Exhibit 14.2
Custodial Agreement Relating to Individual Retirement
Accounts
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PULL
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FOUR EASY
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STEPS TO
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AN XXX
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It's so easy to get the investment flexibility the Phoenix XXX offers. A
variety of portfolios, each with a different investment objective, allows
you to choose the right one for your Individual Retirement Account. Get
the Phoenix XXX advantage in 4 easy steps.
1 Complete the Easy XXX Application (and Transfer Form if you are
transferring your assets from an existing XXX),
2 Make one personal check payable to the Phoenix Fund you choose for your
investment and a separate check to State Street Bank & Trust for the
establishment fee (see fee card for details),
3 Mail the application, transfer form (if required) and both checks to
Phoenix Equity Planning Corp., Xxx Xxxxxxxx Xxx, Xxxxxxxx, Xxxxxxxxxxx
00000,
4 Read carefully and keep the XXX Agreement and Fee Schedule in your files
for future reference.
What could be easier!
CUSTODIAN FEE SCHEDULE FOR
INDIVIDUAL RETIREMENT ACCOUNTS
(Payable to the Custodian)
Fees payable to the Custodian, State Street Bank and Trust Company, are outlined
below and vary according to the investment products held in your XXX Account.
Plan Establishment Fee is payable upon the opening of your account and
maintenance fees are payable annually thereafter.
Plan Establishment Fee
If the investment is in one or more of the Phoenix Funds (per shareholder)....................$10.00
Annual Maintenance Fee
Phoenix Funds (per fund account)..............................................................$15.00
Distributions From The Plan
Termination or Transfer out of the Phoenix Equity Planning Corp. XXX Agreement................$25.00
Tax Withholding (only if applicable)
Each distribution requiring tax withholding...................................................$10.00
(over)
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FOR REGISTERED REPS. OF PHOENIX EQUITY PLANNING CORP. ONLY
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Limited Partnership and Outside Fund Charges
Plan Establishment Fee
1. If the investment is in a Limited Partnership..............................................$10.00
2. Investment in both (Limited Partnership and Mutual Fund)...................................$10.00
Annual Maintenance Fee
1. Limited Partnership and/or outside Mutual Fund (per limited partnership or mutual fund or
series thereof)...........................................................................$20.00
Distributions From The Plan
Termination or Transfer out of the Phoenix Equity Planning Corp. XXX Agreement................$25.00
Transaction Fee
1. Purchase, Sale or Reregistration of a Limited Partnership..................................$15.00
2. Purchase, Sale or Reregistration of an outside Mutual Fund.................................$10.00
The Custodian will collect the annual maintenance fee during the first quarter
of each year by: a) liquidating sufficient shares from each Phoenix Fund
account, or, b) billing you at your mailing address.
The PHOENIX Transfer Of Assets*
Phoenix Equity Planning Corp.
Xxxxxxxx, XX 00000
PRINT & PRESS HARD; YOU ARE MAKING 4 COPIES
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INSTRUCTIONS FOR COMPLETION (by client)
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1. Complete sections 1. through 4.
2. Mail all 4 copies of this form with any additional documents, if necessary
(policies, certificates, set-up fee, application) to:
PHOENIX EQUITY PLANNING CORPORATION, Attn: PEPCO Transfer of Assets,
Xxx Xxxxxxxx Xxx, Xxxxxxxx, XX 00000
*(FOR TRANSFERS IN KIND PLEASE CONTACT US AT (000) 000-0000, CONN. RESIDENTS
CALL COLLECT 000-0000)
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1. EXISTING XXX INFORMATION
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NAME OF EXISTING CUSTODIAN/ISSUER
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STREET ADDRESS OF EXISTING CUSTODIAN/ISSUER --(P.O. BOX UNACCEPTABLE) CITY STATE ZIP CODE
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INVESTMENT VEHICLE MATURITY DATE ACCOUNT NO. PHONE NO. OF EXISTING CUSTODIAN/ISSUER
(CD, Mutual Fund, etc.) (if applicable) (with existing custodian)
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2. FOR ALL TRANSFERS (Please check one)
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[ ] Please deposit proceeds in my existing Phoenix XXX:_________________________
FUND NAME ACCOUNT NUMBER
[ ] Establish an XXX account in my name (Please enclose a Phoenix XXX
application and a check for the set-up fee made payable to State Street Bank
& Trust Company)
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FUND USE ONLY: New account number:
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3. NAME & ADDRESS OF DEPOSITOR
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State Street Bank & Trust Company, Custodian for the XXX of:
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NAME SOCIAL SECURITY NUMBER DAYTIME PHONE NUMBER
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ADDRESS CITY STATE ZIP CODE
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4. AUTHORIZATION TO TRANSFER FUNDS
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TO EXISTING CUSTODIAN:
This will serve as authorization to liquidate and transfer
[ ] ALL or [ ] PART $____________
DOLLAR AMOUNT
of my account as listed in Section I above to transfer the assets to an XXX
I have established through Phoenix Equity Planning Corporation.
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NOTE: Depositor's signature is required for DEPOSITOR'S SIGNATURE DATE
ALL TRANSFERS (triangle)
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NOTE: Your existing custodian may require signature guarantee. Please check with
them for requirements.
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SIGNATURE GUARANTEE BY: NAME OF BANK OR FIRM
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SIGNATURE OF OFFICER & TITLE
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FOR INTERNAL USE ONLY
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ACCEPTANCE BY NEW CUSTODIAN (to be completed by State Street Bank & Trust
Company) We agree to accept custodianship and the transfer described above for
the Distributors' XXX Plan established on behalf of the above named individual.
State Street Bank & Trust Company accepts its appointment as successor custodian
of the above XXX account and requests the liquidation and transfer of assets
indicated above. Custodian: Please mail the proceeds made payable to PHOENIX
SERIES FUND, and/or PHOENIX TOTAL RETURN FUND, INC. along with the 2nd (canary)
copy of this form to:
PHOENIX EQUITY PLANNING CORPORATION
Attn: Transfer of Assets
Acct. No.: _________________________
0 Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
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BY: (CUSTODIAN) DATE
STATE STREET BANK & TRUST COMPANY /s/ XX Xxxxxx
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PEP 340 2-88
[logo]
The PHOENIX PHOENIX EASY XXX APPLICATION
(One application per investor please.)
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Complete all information and mail to: If you have any questions, call us toll free on 0-000-000-0000
Phoenix Equity Planning Corporation -----------------------------------------------------------------
Attention: PEPCO XXX Department For Internal Use Only
One American Row -----------------------------------------------------------------
Xxxxxxxx, XX 00000 [ ] Establishment Fee Paid
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SECTION I - Individual Retirement Account
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[ ] Individual Mutual Fund (one account, $2,000 maximum contribution)
[ ] Spousal XXX (Individual & non-working spouse, two separate accounts,
$2,250 maximum combined contributions)
[ ] SEP XXX
[ ] Individual Limited Partnership XXX - Phoenix Agent use only
[ ] Transfer of Assets from Custodian to Custodian (Please also
complete a Transfer of Assets Form)
[ ] XXX Rollover
Source of Contribution
[ ] Rollover XXX
[ ] Qualified Plan
[ ] Combination XXX (XXX Rollover and a contributory XXX)
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SECTION II - Account Registration
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XXX Registration
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NAME
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XXXXXX
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XXXX XXXXX ZIP CODE
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SOCIAL SECURITY NUMBER BIRTHDATE
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Are you/your spouse a current Phoenix Fund Client?
[ ] No [ ] Yes
Are you/your spouse affiliated in any way with a firm engaged
in the securities industry? [ ] No [ ] Yes
If yes, indicate name of firm __________________________________________________
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SECTION III - Investment Selection
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XXX Investment Selection
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Year in which deduction will be taken. 19__ 19__ Rollover
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[ ] Stock $ $ $
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[ ] Growth $ $ $
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[ ] Convertible $ $ $
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[ ] Balanced $ $ $
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[ ] High Yield $ $ $
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[ ] High Quality Bond $ $ $
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[ ] Money Market $ $ $
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[ ] U.S. Government $ $ $
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[ ] Total Return $ $ $
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[ ] _____________________ $ $ $
OTHER
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[ ] ___________________________ $ $ $
NAME OF LIMITED PARTNERSHIP
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Make your check for your XXX contribution payable to the Phoenix Fund of your
choice. Plus make another check for the applicable establishment fee payable to
STATE STREET BANK AND TRUST COMPANY.
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SECTION IV
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COMBINED PURCHASE DISCOUNT/RIGHTS OF ACCUMULATION - If this account
qualifies for a Reduced Sales Charge under the terms of the
REDUCED Prospectus, please give the following information:
SALES ----------------------------------------------------------------------
CHARGE FUND NAME ACCOUNT NUMBER ACCOUNT REGISTRATION RELATIONSHIP TO INVESTOR
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[ ] YES
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[ ] NO
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LETTER OF INTENT - Intended Investment of $10,000 or more.
(Check appropriate box below.)
[ ] Yes [ ] No This is a new Letter of Intent. Date ______________.
I have completed and attached a Letter of Intent
form with this application. (Letter of Intent form
found within Prospectus.)
