PARTICIPATION AGREEMENT
Among
XXX XXX WORLDWIDE INSURANCE TRUST,
XXX XXX SECURITIES CORPORATION,
XXX XXX ASSOCIATES CORPORATION
and
PHL VARIABLE INSURANCE COMPANY
THIS AGREEMENT, made and entered into to be effective as of February 1,
2008, by and among PHL Variable Insurance Company, (hereinafter the "Company"),
a Connecticut life insurance corporation, on its own behalf and on behalf of
each segregated asset account of the Company set forth on Schedule A hereto and
incorporated herein by this reference, as such Schedule A may from time to time
be amended by mutual written agreement of the parties hereto (each such account
hereinafter referred to as the "Account"), and XXX XXX WORLDWIDE INSURANCE
TRUST, an unincorporated business trust organized under the laws of the
Commonwealth of Massachusetts (hereinafter the "Fund"), XXX XXX SECURITIES
CORPORATION (hereinafter the "Underwriter"), a Delaware corporation and XXX XXX
ASSOCIATES CORPORATION (hereinafter the "Adviser"), a Delaware corporation.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
(hereafter referred to collectively as the "Variable Insurance Products") to be
offered by insurance companies which have entered into participation agreements
with the Fund and the Underwriter (hereinafter the "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares, each representing the interest in a particular managed portfolio of
securities and other assets (each such series hereinafter referred to as a
"Portfolio"); and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (hereinafter the "SEC") (File No. 811-5083), granting Participating
Insurance Companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of Sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940, as amended, (hereinafter 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 and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies (hereinafter the "Shared Funding Order");
and
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and its shares are registered under the Securities Act of
1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable life
insurance and variable annuity contracts under the 1933 Act, unless such
contracts are exempt from registration thereunder; and
WHEREAS, each Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company, on
the date shown for such Account on Schedule A hereto, to set aside and invest
assets attributable to the aforesaid variable life insurance and variable
annuity contracts; and
WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act, unless such Account is exempt from
registration thereunder; and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC under
the Securities Exchange Act of 1934, as amended (hereinafter the "1934 Act"),
and is a member in good standing of the Financial Industry Regulatory Authority
(hereinafter the "FINRA"); and
WHEREAS, the Adviser is duly registered as an investment adviser under the
Investment Advisers Act of 1940 and any applicable state securities law; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on behalf
of each Account to fund certain of the aforesaid variable life and variable
annuity contracts and the Underwriter is authorized to sell such shares to unit
investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Underwriter and the Adviser agree as follows:
ARTICLE I
Sale of Fund Shares
1.1. The Underwriter agrees to sell to the Company those shares of the
Portfolios (which are listed on Schedule B attached hereto and incorporated
herein by this reference, as such Schedule B may from time to time be amended
by mutual written agreement of the parties hereto) which each Account orders,
executing such orders on a daily basis at the net asset value per share next
computed after receipt by the Fund or its designee of the order for the shares
of the Portfolios, at the time of computation as stated in the Fund's
registration statement ("Cutoff Time"), subject to the terms and conditions of
this Agreement. The Cutoff Time generally is 4:00 p.m. (Eastern Time) on that
Business Day. For purposes of this Section 1.1, the Company shall be the
designee of the Fund for receipt of such orders from each Account and receipt
by such designee shall constitute receipt by the Fund; provided that the Fund
receives notice of such order by 9:00 a.m. Eastern time on the next following
Business Day. "Business Day" shall mean
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any day on which the New York Stock Exchange is open for business and on which
the Fund calculates the Portfolios' net asset values pursuant to the rules of
the SEC. In no event shall the Company accept any order with respect to the
Fund or any portfolio thereof after the Cutoff Time or any other time that may
be established by law, rule, or regulation, including the rules of an
appropriate Self-Regulatory Organization.
1.2. The Fund agrees to make Portfolio shares available for purchase at the
applicable net asset value per share by the Company and its Accounts on those
days on which the Fund calculates net asset values pursuant to the rules of the
SEC and the Fund shall use reasonable efforts to calculate such net asset
values on each day on which the New York Stock Exchange is open for trading.
Notwithstanding the foregoing, the Board of Trustees of the Fund (hereinafter
the "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 if it is,
in the sole discretion of the Board, desirable or advisable, and in the best
interests of the shareholders of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund will be sold
only to Participating Insurance Companies and their separate accounts or other
accounts (e.g., qualified retirement plans) as may be permitted so that the
Variable Insurance Products continue to qualify as a "life insurance, annuity
or variable contract" under Section 817(h) of the Internal Revenue Code of
1986, as amended (hereinafter the "Code"). No shares of any Portfolio will be
sold to the general public.
