Janus Capital Group
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
April 5, 2007
Valley Forge Life Insurance Company
c/o Swiss Re
Attn: Xxxxxxxx Xxxxxxxxx, Esq., Vice President
0000 Xxxxxxxx Xxx
Xxxx Xxxxx, XX 00000
Re: Action Requested - Distribution, Shareholder Servicing, Administrative
Servicing and Fund/SERV Agreements relating to Janus Adviser Series, Xxxxx Xxxxx
Series and/or Janus Investment Fund.
Dear Client:
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent ("Agent") for the
Intermediary in terms of the administration of the variable life and variable
annuity insurance products;
WHEREAS, the Intermediary and Xxxxx previously entered into Participation
Agreements allowing the Intermediary to offer certain Janus insurance dedication
mutual "Funds" through its Separate Accounts by way of the Intermediary's
variable life and variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment Company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22c-2 allows an agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, the Fund is a "fund" as defined by the Rule;
WHEREAS, the Intermediary is a "financial intermediary" as defined by the Rule;
WHEREAS, the Fund and the Agent desire to enter into this Shareholder
Information Agreement ("Agreement") to comply with requirements of the Rule;
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties intend to be legally bound and agree to the following:
1. Shareholder Information
1.1 Agreement to Provide Information. Agent agrees to provide Xxxxx, upon
written request, the taxpayer identification number ("TIN"), if known, of any or
all Shareholder(s) of the account and the amount, date, name or other identifier
of any investment professional(s) associated with the Shareholder(s) or account
(if known), and transaction type (purchase, redemption, transfer, or exchange)
of every purchase, redemption, transfer, or exchange of Shares held through an
account of Janus maintained by the Intermediary during the period covered by the
request. Unless otherwise specifically requested by the Fund, the Intermediary
shall only be required to provide information relating to Shareholder-Initiated
Transfer Purchases or Shareholder-Initiated Transfer Redemptions.
1.1.1 Period Covered by Request. Requests must set forth a specific period,
not to exceed ninety (90) days from the date of the request, for which
transaction information is sought. Unless Janus otherwise deems necessary to
investigate compliance with the policies established by Xxxxx for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by Xxxxx, requests will be made no more frequently than quarterly. Xxxxx
may request transaction information older than ninety (90) days from the date of
the request as it deems necessary to investigate compliance with policies
established by Xxxxx for the purpose of eliminating or reducing any dilution of
the value of the outstanding shares issued by Xxxxx.
1.1.2 Form and Timing of Response. Agent agrees to transmit the requested
information that is on its or Intermediary's books and records to Janus or its
designee promptly, but in any event no later than ten (10) business days, after
receipt of a request. If the requested information is not on its or the
Intermediary's books and records, Agent agrees to: (i) provide or arrange to
provide to Janus the requested information from shareholders who hold an account
with an indirect intermediary; or (ii) if directed by Xxxxx, block further
purchases of fund Shares from the indirect intermediary. In such instance, Agent
agrees to inform Xxxxx whether it plans to perform (i) or (ii). Responses
required by this paragraph must be communicated in writing and in a format
mutually agreed upon by the parties. To the extent practicable, the format for
any transaction information provided to Janus should be consistent with the NSCC
Standardized Data Reporting Format. For purposes of this provision, an "indirect
intermediary" has the same meaning as provided for in the Rule.
1.2 Agreement to Restrict Trading. Agent agrees to execute written instructions
from Xxxxx to restrict or prohibit further purchases or exchanges of Shares by a
Shareholder that has been identified by Xxxxx as having engaged in transactions
of the fund's Shares (directly or indirectly through the Intermediary's account)
that violate policies established by Xxxxx for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares issued by Xxxxx.
Unless otherwise directed by Xxxxx, any such restrictions or prohibitions shall
only apply to Shareholder-Initiated Transfer Redemptions that are affected
directly or indirectly through Intermediary. For purposes of this Letter
Agreement, "restrict" shall mean restricting the Shareholder's ability to place
trades for Fund shares via US Mail only.
1.2.1 Form of Instructions. Instructions must include the TIN, if known,
and the specific restriction(s) to be executed. If the TIN is not known, the
instructions must include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the instruction relates.
1.2.2 Timing of Response. Agent agrees to execute instructions as soon as
reasonably practicable, but not later than ten (10) business days after receipt
of the instructions by the Intermediary.
1.2.3 Confirmation by Intermediary. Agent must provide written confirmation
to Xxxxx that instructions have been executed. Agent agrees to provide
confirmation as soon as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
1.3 Miscellaneous
1.3.1 Acknowledgment. Agent represents and warrants that it acts as an
Agent to Valley Forge Life Insurance Company, and does not submit trades to
Janus for any other financial intermediaries other than Valley Forge Life
Insurance Company.
1.3.2 Limitations on Use of Transaction Information. Xxxxx agrees to only
use Transaction Information for the purposes of identifying Shareholders who may
be violating the Fund policies and procedures with respect to dilution of the
Fund's value as contemplated by Rule 22c-2 or to fulfill other regulatory or
legal requirements subject to the privacy provisions of Title V of the
Xxxxx-Xxxxx Xxxxxx Act (Public Law 106-102) and comparable state laws. Xxxxx
agrees: (1) the Transaction Information is confidential and that Xxxxx will not
share the Transaction Information externally, unless the Intermediary provides
the Fund with prior written consent to share such Transaction Information; (2)
not to share the Transaction Information internally, except on a "need to know
basis"; and (3) to notify the Intermediary immediately in the event that the
confidentiality of the Transaction Information is breached. Notwithstanding the
foregoing, the parties agree that Xxxxx may disclose shareholder information
provided by Intermediary pursuant to this Agreement to a third party service
provider hired by Xxxxx to assist Xxxxx with its obligations under this
Agreement and Rule 22c-2.