[ ] Yes [ ] No This is an existing Letter of Intent. The Letter of
Intent form was signed on _______________ $ ________
DATE AMOUNT
By: ________________________________________________
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SECTION V - For dealer use only.
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REPRESENTATIVE CODE NUMBER AND NAME (Please print) REPRESENTATIVE'S SIGNATURE
X
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DEALER NAME IN FULL BRANCH MANAGER'S SIGNATURE
X
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BRANCH CODE AND BRANCH ADDRESS AUTHORIZED DEALER SIGNATURE
X
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AREA CODE AND TELEPHONE NUMBER
(---) --- - ----
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This is a [ ] Mail Order [ ] Wire Order
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PEP 339 1-89
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SECTION VI - Beneficiary Designation
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GENERAL PROVISIONS
Except as otherwise provided in this Designation of Beneficiary, all amounts
payable from a Participant's Custodial Account by reason of his or her death:
1) Shall be paid in equal shares to the named Primary Beneficiaries who survive
the participant.
2) If no Primary Beneficiary survives the participant, such amount shall be paid
in equal shares to the Contingent Beneficiaries who survive the participant.
3) If the Participant does not designate a beneficiary or if no designated
Beneficiary survives the Participant, such amounts shall be paid to the
Participant's surviving spouse, or if the Participant does not have a
surviving spouse to the Participant's issue by right of representation, or if
the Participant does not leave a surviving spouse or surviving issue, to the
Participant's estate.
NOTE: If you have more than one Primary or Contingent Beneficiary, please
provide a signed and dated attachment indicating their names, addresses, social
security numbers and your relationships.
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INDIVIDUAL BENEFICIARY DESIGNATION
PRIMARY BENEFICIARY CONTINGENT BENEFICIARY
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NAME BIRTH DATE NAME BIRTHDATE
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XXXXXX XXXXXX
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XXXX XXXXX XXX XXXX XXXXX ZIP
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RELATIONSHIP SOCIAL SECURITY NUMBER RELATIONSHIP SOCIAL SECURITY NUMBER
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A statement will be sent to your firm confirming the above transaction and will
serve as notification of State Street Bank's acceptance.
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TELEPHONE
EXCHANGE
[ ] Yes [ ] No
Telephone exchanges are subject to the terms of the Prospectus. If the
shareholder checks the "yes" box, telephone exchange orders will be accepted
from the shareholder, and may be accepted from Equity Planning and from the
shareholders' broker/dealer. By signing this New Account Application, the
shareholder agrees that the Fund, the Transfer Agent, and Equity Planning will
not be liable for any loss, injury or damage incurred as a result of acting
upon, and neither will they be responsible for the authenticity of, any
telephone instructions, other than those instructions delivered by Equity
Planning. If the shareholder for the authenticity of, any telephone
instructions, other than those instructions delivered by Equity Planning. If the
shareholder checks the "no" box, only the shareholder may authorize an exchange,
by writing to State Street Bank & Trust Company according to the terms of the
Prospectus. If the shareholder does not check either the "yes" or "no" box, it
will be assumed that the shareholder is NOT electing the Telephone Exchange
Privilege.
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SECTION VII - Signatures
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PLEASE READ AND SIGN
I hereby establish a Phoenix Individual Retirement Account Plan. I have
received and read a current prospectus, and appoint State Street Bank & Trust
Company of Boston, Massachusetts as custodian of the separate plan. I have
received and read the XXX Custodial Agreement and Disclosure Statement
enclosed. The applicable account establishment fee (for a Mutual Fund),
(Limited Partnership), or (both a Limited Partnership and Mutual Fund
Distribution Account) is enclosed in the form of a check made payable to
State Street Bank & Trust Company. See enclosed Fee Schedule for amount(s).
If an XXX is being established for your spouse, please note that separate
establishment fees apply. I understand that if I make any contributions to
the funds rolled over from a qualified plan, or otherwise commingle rollover
amounts with accumulation amounts, I will have relinquished the right to
ultimately roll over the funds distributed to me to another qualified plan.
If I do establish a combination XXX and make future contributions to this
account, I hereby release and hold harmless State Street Bank and Trust
Company from any liability for any loss, damage, or injury which I may
sustain as a result of my election not to establish two separate Individual
Retirement Custodial Accounts. Furthermore, if I am making a rollover
contribution from a qualified plan, I understand that such a rollover is
irrevocable.
X ____________________________________________ Date ___________________________
INDIVIDUAL'S SIGNATURE
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SECTION VIII - Limited Partnership XXX Distribution Account
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All distributions from the above named limited partnership XXX should be
invested as follows:
[ ] Please establish a separate Mutual Fund XXX in the Phoenix ________________
Fund. FUND NAME
_____________________________
ACCOUNT NUMBER
[ ] Please deposit distributions to my existing ______________________ Fund
XXX Account Number ____________________________________.
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SECTION IX - For Internal Use Only
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x _____________________________________________________
ACCEPTED BY STATE STREET BANK AND TRUST COMPANY
/s/ X. X. Xxxxxxxx
Assistant Vice President
INTERNAL REVENUE SERVICE'S ANNOUNCEMENT 86-121,
ON 1986 TAX REFORM ACT'S EFFECTS ON INDIVIDUAL RETIREMENT ACCOUNTS
The Tax Reform Act of 1986 (which we will call the Act) makes a number of
major changes to the law governing the deductibility of contributions to
Individual Retirement Arrangements (IRAs).
The changes made by the Act are generally not effective until January 1,
1987. This means that contributions made for 1987 are subject to the Act's new
rules; however, you can still make a contribution for 1986 as late as April 15,
1987, under the old rules.
ELIGIBILITY
Under the new law, if neither you, nor your spouse, is an active participant
(see A. below) you may make a contribution of up to the lesser of $2,000 (or
$2,250 in the case of Spousal XXX) or 100% of compensation and take a deduction
for the entire amount contributed. If you are an active participant but have an
adjusted gross income (AGI) below a certain level (see B. below), you may make a
deductible contribution as under current law. If, however, you or your spouse is
an active participant and your combined AGI is above the specified level, the
amount of the deductible contribution you may make to an XXX is phased down and
eventually eliminated.
A. Active Participant
You are an "active participant" for a year if you are covered by a retirement
plan. You are covered by a "retirement plan" for a year if your employer or
union has a retirement plan under which money is added to your account or you
are eligible to earn retirement credits. For example, if you are covered under a
profit-sharing plan, certain government plans, a salary reduction arrangement
(such as a tax sheltered annuity arrangement or a 401(k) plan), a simplified
employee pension plan (SEP) or a plan which promises you a retirement benefit
which is based upon the number of years of service you have with the employer,
you are likely to be an active participant. Your Form W-2 for the year,
starting with the 1987 tax year, should indicate your participation status.
You are an active participant for a year even if you are not yet vested in
your retirement benefit. Also, if you make required contributions or voluntary
employee contributions to a retirement plan, you are an active participant. In
certain plans you may be an active participant even if you were only with the
employer for part of the year.
You are not considered an active participant if you are covered in a plan
only because of your service as (1) an Armed Forces Reservist, for less than 90
days of active service, or (2) a volunteer firefighter covered for firefighting
service by a government plan. Of course, if you are covered in any other plan,
these exceptions do not apply.
If you are married but file a separate tax return, your spouse's active
participation does not affect your ability to make deductible contributions.
B. Adjusted Gross Income (AGI)
If you are an active participant, you must look at your Adjusted Gross Income
for the year (if you and your spouse file a joint tax return you use your
combined AGI) to determine whether you can make a deductible XXX contribution.
Your tax return will show you how to calculate your AGI for this purpose. If you
are at or below a certain AGI level, called the Threshold Level, you are treated
as if you were not an active participant and can make a deductible contribution
under the same rules as a person who is not an active participant.
If you are single, your threshold AGI level is $25,000. The threshold level
if you are married and file a joint tax return is $40,000, and if you are
married but file a separate tax return, the threshold level is $0.
If your AGI is less than $10,000 above your threshold level, you will still
be able to make a deductible contribution but it will be limited in amount. The
amount by which your AGI exceeds your Threshold Level (AGI - Threshold Level) is
called your Excess AGI. The Maximum Allowable Deduction is $2,000 (or $2,250 for
a Spousal XXX). You can estimate your Deduction Limit using Table 1 or calculate
it as follows:
(Your Deduction Limit may be slightly higher if you use this formula rather
than the Table.)
$10,000 - Excess AGI x Maximum Allowable Deduction = Deduction Limit
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$10,000
You must round up the result to the next highest $10 level (the next highest
number which ends in zero). For example, if the result is $1,525, you must round
it up to $1,530. If the final result is below $200 but above zero, your
Deduction Limit is $200. Your Deduction Limit cannot, in any event, exceed 100%
of your compensation.
Example 1: Xx. Xxxxx, a single person, is an active participant and has an
AGI of $31,619. She calculates her deductible XXX contribution as follows:
Her AGI is $31,619
Her Threshold Level is $25,000
Her Excess AGI is (AGI - Threshold Level) or
($31,619 - $25,000) = $6,619
Her Maximum Available Deduction is $2,000
So, her XXX deduction limit is:
$10,000 - $6,619 x $2,000 = $676 (rounded to $680).