1.4. The Fund and the Underwriter will not sell Fund shares to any insurance
company, separate account or other account unless an agreement containing
provisions substantially the same as Article I, Section 2.5 of Article II,
Sections 3.4 and 3.5 of Article III, Article V and Article VIII of this
Agreement is in effect to govern such sales.
1.5. Subject to its rights under Section 18(f) of the 1940 Act, the Fund
agrees to redeem for cash, on the Company's request, any full or fractional
shares of a Portfolio held by the Company, executing such requests on a daily
basis at the net asset value per share next computed after receipt by the Fund
or its designee of the request for redemption. For purposes of this
Section 1.5, the Company shall be the designee of the Fund for receipt of
requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that the Fund receives notice of such
request for redemption by 9:00 a.m., Eastern Time, on the next following
Business Day. Payment of redemption proceeds for any whole or fractional shares
shall be made within seven days of actual receipt of the redemption request by
the Fund, or within such greater or lesser period as may be permitted by law or
rule, regulation, interpretive position or order of the SEC.
1.6. The Company agrees that purchases and redemptions of Portfolio shares
offered by the then-current prospectus of the Fund shall be made in accordance
with the provisions of such prospectus.
1.7. The Company shall pay for Portfolio shares on the next Business Day
after an order to purchase such shares is made in accordance with the
provisions of this Article I.
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Payment shall be in federal funds transmitted by wire. For purposes of Sections
2.10 and 2.11, upon receipt by the Fund of the federal funds so wired, such
funds shall cease to be the responsibility of the Company and shall become the
responsibility of the Fund.
1.8. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account.
1.9. The Fund shall furnish same day notice (by wire or telephone, followed
by written confirmation) to the Company of any income dividends or capital gain
distributions payable on the Portfolios' shares. The Company hereby elects to
receive all such income dividends and capital gain distributions as are payable
on the Portfolio shares in additional shares of that Portfolio. The Company
reserves the right to revoke this election and to receive all such income
dividends and capital gain distributions in cash. The Fund shall notify the
Company of the number of shares so issued as payment of such dividends and
distributions.
1.10. The Fund shall make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated (normally by 6:30 p.m., Eastern
Time) and shall use its best efforts to make such net asset value per share
available by 7:00 p.m., Eastern Time. This time for transmission shall not be
considered the Cutoff Time with respect to pricing Contract owner purchases and
redemptions described in Section 1.1.
ARTICLE II
Representations and Warranties
2.1. The Company represents and warrants that the Variable Insurance
Products identified on Schedule A hereto ("Contracts"), as such schedule may be
amended from time to time have been or will be registered under the 1933 Act or
exempt therefrom; that the Contracts will be issued and sold in compliance in
all material respects with all applicable federal and state laws and that the
sale of the Contracts shall comply in all material respects with state
insurance suitability requirements. The Company further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable law and that it has legally and validly established each Account
prior to any issuance or sale thereof as a segregated asset account under the
Insurance Code and Regulations of the State of Connecticut, and has registered
or, prior to any issuance or sale of the Contracts, will, unless exempt from
registration, register each Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a segregated investment account
for the Contracts.
2.2. The Company represents that the Contracts will be eligible for
treatment as life insurance or annuity contracts under applicable provisions of
the Code and that it will make every effort to maintain such treatment and that
it will notify the Fund and the Underwriter promptly upon having determined
that the Contracts may have ceased to be so treated or that they might not be
so treated in the future.
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2.3. The Company represents and warrants that all of its directors/trustees,
employees, investment advisers and other individuals/entities dealing with
money and/or securities of the Fund are and shall 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 $5 million. The aforesaid bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding company. The Company shall notify the Fund, the Underwriter and the
Adviser in the event that such coverage no longer applies.
2.4. The Fund represents and warrants that Fund shares sold pursuant to this
Agreement are registered under the 1933 Act, duly authorized for issuance and
sale in compliance in all material respects with the terms of this Agreement
and all applicable federal and state securities laws, and that, while shares of
the Portfolios are being offered for sale, the Fund is and shall remain
registered under the 1940 Act. The Fund shall amend its Registration Statement
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of Portfolio shares. The Fund shall register or
otherwise qualify the shares for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund or the
Underwriter.
2.5. The Fund represents that each Portfolio is qualified as a Regulated
Investment Company under Subchapter M of the Code and that it will make every
effort to maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify the Company promptly upon having
determined that any Portfolio may have ceased to so qualify or that it might
not so qualify in the future.
