FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of March, 2008 (the
"Agreement") by and among PHL Variable Insurance Company, organized under the
laws of the State of Connecticut (the "Company"), on behalf of itself and each
separate account of the Company named in Schedule A to this Agreement, as may
be amended from time to time (each account referred to as the "Account" and
collectively as the "Accounts"); Financial Investors Variable Insurance Trust,
an open-end management investment company organized under the laws of the State
of Delaware (the "Fund"); ALPS Advisers, Inc., a corporation organized under
the laws of the State of Colorado and investment adviser to the Fund (the
"Adviser"); and ALPS Distributors, Inc., a corporation organized under the laws
of the State of Colorado and principal underwriter/distributor of the Fund (the
"Distributor").
WHEREAS, the Fund engages in business as an open-end management investment
company and was established for the purpose of serving as the investment
vehicle for separate accounts established for variable life insurance policies
and variable annuity contracts (the "Contracts") to be offered by insurance
companies that have entered into participation agreements substantially similar
to this Agreement (the "Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Company, as depositor, has established the Accounts to serve as
investment vehicles for certain Contracts and funding agreements offered by the
Company set forth on Schedule A; and
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolutions of the Board of Directors of the Company
under the insurance laws of the State of Connecticut, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule B,
as such schedule may be amended from time to time (the "Designated Portfolios")
on behalf of the Accounts to fund the Contracts;
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NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Adviser and the Distributor agree as follows:
ARTICLE I - SALE OF FUND SHARES
1.1 The Fund agrees to sell to the Company those shares of the Designated
Portfolios that each Account orders, executing such orders on a daily basis
at the net asset value ("NAV") (and with no sales charges) next computed
after receipt and acceptance by the Fund or its designee of the order for
the shares of the Fund. In accordance with Rule 22c-1 of the Investment
Company Act of 1940 ("1940 Act") and for purposes of this Section 1.1, the
Company will be the designee of the Fund for receipt of such orders from
each Account and receipt by such designee will constitute receipt by the
Fund; provided that the Fund receives notice of such order by 11:00 a.m.
Eastern Time on the next following business day. "Business Day" will mean
any day on which the New York Stock Exchange is open for trading and on
which the Fund calculates its net asset value pursuant to the rules of the
Securities and Exchange Commission (the "Commission" or the "SEC"). The
Fund may net the notice of redemptions it receives from the Company under
Section 1.3 of this Agreement against the notice of purchases it receives
from the Company under this Section 1.1.
1.2 The Company will pay for Fund shares on the next Business Day after an
order to purchase Fund shares is made in accordance with Section 1.1.
Payment will be made in federal funds transmitted by wire. Upon receipt by
the Fund of the payment, such funds shall cease to be the responsibility of
the Company and shall become the responsibility of the Fund.
1.3 The Fund agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests
on a daily basis at the NAV next computed after receipt and acceptance by
the Fund or its agent of the request for redemption. For purposes of this
Section 1.3, the Company will be the designee of the Fund for receipt of
requests for redemption from each Account and receipt by such designee will
constitute receipt by the Fund; provided the Fund receives notice of such
requests for redemption by 11:00 a.m. Eastern Time on the next following
Business Day. Payment will be made in federal funds transmitted by wire to
the Company's account as designated by the Company in writing from time to
time, on the same Business Day the Fund receives notice of the redemption
order from the Company. After consulting with the Company, the Fund
reserves the right to delay payment of redemption proceeds, but in no event
may such payment be delayed longer than the period permitted under
Section 22(e) of the 0000 Xxx. The Fund will not bear any responsibility
whatsoever for the proper disbursement or crediting of redemption proceeds;
the Company alone will be responsible for such action. If notification of
redemption is received after 11:00 Eastern Time, payment for redeemed
shares will be made on the next Business Day. The Fund may net the notice
of purchases it receives from the Company under Section 1.1 of this
Agreement against the notice of redemptions it receives from the Company
under this Section 1.3.
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1.4 The Fund agrees to make shares of the Designated Portfolios available
continuously for purchase at the applicable NAV per share by the Company
and its separate accounts on those days on which the Fund calculates its
Designated Portfolio NAV pursuant to rules of the Commission; provided,
however, that the Board of Trustees of the Fund (the "Fund Board") 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 Fund Board, acting in good faith and in light of
its fiduciary duties under federal and any applicable state laws, necessary
in the best interests of the shareholders of such Portfolio.
1.5 The Fund agrees that shares of the Fund will be sold only to Participating
Insurance Companies and their separate accounts, qualified pension and
retirement plans or such other persons as are permitted under
Section 817(h)(4) of the Internal Revenue Code of 1986, as amended, (the
"Code"), and regulations promulgated thereunder, the sale to which will not
impair the tax treatment currently afforded the Contracts. No shares of any
Portfolio will be sold directly to the general public.
1.6 The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund in accordance
with the provisions of such prospectus.
1.7 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or to any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate sub-account of each
Account.
1.8 The Fund will furnish same day notice (by facsimile) to the Company of the
declaration of any income, dividends or capital gain distributions payable
on each Designated Portfolio's shares. The Company hereby elects to receive
all such dividends and distributions as are payable on the Portfolio shares
in the form of additional shares of that Portfolio at the ex-dividend date
NAVs. The Company reserves the right to revoke this election and to receive
all such dividends and distributions in cash. The Fund will notify the
Company of the number of shares so issued as payment of such dividends and
distributions.
1.9 The Fund will make the NAV per share for each Designated Portfolio
available to the Company via electronic means on a daily basis as soon as
reasonably practical after the NAV per share is calculated and will use its
best efforts to make such NAV per share available by 7:00 p.m. Eastern Time
each Business Day. If the Fund provides the Company materially incorrect
NAV per share information (as determined under SEC guidelines), the Company
shall be entitled to an adjustment to the number of shares purchased or
redeemed to reflect the correct NAV per share. Any material error in the
calculation or reporting of NAV per share, dividend or capital gain
information shall be reported to the Company upon discovery by the Fund.