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$10,000
Example 2: Mr. and Xxx. Xxxxx file a joint tax return. Each spouse earns more
than $2,000 and one is an active participant. They have combined AGI of
$44,255. They may each contribute to an XXX and calculate their deductible
contributions to each XXX as follows:
Their AGI is $44,255
Their Threshold Level is $40,000
Their Excess AGI is (AGI - Threshold Level) or
($44,255 - $40,000) = $4,255
The Maximum Allowable Deduction for each spouse is
$2,000
So, each spouse may compute his or her XXX deduction
limit as follows:
$10,000 - $4,255 x $2,000 = $1,149 (rounded to $1,150).
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$10,000
Example 3: If, in example 2, Xx. Xxxxx did not earn any compensation, or
elected to be treated as earning no compensation, Xxx. Xxxxx could establish a
Spousal XXX (consisting of an account for herself and one for her husband).
The amount of deductible contributions which could be made to the two IRAs is
calculated using a Maximum Allowable Deduction of $2,250 rather than $2,000.
$10,000 - $4,255 x $2,250 = $1,293 (rounded to $1,300).
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$10,000
The $1,300 can be divided between the two accounts, but neither XXX may receive
a deductible contribution of more than $1,150.
Example 4: Xx. Xxxxx, a married person, files a separate tax return and is an
active participant. He has $1,500 of compensation and wishes to make a
deductible contribution to an XXX.
His AGI is $1,500
His Threshold Level is $0
His Excess AGI is (AGI - Threshold Level) or
($1,500 - $0) = $1,500
His Maximum Allowable Deduction is $2,000
So, his XXX deduction limit is:
$10,000 - $1,500 x $2,000 = $1,700
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$10,000
Even though his XXX deduction limit under the formula is $1,700, Xx. Xxxxx may
not deduct an amount in excess of his compensation, so, his actual deduction is
limited to $1,500.
SPOUSAL IRAs
As noted in Example 3 above, under the Act you may contribute to a Spousal
XXX even if your spouse has earned some compensation during the year. Provided
your spouse does not make a contribution to an XXX, you may set up a Spousal XXX
consisting of an account for your spouse as well as an account for yourself. The
maximum deductible amount for the Spousal XXX is the lesser of $2,250 or 100% of
compensation. This rule applies for 1986 Spousal IRAs as well as 1987 Spousal
IRAs.
NONDEDUCTIBLE CONTRIBUTIONS TO IRAs
Even if you are above your threshold level and thus may not make a deductible
contribution of $2,000 ($2,250 for a Spousal XXX), you may still contribute up
to the lesser of 100% of compensation or $2,000 to an XXX ($2,250 for a Spousal
XXX). The amount of your contribution which is not deductible will be a
nondeductible contribution to the XXX. You may also choose to make a
contribution nondeductible even if you could have deducted part or all of the
contribution. Interest or other earnings on your XXX contribution, whether from
deductible or nondeductible contributions, will not be taxed until taken out of
your XXX and distributed to you.
If you make a nondeductible contribution to an XXX you must report the amount
of the nondeductible contribution to the IRS as a part of your tax return for
the year.
You may make a $2,000 contribution at any time during the year, if your
compensation for the year will be at least $2,000, without having to know how
much will be deductible. When you fill out your tax return you may then figure
out how much is deductible.
You may withdraw an XXX contribution made for a year any time before April 15
of the following year. If you do so, you must also withdraw the earnings
attributable to that portion and report the earnings as income for the year
for which the contribution was made. If some portion of your contribution is
not deductible, you may decide either to withdraw the nondeductible amount, or
to leave it in the XXX and designate that portion as a nondeductible
contribution on your tax return.
Phoenix
Equity Planning
Corporation
XXX Agreement
Sponsored by
Phoenix Mutual
Life Insurance
Company
Here are the terms and conditions that apply to your XXX as amended and
restated, effective January 1, 1985
Phoenix Equity Planning Corporation
Individual Retirement Account
(XXX)
Sponsored by Phoenix Mutual Life
Insurance Company
As amended and restated effective
January 1, 1985
The use of this material is authorized only when preceded or accompanied by a
current prospectus disclosing any applicable sales charges.
The Phoenix Equity Planning Corporation (PEPCO), Prototype Individual
Retirement Account Plan has been filed for approval with the Internal Revenue
Service.
Execution of the Account Application by the Depositor and acceptance by
the Custodian (no later than the time prescribed by law for filing the Federal
Income Tax return for the Depositor's tax year) will establish an individual
retirement account (XXX) for Depositor which meets the requirements of IRS Code
Section 408(a).
The Depositor desires to provide for his/her retirement and for the
support of his/her beneficiaries upon his/her death.
To accomplish this purpose, the Depositor establishes an Individual
Retirement Account as described in Section 408(a) of the Internal Revenue Code
of 1954, as amended, or any successor statute (hereinafter referred to as the
"Code") under the terms of the agreement set forth herein (the "Agreement").
The sponsor has furnished the Depositor with a disclosure statement as
required under the Income Tax Regulations under Code Section 408(i).
The Depositor has deposited with the Custodian the amount indicated on the
Application; and the Depositor and Custodian agree as follows:
Phoenix Equity Planning Corporation
Prototype Individual Retirement Account
Custodial Agreement
Article I--Contributions
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1.1 The Custodian may accept additional contributions in cash from the
Depositor
1
during a taxable year of the Depositor except as limited by Sections 1.2,
1.6 and 1.7.
1.2 Limitations. Except in the case of a rollover contribution as that term
is described in Section 402(a)(5), 402(a)(7), 403(a)(4), 403(b)(8),
405(d)(3), 408(d)(3) or 409(b)(3)(C) of the Code, or in the case of a
transfer of assets directly from the trustee or custodian of an Indi-
vidual Retirement Account (as described in Section 408 of the Code) of the
Depositor, the Custodian will only accept cash and will not accept
contributions on behalf of the Depositor in excess of: for the taxable
year of the Depositor, the lesser of $2,000 or 100% of includible
compensation, less, if any, the amount of any qualified voluntary
employee contributions, as described in Section 219(e) of the Code, that
the Depositor has made, for the taxable year, as an employee under a
qualified employer plan or governmental plan, as described in Sections
219(e)(3) and (4) of the Code, respectively.
(a) Compensation means wages, salaries, professional fees, or other
amounts derived from or received for personal service actually
rendered (including, but not limited to commissions paid
salesmen, compensation for services on the basis of a percentage
of profits, commissions on insurance premiums, tips and
bonuses) and includes earned income, as defined in Code Section
401(c)(2) reduced by the deduction the self-employed individual
takes for contributions made to a retirement plan qualified under
Code Section 401 by an employer for an owner-employee.
Compensation for tax years beginning after 1984 includes any
amount includible in gross income under Code Section 71 with re-
spect to a divorce or separation instrument described in
Section 71(b)(2)(A). Compensation does not include amounts
derived from or received as earnings or profits
2
from property (including, but not limited to, interest and
dividends) or amounts not includible in gross income.
Compensation also does not include any amount received as a
pension or annuity or as deferred compensation.
1.3 Initial Periodic Contribution. Initial contributions, which Depositor
intends to be tax-deductible, shall be in cash and are to be invested
under this Agreement. Depositor contemplates future periodic contributions
within the limits allowed by law. Depositor assumes full and sole re-
sponsibility for determining that the sum of periodic contributions during
a single taxable year of Depositor does not exceed those limits. Depositor
shall not contribute after the custodial account ceases to be exempt by
reason of either Section 408(e) or 415(g) of the Internal Revenue Code.
All future contributions shall be in cash and shall be sent to Custodian
by Depositor directly and not through an intermediary employer.
1.4 Rollover Contribution. If the Depositor indicates on the Application that
the contribution is a rollover contribution, the Depositor warrants that:
(a) such amount was received by Depositor as--
(i) a "qualifying rollover distribution" or a "partial
distribution" from an employees' trust;
(ii) a distribution from another individual retirement account
or annuity, a qualified bond purchase plan or a U.S.
retirement bond; all as described in Code Section
402(a)(5) (including subparagraph D describing partial
distributions), 402(a)(7), 403(a)(4), 403(b)(8),
405(d)(3), 408(d)(3), or 409(b)(3)(C), as the case may be;
and is contributed within sixty (60) days of its receipt by Depositor;
(b) in the case of a contribution of a
3
qualifying rollover distribution from an employees' trust or
employee annuity, the amount of such rollover contribution is an
amount equal to or less than the excess of the total distribution
from such trust or plan over amounts considered to be contributed
by Depositor pursuant to Section 72 of the Code and, such
rollover shall in any event be cash unless otherwise agreed by
the Custodian;
(c) in the case of a rollover contribution from another individual
retirement account or individual retirement annuity, such other
account or annuity was not itself funded by a rollover
contribution from any other source within one (1) year of the
date of the contribution hereto;
(d) if the Depositor makes any further contribution to the custodial
account after making the rollover contribution, Depositor
warrants that:
(i) either such contribution constitutes part of the original
account after making the rollover contribution hereto and
is made within the limitations of this Subsection; or
(ii) such contribution is an Annual Contribution which Depositor
agrees may be made ONLY if the initial rollover
contribution was from another individual retirement account
or annuity and none of the assets thereof were attributable
to a rollover from an employee trust as described in
Subsection 1.4(b) above;
(e) in the case of a rollover contribution comprised of a
distribution from another individual retirement account or
individual retirement annuity by reason of the death
4
of an individual other than the Depositor in a tax year beginning
after 1983, that Depositor is the surviving spouse of the
decedent.
