Exhibit 8(m)
PARTICIPATION AGREEMENT
Among
ENDEAVOR SERIES TRUST,
ENDEAVOR MANAGEMENT CO.,
and
PFL LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into this 28th day of February, 1991 by
and among PFL LIFE INSURANCE COMPANY, an Iowa corporation (hereinafter the
"Company") on its own behalf and on behalf of the PFL Endeavor Variable Annuity
Account, and other segregated asset accounts of the Company (hereinafter the
"Account" or "Accounts"), and ENDEAVOR SERIES TRUST, a Massachusetts business
trust (hereinafter the "Fund"), and ENDEAVOR MANAGEMENT CO., a California
corporation (hereinafter the "Manager").
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for the Account, and
may be available for other separate accounts established for variable life
insurance policies and variable annuity contracts only if the Company so
consents; and
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares each designated a "Portfolio" and each representing the interests in a
particular managed pool of securities and other assets; and
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and its shares are registered under the Securities Act of 1933, as amended
(hereinafter the "1933 Act"); and
WHEREAS, the Manager is duly registered as an investment adviser under the
federal Investment Advisers Act of 1940 and any applicable state securities law,
and will be the Fund's investment adviser; and
WHEREAS, the Company has registered or will register certain variable
annuity and/or life insurance contracts under the 1933 Act (hereinafter
"Policies"); and
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company, to
set aside and invest assets attributable to the aforesaid variable annuity
and/or life insurance contracts that are allocated to the Accounts (the Policies
and Account(s) covered by this Agreement, and the corresponding Portfolios
covered by this Agreement in which the Account(s) invest(s), are specified in
Schedule A attached hereto as may be modified from time to time); and
WHEREAS, the Company has registered or will register the Account(s) as a
unit investment trust under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on behalf
of the Account(s) to fund the
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Policies and the Fund intends to sell such shares to the Account(s) at net asset
value;
NOW, THEREFORE, in consideration of their mutual promises, the Fund, the
Manager, and the Company agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund and Manager agree to sell to the Company those shares of
the Fund which the Account(s) orders, executing such orders on a daily basis at
the net asset value next computed after receipt by the Fund or its designee of
the order for the shares of the Fund. For purposes of this Section 1.1, the
Company shall be the designee of the Fund for receipt of such orders from Policy
owners and receipt by such designee shall constitute receipt by the Fund;
provided that the Fund receives notice of such order by 9:30 a.m. New York time
on the next following Business Day. "Business Day" shall 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.
1.2. The Fund and Manager agree to make Fund shares available
indefinitely for purchase at the applicable net asset value per share by the
Company and the Account on those days on which the Fund calculates its net asset
value pursuant to rules of the Securities and Exchange Commission and the Fund
shall use reasonable efforts to calculate such net asset value on each day which
the New York Stock Exchange is open for trading.
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Notwithstanding the foregoing, the Board of Trustees of the Fund (hereinafter
the "Trustees") may refuse to sell shares of any Portfolio to the Company and
the Account, or suspend or terminate the offering of shares of any Portfolio if
such action is required by law or by regulatory authorities having jurisdiction
or is, in the sole discretion of the Trustees acting in good faith and in light
of their fiduciary duties under federal and any applicable state laws, necessary
in the best interests of the shareholders of such Portfolio.
1.3. The Fund and Manager agree that shares of the Fund will be sold
only to the Company and the Account except that share of the Fund may be sold to
other insurance companies or their separate accounts with the express written
consent of the Company. Shares will not be sold to the general public or to
other investors. The Account(s) shall invest exclusively in the Fund, or in
other investment vehicles managed or advised by the Manager or affiliates of the
Manager, except with the express written consent of the Manager.
1.4. The Fund agrees to redeem for cash, on 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 net asset value next computed after receipt by
the Fund or its designee of the request for redemption. For purposes of this
Section 1.4, the Company shall be the designee of the Fund for receipt of
requests for redemption from Policy owners and receipt by such designee shall
constitute receipt by the Fund; provided
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that the Fund receives notice of such request for redemption by 9:30 a.m. New
York time on the next following Business Day.
1.5. The Company shall pay for the Fund shares on the next Business
Day after an order to purchase shares is made in accordance with the provisions
of Section 1.1 hereof. Payment shall be in federal funds transmitted by wire or
by a credit for any shares redeemed. For purpose of Section 2.8, 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.