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ARTICLE II - REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that the Contracts are or will be
registered under the Securities Act of 1933 (the "1933 Act"), or are exempt
from registration thereunder, and that the Contracts will be issued and
sold in compliance with all applicable federal and state laws. The Company
represents and warrants that it is an insurance company duly organized and
in good standing under the laws of Connecticut and that it has legally and
validly established each Account as a segregated asset account under such
laws. Each Account is or will be registered as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts, or is exempt from registration
thereunder, and that it will maintain such registration for so long as any
Contracts are outstanding, as applicable. The Company will amend the
registration statement under the 1933 Act for the Contracts and the
registration statement under the 1940 Act for the Account from time to time
as required in order to effect the continuous offering of the Contracts or
as may otherwise be required by applicable law. The Company will register
and qualify the Contracts for sale in accordance with the securities laws
of the various states only if and to the extent deemed necessary by the
Company.
2.2 The Company represents that the Contracts are currently and at the time of
issuance will be treated as annuity contracts and/or life insurance
policies (as applicable) under applicable provisions of the Code, and
further represents that it will make every effort to maintain such
treatment and that it will notify the Fund and the Adviser immediately upon
having a reasonable basis for believing that the Contracts have ceased to
be so treated or that they might not be so treated in the future.
2.3 The Company represents and warrants that it will not purchase shares of the
Designated Portfolio(s) with assets derived from tax-qualified retirement
plans except, indirectly, through Contracts purchased in connection with
such plans.
2.4 The Company represents and warrants that it will adhere to its own policy
intended to discourage shareholders from trading that could be detrimental
to long-term shareholders of the Fund (the "Policy") and that the Policy
complies with Rule 22c-2 under the Investment Company Act of 1940, as
amended (the "1940 Act"). The aforesaid includes among other things, the
monitoring of shareholder/participant trading activity and the restriction
of shareholder/participant trading privileges at the sub-account level if
warranted by the Fund. The Fund and the Company represent that they will
enter into an information sharing agreement pursuant to Rule 22c-2 of the
1940 Act so that the Fund may monitor and apply restrictions to
shareholders who the Fund determines to be disruptive. The
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Company represents that it shall process orders relating to Contract
transactions and such orders will be processed in accordance with
Section 22(c) and Rule 22c-1 under the 1940 Act on each Business Day and
receipt by the Company shall constitute receipt by the Fund; provided that
Fund receives notice of such orders by 11:00 a.m. Eastern Time on the next
Business Day or such later time as computed in accordance with Section 1.
2.5 The Fund represents and warrants that shares of the Designated Portfolio(s)
sold pursuant to this Agreement will be registered under the 1933 Act and
duly authorized for issuance in accordance with applicable federal law and
that the Fund is and will remain registered as an open-end management
investment company under the 1940 Act for as long as such shares of the
Designated Portfolio(s) are sold. The Fund will amend the registration
statement for its shares under the 1933 Act and the 1940 Act from time to
time as required in order to effect the continuous offering of its shares.
The Fund will register and qualify the shares of the Designated
Portfolio(s) for sale in accordance with the laws of the various states
only if and to the extent deemed necessary by the Fund.
2.6 The Fund represents that it will use its best efforts to comply with any
applicable state insurance laws or regulations as they may apply to the
investment objectives, policies and restrictions of the Portfolios, as they
may apply to the Fund, to the extent specifically requested in writing by
the Company. If the Fund cannot comply with such state insurance laws or
regulations, it will so notify the Company in writing. The Fund makes no
other representation as to whether any aspect of its operations (including,
but not limited to, fees and expenses, and investment policies) complies
with the insurance laws or regulations of any state. The Company represents
that it will use its best efforts to notify the Fund of any restrictions
imposed by state insurance laws that may become applicable to the Fund as a
result of the Accounts' investments therein. The Fund and the Adviser agree
that they will furnish the information required by state insurance laws to
assist the Company in obtaining the authority needed to issue the Contracts
in various states.
2.7 The Fund represents that its Board of Trustees ("Board"), a majority of
whom are not "interested persons" of the Fund, have approved of the Fund's
Class II Rule 12b-1 Plan to finance distribution expenses and that any
changes to the Fund's Class II Rule 12b-1 Plans will be approved by a
similarly constituted Board.
2.8 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply in
all material respects with applicable provisions of the 1940 Act.
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2.9 The Fund represents and warrants that all of its trustees, officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Fund are and continue to be
at all times covered by a blanket fidelity bond or similar coverage for
the benefit of the Fund in an amount not less than the minimal coverage as
required currently by Rule 17g-(1) of the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.10 The Adviser represents and warrants that it is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as amended,
and will remain duly registered under all applicable federal and state
securities laws and that it will perform its obligations for the Fund in
accordance in all material respects with the laws of the State of Delaware
and any applicable state and federal securities laws.
2.11 The Distributor represents and warrants that it is registered as a
broker-dealer under the Securities and Exchange Act of 1934, as amended
(the "1934 Act") and will remain duly registered under all applicable
federal and state securities laws, and is a member in good standing of the
Financial Industry Regulatory Authority. ("FINRA") and serves as principal
underwriter/distributor of the Funds and that it will perform its
obligations for the Fund in accordance in all material respects with the
laws of the State of Colorado and any applicable state and federal
securities laws.
ARTICLE III - FUND COMPLIANCE
3.1 The Fund and the Adviser acknowledge that any failure (whether intentional
or in good faith or otherwise) to comply with the requirements of
Subchapter M of the Code or the diversification requirements of
Section 817(h) of the Code may result in the Contracts not being treated as
variable contracts for federal income tax purposes, which would have
adverse tax consequences for Contract owners and could also adversely
affect the Company's corporate tax liability. The Fund and the Adviser
further acknowledge that any such failure may result in costs and expenses
being incurred by the Company in obtaining whatever regulatory
authorizations are required to substitute shares of another investment
company for those of the failed Fund, as well as fees and expenses of legal
counsel and other advisors to the Company and any federal income taxes,
interest or tax penalties incurred by the Company in connection with any
such failure.
3.2 The Fund represents and warrants that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Code, and that it
will maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify the Company immediately upon
having a reasonable basis for believing that it has ceased to so qualify or
that it might not so qualify in the future.
