonable counsel fees incurred in connection
therewith), arising by reason of any person's
acquiring any Shares, which may be based upon the
1933 Act or any other statute or common law, and
which (i) may be based upon any wrongful act by
Investor Services, any of its employees or
representatives, or (ii) maybe based upon any untrue
statement or alleged untrue statement of a material
fact contained in a registration statement or
prospectus covering Shares 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 unless such statement or
omission was made in reliance upon information
furnished to Investor Services or the Fund by you or
(iii) may be based on any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement or prospectus covering
insurance products sold by you, or any amendment or
supplement thereto, or the omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statement
or statements therein not misleading, if such
statement or omission was made in reliance upon
information furnished to you by or on behalf of
Investor Services or the Fund; provided, however,
that in no case (i) is the indemnity by Investor
Services in favor of any person indemnified to be
deemed to protect you or any such person against any
liability to which you or any such person would
otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the
performance of your or his duties by reason of your
or his reckless disregard of your or his obligations
and duties under this Agreement, or (ii) is Investor
Services to be liable under its indemnity agreement
contained in this paragraph with respect to any claim
made against you or any person indemnified unless you
or such
-6-
22
person, as the case may be, shall have notified
Investor Services 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 you or upon such person (or after
you or such person shall have received notice of such
service on any designated agent), but failure to
notify Investor Services of any such claim shall not
relieve Investor Services from any liability to which
Investor Services may have to you or any person
against whom such action is brought otherwise than on
account of its indemnity agreement contained in this
paragraph. Investor Services shall be entitled to
participate, at its own expense, in the defense, or,
if it so elects, to assume the defense of any suit
brought to enforce any such liability, but, if it
elects to assume the defense, such defense shall be
conducted by counsel chosen by Investor Services and
satisfactory to you, or to your officers or
directors, or to any controlling person or persons,
defendant or defendants in the suit. In the event
that Investor Services assumes the defense of any
such suit and retains such counsel, you or such
officers or directors or controlling person or
persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel
retained by it, but, in case Investor Services does
not elect to assume the defense of any such suit,
Investor Services shall reimburse you and such
officers, directors or controlling person or persons,
defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained
by it. Investor Services agrees promptly to notify
you of the commencement of any litigation or
proceedings against it in connection with the offer,
issue and sale of any Shares.
9. The indemnities, representations, warranties, covenants and
agreements of each party to this Agreement as set forth in
this Agreement will remain in full force and effect regardless
of any investigation made by or on behalf of either of such
parties or any of their respective officers, directors,
partners or any controlling person, and will survive delivery
of and payment for the Shares.
10. Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, each
party hereto waives any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
11. This Agreement constitutes the entire agreement among the
parties concerning the subject matter hereof, and supersedes
any and all prior understandings.
12. This Agreement shall automatically terminate in the event of
its assignment. This Agreement may be terminated at any time
by either party by written notice given
-7-
23
to the other party, provided that the obligation of each party
to indemnify the other party pursuant to paragraph 8 hereof
shall apply with respect to any Shares sold before or after
such termination.
13. Any notice hereunder shall be duly given if mailed or
telegraphed to the other party hereto at the address specified
below. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
14. This Agreement may be executed in any number of counterparts
which, taken together shall constitute one and the same
instrument. This Agreement shall become effective upon receipt
by us of your acceptance hereof.
15. This Agreement may not be modified or amended except by a
written instrument duly executed by the parties hereto.
▇▇▇▇▇▇▇ INVESTOR SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
---------------------------------
Authorized Officer
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned hereby accepts the
offer set forth in the above letter.
PML SECURITIES COMPANY
Dated: July 21, 1993 By: /s/ Illegible
---------------------------------
Authorized Representative
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-8-
24
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (the "Agreement") made by and between ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC., a Delaware corporation ("SS&C"), with a principal place
of business in Boston, Massachusetts, PROVIDENT MUTUAL LIFE INSURANCE COMPANY OF
PHILADELPHIA ("PMLIC"), a Pennsylvania corporation, with a principal place of
business in Philadelphia, Pennsylvania, and PROVIDENTMUTUAL LIFE AND ANNUITY
COMPANY OF AMERICA ("PLACA"), a Delaware corporation, with a principal place of
business in Newark, Delaware (together, the "Company"), on behalf of the
Provident Mutual Variable Annuity Separate Account, a separate account of PMLIC,
and Providentmutual Variable Annuity Separate Account, a separate account of
PLACA, and any other separate account of the Company as designated by the
Company from time to time, upon written notice to the Fund in accordance with
Section 9 herein (the "Account").