1.6. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Shares ordered from the Fund will be recorded in an appropriate title for the
Account or the appropriate subaccount of the Account.
1.7. 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 Fund's shares. The Company hereby
elects to receive all such dividends and distributions as are payable on the
Portfolio shares in additional shares of that Portfolio. The Fund shall notify
the Company of the number of shares so issued as payment of such dividends and
distributions.
1.8. The Fund shall make the net asset value per share for each
Portfolio available to the Company on each Business Day as soon as reasonably
practical after the net asset value per
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share is calculated and shall use its best efforts to make such net asset value
per share available by 6:30 p.m. New York time.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Policies are or
will be registered under the 1933 Act. 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 the Account
as a segregated asset account under Iowa law and has registered or, prior to any
issuance or sale of the Policies, will register the Account(s) as a unit
investment trust in accordance with the provisions of the 1940 Act (unless
exempt therefrom) to serve as a segregated investment account for the Policies.
2.2. The Fund and Manager represent and warrant that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of Massachusetts
and all applicable federal and state securities laws and that the Fund is and
shall remain registered under the 0000 Xxx. The Fund shall 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 shall register and 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 and Manager.
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2.3. The Fund and Manager represent that each Portfolio of the Fund
is currently qualified or will be qualified as a Regulated Investment Company
under Subchapter M of the Internal Revenue Code of 1986, as amended, (the
"Code") and that every effort will be made to maintain such qualification (under
Subchapter M or any successor or similar provision) and that the Fund or Manager
will notify the Company orally (followed by written notice) or by wire
immediately upon having a reasonable basis for believing that any Portfolio of
the Fund has ceased to so qualify or that any Portfolio might not so qualify in
the future.
2.4. The Fund will not make any payments to finance distribution
expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise. However, if the
Fund were authorized to establish a 12b-1 plan, the Fund would undertake to have
a board of trustees, a majority of whom are not interested persons of the Fund,
formulate and approve any plan under Rule 12b-1 to finance distribution
expenses.
2.5. The Fund represents that it will sell and distribute the Fund
shares in accordance with the laws of the State of California and all applicable
state and federal securities laws, including without limitation the 1933 Act,
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the 1940
Act.
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2.6. The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Massachusetts and that it does and will
comply with the 1940 Act.
2.7. The Manager represents and warrants that it is and shall remain
duly registered under all applicable federal and state securities laws and that
it shall perform its obligations for the Fund in compliance with any applicable
state and federal securities laws.
2.8. The Fund and Manager each represents and warrants that all of
its directors, trustees, officers, employees, investment advisers, and other
individuals or entities dealing with the 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
minimal coverage as required currently by Section 17(g) and Rule 17g-1 of the
1940 Act or related provisions as may be promulgated from time to time. The
aforesaid bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
ARTICLE III. Prospectus and Proxy Statements; Voting
3.1. At least annually, the Fund or the Manager shall provide the
Company, free of charge, with as many copies of the Fund's current prospectus as
the Company may reasonably request for distribution to both existing Policy
owners and prospective purchasers. If requested by the Company in lieu thereof,
the
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Fund shall provide such documentation (including a final "camera ready" copy of
the new prospectus as set in type at the Fund's expense) and other assistance as
is reasonably necessary in order for the parties hereto once each year (or more
frequently if the prospectus for the Fund is supplemented or amended) to have
the prospectus for the Policies and the Fund's prospectus printed together in
one document; the expenses of such printing to be apportioned between (a) the
Company, and (b) the Fund or the Manager, in proportion to the number of pages
of the Policy and Fund Prospectuses, taking account of other relevant factors
affecting the expense of printing, such as columns, charts, etc.; the Fund or
the Manager to bear the cost of printing the Fund's portion of such document,
and the Company to bear the expenses of printing the Account's portion of such
document.
3.2. The Fund's prospectus shall state that the Statement of
Additional Information for the Fund is available from the Fund (or a specified
affiliate). The Fund or an affiliate, at its expense, shall print and provide
such Statement free of charge to the Company and to any owner of a Policy or
prospective purchaser who requests such Statement.
3.3. The Fund, at its expense, shall provide the Company with copies
of its proxy material, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Policy owners.