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3.3 The Fund represents that it will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be treated
as variable contracts under the Code and the regulations issued thereunder;
including, but not limited to, that the Fund will at all times comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, as amended from
time to time, relating to the diversification requirements for variable
annuity, endowment, or life insurance contracts, and with Section 817(d) of
the Code, relating to the definition of a variable contract, and any
amendments or other modifications to such Section or Regulation. The Fund
will notify the Company immediately upon having a reasonable basis for
believing that the Fund or a Portfolio thereunder has ceased to comply with
the diversification requirements or that the Fund or Portfolio might not
comply with the diversification requirements in the future. In the event of
a breach of this representation by the Fund, it will take all reasonable
steps to adequately diversify the Fund so as to achieve compliance within
the grace period afforded by Treasury Regulation 1.817-5.
3.4 The Adviser agrees to provide the Company with a certificate or statement
indicating compliance by each Portfolio of the Fund with Section 817(h) of
the Code, such certificate or statement to be sent to the Company no later
than thirty (30) days following the end of each calendar quarter.
ARTICLE IV - PROSPECTUS AND PROXY STATEMENTS/VOTING
4.1 The Fund will provide the Company with as many copies of the current Fund
prospectus and any supplements thereto for the Designated Portfolio(s) as
the Company may reasonably request for distribution, at the Fund's expense,
to Contract owners at the time of Contract fulfillment and confirmation. To
the extent that the Designated Portfolio(s) are one or more of several
Portfolios of the Fund, the Fund shall bear the cost of providing the
Company only with disclosure related to the Designated Portfolio(s). The
Fund will provide, at the Fund's expense, as many copies of said prospectus
as necessary for distribution, at the Fund's expense, to existing Contract
owners. The Fund will provide the copies of said prospectus to the Company
or to its mailing agent. The Company will distribute the prospectus to
existing Contract owners and will xxxx the Fund for the reasonable cost of
such distribution. If requested by the Company, in lieu thereof, the Fund
will provide such documentation, including a final copy of a current
prospectus set in type at the Fund's expense, and other assistance as is
reasonably necessary in order for the Company at least annually (or more
frequently if the Fund prospectus is amended more frequently) to have the
new prospectus for the Contracts and the Fund's new prospectus printed
together, in which case the Fund agrees to pay its proportionate share of
reasonable expenses directly related to the required disclosure of
information concerning the Fund. The Fund will, upon request, provide the
Company with a copy of the Fund's prospectus through electronic means to
facilitate the Company's efforts to provide Fund prospectuses via
electronic delivery, in which case the Fund agrees to pay its proportionate
share of reasonable expenses related to the required disclosure of
information concerning the Fund.
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4.2 The Fund's prospectus will state that the Statement of Additional
Information (the "SAI") for the Fund is available from the Company. The
Fund will provide the Company, at the Fund's expense, with as many copies
of the SAI and any supplements thereto as the Company may reasonably
request for distribution, at the Fund's expense, to prospective Contract
owners and applicants. To the extent that the Designated Portfolio(s) are
one or more of several Portfolios of the Fund, the Fund shall bear the cost
of providing the Company only with disclosure related to the Designated
Portfolio(s). The Fund will provide, at the Fund's expense, as many copies
of said SAI as necessary for distribution, at the Fund's expense, to any
existing Contract owner who requests such statement or whenever state or
federal law requires that such statement be provided. The Fund will provide
the copies of said SAI to the Company or to its mailing agent. The Company
will distribute the SAI as requested or required and will xxxx the Fund for
the reasonable cost of such distribution.
4.3 The Fund, at its expense, will provide the Company or its mailing agent
with copies of its proxy material, if any, reports to shareholders/Contract
owners and other permissible communications to shareholders/Contract owners
in such quantity as the Company will reasonably require. The Company will
distribute this proxy material, reports and other communications to
existing Contract owners and will xxxx the Fund for the reasonable cost of
such distribution.
4.4 If and to the extent required by law, the Company will:
(a) solicit voting instructions from Contract owners;
(b) vote the shares of the Designated Portfolios held in the Account in
accordance with instructions received from Contract owners; and
(c) vote shares of the Designated Portfolios held in the Account for which
no timely instructions have been received, in the same proportion as
shares of such Designated Portfolio for which instructions have been
received from the Company's Contract owners, so long as and to the
extent that the Commission continues to interpret the 1940 Act to
require pass-through voting privileges for Contract owners.
The Company reserves the right to vote Fund shares held in any segregated
asset account in its own right, to the extent permitted by law. The
Company will be responsible for assuring that the Accounts participating
in the Fund calculate voting privileges in a manner consistent with all
legal requirements, including the Proxy Voting Procedures set forth in
Schedule C and the Mixed and Shared Funding Exemptive Order as described
in Section 7.1.
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4.5 The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Fund either will provide for annual
meetings (except insofar as the Commission may interpret Section 16 of the
1940 Act not to require such meetings) or, as the Fund currently intends,
to comply with Section 16(c) of the 1940 Act (although the Fund is not one
of the trusts described in Section 16(c) of the 0000 Xxx) as well as with
Section 16(a) and, if and when applicable, Section 16(b). Further, the Fund
will act in accordance with the Commission's interpretation of the
requirements of Section 16(a) with respect to periodic elections of
directors and with whatever rules the Commission may promulgate with
respect thereto.
ARTICLE V - SALES MATERIAL AND OTHER PROMOTIONAL MATERIAL
5.1 For purposes of this Article V, the phrase "sales literature and other
promotional material" includes, but is not limited to, advertisements (such
as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media,
(i.e., on-line networks such as the Internet or other electronic
messages)), any written communication distributed or made generally
available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, SAIs, shareholder reports, and proxy materials and any
amendments or supplements to, or reprints or excerpts of, any of the above
and any other material constituting sales literature or advertising under
FINRA rules, the 1933 Act or the 0000 Xxx.
5.2 The Company will furnish, or will cause to be furnished, to the Fund or the
Adviser, each piece of sales literature and other promotional material in
which the Fund or the Adviser is named, at least ten (10) Business Days
prior to its use. No such material will be used if the Distributor, on
behalf of the Fund, reasonably objects to such use within five (5) Business
Days after receipt of such material.
5.3 The Company will not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in sales literature and other promotional material provided by
the Distributor, except with permission of the Fund or the Adviser. The
Fund and the Adviser agree to respond to any request for approval on a
prompt and timely basis.