WHEREAS, PLACA is a wholly-owned subsidiary of PMLIC and
WHEREAS, SS&C has caused to be organized ▇▇▇▇▇▇▇ Variable Life
Investment Fund (the "Fund"), a Massachusetts business trust created under a
Declaration of Trust dated March 15, 1985, as amended, the beneficial interest
in which is divided into several series, each designated a "Portfolio" and
representing the interest in a particular managed portfolio of securities; and
WHEREAS, the purpose of the Fund is to act as the investment vehicle
for the separate accounts established for variable life insurance policies and
variable annuity contracts to be offered by insurance companies which have
entered into reimbursement agreements substantially identical to this Agreement
("Participating Insurance Companies"); and
25
WHEREAS, it is in the best interest of the parties hereto for
Participating Insurance Companies, including the Company, to assume a portion of
the organization and other expenses incurred by SS&C in connection with the Fund
during the term of this agreement; and
WHEREAS, the parties desire to express their agreement as to certain
other matters;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Additional Definitions.
For purposes of this Agreement, the following definitions shall apply:
(a) The "average annual net asset value of the Shares of
each Portfolio of the Fund" shall mean the sum of the
aggregate net asset values of the Shares of such
Portfolio owned by the Account (referred to herein as
the "Participating Shareholder") determined as of
each determination of the net asset value per Share
of the Fund during the fiscal year, divided by the
number of such determinations during such year.
(b) "Shares" means shares of beneficial interest, without
par value, of any Portfolio, now or hereafter
created, of the Fund.
2. Initial Reimbursement Fee.
Simultaneously with the execution of this Agreement, the Company on
behalf of the Account has paid to SS&C a fee ("Reimbursement Fee") in the amount
of $10,000 in order partially to defray expenses incurred by SS&C in connection
with the organization of the Fund.
3. Access to Other Products.
SS&C shall permit a Participating Shareholder to participate in any
registered investment company other than the Fund which is intended as the
funding vehicle for insurance products and
-2-
26
for which SS&C or an affiliate of SS&C acts as investment adviser, on the same
basis as other insurance companies are permitted to participate in such a
registered investment company. This provision shall not require SS&C to make
available to the Company shares of any investment company which is organized
solely as the funding vehicle for insurance products offered by a single
insurance company or a group of affiliated insurance companies.
4. Right to Review and Approve Sales Materials.
The Company shall furnish, or shall cause to be furnished, to SS&C or
its designee, at least twenty days prior to its intended use, each piece of
promotional material in which SS&C or the Fund is named. No such material shall
be used unless SS&C or its designee shall have approved such use in writing, or
twenty days shall have elapsed without approval, rejection or objection since
receipt by SS&C or its designee of such material.
SS&C shall furnish, or shall cause to be furnished, to the Company or
its designee, at least twenty days prior to its intended use, each piece of
promotional material in which the Company or its separate account(s) is named.
No such material shall be used unless the Company or its designee shall have
approved such use in writing, or twenty days shall have elapsed without
approval, rejection or objection since receipt by the Company or its designee of
such material.
5. Sales Organization Meetings.
Representatives of SS&C or its designee shall meet with the sales
organizations of the Company at such reasonable times and places as may be
agreed upon by the Company and SS&C or its designee for the purpose of educating
sales personnel about the Fund.