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3.4. If and to the extent required by law, the Company shall:
(i) solicit voting instructions from Policy owners;
(ii) vote the Fund shares in accordance with instructions
received from Policy owners; and
(iii) vote Fund shares for which no instructions have been
received in the same proportion as Fund shares of such
Portfolio for which instructions have been received;
so long as and to the extent that the Securities and Exchange Commission
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 the Account in its own right, to the extent permitted by law.
3.5. The process of soliciting Policy owners' voting instructions,
tabulating votes, etc. shall be conducted in accordance with Schedule B attached
hereto.
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 or Manager is named, at least ten Business Days prior
to its use. No such material shall be used if the Fund or its designee object
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to such use within ten Business Days after receipt of such material.
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 Policies other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee, except with the permission of the Fund.
4.3 The Fund and Manager 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 ten Business Days prior to its use. No such material shall be
used if the Company or its designee object to such use within ten Business Days
after receipt of such material.
4.4 The Fund and Manager shall not give any information or make any
representations on behalf of the Company or concerning the Company, the Account,
or the Policies other than information or representations contained in a
registration statement or prospectus for the Policies, as such registration
statement and prospectus may be amended or supplemented from time to time, or in
reports for the Account approved by the Company for
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distribution to Policy owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission of
the Company.
4.5 The Company and Fund will each provide to the other at least one
complete copy of all registration statements, prospectuses, Statements of
Additional Information, reports, proxy statements, sale literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Policies, or
to the Fund or its shares, prior to or contemporaneously with the filing of such
document with the Securities and Exchange Commission or other regulatory
authorities. The Company or Fund shall also each promptly inform the other of
the results of any examination by the Securities and Exchange Commission (or
other regulatory authorities) that relates to the Policies, the Fund or its
shares, and the party that was the subject of the examination shall provide the
other party with a copy of any "deficiency letter" or other correspondence or
written report regarding any such examination.
4.6 For purposes of this Article IV, the phrase "sales literature or
other promotional material" means 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 billboard),
and sales literature (such as brochures, circulars,
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market letters and form letters), distributed or made generally available to
customers or the public.
ARTICLE V. Fees and Expenses
5.1 The Fund and Manager shall pay no fee or other compensation to the
Company under this agreement, and the Company shall pay no fee or other
compensation to the Fund or Manager; provided, however, that in accordance with
the allocation of expenses specified in Articles III and V hereof, each party
shall reimburse other parties for expenses initially paid by one party but
allocated to another party.
5.2 Subject to Section 5.4 below, the Fund shall bear the expenses
for the cost of registration and qualification of the Fund's shares under all
applicable federal and state laws, including preparation and filing of the
Fund's registration statement, and payment of filing fees and registration fees;
preparation and filing of the Fund's proxy materials and reports; setting in
type and printing its prospectus (determined in accordance with Section 3.1
above); setting in type and printing the proxy materials and reports to
shareholders; the preparation of all statements and notices required of the Fund
by any federal or state law; all taxes on the issuance or transfer of the Fund's
shares; and the costs of distributing prospectuses and proxy materials to Policy
owners. The Fund shall not bear any expenses of marketing the Policies.
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5.3 The Company shall bear the expenses of distributing the Fund's
prospectus in connection with new sales of the Policies and of distributing the
Fund's shareholder reports to Policy owners. The Company shall bear all expenses
associated with the registration, qualification, and filing of the Policies
under applicable Federal securities and state insurance laws; the cost of
printing the Policy prospectus; and the cost of preparing and printing annual
individual account statements for Policy owners as required by state insurance
laws.
5.4 The expenses allocated herein to the Fund shall be paid initially
by the Company until such time as the Fund's net assets are $100,000,000 or
higher. The Fund shall then reimburse the Company for all such expenses paid for
by the Company or accrued as of that date, with such reimbursement to be paid in
36 equal monthly installments over the three year period beginning on the date
when the Fund's net assets reach $100,000,000. After that date, the Fund shall
directly pay its own expenses, as allocated herein.
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ARTICLE VI. Diversification and Related Limitations
6.1 The Fund and Manager represent and warrant that the Fund will at
all times invest its assets in such a manner as to ensure that the Policies will
be treated as annuity, endowment, or life insurance 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 Treas.
Reg. Section 1.817-5, as amended from time to time, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any amendments or
other modifications to such Section or Regulations.