5.4 The Distributor or the Adviser will furnish, or will cause to be furnished,
to the Company or its designee, each piece of sales literature and other
promotional material in which the Company or its separate account is named,
at least ten (10) Business Days prior to its use. No such material will be
used if the Company reasonably objects to such use within five (5) Business
Days after receipt of such material.
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5.5 The Fund, Distributor and the Adviser will not give any information or make
any representations or statements on behalf of the Company or concerning
the Company, each Account, or the Contracts other than the information or
representations contained in sales literature and other promotional
material provided by the Company, except with permission of the Company.
The Company agrees to respond to any request for approval on a prompt and
timely basis.
5.6 The Distributor will provide to the Company at least one complete copy of
all sales literature and other promotional material, applications for
exemptions, requests for no-action letters, and all amendments to any of
the above, that relate to the Fund or its shares, within a reasonable time
after the filing of each such document with the Commission or FINRA.
5.7 The Company will provide to the Distributor at least one complete copy of
all solicitations for voting instructions, sales literature and other
promotional material, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate to the
Contracts or each Account, contemporaneously with the filing of each such
document with the Commission or FINRA (except that with respect to
post-effective amendments to such prospectuses and SAIs and sales
literature and promotional material, only those prospectuses and SAIs and
sales literature and other promotional material that relate to or refer to
the Fund will be provided). In addition, the Company will provide to the
Fund at least one complete copy of (i) a registration statement that
relates to the Contracts or each Account, containing representative and
relevant disclosure concerning the Fund; and (ii) any post-effective
amendments to any registration statements relating to the Contracts or such
Account that refer to or relate to the Fund.
5.8 The Fund, the Adviser and the Distributor hereby consent to the Company's
use of the names of the Fund, Adviser and/or the Distributor as well as the
names of the Portfolios set forth in Schedule B of this Agreement, in
connection with marketing the Contracts, subject to the terms of Sections
5.1 of this Agreement. The Company acknowledges and agrees that the Adviser
and Distributor and/or their affiliates own all right, title and interest
in and to the name and covenants and agrees not, at any time, to challenge
the rights of Adviser and Distributor and/or their affiliates to such name
or design, or the validity or distinctiveness thereof. The Fund, the
Adviser and the Distributor hereby consent to the use of any trademark,
trade name, service xxxx or logo used by the Fund, the Adviser and the
Distributor, subject to the Fund's, the Adviser's and/or the Distributor's
approval of such use and in accordance with reasonable requirements of the
1940 Act, the Adviser or the Distributor. Such consent will terminate with
the termination of this Agreement. The Adviser, Distributor or the Fund may
withdraw
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this consent as to any particular use of any such name or identifying marks
at any time (i) upon the Adviser's, Distributor's or Fund's reasonable
determination that such use would have a material adverse effect on the
reputation or marketing efforts of the Adviser, the Distributor or the Fund
or (ii) if no investment company, or series or class of shares of any
investment company advised by Adviser or distributed by Distributor
continues to be offered through Contracts issued by the Company; provided
however, that Adviser or Distributor may, in either's individual
discretion, continue to use materials prepared or printed prior to the
withdrawal of such authorization. The Company agrees and acknowledges that
all use of any designation comprised in whole or in part of the name,
trademark, trade name, service xxxx and logo under this Agreement shall
inure to the benefit of the Fund, Adviser and/or the Distributor.
5.9 The Fund, the Adviser, the Distributor and the Company agree to adopt and
implement procedures reasonably designed to ensure that information
concerning the Company, the Fund, the Adviser or the Distributor,
respectively, and their respective affiliated companies, that is intended
for use only by investment professionals selling the Contracts is properly
marked as not for use with the general public and that such information is
only so used.
ARTICLES VI - FEES, COSTS AND EXPENSES
6.1 The Fund will pay no fee or other compensation to the Company under this
Agreement except that: (1) for Class I and Class II shares of the Fund, the
Adviser may make payments to the Company or any distributor for the
Contracts in an amount agreed to between the Adviser and the Company and as
set forth under Schedule D; and (2) for Class II shares only, the
Distributor may, on behalf of the Fund, make payments as set forth in
Schedule D to the Company out of the Fund's own assets pursuant to Rule
12b-1 under the 1940 Act in recognition of the distribution related
activities provided by the Company on behalf of the Fund to Contract owners
who allocate assets to the Class II Portfolios, and/or in recognition of
the economies provided to the Fund as a result of accounting and
recordkeeping services provided to Contract owners by the Company utilizing
an omnibus relationship.
6.2 All expenses incident to performance by the Fund of this Agreement will be
paid by the Fund to the extent permitted by law. The Fund will bear the
expenses for the cost of registration and qualification of the Fund's
shares, including without limitation, the preparation of and filing all
applicable forms with the SEC; and payment of all applicable registration
or filing fees with respect to shares of the Fund; preparation and filing
of the Fund's prospectus, SAI and registration statement, proxy materials
and reports; typesetting the Fund's prospectus; typesetting and printing
proxy materials and reports to Contract owners (including the costs of
printing a Fund prospectus that constitutes an annual report);
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the preparation of all statements and notices required by any federal or
state law; all taxes on the issuance or transfer of the Fund's shares; any
expenses permitted to be paid or assumed by the Fund pursuant to a plan, if
any, under Rule 12b-1 under the 1940 Act; and other costs associated with
preparation of prospectuses and SAIs for the Designated Portfolios in
electronic or typeset format, as well as any distribution expenses as set
forth in Article IV of this Agreement.
6.3 Except as otherwise provided in this Agreement, each party shall bear all
expenses incidental to the performance of its obligations under this
Agreement.
ARTICLE VII - MIXED & SHARED FUNDING RELIEF
7.1 The Fund represents and warrants that it has applied for and received an
order (File No. IC-27999) from the Commission granting Participating
Insurance Companies and variable annuity separate accounts and variable
life insurance separate accounts relief from the provisions of Sections
9(a), 13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Fund to be sold to and held by variable annuity separate accounts and
variable life insurance separate accounts of both affiliated and
unaffiliated Participating Insurance Companies and qualified pension and
retirement plans outside of the separate account context (the "Mixed and
Shared Funding Exemptive Order"). The parties to this Agreement agree that
the conditions or undertakings specified in the Mixed and Shared Funding
Exemptive Order, when granted, and that may be imposed on the Company, the
Fund and/or the Adviser by virtue of the receipt of such order by the
Commission, will be incorporated herein by reference, and such parties
agree to comply with such conditions and undertakings to the extent
applicable to each such party.