2.6. The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees, expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that the Fund has disclosed or made available,
in writing, all information requested by Company and represents and warrants
that such written information is true and accurate in all material respects as
of the effective date of this Agreement. Without prior written notice to the
Company, the Fund will not make any changes in fundamental investment policies
or advisory fees, and shall at all times remain in compliance with federal
securities law as it applies to insurance products. The Company will use its
best efforts to provide the Fund with copies of amendments to provisions of
state insurance laws and regulations related to separate accounts and variable
products, which may affect Fund operations.
2.7. The Fund represents that it is lawfully organized and validly existing
under the laws of the Commonwealth of Massachusetts and that it does and will
comply in all material respects with the 1940 Act.
2.8. The Underwriter represents and warrants that it is a member in good
standing of the FINRA and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute Portfolio
shares to the Company in accordance with all applicable state and federal
securities laws, including, without limitation, the 1933 Act, the 1934 Act and
the 1940 Act.
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2.9. The Adviser represents and warrants that it is and shall remain duly
registered in all material respects under all applicable federal and state
securities laws and that it shall perform its obligations for the Fund in
compliance in all material respects with any applicable state and federal
securities laws.
2.10. The Fund, the Underwriter and the Adviser represent and warrant that
all of their directors/trustees, officers, employees, investment advisers and
other individuals/entities dealing with money and/or securities of the Fund are
and shall 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
minimum coverage as required by Rule 17g-1 of the 1940 Act or related
provisions as may from time to time be promulgated. The aforesaid bond shall
include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. The Fund shall notify the Company in the event such
coverage no longer applies.
ARTICLE III
Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company (at the Underwriter's
expense) with as many copies of the Fund's current prospectus as the Company
may reasonably request. If requested by the Company in lieu thereof, the Fund
shall provide such documentation (including a final copy of the new prospectus
as set in type or in electronic format at the Fund's expense) and other
assistance as is reasonably necessary in order for the Company once each year
(or more frequently if the prospectus for the Fund is amended) and shall bear a
pro rata portion of the printing and mailing costs associated with their
delivery.
3.2. The Fund's prospectus shall state that the Statement of Additional
Information for the Fund is available from the Underwriter (or in the Fund's
discretion, from the Fund), and the Underwriter (or the Fund), at its expense,
shall provide such Statement of Additional Information free of charge to the
Company and to any owner of a Contract or prospective owner who requests such
Statement and shall bear a pro rata portion of the duplicating and mailing
costs associated with their delivery.
3.3. The Fund, at its expense, shall provide the Company with copies of its
proxy statements, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners and shall bear a pro rata portion of the
mailing costs associated with their delivery.
3.4. If and to the extent required by law, the Company shall:
(i) solicit voting instructions from Contract owners;
(ii)vote Portfolio shares in accordance with instructions received from
Contract owners; and
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(iii)vote Portfolio shares for which no instructions have been received in
the same proportion as shares of such Portfolio for which instructions
have been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act
to require pass-through voting privileges for variable 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 shall be
responsible for assuring that each of its separate accounts participating in
the Fund calculates voting privileges in a manner consistent with the standards
set forth in the and rules and regulations of the SEC, which standards will
also be provided to other Participating Insurance Companies. (Unless the voting
procedure is different in the Shared Order than what's described above, it is
not necessary to add that term here.)
3.5. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular, the Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Fund
is not one of the trusts described in Section 16(c) of that Act) as well as
with Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will
act in accordance with the SEC's interpretation of the requirements of
Section 16(a) with respect to periodic elections of trustees and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE IV
Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material
in which the Fund, the Underwriter or the Adviser is named, at least 10
Business Days prior to its use. No such material shall be used unless approved
in writing by the Fund or the Underwriter. The Fund and the Underwriter will
use reasonable best efforts to provide the Company with written response within
ten Business Days of receipt of such materials. Any piece which merely names
the Fund, the Underwriter or the Adviser as participating in the Variable
Insurance Products may be used after ten Business Days of receipt by the Fund
and the Underwriter if the Company has not received a written response from the
Fund or the Underwriter.
4.2. The Company shall 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 the registration statement or prospectus for the Fund, as such
registration statement and prospectus may from time to time be amended or
supplemented, or in reports or proxy statements for the Fund, or in sales
literature or other promotional material provided to the Company by the Fund or
its designee or by the Underwriter, except with the written permission of the
Fund or the Underwriter, pursuant to Section 4.1 hereof.