6.2 Fund shares will not be sold to any person or entity that would
result in the Policies not being treated as annuity, endowment, or life
insurance contracts, in accordance with the statutes and regulations referred to
in the preceding paragraph (Section 6.1 hereof).
ARTICLE VII. Indemnification
7.1 Indemnification By The Company
7.1(a) The Company agrees to indemnify and hold harmless the Fund,
Manager, and each of their directors, trustees and officers and each person, if
any, who controls the Fund or Manager within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
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7.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or
litigation (including 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 are related to the sale or
acquisition of the Fund's shares or the Policies and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the Registration Statement or prospectus for the Policies or
contained in the Policies or sales literature for the
Policies (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 information furnished the Company by or on
behalf of the Fund or Manager for use in the Registration
Statement or prospectus for the Policies or in the Policies
or sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the
Policies or Fund shares; 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 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
Policies or Fund shares; or
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(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration
Statement, prospectus, or sales literature of the Fund or
any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make
the statements therein not misleading if such statement or
omission was made in reliance upon information furnished
to the Fund or Manager by or on behalf of the Company; or
(iv) 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;
except to the extent provided in Sections 7.1(b) and 7.1(c) hereof.
7.1(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of 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,
whichever is applicable.
7.1(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
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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 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 of such action. 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.
7.1(d) The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund shares or the Policies or the operation of the
Fund and the Indemnified Parties will provide the Company with all relevant
information and documents requested by the Company. For purposes of this Section
7.1(d), the "commencement" of proceedings shall include any informal or formal
communications from the Securities
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and Exchange Commission or its staff (or the receipt of information from any
other persons or entities) indicating that enforcement action by said Commission
or staff may be contemplated or forthcoming; this includes any information to
the effect that any matter(s) has been referred to the SEC's Division of
Enforcement, or that any matter(s) is being discussed with that Division.
7.2 Indemnification by the Fund and Manager
7.2(a) The Fund and Manager, jointly and severally, agree to indemnify
and hold harmless the Company and each of its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
7.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Manager) or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or the
Policies 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
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
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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
information furnished to the Manager or Fund by or on
behalf of the Company for use in the Registration
Statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Policies or
Fund shares; 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 for the Policies not supplied by the Fund
or Manager, or persons under their control) or wrongful
conduct of the Fund or Manager or persons under their
control, with respect to the sale or distribution of the
Policies 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 sale literature covering the
Policies, or any amendment thereof or supplement thereto,
or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary
to make the statement or statements therein not
misleading, if such statement or omission was made in
reliance upon information furnished to the Company by or
on behalf of the Fund or Manager; or
(iv) rise out of or result from any material breach of any
representation and/or warranty made by the Fund or Manager
in this Agreement or arise out of or result from any other
material breach of this Agreement by the Fund or Manager
(including a failure, whether unintentional or in good
faith or otherwise, to comply with the requirements
specified in Article VI of this Agreement);
except to the extent provided in Sections 7.2(b) and 7.2(c) hereof.
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7.2(b) The Fund and Manager shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of 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 the Account.
7.2(c) The Fund and Manager ("Indemnifiers" for purposes of this
Section 7.2) 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 Indemnifier 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 Indemnifier of any such claim shall not
relieve the Indemnifier from any liability which they 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 Indemnifiers will be entitled to participate, at
their own expense, in the defense thereof. The Indemnifier also shall be
entitled to assume the defense thereof, with counsel satisfactory
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to the party named in the action. After notice from the Indemnifier to such
party of their election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of additional counsel retained by it, and the
Indemnifier 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.
ARTICLE VIII. Applicable Law
8.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of Iowa.
8.2 This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statues, rules and regulations as the
Securities and Exchange Commission may grant and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE IX. Termination
9.1 This Agreement shall terminate with respect to the Account, or
one, some, or all Portfolios:
(a) at the option of any party upon six month's advance written
notice to the other parties; or
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(b) at the option of the Company to the extent that shares of
Portfolios are not reasonably available to meet the requirements of the Policies
or are not "appropriate funding vehicles" for the Policies, as determined by the
Company reasonably and in good faith. Without limiting the generality of the
foregoing, shares of a Portfolio would not be "appropriate funding vehicles" if,
for example, such shares did not meet the diversification or other requirements
referred to in Article VI hereof; or if the Portfolio did not qualify under
Subchapter M of the Code, as referred to in Section 2.3 hereof; or if the
investments or investment policies, objectives, and/or limitations of the
portfolio would impose unanticipated risks on the Company; or if the Company
would be permitted to disregard policy owner voting instructions pursuant to
Rules 6e-2 or 6e-3(T) under the 1940 Act; etc. Prompt notice of the election to
terminate for such cause and an explanation of such cause shall be furnished by
the Company.