ARTICLE VIII - INDEMNIFICATION
8.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Adviser, the Distributor, and each person, if any, who controls or is
associated with the Fund, the Adviser, or the Distributor within the
meaning of such term under the federal securities laws and any
director, trustee, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, expenses, damages,
liabilities (including amounts paid in settlement with the written
consent of the Company) or actions in respect thereof (including
reasonable legal and other expenses), to which the Indemnified Parties
may become subject under any statute, regulation, at common law or
otherwise, insofar
12
as such losses, claims, damages, liabilities or expenses (or actions
in respect thereof) or settlements:
(1) arise out of any untrue statement or alleged untrue statement of
any material fact contained in the registration statement,
prospectus or SAI for the Contracts or contained in the Contracts
or sales literature or other promotional material for the
Contracts (or any amendment or supplement to any of the
foregoing), or arise out of the omission or alleged omission to
state therein a material fact required to be stated or necessary
to make such statements not misleading in light of the
circumstances in which they were made; provided that this
agreement to indemnify will not apply as to any Indemnified Party
if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the Fund,
the Adviser, or the Distributor for use in the registration
statement, prospectus or SAI for the Contracts or in the Contracts
or sales literature or other promotional material (or any
amendment or supplement to any of the foregoing) or otherwise for
use in connection with the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations by or
on behalf of the Company (other than statements or representations
contained in the Fund registration statement, prospectus, SAI or
sales literature or other promotional material of the Fund, or any
amendment or supplement to the foregoing, not supplied by the
Company or persons under its control) or wrongful conduct of the
Company or persons under its control, with respect to the sale or
distribution of the Contracts or Fund shares; or
(3) arise out of untrue statement or alleged untrue statement of a
material fact contained in the Fund registration statement,
prospectus, SAI or sales literature or other promotional material
of the Fund (or any amendment or supplement to the foregoing) or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make such statements
not misleading in light of the circumstances in which they were
made, if such a statement or omission was made in reliance upon
and in conformity with information furnished to the Fund by or on
behalf of the Company or persons under its control; or
13
(4) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
(5) arise out of any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of any
other material breach by the Company of this Agreement; except to
the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification will be in addition to any liability that the
Company otherwise may have.
(b) No party will be entitled to indemnification under Section 8.1(a) if
such loss, claim, damage, liability, expense action or settlement is
due to the willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by reason
of such party's reckless disregard of its obligations or duties under
this Agreement.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with the issuance or
sale of the Fund shares or the Contracts or the operation of the Fund.
8.2 Indemnification by the Adviser & Distributor
(a) The Adviser and Distributor agree to indemnify and hold harmless the
Company and each person, if any, who controls or is associated with
the Company within the meaning of such term under the federal
securities laws and any director, officer, employee or agent of the
foregoing (collectively, the "Indemnified Parties" for purposes of
this Section 8.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the
written consent of the Adviser and Distributor) or actions in respect
thereof (including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements:
(1) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract registration statements, prospectuses
or SAIs or sales literature or other promotional material for the
Contracts, or any amendment or supplement to the foregoing, not
supplied by the Adviser, the Distributor, or persons under the
control of the Adviser, the Distributor, respectively) or wrongful
conduct of the Adviser, the Distributor, or persons under the
control of the Adviser, the Distributor, respectively, with
respect to the sale or distribution of the Contracts shares; or
14
(2) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
SAI or sales literature or other promotional material covering the
Contracts (or any amendment or supplement thereto), or the
omission or alleged omission to state therein a material fact
required to be stated or necessary to make such statement or
statements not misleading in light of the circumstances in which
they were made, if such statement or omission was made in reliance
upon and in conformity with information furnished to the Company
by or on behalf of the Adviser, the Distributor, or persons under
any of their control; or
(3) arise as a result of any failure the Distributor or the Adviser to
provide the services and furnish the materials under the terms of
this Agreement; or
(4) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser or the
Distributor in this Agreement, or arise out of or result from any
other material breach of this Agreement by the Adviser or the
Distributor (including a failure, whether intentional or in good
faith or otherwise, to comply with the requirements of Subchapter
M of the Code specified in Article III, Section 3.2 of this
Agreement and the diversification requirements specified in
Article III, Section 3.3 of this Agreement, as described more
fully in Section 8.5 below); except to the extent provided in
Sections 8.2(b) and 8.4 hereof. This indemnification will be in
addition to any liability that the Adviser or Distributor
otherwise may have.
(b) No party will be entitled to indemnification under Section 8.2(a) if
such loss, claim, damage, liability, expense, action or settlement is
due to the willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by reason
of such party's reckless disregard of its obligations or duties under
this Agreement.
(c) The Indemnified Parties will promptly notify the Adviser, and the
Distributor of the commencement of any litigation, proceedings,
complaints or actions by regulatory authorities against them in
connection with the issuance or sale of the Contracts or the operation
of the Account.
8.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the Company and each
person, if any, who controls or is associated with the Company within
the meaning of such term under the federal securities laws and any
director, officer, employee or agent of the foregoing (collectively,
the "Indemnified Parties" for purposes of this Section 8.3) against
any and all losses, claims, expenses, damages, liabilities (including
amounts paid in settlement with the written consent of the Fund) or
action in respect thereof (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under
any statute, regulation, at common law or
15
otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements, are related
to the operations of the Fund and:
(1) arise out of any untrue statement or alleged untrue statement of
any material fact contained in the registration statement,
prospectus or SAI for the Fund or sales literature or other
promotional material of the Fund (or any amendment or supplement
to any of the foregoing), or arise out of the omission or alleged
omission to state therein a material fact required to be stated or
necessary to make such statements not misleading in light of the
circumstances in which they were made; provided that this
agreement to indemnify will not apply as to any Indemnified Party
if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the Company
for use in the registration statement, prospectus or SAI for the
Fund or in sales literature or other promotional material of the
Fund (or any amendment or supplement thereto) or otherwise for use
in connection with the sale of Fund shares; or
(2) arise out of or as a result of statements or representations
(other than statements or representations contained in the Fund
registration statements, prospectuses or SAIs or sales literature
or other promotional material of the Fund, or any amendment or
supplement to the foregoing, not supplied by the Fund or persons
under the control of the Fund) or wrongful conduct of the Fund or
persons under the control of the Fund, with respect to the sale or
distribution of Fund shares; or
(3) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement; or
(4) arise out of any material breach of any representation and/or
warranty made by the Fund in this Agreement or arise out of any
other material breach of this Agreement by the Fund (including a
failure, whether intentional or in good faith or otherwise, to
comply with the requirements of Subchapter M of the Code specified
in Article III, Section 3.2 of this Agreement and the
diversification requirements specified in Article III, Section 3.3
of this Agreement as described more fully in Section 8.5 below); or
(5) arise out of the incorrect or untimely calculation or reporting of
daily net asset value per share or dividend or capital gain
distribution rate; except to the extent provided in Sections
8.3(b) and 8.4 hereof. This indemnification will be in addition to
any liability that the Fund otherwise may have.