6. Duration.
-3-
27
This Agreement shall continue in effect as long as the Company owns
shares of any Portfolio, except that the obligation of each party hereto to
indemnify the other party hereto shall continue with respect to all losses,
claims, damages, liabilities or litigation based upon the acquisition of Shares
purchased as the funding vehicle for any variable life insurance policy or
variable annuity contract issued by the Company or any affiliated insurance
company.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless
SS&C and each of its Directors and officers and each
person, if any, who controls SS&C within the meaning
of Section 15 of the Securities Act of 1933 (the
"Act") or any person, controlled by or under common
control with SS&C ("affiliate") against any and all
losses, claims, damages, liabilities or litigation
(including legal and other expenses) to which SS&C or
such Directors, officers or controlling person may
become subject under the Act, under any other
statute, at common law or otherwise, arising out of
the acquisition of any Shares by any person which (i)
may be based upon any wrongful act by the Company,
any of its employees or representatives, any
affiliate of or any person acting on behalf of the
Company or a principal underwriter of its insurance
products, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material
fact contained in a registration statement or
prospectus covering Shares 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
-4-
28
statement or omission was made in reliance upon
information furnished to SS&C or the Fund by the
Company, provided, however, that in no case (i) is
the Company's indemnity in favor of a Director or
officer or any other person deemed to protect such
Director or officer or other person against any
liability to which any such person would otherwise be
subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of his duties
or by reason of his reckless disregard of obligations
and duties under this Agreement or (ii) is the
Company to be liable under its indemnity agreement
contained in this Paragraph 7 with respect to any
claim made against SS&C or any person indemnified
unless SS&C or such person, as the case may be, shall
have notified the Company in writing pursuant to
Paragraph 9 within a reasonable time after the
summons or other first legal process giving
information of the nature of the claims shall have
been served upon SS&C or upon such person (or after
SS&C or such person 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 has
to SS&C or any person against whom such action is
brought otherwise than on account of the indemnity
agreement contained in this Paragraph 7. The Company
shall be entitled to participate, at its own expense,
in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any such
liability, but, if it elects to assume the defense,
such defense shall be conducted by counsel chosen by
it and satisfactory to SS&C, to its officers
-5-
29
and Directors, or to any controlling person or
persons, defendant or defendants in the suit. In the
event that the Company elects to assume the defense
of any such suit and retain such counsel, SS&C, such
officers and Directors or controlling person or
persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel
retained by them, but, in case the Company does not
elect to assume the defense of any such suit, the
Company will reimburse SS&C, such officers and
Directors or controlling person or persons, defendant
or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by them. The
Company agrees promptly to notify SS&C pursuant to
Paragraph 9 of the commencement of any litigation or
proceedings against it in connection with the issue
and sale of any Shares.
(b) SS&C agrees to indemnify and hold harmless the
Company and each of its directors and officers and
each person, if any, who controls the Company within
the meaning of Section 15 of the Act against any and
all losses, claims, damages, liabilities or
litigation (including legal and other expenses) to
which it or such directors, officers or controlling
persons may become subject under the Act, under any
other statute, at common law or otherwise, arising
out of the acquisition of any Shares by any person
which may be based upon any wrongful act by SS&C, any
of its employees or representatives or a principal
underwriter of the Fund, or (ii) may be based upon
any untrue statement or alleged untrue statement of a
material fact contained in a registration statement
or prospectus covering
-6-
30
Shares 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 statement or omission was made in
reliance upon information furnished to the Company by
SS&C; provided, however, that in no case (i) is
SS&C's indemnity in favor of a director or officer or
any other person deemed to protect such director or
officer or other person against any liability to
which any such person would otherwise be subject by
reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties or by
reason of his reckless disregard of obligations and
duties under this Agreement or (ii) is SS&C to be
liable under its indemnity agreement contained in
this Paragraph 7 with respect to any claims made
against the Company or any such director, officer or
controlling person unless it or such director,
officer or controlling person, as the case may be,
shall have notified SS&C in writing pursuant to
Paragraph 9 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 it or upon such director, officer or
controlling person (or after the Company or such
director, officer or controlling person shall have
received notice of such service on any designated
agent), but failure to notify SS&C of any claim shall
not relieve it from any liability which it may have
to the person against whom such action is brought
otherwise than on account of its indemnity agreement
contained in this Paragraph 7. SS&C will be entitled
-7-
31
to participate at its own expense in the defense, or,
if it so elects, to assume the defense of any suit
brought to enforce any such liability, but if SS&C
elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to
the Company, its directors, officers or controlling
person or persons, defendant or defendants, in the
suit. In the event SS&C elects to assume the defense
of any such suit and retain such counsel, the
Company, its directors, officers or controlling
person or persons, defendant or defendants in the
suit, shall bear the fees and expenses of any
additional counsel retained by them, but, in case
SS&C does not elect to assume the defense of any such
suit, it will reimburse the Company or such
directors, officers or controlling person or persons,
defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained
by them. SS&C agrees promptly to notify the Company
pursuant to Paragraph 9 of the commencement of any
litigation or proceedings against it or any of its
officers or Directors in connection with the issuance
or sale of any Shares.
8. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
9. 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.
-8-
32
If to SS&C:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
If to the Company:
Provident Mutual Life Insurance Company of Philadelphia
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
and
Providentmutual Life and Annuity Company of America
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
10. Miscellaneous.
The captions in the 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. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
-9-
33
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the 21 day of July, 1993.
SEAL ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Managing Director
SEAL PROVIDENT MUTUAL LIFE INSURANCE
COMPANY OF PHILADELPHIA
By /s/Illegible
---------------------------------
Its Chairman, President & CEO
--------------------------------
SEAL PROVIDENTMUTUAL LIFE AND ANNUITY
COMPANY OF AMERICA
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Its President
--------------------------------
-10-