1.3.3 Notices. Instructions must be received by Agent in writing at the
following address, or such other address Agent may communicate to Xxxxx in
writing from time to time, including, if applicable, an e-mail and/or facsimile
telephone number:
Phoenix Life Insurance Companies
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
1.3.4 Redemption Fees. If the Fund implements a redemption fee in the
future that the Intermediary cannot implement within the requested timeframe
despite the Intermediary's best efforts, the Fund agrees to negotiate, in good
faith, an interim solution until such time that the redemption fee can be
successfully administered; provided, however, and to the extent that any such
solution is consistent with Fund and Janus policies and procedures.
1.3.5 Construction of the Agreement. Valley Forge Life Insurance Company
and Janus have entered into one or more Fund Participation Agreements between or
among them for the purchase and redemption of shares of the Funds by the
Accounts in connection with the Contracts. The Fund Participation Agreements are
hereby incorporated by reference into this Agreement, as this Agreement is
intended to supplement those Fund Participation Agreements. To the extent the
terms of this Agreement conflict with the terms of a Fund Participation
Agreement, the terms of this Agreement shall control.
1.4 Definitions. For purposes of this Letter Agreement:
1.4.1 The term "Shareholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Shareholder that results in a
transfer of assets within a Contract to a Fund, but does not include
transactions that are executed: (i) automatically pursuant to a contractual or
systematic program or enrollment such as transfer of assets within a Contract to
a Fund as a result of "dollar cost averaging" programs, insurance company
approved asset allocation programs, or automatic rebalancing programs; (ii)
pursuant to a Contract death benefit; (iii) one-time step-up in Contract value
pursuant to a Contract death benefit; (iv) allocation of assets to a Fund
through a Contract as a result of payments such as loan repayments, scheduled
contributions, retirement plan salary reduction contributions, or planned
premium payments to the Contract; or (v) pre-arranged transfers at the
conclusion of a required free look period.
1.4.2 The term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that results in a
transfer of assets within a Contract out of a Fund, but does not include
transactions that are executed: (i) automatically pursuant to a contractual or
systematic program or enrollments such as transfers of assets within a Contract
out of a Fund as a result of annuity payouts, loans, systematic withdrawal
programs, insurance company approved asset allocation programs and automatic
rebalancing programs; (ii) as a result of any deduction of charges or fees under
a Contract; (iii) within a Contract out of a Fund as a result of scheduled
withdrawals or surrenders from a Contract; or (iv) as a result of payment of a
death benefit from a Contract.
1.4.3 The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by Xxxxx under the 1940 Act that
are held by the Intermediary.
1.4.4 The term "Shareholder" means:
a. the beneficial owner of Shares, whether the Shares are held directly or
by the Intermediary in nominee name;
b. as this Letter Agreement relates to retirement plan accounts, the Plan
participant notwithstanding that the Plan may be deemed to be the beneficial
owner of the Shares; and
c. as this Letter Agreement relates to accounts of variable annuities or
variable life insurance contracts, the holder of interest in a variable annuity
or variable life insurance contract issued by the Intermediary, and an owner of
a variable annuity or variable life insurance contracts.
1.4.5 The term "fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the
Investment Company Act of 1940 and includes (i) an investment adviser to or
administrator for the Fund; (ii) the principal underwriter or distributor for
the Fund; or (iii) the transfer agent for the Fund. The term does not include
any "expected funds" as defined in SEC Rule 22c-2(b) under the Investment
Company Act of 1940.
1.4.6 The term "written" includes electronic writings and facsimile
transmissions.
1.4.7 The term "Agent" for purposes of SEC Rule 22c-2 and this Agreement,
shall mean "Phoenix Life Insurance Company", an entity that is authorized by the
Intermediary, to submit purchase and redemption orders to the Fund on behalf of
the Intermediary, and (i) to enter into Shareholder Information Agreements on
behalf of such Intermediary; (ii) in accordance with the terms of the
Shareholder Information Agreements, to provide the Intermediary's Shareholder
transaction information to the Fund upon request; and (iii) to execute
instructions from the Fund to restrict or prohibit trading or through
Intermediary's account.
Please acknowledge your agreement to this Letter Agreement by signing where
indicated below and return it to the following address:
Janus Distributors LLC
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Please address all questions or comments to Xxxxxx Xxxxxxxx at 000-000-0000 or
at xxxxxx.xxxxxxxx@xxxxx.xxx.
Sincerely,
/s/Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx
Assistant Vice President
AGREED AND ACKNOWLEDGED:
Phoenix Life Insurance Company,
on behalf of Valley Forge Life Insurance Company
By: /s/Xxxx Xxxxxxx X'Xxxxxxx
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
JANUS SERVICES LLC
By: /s/Xxxxxxx Xxxx Xxxxxxx
Name: Xxxxxxx Xxxx Xxxxxxx
Title: Senior Vice President