4.3. The Company agrees that neither the Fund, the Underwriter nor the
Adviser will be responsible for any errors or omissions in communications
prepared for Contract owners except to the extent that the error or omission
resulted from information provided by or on behalf
Page 7
of the Underwriter or the Fund. In no event shall the Fund, any portfolio of
the Fund, the shareholders of any such portfolio or any officers or trustees of
the Fund have any liability or responsibility with respect to any sales
literature or promotional material.
4.4. The Fund, the Underwriter or their designee shall furnish, or shall
cause to be furnished, to the Company or its designee, each piece of sales
literature or other promotional material in which the Company and/or its
separate account(s), is named at least fifteen Business Days prior to its use.
No such material shall be used unless approved in writing by the Company or its
designee. The Company will use reasonable best efforts to provide the Fund with
written response within ten Business Days of receipt of such materials. Any
piece which merely states that the Fund, the Underwriter or the Adviser are
participating in the Variable Insurance Products may be used after ten Business
Days after receipt by the Company if the Fund or the Underwriter have not
received a written response from the Company.
4.5. The Fund and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, each
Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may from time to time be amended or
supplemented, or in published reports which are in the public domain or
approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.6. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, Statements of Additional Information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to any of the Portfolios or their shares,
promptly following the filing of such document with the SEC or other regulatory
authorities.
4.7. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, Statements of Additional Information,
reports, solicitations for voting instructions, sales literature and other
promotional materials, and all amendments to any of the above, that relate to
the Contracts or each Account, promptly following the filing of such document
with the SEC or other regulatory authorities; and, if a Contract and its
associated Account are exempt from registration, the equivalents to the above.
4.8. For purposes of this Agreement, the phrase "sales literature or other
promotional material" includes, but is not limited to, any of the following
that refer to the Fund or any affiliate of the Fund: advertisements (such as
material published or designed for use in a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape or
electronic display, signs or billboards, motion pictures, or other public
media), sales literature (i.e., any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature or published
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article), educational or training materials or other communications distributed
or made generally available to some or all agents or employees.
ARTICLE V
Fees and Expenses
5.1. If the Fund or any Portfolio adopts and implements a plan pursuant to
Rule 12b-1 to finance distribution expenses, then the Underwriter may make
payments to the Company or to the underwriter for the Contracts if and in
amounts agreed to by the Underwriter in writing and such payments will be made
out of existing fees otherwise payable to the Underwriter, past profits of the
Underwriter or other resources available to the Underwriter. Such current
payments are listed in Schedule B (which may be amended from time to time by
the Fund to reflect any changes to the Fund's/Portfolio's 12b-1 plan). No such
payments shall be made directly by the Fund.
5.2. Except as otherwise expressly provided in the Agreement, all expenses
incident to performance by the Fund under this Agreement shall be paid by the
Fund. The Fund shall see to it that all Portfolio shares are registered and
authorized for issuance in accordance with applicable federal law and, if and
to the extent deemed advisable by the Fund, in accordance with applicable state
laws prior to their sale. The Fund shall bear the expenses for the cost of
registration and qualification of the Portfolios' shares, preparation and
filing of the Fund's prospectus and registration statement, proxy materials and
reports, setting the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders (including the costs of printing a
prospectus that constitutes an annual report), the preparation of all
statements and notices required by any federal or state law and all taxes on
the issuance or transfer of the Portfolios' shares.
5.3. The Company shall bear the expenses of printing and distributing the
Fund's prospectus to owners of Contracts issued by the Company and of
distributing the Fund's proxy materials and reports to such Contract owners.
ARTICLE VI
Diversification
6.1. 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.
Without limiting the scope of the foregoing, the Fund will at all times comply
with Section 817(h) of the Code and Treasury Regulation 1.817-5, relating to
the diversification requirements for variable annuity, endowment or life
insurance contracts and any amendments or other modifications to such Section
or Regulation. In the event of a breach of this Article VI by the Fund, it will
take all reasonable steps (a) to notify Company of such breach and (b) to
adequately diversify the Fund so as to achieve compliance with the grace period
afforded by Regulation 1.817-5.
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6.2. The Fund represents that it will continue to comply with the provisions
of the Shared Funding Order.
ARTICLE VII
Additional Agreements
7.1. The Company agrees that it will offer or sell Fund shares in compliance
with all applicable federal and state law and regulation including, without
limitation, the Securities Exchange Act of 1934 ("Exchange Act"), the 1940 Act
and the 0000 Xxx.