1.5 Transfer Contributions. A transfer contribution shall be a deposit in cash
or any other property to be invested under this Agreement if the funds in
another Individual Retirement Account of the Depositor are transferred
directly from the Trustee/Custodian of the Account directly to the
Custodian. A transfer contribution shall not be considered a Rollover
Contribution under Section 1.4 above.
1.6 Spousal XXX.
(a) A Depositor who has established an XXX for the benefit of a non-
working spouse may make contributions to his/her own XXX and to
the XXX established for the benefit of the non-working spouse
during any taxable year of the Depositor for which the Depositor
and the non-working spouse remain eligible. The Custodian will
accept contributions up to the lesser of 100% of includible com-
pensation or, $2,250, for a taxable year of a Depositor who has
also established an XXX for the benefit of a non-working spouse,
provided, however, that a maximum contribution of only $2,000
may be made to any one such XXX.
(b) Contributions by Divorced or Separated Spouses. For contribu-
tions relating to 1984 tax years (and earlier) the following
rules apply. If a divorced or separated spouse (a) maintained a
spousal XXX for at least five years preceding the divorce, and
(b) if the ex-spouse has contributed to the spousal XXX for at
least three of the preceding five years, then the contribution to
such XXX shall not exceed the lesser of $1,125 or the sum of
Compensation and taxable alimony. For taxable years
5
beginning after 1984 these rules are repealed and the
Compensation for XXX Contribution purposes of a divorced spouse
shall be any amount includible in gross income under Code Section
71 with respect to a divorce or separation instrument described
in Section 71(b)(2)(A).
1.7 SEP. In addition to any contributions made by the Depositor under Section
1.2, the Custodian may accept Employer contributions made on behalf of the
Depositor for the taxable year of the Depositor who is an eligible
employee under a Simplified Employee Pension-Individual Retirement
Account Contribution Agreement (under Section 408(k) of the Code). The
maximum amount allowable under this paragraph is the lesser of $30,000
(or, if applicable, the amount specified in Section 415(c)(1)(A), as ad-
justed in accordance with Code Section 415(d)), or 15% of compensation.
Article II--Nonforfeitability The interest of the Depositor in the balance in
the custodial account shall at all times be nonforfeitable. This account is
created for the exclusive benefit of Depositor and Depositor's beneficiaries.
Article III--Investment of
Contributions
3.1 As used herein the term "Broker" means Phoenix Equity Planning Corporation
(PEPCO), a securities broker-dealer registered under the Securities
Exchange Act of 1934.
3.2 "Investment Company Shares" shall mean any open ended investment company
shares marketed by PEPCO and for which the Custodian has agreed to act as
Custodian.
3.3 "Securities" shall mean one or more units or shares of a security (other
than Investment Company Shares) marketed by PEPCO and permitted by
applicable laws
6
and regulations as investments of Individ- ual Retirement Accounts and for
which the Custodian has agreed to act as Custodian.
(a) Securities shall include but not be limited to limited
partnership interests traded by or obtainable through PEPCO which
are acceptable to the Custodian - such acceptance or
non-acceptance not to be construed as a judgment concerning the
prudence or advisability of such an investment.
3.4 "Savings Instrument" shall mean an interest bearing deposit in the
Custodian's banking department of a type made available by the Custodian
from time to time for investment hereunder.
3.5 Custodian is to invest and reinvest all custodial funds in Investment
Company Shares, Securities, and Savings Instruments as Depositor directs
from time to time. The Depositor's investment selection shall remain in
effect until Depositor gives the Custodian contrary instructions pursuant
to this Article III or Article VII, which governs investment of the cus-
todial account.
3.6 Investment Prohibitions. No part of the custodial funds shall be invested
in life insurance contracts, nor may the assets of the custodial account
be commingled with other property except in a common trust bond or common
investment fund (within the meaning of Code Section 408(a)(5)). No
investment of custodial funds shall be made in a work of art, rug,
antique, metal, gem, stamp, coin, alcoholic beverage, or any other
tangible property which is designated as a collectible by the Internal
Revenue Service pursuant to Code Section 408(m). Any such investment is
treated as a distribution.
Article IV--Distributions
------------------------------------
4.1 Except in the case of the Depositor's death or disability (as defined in
Section 72(m) of the Code) or attainment of age 59-1/2, before
distributing an amount from the account, the Custodian shall
7
receive from the Depositor a declaration of the Depositor's intention as
to the disposition of the amount distributed.
4.2 The entire interest of the Depositor in the custodial account must be, or
commence to be, distributed as of the required beginning date, which is
April 1 of the calendar year following the calendar year in which the
Depositor attains age 70-1/2.
4.3 Distribution of the assets of the custodial account shall be made in a
manner set forth in Section 4.5 or 4.6, whichever applies, and at such
time as Depositor (or Depositor's Beneficiary if Depositor is deceased)
shall elect by written order to Custodian, provided, that distribution
(except for distribution on account of Depositor's disability or death,
return of an "excess contribution" referred to in Section 4.8, or a
"rollover" from this account) made earlier than age 59-1/2 may subject
Depositor to an "early distribution penalty tax" described under Section
408(f) of the Code. For that purpose, Depositor will be considered
disabled if Depositor can prove, as provided in Section 72(m)(7) of the
Code, that Depositor is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or be of
long-continued and indefinite duration. Depositor (or Depositor's
Beneficiary if Depositor is decreased) shall order distribution in the
manner and at the time permitted or required by this Section 4.3.
Neither Custodian nor any other party providing services to the
custodial account assumes any responsibility for the tax treatment of any
distribution from the custodial account; such responsibility rests solely
with the person ordering the distribution.
4.4 Custodian assumes (and shall have) no responsibility to make any
distribution on order of Depositor (or Depositor's Beneficiary if
Depositor is deceased) unless and until such order specifies the occasion
for such distribution, the elected manner
8
of distribution, and any declaration required by Section 4.1. Also, before
making any such distribution or before honoring any assignment of the
custodial account, Custodian shall be furnished with any and all
applications, certificates, tax waivers, signature guarantees and other
documents (including proof of any legal representative's authority) deemed
necessary or advisable by Custodian, but Custodian shall not be
responsible for complying with an order which appears on its face to be
genuine, or for refusing to comply if not satisfied it is genuine, and
Custodian assumes no duty of further inquiry.
4.5 Upon receipt of a proper written order as required above, Custodian shall
cause the assets of the custodial account to be distributed in cash or in
kind, as the Custodian shall determine, as follows:
(a) If the distribution order calls for the custodial account to be
paid to Depositor under Section 4.3, then distribution shall be
made in one or more of the following ways as specified in the
order:
(1) In a lump sum.
(2) In installments ratably over a period which may either be
(i) not longer than the life expectancy of Depositor or
(ii) not longer than the joint and survivor life
expectancies of Depositor and Depositor's beneficiary. The
life expectancy and joint and last survivor expectancy
referred to in this Agreement will be computed by the use
of the return multiples, contained in Section 1.72-9 of the
Income Tax Regulations; first when installment payments
commence, and thereafter at least as of the time Depositor
attains age 70-1/2. The entire interest of the Depositor
for whose benefit the custodial account is maintained, will
be distributed or commence to be distributed, no later than
the
9
first day of April following the calendar year in which the
Depositor attains age 70-1/2 (required beginning date), in
equal or substantially equal amounts. If the period is
measured by one or more such expectancies, then beginning
with the year Depositor attains age 70-1/2, the amount
distributed each year shall be at least equal to the
quotient obtained by dividing the entire custodial account
remaining at the beginning of that year by the life
expectancy of Depositor, or the joint life and last
survivor expectancy of Depositor and Depositor's
beneficiary (whichever is applicable), determined as of the
time Depositor attains age 70, reduced by the number of
whole years elapsed since Depositor attained 70-1/2;
provided, however, that no distribution need be made in any
year, or a lesser amount may be distributed during such
year, if the aggregate amounts distributed through the end
of such year are at least equal to the aggregate of the
minimum amounts required by this Subsection 4.5(a)(2) to
have been so distributed. For purposes of this computation,
a Depositor's life expectancy may be recalculated no more
frequently than annually, however, the life expectancy of a
nonspouse beneficiary may not be recalculated. During
Depositor's lifetime the entire custodial account remaining
for distribution at any time under this Subsection
4.5(a)(2) may, pursuant to a proper supplementary written
order as specified above, be distributed to Depositor.
(3) By the purchase and distribution of a single-premium
contract meeting the
10
requirements of Sections 408(b)(1), (3), (4) and (5) of the
Code applicable to an "individual retirement annuity."
If the Depositor fails to elect any of the methods of distribution
described above on or before the required beginning date, the Custodian shall
have no liability to the Depositor for any tax penalty or other damages
resulting from any inadvertent failure by the Custodian to make such
distribution.