16
(b) No party will be entitled to indemnification under Section 8.3(a) if
such loss, claim, damage, liability, expense action or settlement is
due to the willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by reason
of such party's reckless disregard of its obligations and duties under
this Agreement.
(c) The Indemnified Parties will promptly notify the Fund of the
commencement of any litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with the issuance or
sale of the Contracts or the operation of the Account.
8.4 Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.4) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.4) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the claim
upon such Indemnified Party (or after such party will have received notice
of such service on any designated agent), but failure to notify the
Indemnifying Party of any such claim will not relieve the Indemnifying
Party from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of the
indemnification provision of this Article VIII, except to the extent that
the failure to notify results in the failure of actual notice to the
Indemnifying Party and such Indemnifying Party is damaged solely as a
result of failure to give such notice. In case any such action is brought
against the Indemnified Party, the Indemnifying Party will be entitled to
participate, at its own expense, in the defense thereof. The Indemnifying
Party also will be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Indemnifying Party to the Indemnified Party of the Indemnifying Party's
election to assume the defense thereof, the Indemnified Party will bear
the fees and expenses of any additional counsel retained by it, and the
Indemnifying Party will not be liable to such party under this Agreement
for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs of investigation, unless: (a) the Indemnifying Party and the
Indemnified Party will have mutually agreed to the retention of such
counsel; or (b) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
The Indemnifying Party will not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there is a final judgment for the plaintiff, the Indemnifying
17
Party agrees to indemnify the Indemnified Party from and against any loss
or liability by reason of such settlement or judgment. A successor by law
of the parties to this Agreement will be entitled to the benefits of the
indemnification contained in this Article VIII. The indemnification
provisions contained in this Article VIII will survive any termination of
this Agreement.
8.5 Indemnification for Failure to Comply with Diversification Requirements
The Fund, the Adviser and the Distributor acknowledge that any failure
(whether intentional or in good faith or otherwise) to comply with the
diversification requirements specified in Article III, Section 3.3 of this
Agreement may result in the Contracts not being treated as variable
contracts for federal income tax purposes, which would have adverse tax
consequences for Contract owners and could also adversely affect the
Company's corporate tax liability. Accordingly, without in any way
limiting the effect of Sections 8.2(a) and 8.3(a) hereof and without in
any way limiting or restricting any other remedies available to the
Company, the Fund, the Adviser and the Distributor will pay on a joint and
several basis all costs associated with or arising out of any failure, or
any anticipated or reasonably foreseeable failure, of the Fund or any
Portfolio to comply with Section 3.3 of this Agreement, including all
costs associated with correcting or responding to any such failure; such
costs may include, but are not limited to, the costs involved in creating,
organizing, and registering a new investment company as a funding medium
for the Contracts and/or the costs of obtaining whatever regulatory
authorizations are required to substitute shares of another investment
company for those of the failed Fund or Portfolio (including but not
limited to an order pursuant to Section 26(b) of the 1940 Act); fees and
expenses of legal counsel and other advisors to the Company and any
federal income taxes or tax penalties (or "toll charges" or exactments or
amounts paid in settlement) incurred by the Company in connection with any
such failure or anticipated or reasonably foreseeable failure. Such
indemnification and reimbursement obligation shall be in addition to any
other indemnification and reimbursement obligations of the Fund, the
Adviser and/or the Distributor under this Agreement.
ARTICLE IX - APPLICABLE LAW
9.1 This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Colorado.
9.2 This Agreement will be subject to the provisions of the 1933 Act, the 1934
Act and the 1940 Act, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
Commission may grant (including, but not limited to, the Mixed and Shared
Funding Exemptive Order) and the terms hereof will be interpreted and
construed in accordance therewith.