7.2. The Company additionally agrees to comply with (1) all applicable
compensation disclosure requirements, including any requirements related to
revenue sharing; (2) all suitability requirements; (3) all applicable law, rule
and regulation related to the protection of the privacy and safeguarding of
information of beneficial owners of Fund shares and their accounts, including,
without limitation, Regulation S-P; and (4) the Bank Secrecy Act, as amended,
and other applicable anti-money laundering law, regulation, rules or
interpretations thereunder, including without limitation those applicable to
customer identification procedures, the filing of suspicious activity reports
and the adoption and maintenance of an anti-money laundering program. In
addition, the Company will comply with all requirements to verify whether its
customers or potential customers may not purchase Fund shares by reason of
being a person, country or other entity forbidden to do so by the Office of
Foreign Assets Control of the U.S. Department of Treasury or any similar list
maintained by the United States government or its agencies or instrumentalities
or any applicable self-regulatory organization.
7.3. Upon request of one of the other parties to this Participation
Agreement, the Company will provide a certification of its compliance with the
Bank Secrecy Act or other anti-money laundering law or regulation or rule, that
is satisfactory to such other party.
ARTICLE VIII
Potential Conflicts
8.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Fund. A material irreconcilable conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretive letter or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
a Portfolio are being managed; (e) a difference in voting instructions given by
variable annuity contract and variable life insurance contract owners; or (f) a
decision by a Participating Insurance Company to disregard the voting
instructions of contract owners. The Board shall promptly inform the Company if
it determines that a material irreconcilable conflict exists and the
implications thereof.
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8.2. The Company will report any potential or existing conflicts to the
Board. The Company will assist the Board in carrying out its responsibilities
under the Shared Funding Order, by providing the Board with all information
reasonably necessary for the Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform the
Board whenever any of the events in Section 8.1, as they pertain to the
Company, occur (e.g., a decision to disregard contract owner voting
instructions).
8.3. If it is determined by a majority of the Board, or a majority of its
disinterested trustees, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested trustees), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, up to and including:
(1) withdrawing the assets allocable to some or all of the separate accounts
from the Fund or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Fund, or submitting the question whether such segregation should be implemented
to a vote of all affected Contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity contract owners, life insurance
contract owners or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering to
the affected contract owners the option of making such a change, and
(2) establishing a new registered management investment company or managed
separate account.
8.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such
Account; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested trustees of the
Board. Any such withdrawal and termination must take place within six months
after the Fund gives written notice that this provision is being implemented,
and until the end of that six month period the Fund and the Underwriter shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund.
8.5. If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with that of
other state regulators, then the Company will withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such
Account within six months after the Board informs the Company in writing that
it has determined that such decision has created a material irreconcilable
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested trustees of the
Board. Until the end of that six month period, the Fund and the Underwriter
shall continue to accept and implement orders by the Company for the purchase
(and redemption) of shares of the Fund.
8.6. For purposes of Sections 8.3 through 8.6 of this Agreement, a majority
of the disinterested trustees of the Board shall determine whether any proposed
action adequately
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remedies a material irreconcilable conflict, but in no event will the Fund be
required to establish a new funding medium for the Contracts. The Company shall
not be required by Section 8.3 to establish a new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the material irreconcilable
conflict. In the event that the Board determines that any proposed action does
not adequately remedy a material irreconcilable conflict, then the Company will
withdraw the Account's investment in the Fund and terminate this Agreement
within six months after the Board informs the Company in writing of the
foregoing determination; provided, however, that such withdrawal and
termination shall be limited to the extent required by any such material
irreconcilable conflict as determined by a majority of the disinterested
trustees of the Board.
8.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Order) on terms and conditions
materially different from those contained in the Shared Funding Order, then
(a) the Fund and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and
6e-3(T), as amended, and Rule 6e-3 as adopted, to the extent such rules are
applicable; and (b) Sections 3.4, 3.5, 8.1, 8.2, 8.3, 8.4 and 8.5 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
ARTICLE IX
Indemnification
9.1. Indemnification By The Company
9.1(a). The Company agrees to indemnify and hold harmless the Fund, the
Underwriter and the Adviser and each trustee/director and officer thereof and
each person, if any, who controls the Fund, the Underwriter, or the Adviser
within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 9.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company), reasonable expenses or reasonable
litigation fees, (including legal and other expenses) (hereinafter referred to
collectively as a "Loss"), to which the Indemnified Parties may become subject
under any statute or regulation, at common law or otherwise, insofar as a Loss
is related to the sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration
statement, prospectus or private offering memorandum for the Contracts
or contained in the Contracts or sales literature or other promotional
materials for the Contracts (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement therein not
misleading, provided that this agreement to indemnify shall 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
Page 12
conformity with written information furnished to the Company by or on
behalf of the Indemnified Party for use in the registration statement
or prospectus for the Contracts or in the Contracts or in sales
literature or any other promotional materials (or any amendment or
supplement to any of the foregoing); or
(ii)arise out of or as a result of statements or representations (other
than statements or representations contained in the registration
statement, prospectus or sales literature or other promotional
materials of the Fund 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
(iii)arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus or
sales literature or other promotional materials of the Fund (or any
amendment or supplement to any of the foregoing) or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading if such statement or omission was
made in reliance upon or in conformity with written information
furnished to the Fund, the Underwriter or the Adviser by or on behalf
of the Company; or
(iv)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
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Company, as limited by and in accordance with the provisions of
Sections 9.1 (b) and 9.1(c) hereof.