4.6 (a) Where distributions have commenced to the Depositor and the
Depositor dies before the entire interest in the custodial
account has been distributed, Custodian, upon notification, shall
distribute the then remaining custodial account to the
Depositor's designated beneficiary in accordance with the
original election made by the Depositor, or in any other mode of
distribution which will result in distribution of the entire
account balance at least as rapidly as the Depositor's original
election.
(b) Where distributions have not commenced to the Depositor as of
the time of the Depositor's death and a beneficiary other than a
spouse is designated, the entire remaining interest in the
custodial account shall be distributed within five years
following the death of Depositor unless:
(i) any portion of Depositor's interest in the custodial
account is payable to, or for the benefit of, a desig-
nated beneficiary,
(ii) the portion of the Depositor's entire interest to which
the designated beneficiary is entitled will be
distributed in substantially equal installments over the
life of the beneficiary or over a period certain not
11
extending beyond the life expectancy of the beneficiary,
and
(iii) the distributions to the designated beneficiary commence no
later than one year after date of Depositor's death, or
such later date as may be prescribed by the Secretary of
the Treasury. The designated beneficiary may elect at any
time to receive greater payments.
(c) Where distributions have not commenced to depositor as of the
time of the Depositor's death and the spouse is the designated
beneficiary, the entire remaining interest in the custodial
account shall be distributed within five years following the date
of the Depositor's death unless the spouse elects within the five
year period commencing with Depositor's death to receive
benefits as outlined below:
(i) the portion of Depositor's interest to which the surviving
spouse is entitled will be distributed in equal or
substantially equal payments over the life of the spouse or
over a period certain not extending beyond the life
expectancy of the spouse, and
(ii) the distributions to the spouse commence at any date prior
to but no later than the date on which the Depositor would
have attained age 70-1/2. The surviving spouse may
accelerate these payments at any time, i.e., increase the
frequency or amount of such payments.
(d) If a surviving spouse beneficiary dies before distributions to
such spouse begin, 4.6(b) and (c) shall be applied as if the
spouse beneficiary were the Depositor.
12
(e) If the Depositor dies before the entire interest has been
distributed and the beneficiary of the XXX is other than the
surviving spouse, no additional cash or rollover contribution may
be accepted by the XXX.
(f) If the Depositor dies before the entire interest has been
distributed and the designated beneficiary is the Depositor's
surviving spouse, the spouse may treat the account as his or her
own individual retirement arrangement. This election will be
deemed to have been made if such surviving spouse makes a regular
XXX contribution to the account, makes a rollover to or from such
account, or fails to elect a distribution in conjunction with
paragraph (c) of this Section 4.6.
(g) For purposes of distributions from this Article, payments will be
calculated by use of the return multiples specified in
Section 1.72-9 of the regulations. Life expectancy of a surviving
spouse may be recalculated annually. In the case of any other
designated beneficiary, life expectancy will be calculated at
the time payment first commences and payments for any
12-consecutive month period will be based on such life expectancy
minus the number of whole years passed since distribution first
commenced.
(h) Amounts paid to a child of the Depositor will be treated as if
paid to the surviving spouse if the remainder of the interest
becomes payable to the surviving spouse when the child reaches
the age of majority.
4.7 (a) The term "Depositor's Beneficiary" means the person or
persons designated as such by the "designating person" (as
defined below) on a form acceptable to Custodian for use in
connection with this Agreement, signed by the designating
person, and filed with the Custo-
13
dian. The form may name individuals to take upon the contingency
of survival; it may also order that payments to Depositor's
Beneficiary be made ratably over a period not to exceed five
years or, if the Beneficiary is the Depositor's spouse, over a
period not exceeding that permitted under Section 4.5(a)(2), and
such order shall be binding on the Beneficiary.
(b) The term "designating person" means Depositor; after Deposi-
tor's death, it also means the person or persons (other than
Depositor's estate) who begin to receive a portion of the
custodial account pursuant to such a designation by Depositor,
and designations by such a person shall relate solely to the
balance of that portion remaining in the custodial account as
of when distribution pursuant to a designation by that person is
to commence. The Custodian shall accept all such forms only in
the Commonwealth of Massachusetts, and they shall be considered
part of this Agreement for purposes of Section 8.5. However, if
no such designation on such a form effectively disposes of the
custodial account as of the time such distribution is to com-
mence, the term Depositor's Beneficiary shall then mean the
Designating Person's estate.
(c) When and after distributions of the custodial account to Deposi-
tor's Beneficiary commence, all rights and obligations assigned
to Depositor by provisions of this Agreement shall inure to, and
be enjoyed and exercised by, Depositor's Beneficiary instead of
Depositor.
4.8 If during a taxable year Depositor contributed under Article I total
amounts which exceed the amount deductible by Depositor for that year; or
because Depositor attained age 70-1/2 in that year except in the case of
employer contribu-
14
tions to a SEP, then upon receiving written notice specifying the year in
question, the amount of the excess, the reason it is an excess, and the
amount of net income in the custodial account attributable to such excess
Custodian shall distribute cash to Depositor in an amount equal to the sum
of such excess and earnings. If the excess contribution did not arise
because Distributor attained age 70-1/2, then (in Custodian's discretion
unless otherwise instructed by Depositor) in lieu of being distributed,
said sum shall be treated by Depositor as a contribution in the then
current or a succeeding taxable year.
4.9 The terms of such annuity provided as a form of distribution under this
agreement shall provide for payments over the life of the Beneficiary or
for a term certain not exceeding the life expectancy of such Beneficiary.
Any annuity contract so purchased shall be immediately distributed to
such Beneficiary. However, no such annuity contract shall be required to
be purchased if distributions over a term certain is for a period
extending beyond the life expectancy of the Depositor, or the joint and
survivor life expectancies of the Depositor and his/her Beneficiary.
Any annuity which Custodian is to purchase and distribute under this
Agreement may be fixed or variable, but Custodian shall not be required to
distribute in the form of an annuity unless the annuity premium is at
least $1,000.
Article V--Reports
--------------------------------
5.1 The Depositor agrees to provide information to the Custodian at such time
and in such manner as may be necessary for the Custodian to prepare any
reports required pursuant to Section 408(i) of the Code and the
regulations thereunder.
5.2 The Custodian agrees to submit reports to the Internal Revenue Service and
the Depositor at such time and in such manner and containing such
information as is prescribed by the Internal Revenue Service; provided,
however, that Deposi-
15
tor shall prepare any return or report required as a result of
(1) the generation by assets of the custodial account of unrelated
business taxable income or unrelated debt financed income as
defined in the Code or
(2) the incurrence of a windfall profits tax, or any return or report
necessary to preserve the availability of any credit or deduction
with respect thereto.
Depositor shall sign such return as preparer, and forward it to the
Custodian at least 10 days prior to the due date thereof.
5.3 The Depositor, Custodian, Broker and, if applicable, the general partner
of any partnership interests which are held by the Custodian hereunder
shall furnish to each other such information relevant to the custodial
account as may be required under the Code and any regulations issued
or forms adopted by the Treasury Department thereunder.
Article VI--Amendment and
Termination
---------------------------------
6.1 (a) Depositor retains the right to amend this Agreement in any
respect at any time, effective on a stated date which shall be
at least sixty (60) days after giving written notice of the
amendment (including its exact terms) to Custodian by
registered or certified mail, unless Custodian waives notice as
to such amendment. If the Custodian does not wish to continue
serving in its respective capacity under this Agreement as so
amended, it may resign in accordance with Article VII.
(b) Depositor also delegates to the Sponsor, the Depositor's right so
to amend, including retroactively, as necessary or appropriate in
the opinion of counsel satisfactory to the Sponsor, in order to
conform this custodial account to pertinent provisions of the
Code
16
and other laws or successor provisions of law, or to obtain a
governmental ruling that such requirements are met, to adopt a
prototype or master form of agreement in substitution for this
Agreement, or as otherwise may be advisable in the opinion of
such counsel. Any amendment by the Sponsor shall be communicated
in writing to Depositor and Custodian, and Depositor shall be
deemed to have consented thereto unless, within thirty (30) days
after such communication to Depositor is mailed, Depositor either
(i) gives Custodian a written order for a lump-sum distribution
of the custodial account, or (ii) removes the Custodian and
appoints a successor under Article VII.
(c) Notwithstanding the provisions of Subsections 6.1(a) and (b), no
amendment shall increase the responsibilities or duties of
Custodian without its prior written consent.
(d) This Section 6.1 shall not be construed to restrict the
Custodian's right to substitute fee schedules in the manner
provided by Article VII, and no such substitution shall be deemed
to be an amendment of this Agreement.
(e) This Section 6.1 shall not be construed to restrict Custodian's
freedom to agree with PEPCO upon the terms by which additional
Investment Company Shares or Securities may be made available for
investment.
6.2 (a) Custodian shall terminate the custodial account if this
Agreement is terminated, or, if within thirty (30) days (or such
longer time as Custodian may agree) after resignation or
removal of Custodian pursuant to Article VII, Depositor has not
appointed a successor which has accepted such appoint-
17
ment. Termination of the custodial account shall be affected by
distributing all assets thereof in a lump sum in cash or in kind
to Depositor, subject to Custodian's right to reserve funds as
provided in Article VII.