9.2 The notice shall specify the Portfolio(s) and Policy(s) as to
which the Agreement is to be terminated, or that the Agreement is to be
terminated as to the Account.
9.3 It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 9.1(a) may be exercised for cause
or for no cause.
9.4 Effect of Termination. Notwithstanding any termination of this
Agreement, the Fund and Manager shall, at the option of the Company, continue to
make available additional
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shares of the Portfolios pursuant to the terms and conditions of this Agreement,
for all Policies in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Policies"). Specifically,
without limitation, the owner of the Existing Policies shall be permitted to
transfer or reallocate investments under the Policies, redeem investments in the
Fund and/or invest in the Fund upon the making of additional purchase payments
under the Existing Policies.
ARTICLE X. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Fund:
Endeavor Series Trust
0000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxx
If to the Manager:
Endeavor Management Co.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxxxx
If to the Company:
PFL Life Insurance Company
0000 Xxxxxxxx Xx., X.X.
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
-24-
ARTICLE XI. Miscellaneous
11.1 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 Policies 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.
11.2 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.
11.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.4 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.
11.5 The Schedules attached hereto, as modified from time to time, are
incorporated herein by references and are part of this Agreement.
11.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (in
-25-
cluding without limitation the Securities and Exchange Commission, the National
Association of Securities Dealers, 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.
11.7 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.
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 and its seal to be hereunder affixed hereto as of the date
specified below.
Company:
PFL LIFE INSURANCE COMPANY
By its authorized officer,
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Title: Exec. V.P.
--------------------
Date: 2-28-91
----------------------
Fund:
ENDEAVOR SERIES TRUST
By its authorized officer,
By: /s/
----------------------
Title: President
-------------------
Date: 2/27/91
-------------------
-26-
Manager:
ENDEAVOR MANAGEMENT CO.
By its authorized officer,
By: /s/ Xxxxxxx X. XxXxxxxxxx
---------------------------------
Title: C.E.O.
-------------------------------
Date: 3/1/91
--------------------------------
- 27 -
ADDENDUM NO. 1 TO
PARTICIPATION AGREEMENT
AMONG
ENDEAVOR SERIES TRUST,
ENDEAVOR MANAGEMENT CO.,
AND
PFL LIFE INSURANCE COMPANY
Amendment No. 1 to the Participation Agreement among Endeavor Series Trust,
Endeavor Management Co., and PFL Life Insurance Company dated February 20, 1991
("Participation Agreement").
WHEREAS, International Life Investors Insurance Company has recently
established a separate account for the purposes of selling a variable annuity
product funded by the Endeavor Series Trust; and
WHEREAS, each of the parties is desirous of adding International Life
Investors Insurance company as a party, subject to the same terms and
conditions, to the Participation Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED that International Life Investors
Insurance Company, through its separate account, the ILI Endeavor Separate
Account, is authorized to acquire shares issued by the Endeavor Series Trust,
subject to the terms and conditions of the Participation Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Addendum to be
executed in its name and on its behalf by its duly authorized representative as
of July 14, 1993.
PFL LIFE INSURANCE COMPANY ENDEAVOR SERIES TRUST
By its authorized officer, By its authorized officer,
By: xxxxxx By: xxxxxx
------------------------------- -------------------------------
Title: Vice President & Actuary Title: President
---------------------------- ----------------------------
Date: 8/12/93 Date: 8/12/93
----------------------------- -----------------------------
INTERNATIONAL LIFE INVESTORS ENDEAVOR MANAGEMENT CO.
INSURANCE COMPANY By its authorized officer,
By its authorized officer,
By: /s/ Xxxxx X. Xxxxxx By: xxxxxx
------------------------------- -------------------------------
Title: Secretary Title: Vice Chairman
---------------------------- ----------------------------
Date: 8/12/93 Date: 8/12/93
----------------------------- -----------------------------
Addendum
ADDENDUM NO. 2 TO
PARTICIPATION AGREEMENT
AMONG
ENDEAVOR SERIES TRUST,
ENDEAVOR MANAGEMENT CO.,
AND
PFL LIFE INSURANCE COMPANY
Amendment No. 2 to the Participation Agreement among Endeavor Series Trust,
Endeavor Management Co., and PFL Life Insurance Company dated February 20, 1991
("Participation Agreement").