9.1(b). The Company shall not be liable under this indemnification provision
with respect to any Loss incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations or duties
under this Agreement or to the Fund, the Underwriter or the Adviser, whichever
is applicable.
9.1(c). The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Company of
any such claim shall not relieve the Company from any liability which it may
have to the Indemnified Party against whom such
Page 13
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties, the Company
shall be entitled to participate, at its own expense, in the defense thereof.
The Company also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Company to
such Party of the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company 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.
9.1(d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
this Agreement, the issuance or sale of Portfolio shares or the Contracts or
the operation of the Fund.
9.2. Indemnification By The Fund
9.2(a). The Fund agrees to indemnify and hold harmless the Company, and each
of its directors/trustees and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 9.2) against any Loss to
which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as a Loss is related to the
operations of the Fund and:
(i) arise as a result of any failure by the Fund to provide the services
and furnish the materials under the terms of this Agreement (including
a failure to comply with the diversification requirements specified in
Article VI of this Agreement); or
(ii)arise out of or result from any material breach of any representation
and/or warranty made by the Fund in this Agreement or arise out of or
result from any other material breach of this Agreement by the Fund,
as limited by and in accordance with the provisions of Sections 9.2(b)
and 9.2(c) hereof.
9.2(b). The Fund shall not be liable under this indemnification provision
with respect to any Loss incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company, an Account, the Fund, the Underwriter
or the Adviser, whichever is applicable.
9.2(c). The Fund shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Fund in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or
after such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Fund of any such claim shall not
relieve the Fund from any liability
Page 14
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Fund shall be entitled
to participate, at its own expense, in the defense thereof. The Fund also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Fund to such party of the
Fund's election to assume the defense thereof, the Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and the Fund
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.
9.2(d). The Company will promptly notify the Fund of the commencement of any
litigation or proceedings against the Indemnified Parties in connection with
this Agreement, the issuance or sale of Portfolio shares or the Contracts, the
operation of each Account or the acquisition of shares of the Fund.
9.3. Indemnification By The Underwriter
9.3(a) The Underwriter agrees to indemnify and hold harmless the Company and
each of its directors/trustees and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 9.3)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as a Loss is related
to the sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement
or prospectus or sales literature or other promotional materials of
the Fund (or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that
this agreement to indemnify shall 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 written
information furnished to the Fund, the Underwriter or the Adviser by
or on behalf of the Indemnified Party for use in the registration
statement or prospectus of the Fund or in sales literature or other
promotional materials (or any amendment or supplement to any of the
foregoing); or
(ii)arise out of or as a result of statements or representations (other
than statements or representations contained in the registration
statement, prospectus or sales literature or other promotional
materials for the Contracts not supplied by the Underwriter or persons
under its control) or wrongful conduct of the Fund or Underwriter or
persons under their control, with respect to the sale or distribution
of the Contracts or Fund shares; or
Page 15
(iii)arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus or
private offering memorandum for the Contracts or contained in the
Contracts or sales literature or other promotional materials for the
Contracts (or any amendment or supplement to any of the foregoing) or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not misleading,
if such statement or omission was made in reliance upon or in
conformity with written information furnished to the Company by or on
behalf of the Fund or the Underwriter; or
(iv)arise as a result of any failure by the Underwriter to provide the
services and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification requirements specified
in Article VI of this Agreement); or
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Underwriter in this Agreement or arise out
of or result from any other material breach of this Agreement by the
Underwriter, as limited by and in accordance with the provisions of
Sections 9.3(b) and 9.3(c) hereof.
9.3(b). The Underwriter shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Company or an Account, whichever is
applicable.