(b) Upon termination of the custodial account, this Agreement shall
terminate and have no further force and effect, and Custodian
shall be relieved from all further liability with respect to
this Agreement, the custodial account, and all assets thereof
so distributed.
Article VII--Custodial Account
----------------------------------------
7.1 This Agreement shall take effect only when accepted by the Custodian. As
directed, Custodian shall then open and maintain a separate custodial
account for Depositor and invest the initial contribution as directed by
Depositor in accordance with Article III.
7.2 (a) Every subsequent contribution shall be accompanied by written
instructions from Depositor stating Depositor's choice of in-
vestment. Depositor shall state Depositor's choice of one or more
of the Investment Company Shares available from PEPCO and/ or one
or more of the Securities available from PEPCO. Depositor agrees
that the availability of an investment shall not be construed as
an endorsement by the Custodian of the Investment Company
Shares or Securities in which contributions may be invested, fi-
nal choice of which is at the sole discretion of Depositor. The
Custodian does not undertake to render any investment advice
whatsoever to Depositor; its sole duties are those prescribed in
Section 7.5.
(b) The Custodian shall invest subsequent contributions as
directed. However, if any such written
18
instructions are not received as required, or if received, are in
the opinion of Custodian unclear, or if the accompanying
contribution exceeds the maximum amounts as described in Article
I, Custodian may hold or return, within a reasonable time, all or
a portion of the contribution uninvested without liability for
loss of income or appreciation, and without liability for
interest, pending receipt of written instructions or
clarification.
(c) All dividends and capital gain distributions received on
account of Investment Company Shares held in the custodial
account shall (unless received in additional such shares) be
reinvested in full and fractional shares, if available, which
shall be credited to the account. If any distribution on such
shares may be received at the election of the shareholder in
additional such shares or in cash or other property, Custodian
shall elect to receive it in additional such shares.
Any dividends and capital gains or other distributions
received on account of Securities held in the custodial account
shall be reinvested in accordance with written instructions by
the Depositor, in one or more of the following: (i) full and
fractional Investment Company Shares, (ii) Securities, or (iii)
Savings Instruments.
All interest earned on Savings Instruments shall be credited
as a deposit thereto.
7.3 All Investment Company Shares or Securities, whether in shares or
otherwise, acquired by Custodian hereunder shall be registered in the name
of the Custodian (with or without identifying Depositor) or of its
nominee. Custodian shall deliver, or cause to be executed and delivered,
to Depositor all notices, prospectuses, financial statements, proxies
and proxy soliciting materials relating to such investment held in the
(custodial) account.
19
Custodian shall not vote any Investment Company Share or any shares or
units of any security except in accordance with written instructions
received from Depositor.
7.4 Custodian shall keep adequate records of transactions it is required to
perform hereunder. Not later than sixty (60) days after the close of each
calendar year or after the Custodian's resignation or removal, Custodian
shall render to Depositor a written report or reports reflecting the
transactions affected by it during such period and the assets of the
custodial account at the close of the period. Sixty (60) days after
rendering such report(s), Custodian shall be forever released and
discharged from all liability and accountability to anyone with respect
to its acts and transactions shown in or reflected by such report(s),
except where, within the sixty day period, written objections have been
filed with the Custodian by the recipient of such reports.
7.5 Custodian shall be an agent for Depositor to receive and invest
contributions as directed by Depositor, hold and distribute such
investments, and keep adequate records and report thereon, all in accor-
dance with this Agreement. The parties do not intend to confer any
fiduciary duties on Custodian, and none shall be implied. Custodian may
perform any of its administrative duties through other persons designated
by Custodian from time to time, except that all Investment Company Shares
and Securities must be registered as stated in Section 7.3 of this
Article; and Custodian intends initially to delegate all such duties to
Boston Financial Data Services, Inc., which is partially owned by the
Custodian's parent company; but no such delegation or future change
therein shall be considered as an amendment to this Agreement. Custodian
shall not be liable (and assumes no responsibility) for the collection of
contributions, the deductibility of any contributions or their
propriety under the Agreement, or the purpose or propriety of any
distribution ordered in accordance
20
with Article IV, whose matters are the responsibility of Depositor and
Depositor's Beneficiary.
7.6 Depositor shall always fully indemnify Custodian and save it harmless from
any and all liability whatsoever which may arise either (1) in connection
with this Agreement and matters which it contemplates except that which
arises due to Custodian's negligence or willful misconduct, or (2) with
respect to making or failing to make any distribution therefor which is in
full compliance with Article IV. Custodian shall not be obligated or
expected to commence or defend any legal action or proceeding in
connection with this Agreement or such matters unless agreed upon by
Custodian and Depositor, and unless fully indemnified for so doing to
Custodian's satisfaction.
7.7 Custodian may conclusively rely upon and shall be protected in acting upon
any written order from Depositor or Depositor's Beneficiary or any other
notice, request, consent, certificate or other instrument or paper
believed by it to be genuine and to have been properly executed, and so
long as it acts in good faith, in taking or omitting to take any other
action in reliance thereon.
7.8 (a) The Custodian may charge the Depositor reasonable fees,
including an annual maintenance fee, for services hereunder
according to standard schedules of rates which may be in effect
from time to time. Initially, the fees payable to the Custodian
shall be in amounts as specified in the fee schedule provided
with this Agreement. Upon thirty (30) days prior written
notice, Custodian may substitute a fee schedule differing from
that schedule initially provided.
(b) Any income, gift, estate and inheritance taxes and other taxes of
any kind whatsoever, including transfer taxes incurred in
connection with the investment or reinvestment of the assets of
the custodial account, that may be
21
levied or assessed in respect to such assets, and all other
administrative expenses incurred by the Custodian in the
performance of its duties, including fees for legal services
rendered to it shall be charged to the custodial account.
(c) All such fees and taxes and other administrative expenses charged
to the custodial account shall be collected either from the
amount of any contribution or distribution to be credited to such
account, or (at the option of the person entitled to collect
such amounts) to the extent possible under the circumstances by
the conversion into cash of sufficient assets of the account.
Notwithstanding the foregoing, the Custodian may make demand upon
the Depositor for payment of the amount of such fees, taxes and
other administrative expenses if, in the discretion of the
Custodian, conversion of sufficient assets of the custodial ac-
count is not feasible under the circumstances.
7.9 Resignation or Removal of Custodian.
(a) Upon thirty (30) days' prior written notice to the Custodian,
Depositor may remove it from its office hereunder. Such notice,
to be effective, shall designate a successor Custodian and shall
be accompanied by the successor's written acceptance. The
Custodian also may at any time resign unilaterally upon thirty
(30) days' prior written notice to Depositor, whereupon the
Depositor shall appoint a successor to the Custodian.
(b) The successor Custodian shall be a bank, insured credit union, or
other person satisfactory to the Secretary of the Treasury
pursuant to Section 408(a)(2) of the Code. Upon receipt by
Custodian of written acceptance by its successor
22
of such successor's appointment, Custodian shall transfer and pay
over to such successor the assets of the custodial account and
all records (or copies thereof) of Custodian pertaining thereto,
provided that the successor Custodian agrees not to dispose of
any such records without the Custodian's consent. Custodian is
authorized, however, to reserve such sum of money or property as
it may deem advisable for payment of all its fees, compensation,
costs, and expenses, or for payment of any other liabilities
constituting a charge on or against the assets of the custodial
account or on or against the Custodian, with any balance of such
reserve remaining after the payment of all such items to be paid
over to the successor Custodian.
(c) If within thirty (30) days after Custodian's resignation or
removal or such longer time as Custodian may agree to, Depositor
has not appointed a Successor Custodian which has accepted such
appointment, Custodian shall terminate the custodial account
pursuant to paragraph (d) unless within that time the Sponsor
appoints such successor and gives written notice thereof to
Depositor and Custodian.
(d) Custodian shall terminate the Custodial Account, if, within the
time referred to in paragraph (c) neither Depositor nor the
Sponsor has appointed a Successor Custodian which has accepted
such appointment. Termination of the Custodial Account shall be
affected by distributing all assets thereof in a lump sum in
cash or in kind to Depositor, subject to Custodian's right to
reserve funds as provided in this Article VII.
(e) Upon termination of the Custodial Account, this Agreement shall
terminate and have no further force and effect, and Custodian
23
shall be relieved from all further liability with respect to this
Agreement, the Custodial Account, and all assets so distributed.
Article VIII--Miscellaneous
-------------------------------------------------
8.1 References herein to the "Internal Revenue Code" or "Code" and Sections
thereof shall mean the same as amended from time to time, including
successors to such Sections.
8.2 "Sponsor" shall mean Phoenix Mutual Life Insurance Company.
8.3 Except where otherwise specifically required in this Agreement, any
notice from Custodian to any person provided for in this Agreement shall
be effective if sent by first-class mail to such person at that person's
last address on Custodian's records.
8.4 Depositor's Beneficiary shall not have the right or power to anticipate
any part of the custodial account or to sell, assign, transfer, pledge or
hypothecate any part thereof. The custodial account shall not be liable
for the debts of Depositor's Beneficiary or subject to any seizure,
attachment, execution or other legal process in respect thereof. At no
time shall it be possible for any part of the assets of the custodial
account to be used for or diverted to purposes other than for the
exclusive benefit of the Depositor or his/ her Beneficiary.