WHEREAS, AUSA Life Insurance Company, Inc. has recently established a
separate account for the purposes of selling a variable annuity product funded
by the Endeavor Series Trust; and
WHEREAS, each of the parties is desirous of adding AUSA Life Insurance
Company, Inc. as a party, subject to the same terms and conditions, to the
Participation Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED THAT AUSA Life Insurance Company, Inc.,
through its separate account, the AUSA Endeavor Separate Account, is authorized
to acquire shares issued by the Endeavor Series Trust, subject to the terms and
conditions of the Participation Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Addendum to be
executed in its name and on its behalf by its duly authorized representative as
of Oct. 7, 1994.
PFL LIFE INSURANCE COMPANY ENDEAVOR SERIES TRUST
By its authorized officer, By its authorized officer,
By: /s/ Xxxxxxx X. Xxxxxx By: xxxxxx
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxx
Title: President Title: President
---------------------------- ----------------------------
Date: October 7, 1994 Date: October 7, 1994
----------------------------- -----------------------------
AUSA LIFE INSURANCE COMPANY, INC. ENDEAVOR MANAGEMENT CO.
By its authorized officer, By its authorized officer,
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. XxXxxxxxxx
------------------------------- -------------------------------
Title: Vice President Title: C. E. O.
---------------------------- ----------------------------
Date: October 7, 1994 Date: October 7, 1994
----------------------------- -----------------------------
Addendum
AMENDED
SCHEDULE A
----------
EFFECTIVE NOVEMBER 4, 1996
Account(s), Policy(ies) and Portfolio(s) Subject
to the Participation Agreement
------------------------------
Account: PFL Endeavor Variable Annuity Account
------- AUSA Endeavor Variable Annuity Account
Policies: The Endeavor Variable Annuity
-------- The Endeavor Platinum Variable Annuity
The AUSA Endeavor Variable Annuity
Portfolios: Managed Asset Allocation
---------- Money Market
Global Growth
Quest for Value Equity
Quest for Value Small Cap
U.S. Government Securities
X. Xxxx Price Equity Income
X. Xxxx Price Growth Stock
Opportunity Value
Enhanced Index
Approved:
Endeavor Management Co. PFL Life Insurance Company
By: /s/ Xxxxxxx X. XxXxxxxxxx By: /s/ /s/ Xxxxxxx X. Xxxxxx
------------------------------- -------------------------------
Title: C. E. O. Title: President
---------------------------- ----------------------------
Date: October 30, 1996 Date: October 11, 1996
----------------------------- -----------------------------
AUSA Life Insurance Company Endeavor Series Trust
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. XxXxxxx
------------------------------- -------------------------------
Xxxxx X. XxXxxxx
Title: Vice President Title: President
---------------------------- ----------------------------
Date: October 11, 1996 Date: October 31, 1996
----------------------------- -----------------------------
ADDENDUM NO. 3 TO
PARTICIPATION AGREEMENT
AMONG
ENDEAVOR SERIES TRUST,
ENDEAVOR MANAGEMENT CO.,
AND
PFL LIFE INSURANCE COMPANY
Amendment No. 3 to the Participation Agreement among Endeavor Series Trust,
Endeavor Management Co., and PFL Life Insurance Company dated February 20, 1991
("Participation Agreement").
WHEREAS, Providian Life and Health Insurance Company ("Providian") and
First Providian Life and Health Insurance Company ("First Providian") have
established separate accounts for the purpose of selling variable annuities,
some of which are to be funded in part by the Endeavor Series Trust; and
WHEREAS, the original parties to the Participation Agreement and AUSA Life
Insurance Company, Inc. (which was made party by a subsequent addendum to the
Participation Agreement) are desirous of adding Providian and First Providian as
parties, subject to the same terms and conditions except as modified herein
below, to the Participation Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED that Providian and First Providian,
through their respective separate accounts, Providian Life and Health Insurance
Company Separate Account V and First Providian Life and Health Insurance Company
Separate Account C, are authorized to acquire shares issued by the Endeavor
Series Trust, subject to the terms and conditions of the Participation Agreement
as modified herein below.