9.3(c). The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Underwriter
of any such claim shall not relieve the Underwriter from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Underwriter shall be entitled to
participate, at its own expense, in the defense thereof. The Underwriter also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the Party named in the action. After notice from the Underwriter to such Party
of the Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by
it, and the Underwriter 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.
Page 16
9.3(d). The Company will promptly notify the Underwriter of the commencement
of any litigation or proceedings against the Indemnified Parties in connection
with this Agreement, the issuance or sale of Portfolio shares or the Contracts
or the operation of each Account.
9.4. Indemnification By The Adviser
9.4(a) The Adviser agrees to indemnify and hold harmless the Company and
each of its directors/trustees and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 9.4)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as a Loss is related
to the sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or as a result of statements or representations (other
than statements or representations contained in the registration
statement, prospectus or sales literature or other promotional
materials for the Contracts not supplied by the Adviser, or persons
under its control) or wrongful conduct of the Adviser or persons under
its control, with respect to the sale or distribution of the Contracts
or Fund shares; or
(ii)arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus or
private offering memorandum for the Contracts or contained in the
Contracts or sales literature or other promotional materials for the
Contracts (or any amendment or supplement to any of the foregoing) or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission was
made in reliance upon or in conformity with written information
furnished to the Company by or on behalf of the Adviser; or
(iii)arise as a result of any failure by the Adviser to provide the
services and furnish the materials under the terms of this Agreement
(including a failure by the Fund, whether unintentional or in good
faith or otherwise, to comply with the diversification requirements
specified in Article VI of this Agreement); or
(iv)arise out of or result from any material breach of any representation
and/or warranty made by the Adviser in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Adviser, as limited by and in accordance with the provisions of
Sections 9.4(b) and 9.4(c) hereof.
Page 17
9.4(b). The Adviser shall not be liable under this indemnification provision
with respect to any Loss incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company or an Account, whichever is applicable.
9.4(c). The Adviser shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Adviser of
any such claim shall not relieve the Adviser from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Adviser shall be entitled to
participate, at its own expense, in the defense thereof. The Adviser also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Adviser to such party of the
Adviser's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Adviser 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.
9.4(d). The Company will promptly notify the Adviser of the commencement of
any litigation or proceedings against the Indemnified Parties in connection
with this Agreement, the issuance or sale of Portfolio shares or the Contracts
or the operation of each Account.
9.5. Except as otherwise expressly provided in the Agreement, no party shall
be liable to any other party for special, consequential, punitive or exemplary
damages, or damages of a like kind or nature; and, without limiting the
foregoing, with respect to Section 1.10 of Article I and Sections 9.2, 9.3 and
9.4 of Article IX as such Sections relate to errors in calculation or untimely
reporting of net asset value per share or dividend or capital gain rate, the
liability of a party to any other party shall be limited to the amount required
to correct the value of the Account as if there had been no incorrect
calculation or reporting or untimely reporting of the net asset value per share
or dividend or capital gain rate.
ARTICLE X
Applicable Law
10.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Connecticut.
10.2. This Agreement shall 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 SEC
may grant (including, but not limited to, the Shared Funding Order) and the
terms of this Agreement shall be interpreted and construed in accordance
therewith.
Page 18
ARTICLE XI
Termination
11.1. This Agreement shall continue in full force and effect until the first
to occur of:
(a) termination by any party for any reason by sixty (60) days' advance
written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio based upon the Company's
determination that shares of such Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(c) termination by the Company by written notice to the Fund and the
Underwriter 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 the Company; or
(d) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the event
that such Portfolio 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 believes that the Fund
will fail to so qualify; or
(e) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the event
that such Portfolio fails to meet the diversification requirements
specified in Article VI hereof; or
(f) termination by either the Fund or the Underwriter by written notice to
the Company, if either one or both of the Fund or the Underwriter
shall determine, in their sole judgment exercised in good faith, that
the Company and/or its affiliated companies has suffered a material
adverse change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity; or
(g) termination by the Company by written notice to the Fund and the
Underwriter, if the Company shall determine, in its sole judgment
exercised in good faith, that either the Fund or the Underwriter has
suffered a material adverse change in its business, operations,
financial condition or prospects since the date of this Agreement or
is the subject of material adverse publicity.
Page 19
11.2. Effect of Termination. Notwithstanding termination of this Agreement,
the Fund and the Underwriter shall, if the Company and the Underwriter mutually
agree, 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 shall be permitted to retain investments in the Fund,
reinvest dividends and redeem investments in the Fund. The parties agree that
this Section 11.2 shall not apply to any terminations under Section 1.2 of
Article I or under Article VIII, and the effect of such Article VIII
terminations shall be governed by Article VIII of this Agreement.