8.5 This Agreement is accepted by Custodian in, and shall be construed and
administered in accordance with the law of, the Commonwealth of
Massachusetts. This Agreement is intended to qualify under Section 408(a)
of the Code as an individual retirement account and to entitle Depositor
to the retirement savings deduction under Section 219 of the Code, and if
any provision hereof is subject to more than one interpretation or any
term used herein is subject to more than one construction, such ambiguity
shall be resolved in favor of that interpretation or construction which
is consistent with that intent. However, neither Custodian nor the Sponsor
shall be re-
24
sponsible for whether or not such intentions are achieved through use of
this Agreement, and Depositor is referred to Depositor's attorney for any
such assurances.
8.6 Depositor should seek advice from Depositor's attorney regarding the
legal consequences (including but not limited to federal and state tax
matters) of entering into this Agreement, contributing to the custodial
account, and ordering Custodian to make distributions from the account.
Depositor should understand that Custodian, Sponsor, and Broker (and any
company associated therewith) are prohibited by law from rendering such
advice.
Article IX--Controlling Article
---------------------------------------
Notwithstanding any other articles which may be added or incorporated, the
provisions of Section 1.1, Article II and Section 3.6 and this sentence shall be
controlling. Furthermore, any other Article or Section shall be wholly- invalid,
if it is inconsistent in whole or in part, with Section 408(a) of the Code and
the regulations thereunder.
This admendment and restatement is effective as of January 1, 1985. Dated at
Hartford, Connecticut this 25th day of November, 1985.
/s/ Xxxxxxx X. Xxxx
-------------------------------------------
Xxxxxxx X. Xxxx
Vice President, Phoenix Mutual
Life Insurance Company.
Disclosure Statement
This Disclosure Statement is being provided to assist you in understanding your
individual retirement account and is a general review of portions of the federal
income tax law applicable to it. IRA's are intended to benefit individuals in
preparation for their retirement. Therefore, they may not be used like an
ordinary savings account and are subject to many restrictions imposed by the
Internal Revenue Code. Consequently, please read the following information in
addition to the Custodial Agreement carefully. THE PROVISIONS OF THE CUSTODIAL
AGREEMENT WILL PREVAIL WHERE THE DISCLOSURE
25
STATEMENT IS INCOMPLETE OR
APPEARS TO BE IN CONFLICT.
Revocation
You may cancel your XXX custodial agreement and your XXX application for any
reason within seven days of the date you signed the XXX Account application. To
cancel within this seven-day period, write a note or a letter which contains
your name and address in it and which says that your XXX custodial agreement is
canceled. Mail or deliver your note or letter to:
Phoenix Equity Planning
Corporation (PEPCO)
Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If you mail the note or letter, it is considered received on the date of the
postmark (or the date of registration or certification if sent by registered or
certified mail).
If you do cancel your XXX within the seven-day period after you signed the PEPCO
XXX Account application, your initial contribution will be refunded to you
without cost, charge or decrease of any kind.
Contributions
Annual Contributions
Your contributions, not including rollover contributions or XXX to XXX
transfers, must be in cash or a cash equivalent (such as a check). Except for
rollovers or XXX to XXX transfers, the maximum amount that you may contribute to
an XXX for your taxable year is $2,000, but you can contribute less if you
choose. However, if the compensation included in your gross income for a taxable
year is less than $2,000, your contribution is limited to the total amount of
that compensation.
Spousal XXX
In addition to establishing your own XXX, you may also establish an XXX for your
spouse, provided the following requirements are met: (a) you and your spouse are
married at the end of the taxable year; (b) you must be eligible to contribute
to your own XXX; (c) you and your spouse file a joint income tax return for the
taxable year; (d) your spouse has received no compensation for personal services
or earned income from self-employment.
26
IRAs for Divorced Spouses
A divorced spouse is allowed a deduction for contributions to a spousal XXX
established by the individual's former spouse if:
(a) the spousal XXX was established at least 5 years before the beginning of
the taxable year in which the decree of divorce or separate maintenance
decree was issued; and
(b) the former spouse made deductible contributions to the XXX for at least
3 of the five years preceding the year in which the decree was issued.
If the above conditions are met, then the divorced spouse may contribute the
lesser of (a) the sum of the divorced spouse's compensation and alimony
includible in gross income or (b) $1,125 to the XXX. These rules are only
applicable for contributions that relate to taxable years prior to 1985. For
1985 tax years or later, all taxable alimony received by a divorced spouse under
a decree of divorce or separate maintenance is treated as compensation for the
purposes of the XXX deduction limit and the rules.
If you have established an XXX for yourself and for your spouse, the maximum
deductible contributions you may make may not exceed the lesser of (a) 100% of
your compensation for the taxable year, or (b) $2,250; provided, however, that a
maximum contribution of $2,000 may be made to either XXX. Separate IRA's must be
established for yourself and your spouse.
Other Contribution Limitations
If you make deductible voluntary employee contributions to a qualified employer
plan for any taxable year, the above maximum contribution must be reduced by the
amount of deductible contribution to the qualified employer plan. For instance,
if your gross income for a taxable year is $2,000 or greater, and you make a
$500 deductible voluntary employee contribution to a qualified employer plan,
you may only contribute $1,500 to your XXX custodial account for that taxable
year. Amounts contributed to a 401(k) plan on your behalf by an employer which
reduce your income do not count against this $2,000 limit.
If you are an eligible employee under a Simplified Employer Pension
Individual Re-
27
tirement Account, your employer may contribute up to the lesser of 25% of your
calendar year compensation or $30,000 on your behalf. Any such employer
contributions may be made in addition to any contributions you may make to your
individual XXX.
Because the IRS does not allow deductions for any contributions made for the
taxable year in which you reach age 70-1/2, the XXX custodial agreement provides
that no cash contributions may be made to your account for that or any following
taxable year. However, deductible employer contributions may be made to your SEP
for you even though you have attained age 70-1/2. Rollover contributions and XXX
to XXX transfers, however, can be made at any time.
Tax Advantages of an XXX
Allowable contributions made to your XXX are fully-deductible from gross income
for federal income tax purposes. This is true whether or not you itemize
deductions. The maximum amount deductible from an annual contribution is the
lesser of $2,000 or 100% of your compensation. The dollar limit is $2,250 if
contributions are made for a nonworking spouse.
Unlike an ordinary savings account, the earnings on your XXX custodial
account are not taxable in the year they are earned. Your contributions and the
earnings on them will be taxed only in the taxable year you withdraw them. If
you withdraw only a part of your contributions and earnings in a taxable year,
only the part withdrawn will be taxable for that year.
Time for Making Contributions
Except for rollover contributions or XXX to XXX transfers, contributions to your
XXX for a taxable year may be made up through the due date, without extensions,
for that year's federal income tax return. Because of this time flexibility, you
must advise us of the taxable year to which each of your contributions apply.
Tax Penalties for Excess Contributions
Except for a rollover contribution or XXX to XXX transfers, any contribution in
excess of the limits specified in the section entitled Contributions, will not
be deductible and will
28
also be subject to an annual 6% excise tax. This excise tax is not deductible.
You can avoid the excise tax by withdrawing the excess and any earnings on it
before the due date (including extensions) for filing your federal tax return
for that taxable year. The withdrawn earnings, if any, must be included in
income for the tax year in which the excess contribution was made. Also, the
earnings portion of the withdrawn excess contribution may be subject to a 10%
premature withdrawal penalty. The 6% excise tax will be payable for future years
if you do not withdraw the excess or if you do not eliminate the excess by
making reduced contributions for future years.
Rollover To and From Your
Custodial Account
Certain distributions from qualified plans, annuity plans, Xxxxx plans, bond
purchase plans and other arrangements may be contributed to your XXX custodial
account. These distributions are often referred to as "lump-sum distributions."
Certain partial distributions are also eligible to be contributed to your XXX.
This is called a rollover contribution. The rollover contribution must be made
within 60 days after your receipt of the funds or property in order to be
contributed to your XXX custodial account. If the rollover is made within that
60 day period, you will not be taxed on the amount of the rollover for that
taxable year. Taxation of the rollover occurs only when it is withdrawn from
your XXX custodial account.
Because only one rollover from a particular XXX to any other XXX may be made
in any twelve-month period and because in certain situations it may not be to
your tax advantage to make a rollover contribution to a particular XXX or other
allowable arrangement, you should consult with your tax advisor before making
any type of rollover contribution to or from your XXX custodial account.
You may also have the Custodian transfer funds or property from your XXX
custodial account into another XXX and certain types of plans and annuities. The
twelve-month rollover restriction does not apply to XXX to XXX transfers.
A transfer of any portion of your interest in your XXX to your former spouse
under a divorce decree is not considered a distribution
29
taxable to you. The amount transferred is considered an XXX for your former
spouse.
Tax Penalties for Early Withdrawal
Because IRAs are intended to be used for income during retirement years, early
withdrawal of money from your XXX account is subject to a federal penalty tax.