18
ARTICLE X - TERMINATION
10.1 This Agreement will terminate:
(a) at the option of any party, with or without cause, with respect to
one, some or all of the Portfolios, upon three (3) month's advance
written notice to the other parties or, if later, upon receipt of any
required exemptive relief or orders from the SEC, unless otherwise
agreed in a separate written agreement among the parties; or
(b) at the option of the Company, upon written notice to the other
parties, with respect to any Portfolio if shares of the Portfolio are
not reasonably available to meet the requirements of the Contracts as
determined in good faith by the Company; or
(c) at the option of the Company, upon written notice to the other
parties, with respect to any Portfolio in the event any of the
Portfolio's shares are not registered, issued or sold in accordance
with applicable state and/or federal law or such law precludes the use
of such shares as the underlying investment media of the Contracts
issued or to be issued by Company; or
(d) at the option of the Fund, upon written notice to the other parties,
upon institution of formal proceedings against the Company by FINRA,
the Commission, or any state securities or insurance department or any
other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the administration
of the Contracts, the operation of the Account, or the purchase of the
Fund shares, provided that the Fund determines in its sole judgment,
exercised in good faith, that any such proceeding would have a
material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company, upon written notice to the other
parties, upon institution of formal proceedings against the Fund, the
Distributor, or the Adviser by FINRA, the Commission or any state
securities or insurance department or any other regulatory body,
provided that the Company determines in its sole judgment, exercised
in good faith, that any such proceeding would have a material adverse
effect on the Fund's, the Distributor's, or the Adviser's ability to
perform its obligations under this Agreement; or
(f) at the option of the Company, upon written notice to the other
parties, if the Fund ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code, or under any successor or
similar provision, or if the Company reasonably and in good faith
believes that the Fund may fail to so qualify; or
19
(g) at the option of the Company, upon written notice to the other
parties, with respect to any Portfolio if the Fund fails to meet the
diversification requirements specified in Section 3.3 hereof or if the
Company reasonably and in good faith believes the Fund may fail to
meet such requirements; or
(h) at the option of any party to this Agreement, upon written notice to
the other parties, upon another party's material breach of any
provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith that either the Fund or the Adviser
has suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the subject
of material adverse publicity that is likely to have a material
adverse impact upon the business and operations of the Company, such
termination to be effective sixty (60) days' after receipt by the
other parties of written notice of the election to terminate; or
(j) at the option of the Fund or the Adviser, if the Fund or Adviser
respectively, determines in its sole judgment exercised in good faith
that the Company has suffered a material adverse change in its
business, operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity that is
likely to have a material adverse impact upon the business and
operations of the Fund or the Adviser, such termination to be
effective sixty (60) days' after receipt by the other parties of
written notice of the election to terminate; or
(k) at the option of the Company or the Fund upon receipt of any necessary
regulatory approvals and/or the vote of the Contract owners having an
interest in the Account (or any sub-account) to substitute the shares
of another investment company for the corresponding Portfolio's shares
of the Fund in accordance with the terms of the Contracts for which
those Portfolio shares had been selected to serve as the underlying
portfolio. The Company will give sixty (60) days' prior written notice
to the Fund of the date of any proposed vote or other action taken to
replace the Fund's shares or of the filing of any required regulatory
approval(s); or
(1) at the option of the Company or the Fund upon a determination by a
majority of the Fund Board, or a majority of the disinterested Fund
Board members, that an irreconcilable material conflict exists among
the interests of: (1) all Contract owners of variable insurance
products of all separate accounts; or (2) the interests of the
Participating Insurance Companies investing in the Fund as set forth
in Article VII of this Agreement; or
(m) in the event any of the Contracts are not issued or sold in accordance
with applicable federal and/or state law.
20
10.2 Notice Requirement
(a) No termination of this Agreement, except a termination under
Section 10.1(m) of this Agreement, will be effective unless and until
the party terminating this Agreement gives prior written notice to
all other parties of its intent to terminate, which notice will set
forth the basis for the termination.
(b) In the event that any termination of this Agreement is based upon the
provisions of Article VII, such prior written notice will be given in
advance of the effective date of termination as required by such
provisions.
10.3 Effect of Termination
Notwithstanding any termination of this Agreement, the Fund, the Adviser
and the Distributor will, at the option of the Company, continue to make
available additional shares of the Fund pursuant to the terms and
conditions of this Agreement, for all Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in the
Designated Portfolios (as in effect on such date), redeem investments in
the Designated Portfolios and/or invest in the Designated Portfolios upon
the making of additional purchase payments under the Existing Contracts.
The parties agree that this Section 10.3 will not apply to any
terminations under Article VII and the effect of such Article VII
terminations will be governed by Article VII of this Agreement.
10.4 Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive and
not be affected by any termination of this Agreement. In addition, with
respect to Existing Contracts, all provisions of this Agreement also will
survive and not be affected by any termination of this Agreement.
21
ARTICLE XI - NOTICES
Any notice will be deemed duly 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 parties.
If to the Company:
PHL Variable Insurance Company
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxx, Vice President
With Copy to:
PHL Variable Insurance Company
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
If to the Fund:
Financial Investors Variable Insurance Trust
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: President
If to the Adviser:
ALPS Advisers, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to the Distributor:
ALPS Distributors, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
ARTICLE XII - MISCELLANEOUS
12.1 All persons dealing with the Fund must look solely to the property of the
Fund for the enforcement of any claims against the Fund as neither the
trustees, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Fund.
12.2 Each party herein represents that it is either a financial institution
subject to the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA
Patriot Act") and the Bank Secrecy Act (collectively, the "AML Acts") or
it shall
22
perform under this Agreement and sell the Contracts as if it were subject
to the AML Acts, which require among other things, that financial
institutions adopt compliance programs to guard against money laundering,
and it is covered by a program that complies with the AML Acts and
applicable anti-money laundering ("AML") rules of self regulatory
organizations, such as NASD Rule 3011, in all relevant respects. The
Company agrees to cooperate with the Distributor to satisfy the
Distributor's due diligence policies, which may include annual AML
compliance certifications, periodic AML due diligence reviews and/or
other requests deemed necessary to ensure the Company's compliance with
the AML regulations.
12.3 In addition, the parties hereto agree that any Nonpublic Personal
Information, as the term is defined in SEC Regulation S-P ("Reg S-P"),
that may be disclosed by a party hereunder is disclosed for the specific
purpose of permitting the other party to perform the services set forth
in this Agreement. Each party agrees that, with respect to such
information, it will comply with Reg S-P and any other applicable
regulations and that it will not disclose any Nonpublic Personal
Information received in connection with this Agreement or any other
party, except to the extent required to carry out the services set forth
in this Agreement or as otherwise permitted by law.
12.4 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.5 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
12.6 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
12.7 This Agreement will not be assigned by any party hereto without the prior
written consent of all the parties.
12.8 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled
to under state and federal law.
12.9 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
12.10 Each party to this Agreement will cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Commission, FINRA and state insurance regulators) and will permit each
other and such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement
or the transactions contemplated hereby.
23
12.11 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or board action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
12.12 The parties to this Agreement may amend the schedules to this Agreement
in writing from time to time to reflect changes in or relating to the
Contracts, the Accounts or the Portfolios of the Fund or other applicable
terms of this Agreement.
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 as of the
date specified above.
PHL VARIABLE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
By: /s/ Xxxxxx X. May
--------------------------------------
Name: Xxxxxx X. May
Title: Treasurer
ALPS ADVISERS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
ALPS DISTRIBUTORS, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
24
PARTICIPATION AGREEMENT
SCHEDULE A
The following Separate Accounts of PHL Variable Insurance Company are permitted
in accordance with the provisions of this Agreement to invest in Portfolios of
the Fund shown in Schedule B:
Name of Separate Account
PHL Variable Accumulation Account II
25
PARTICIPATION AGREEMENT
SCHEDULE B
The Separate Account(s) shown on Schedule A may invest in the following
Portfolios of the Fund.
FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
Ibbotson Growth ETF Asset Allocation Portfolio - Class II
Ibbotson Balanced ETF Asset Allocation Portfolio - Class II
Ibbotson Income and Growth ETF Asset Allocation Portfolio - Class II
Ibbotson Conservative ETF Asset Allocation Portfolio - Class II
26
PARTICIPATION AGREEMENT
SCHEDULE C
PROXY VOTING PROCEDURES
The following is a list of procedures and corresponding responsibilities for
the handling of proxies and voting instructions relating to the Fund. The
defined terms herein shall have the meanings assigned in the Participation
Agreement except that the term "Company" shall also include the department or
third party, if any, assigned by the Company to perform the steps delineated
below.
1. The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting to
enable the Company to consider and prepare for the solicitation of voting
instructions from owners of the Contracts and to facilitate the
establishment of tabulation procedures. At this time the Fund will inform
the Company of the Record, Mailing and Meeting dates. This will be done
verbally approximately two months before the shareholder meeting.
2. Promptly after the Record Date, the Company will perform a "tape run", or
other activity, which will generate the names, addresses and number of
units attributable to each contract owner/policyholder (the "Customer") as
of the Record Date. Allowance should be made for account adjustments made
after this date that could affect the status of the Customers' accounts as
of the Record Date.
Note: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to call in
the number of Customers to the Fund, as soon as possible, but no later than
two weeks after the Record Date.
3. The Fund's Annual Report must be sent to each Customer by the Company
either before or together with the Customers' receipt of voting instruction
solicitation material. The Fund will provide the last Annual Report to the
Company pursuant to the terms of Section 6.2 of the Agreement to which this
Schedule relates.
4. The text and format for the Voting Instruction Cards ("Cards" or "Card") is
provided to the Company by the Fund. The Company, at its expense, shall
produce and personalize the Voting Instruction Cards. The Fund or its
affiliate must approve the Card before it is printed. Allow approximately
2-4 business days for printing information on the Cards. Information
commonly found on the Cards includes:
. name (legal name as found on account registration)
. address
. Fund or account number
. coding to state number of units
. individual Card number for use in tracking and verification of votes
(already on Cards as printed by the Fund).
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
5. During this time, the Fund will develop, produce and pay for the Notice of
Proxy and the Proxy Statement (one document). Printed and folded notices
and statements will be sent to Company for insertion into
00
xxxxxxxxx (xxxxxxxxx and return envelopes are provided and paid for by the
Company). Contents of envelope sent to Customers by the Company will
include:
. Voting Instruction Card(s)
. one proxy notice and statement (one document)
. return envelope (postage pre-paid by Company) addressed to the Company
or its tabulation agent
. "urge buckslip" - optional, but recommended. (This is a small, single
sheet of paper that requests Customers to vote as quickly as possible
and that their vote is important. One copy will be supplied by the
Fund.)
. cover letter - optional, supplied by Company and reviewed and approved
in advance by the Fund
6. The above contents should be received by the Company approximately 3-5
business days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to the Fund.
7. Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the Company as
the shareowner. (A 5-week period is recommended.) Solicitation time is
calculated as calendar days from (but NOT including,) the meeting, counting
backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry.
Note: Postmarks are not generally needed. A need for postmark information
would be due to an insurance company's internal procedure and has not been
required by the Fund in the past.
9. Signatures on Card checked against legal name on account registration
printed on the Card.
Note: For Example, if the account registration is under "Xxxx X. Xxxxx,
Trustee," then that is the exact legal name to be printed on the Card and
is the signature needed on the Card.
10. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter and a
new Card and return envelope. The mutilated or illegible Card is
disregarded and considered to be NOT RECEIVED for purposes of vote
tabulation. Any Cards that have been "kicked out" (e.g. mutilated,
illegible) of the procedure are "hand verified," i.e., examined as to why
they did not complete the system. Any questions on those Cards are usually
remedied individually.
11. There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
12. The actual tabulation of votes is done in units that are then converted to
shares. (It is very important that the Fund receives the tabulations stated
in terms of a percentage and the number of SHARES.) The Fund must review
and approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to the Fund on
the morning of the meeting not later than 10:00 a.m. Eastern time. The Fund
may request an earlier deadline if reasonable and if required to calculate
the vote in time for the meeting.
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14. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
The Fund will provide a standard form for each Certification.
15. The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, the Fund will be
permitted reasonable access to such Cards.
16. All approvals and "signing-off" may be done orally, but must always be
followed up in writing.
29
PARTICIPATION AGREEMENT
SCHEDULE D
In consideration of the services performed pursuant to this Agreement and as
set forth below the following fee/payment schedule shall apply.
12b-1
Name of Portfolio Share Class Trails
----------------- ----------- ------
Ibbotson Growth ETF Asset Allocation Portfolio........................ Class I None
Class II 0.25%
Ibbotson Balanced ETF Asset Allocation Portfolio...................... Class I None
Class II 0.25%
Ibbotson Income and Growth ETF Asset Allocation Portfolio............. Class I None
Class II 0.25%
Ibbotson Conservative ETF Asset Allocation Portfolio.................. Class I None
Class II 0.25%
In accordance with each Fund's then current prospectus, all fees, if any, shall
be paid based on the average daily net asset value of outstanding shares held
by shareholders receiving services described in the Agreement. Such payments
shall be computed daily and paid monthly in arrears. The determination of
average daily net assets shall be made at the close of each Business Day.
Total Assets Total Assets
Attributable to Attributable to
Shares of the Shares of the
Designated Portfolios Designated Portfolios Revenue Sharing
Held by the Accounts Held by the Accounts Will be Paid at an
From To Annual Rate of
--------------------- --------------------- ------------------
$ 0.00 $ 249,999,999.99 0.125%
$ 250,000,000.00 $ 999,999,999.99 0.150%
$1,000,000,000.00 $2,249,999,999.99 0.175%
$2,500,000,000.00 above 0.200%
Such payments shall be computed daily and paid monthly in arrears. The
determination of total assets attributable to shares of the Designated
Portfolios held by the Accounts shall be made at the close of each Business Day.
30