11.3 The Company shall not redeem Fund shares attributable to the Contracts
(as opposed to Fund shares attributable to the Company's assets held in the
Account) except (i) as necessary to implement Contract Owner initiated or
approved transactions; or (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"); or (iii) as a
result of action by the Fund's Board, acting in good faith, upon sixty
(60) days' advance written notice to the Company and Contract Owners. Upon
request, the Company will promptly furnish to the Fund and the Underwriter the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund and the Underwriter) to the effect that any redemption
pursuant to clause (ii) above is a Legally Required Redemption, or is as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act. In
the event that the Company is to redeem shares pursuant to clause (iii) above,
the Fund will promptly furnish to the Company the opinion of counsel for the
Fund (which counsel shall be reasonably satisfactory to the Company) to the
effect that any such redemption is not in violation of the 1940 Act or any rule
or regulation thereunder, or is as permitted by an order of the SEC.
Furthermore, except in cases where permitted under the terms of the Contracts,
the Company shall not prevent Contract Owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first giving
the Fund or the Underwriter 90 days' advance written notice of its intention to
do so.
11.4 Notwithstanding any termination of this Agreement, each party's
obligation under Article IX to indemnify the other parties shall survive.
ARTICLE XII
Notices
Any notice shall be sufficiently given when sent by registered or certified
mail or next-day delivery to the other parties at the address of such parties
set forth below or at such other address as any party may from time to time
specify in writing to the other parties.
Page 20
If to the Company:
PHL Variable Insurance Company
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Vice President,
With a copy to Xxxxxx Xxxxxx
If to the Fund:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
If to the Underwriter:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
If to the Adviser:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
ARTICLE XIII
Miscellaneous
13.1. 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
Board, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Fund.
13.2. Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written
consent of the affected party, until such time as it may come into the public
domain.
13.3. 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.
13.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.5. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
Page 21
13.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including, without limitation, the SEC,
the FINRA and state insurance regulators) and shall permit 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.
13.7. 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 laws.
13.8. This Agreement or any of the rights and obligations hereunder may not
be assigned by any party without the prior written consent of all parties
hereunder; provided, however, that the Underwriter may assign this Agreement or
any rights or obligations hereunder to any affiliate of or company under common
control with the Underwriter, if such assignee is duly licensed and registered
to perform the obligations of the Underwriter under this Agreement. Likewise,
the Fund, Underwriter, and Adviser agree that the Company retains the right, in
its sole discretion, to substitute the principal underwriter for the Variable
Insurance Products for any other affiliated registered broker-dealer while this
Agreement or any portion thereof, is in effect.
3.9. Upon request, the Company shall furnish, or shall cause to be
furnished, to the Fund or its designee, copies of the following reports:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles ("GAAP"), if any), as soon as practical and in
any event within 120 days after the end of each fiscal year;
(b) the Company's semi-annual statements (statutory) (and GAAP, if any),
as soon as practical and in any event within 60 days after the end of
each period:
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/or policyholders, as soon as
practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial reports of
the Company filed with the SEC or any state insurance regulator, as
soon as practical after the filing thereof;
(e) any other report submitted to the Company by independent accountants
in connection with any annual, interim or special audit made by them
of the books of the Company, as soon as practical after the receipt
thereof.
[Signatures to follow.]
Page 22
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
as of the date specified above.
PHL Variable Insurance Company Xxx Xxx Worldwide Insurance Trust
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx By: /s/ Xxxxxx XxXxxxx
----------------------------- --------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx Name: Xxxxxx XxXxxxx
Title: Senior Vice President Title: Senior Vice President,
Secretary and
Chief Legal Officer
Xxx Xxx Securities Corporation Xxx Xxx Associates Corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
----------------------------- --------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx
Title: Senior Vice President Title: President
Page 23
SCHEDULE A
PHL Variable Accumulation Account II established October 25, 2007
Page 24
SCHEDULE B
PORTFOLIOS AND OTHER FUNDS
ADVISED BY ADVISER
I. Portfolios
Worldwide Hard Assets Fund- Initial Class and S Class (15 bps 12b-1 fee);
Worldwide Emerging Markets Fund- Initial class;
Worldwide Real Estate Fund- Initial class;
Worldwide Bond Fund- Initial class;
Worldwide Absolute Return Fund- Initial class and
Any and all other portfolios of the Fund that are available and open to new
investors on or after the effective date of this Agreement.
II. Other Funds Advised by the Adviser
Xxx Xxx Funds
Page 25