The tax is 10% of the amount withdrawn. The amount withdrawn will also be
included in your income for the tax year in which it is withdrawn. This tax
penalty may also apply if an individual borrows from their account or uses the
value of the account as security or collateral for a loan. There is no penalty
tax if a withdrawal is made:
* after reaching age 59-1/2
* because of death or disability at any age
* because of a rollover from the XXX
* to correct an excess contribution before the due date of your tax return
* to correct an excess rollover contribution which was caused by erroneous
tax information supplied by your employer on which you reasonably relied.
Under the XXX custodial agreement, you must advise us of your intended use of
a withdrawal if the withdrawal is made prior to death, disability or age 59-1/2.
Also under the XXX custodial agreement, you may not borrow funds from your XXX
or use XXX funds as collateral for a loan. Such a use is viewed as a withdrawal
under the Internal Revenue Code.
Withdrawals from your XXX will be taxed at ordinary income tax rates and, if
eligible, you may use the 5-year income averaging method if that will help
reduce your taxes in the year of a withdrawal. The favorable income tax
treatment for certain lump-sum distributions which are granted by Section 402 of
the Internal Revenue Code (i.e., ten-year forward averaging) do not apply to
distributions from your XXX custodial account. This is true regardless of the
type of distribution you receive from your XXX and regardless of the source of
your contribution to the XXX.
State Income, inheritance or other taxes may apply to XXX distributions. You
should ask your tax advisor for information.
30
Distributions from Your XXX
Custodial Account
You must begin to receive distributions from your XXX custodial account no
later than April 1 of the calendar year following the year in which you reach
age 70-1/2.
You may choose to have your XXX custodial account distributed to you in a
lump sum or in a series of monthly, quarterly or annual payments over a period
of years not exceeding your life expectancy (as determined by IRS tables). After
age 70-1/2, the period can be no longer than your lifetime, the lifetime of you
and your beneficiary, or any period of years which does not exceed the life
expectancy of you and your beneficiary.
If you die after distributions to you from your XXX have started and if you
chose a method of payment which provides for continued payments to your spouse
when you die, then your spouse, if living at your death, will receive those
payments until he or she dies, unless the surviving spouse requests a more rapid
distribution.
If you die before distribution from your XXX custodial account has started
and you have designated a beneficiary other than your spouse, your XXX account
must be distributed within five years of the date of your death unless:
(a) a beneficiary has been designated by you,
(b) distribution to the designated beneficiary will be made over the life of
that beneficiary or over a period certain not extending beyond the life
expectancy of the beneficiary, and
(c) distributions will commence no later than one year after the date of
your death.
If you die before distribution from your XXX custodial account has started
and you have designated your spouse as beneficiary, distributions to your spouse
must begin no later than the date you would have reached age 70-1/2 and be
distributed over a period not extending beyond the life expectancy of your
spouse, or the entire interest to which your spouse is entitled must be
distributed within five years of the date of your death.
If you die before your entire interest has been distributed from your XXX and
your ben-
31
eficiary is not your surviving spouse, no additional cash or rollover
contributions may be accepted in the account. If your beneficiary is your
spouse, he or she may treat the XXX as his or her own. Additional contributions
may be made to the XXX, provided compensation and age requirements are met, and
no distribution would be required until the year in which the surviving spouse
reached 70-1/2.
The methods of distributions which are available under your XXX custodial
account are designed so that you will be withdrawing the required amount of
money when the required time comes. However, if for any reason you or your
beneficiary do not withdraw the amount required by law, you or your beneficiary
must pay a tax equal to 50% of the required amount not withdrawn.
Beneficiaries
The XXX custodial account application includes a section where you may choose
your beneficiary or beneficiaries and choose the type of distribution your
beneficiaries will receive if you die. If you want to change that designation,
you may do so at any time on a form we will provide. Any change in beneficiary
will cancel all your prior designations of beneficiary.
The last designation of beneficiary which is filed with us during your
lifetime will be the controlling designation at death.
Prohibited Transactions
If you engage in certain transactions with the money in your XXX custodial
account, your XXX will lose its tax exemption. You would then have to include
the entire value of your XXX account in your gross income for federal tax
purposes for that year. These transactions which are prohibited (such as
borrowing money from the account) are listed in Section 4975 of the Internal
Revenue Code.
Tax Filing Requirements
Allowable deductions for your XXX contributions are reported on your regular
Form 1040 tax return every year. However, if you owe penalty taxes for excess
contributions, early withdrawal or for "under distributions", you must also file
Form 5329.
For more information about tax filing requirements or general information
about IRAs, contact any IRS district office and/or
32
your tax advisor. Note that Publications 590, available from the IRS, explains
much of the information in this Disclosure Statement, and provides additional
information about IRAs.
IRS Approval
The Plan has been filed for approval by the Internal Revenue Service as to form
for use in establishing IRAs. Such approval when received will not, however,
represent determination of the deductibility of any particular contribution made
by you or merits of your particular XXX.
Miscellaneous Information
Your interest in your XXX custodial account is non-forfeitable at all times. No
part of your XXX account will be invested in life insurance contracts. No part
of your XXX account will be mixed with other property except it may be invested
with a common trust fund or a common investment fund.
Financial Disclosure/Fees/
Commissions on Products
Your contributions to this XXX will be subject to custodial fees which have been
furnished to you in a separate schedule.
If the investment(s) you choose to fund this XXX is (are) sold by prospectus,
consult the applicable prospectus(es) you have been furnished for information
concerning (i) the types and amounts of charges which are made against your
contributions, (ii) the method for computing and allocating annual earnings, and
(iii) the types of other charges which may be applied to your interest in the
investment(s) in determining the net amount of money available to you and the
method of computing each such charge. Growth in value of this XXX is neither
guaranteed nor projected. The prospectus also outlines the investment objectives
of the Fund or Limited Partnership, or other security. You should consider those
objectives carefully to determine if they are consistent with your own planning
for retirement.
33
Limited Partnership Interests
Investments in this XXX are directed by you. The permitted range of investments
includes only limited partnership interests and mutual funds made available by
the Broker and accepted by the Custodian. Any decision by you to direct your
investment into partnership interests should only be made after consideration of
the following general facts regarding such interests. These general statements
regarding possible tax and other implications of such an investment in no way
override or supplement any applicable prospectus and are intended only to
acquaint you with possible issues arising out of such an investment. The
prospectus should always be referred to in making any investment decision.
-- While usually all income received from investments in an XXX are tax
free to the account, there are tax rules which state, in effect, that
certain income from the active conduct of a trade or business of a
partnership or debt financed income generate unrelated business taxable
income (UBTI) which may be taxable to the Custodial Account if it exceeds
$1,000 on an annual basis.
-- These taxes, if any, are an expense of the Account and should be paid
by the Account. The Custodian may, in its sole discretion, liquidate any
assets in the Account to satisfy such taxes.
-- Funds may be sent to the Custodian to pay these taxes in order to avoid
liquidation of an asset. Attention should be given to the possibility of
an excess contribution from this procedure.
-- Liquidity. There may be no ready market to sell an interest after it
has been purchased. (Refer to the prospectus for a complete description of
the liquidity of the units.) This may cause the Custodian an unavoidable
delay in effecting your investment directions or in arranging for
distributions to you or your beneficiary.
34
Internal Revenue Service Department of the Treasury
Plan Name: XXX 006 Xxxxxxxxxx, XX 00000
FF#: 50147410000-006 Person to Contact: Xxx. Xxxxxxx
Case #: 8570677 Telephone Number: (000) 000-0000
Letter Serial #: B110013a Refer Reply to: OP:E:EP:RQ:1:1
Phoenix Mutual Life Insurance Date: 03/27/86
One American Row E.I.N.: 00-0000000
Xxxxxxxx, XX 00000
Dear Applicant:
In our opinion, the form of the prototype trust, custodial account or annuity
contract identified above is acceptable under section 408 of the Internal
Revenue Code.
Each individual who adopts this approved plan will be considered to have a
retirement savings program that satisfies the requirements of Code section 408,
provided they follow the terms of the program and do not engage in certain
transactions specified in Code section 408(e). Please provide a copy of this
letter to each person affected.
The Internal Revenue Service has not evaluated the merits of this savings
program and does not guarantee contributions or investments made under the
savings program. Furthermore, this letter does not express any opinion as to the
applicability of Code section 4975, regarding prohibited transactions.
Code section 408(i) and related regulations require that the trustee, custodian
or issuer of a contract provide a disclosure statement to each participant in
this program as specified in the regulations. Publication 590, Tax Information
on Individual Retirement Arrangements, gives information about the items to be
disclosed.
The trustee, custodian or issuer of a contract is also required to provide each
adopting individual with annual reports of savings program transactions.
Your program may have to be amended to include or revise provisions in order to
comply with future changes in the law or regulations.
35
If you have any questions concerning IRS processing of this case, call us at the
above telephone number. Please refer to the Letter Serial Number and File Folder
Number shown in the heading of this letter. Please provide those adopting this
plan with your phone number, and advise them to contact your office if they have
any questions about the operation of this plan.
You should keep this letter as a permanent record. Please notify us if you
terminate the form of this plan.
Sincerely yours,
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Chief, Employee Plans
Rulings & Qualifications Branch
36
PHOENIX EQUITY
Planning Corporation
a Phoenix Mutual company
For assistance call 000-000-0000
(Connecticut residents call collect)
278-8050