MODIFICATIONS TO THE PARTICIPATION AGREEMENT FOR THE PURPOSE OF ADDING PROVIDIAN
AND FIRST PROVIDIAN AS PARTIES
Section 2.1 is hereby modified only to the extent that Providian represents
and warrants that it has legally and validly established its Separate Account V
as a segregated asset account under Missouri law.
Addendum No. 3 to Participation Agreement Among
Endeavor Series Trust,
Endeavor Management Co., and
PFL Life Insurance Company
Page 2 of 3
Section 2.1 is hereby further modified only to the extent that First
Providian represents and warrants that it has legally and validly established
its Separate Account C as a segregated asset account under New York law.
Section 5.4 is hereby modified only to the extent that expenses to be paid
initially under Section 5.4 by Providian and First Providian, respectively,
shall be in amounts proportionate to the Fund's net assets attributable to
shares purchased by Providian and First Providian, respectively.
The parties agree that no life insurance company that is a party to the
Participation Agreement shall incur any liability under the Participation
Agreement (in particular under the provisions of Article VII (relating to
indemnification)) which is premised on the acts or omissions of other life
insurance companies that are parties to the Participation Agreement. Each life
insurance company severally indemnifies and is severally indemnified under the
Participation Agreement.
IN WITNESS WHEREOF, each of the original and subsequent parties has caused
this Addendum to be executed in its name and on its behalf by its duly
authorized representative as of October 13, 1997.
PFL LIFE INSURANCE COMPANY ENDEAVOR SERIES TRUST
By its authorized officer By its authorized officer
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. XxXxxxx
------------------------- -------------------------
Title: President Title: President
---------------------- ----------------------
Date: 10/7/97 Date: 10/14/97
----------------------- -----------------------
Addendum No. 3 to Participation Agreement Among
Endeavor Series Trust,
Endeavor Management Co., and
PFL Life Insurance Company
Page 3 of 3
ENDEAVOR MANAGEMENT CO. AUSA LIFE INSURANCE CO., INC.
By its authorized officer By its authorized officer
By: /s/ Xxxxx X. XxXxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- ----------------------------
Title: President Title: Vice President
------------------------- -------------------------
Date: 10/14/97 Date: 10/7/97
-------------------------- --------------------------
PROVIDIAN LIFE AND HEALTH FIRST PROVIDIAN LIFE AND
INSURANCE COMPANY HEALTH INSURANCE COMPANY
By its authorized officer By its authorized officer
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
---------------------------- ----------------------------
Title: Vice President Title: Second Vice President
------------------------- -------------------------
Date: 10/2/97 Date: 10/2/97
-------------------------- --------------------------
Amended Schedule A
Page 1 of 2
AMENDED
SCHEDULE A
----------
EFFECTIVE OCTOBER 13, 1997
Account(s), Policy(ies) and Portfolio(s) Subject
to the Participation Agreement
Among
Endeavor Series Trust,
Endeavor Management Company,
and
PFL Life Insurance Company
Accounts: PFL Endeavor Variable Annuity Account
-------- AUSA Endeavor Variable Annuity Account
Providian Life and Health Insurance Company
Separate Account V
First Providian Life and Health Insurance Company
Separate Account C
Policies: The Endeavor Variable Annuity
-------- The Endeavor Platinum Variable Annuity
The AUSA Endeavor Variable Annuity
Providian Advisor's Edge Variable Annuity
Portfolios: TCW Money Market Portfolio
---------- TCW Managed Asset Allocation Portfolio
X. Xxxx Price International Stock Portfolio
Value Equity Portfolio
Dreyfus Small Cap Value Portfolio
Dreyfus U.S. Government Securities Portfolio
X. Xxxx Price Equity Income Portfolio
X. Xxxx Price Growth Stock Portfolio
Opportunity Value Portfolio
Enhanced Index Portfolio
Approved:
PFL LIFE INSURANCE COMPANY ENDEAVOR SERIES TRUST
By its authorized officer By its authorized officer
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. XxXxxxx
--------------------------- ---------------------------
Title: President Title: President
------------------------ ------------------------
Date: 10/7/97 Date: 10/14/97
------------------------- -------------------------
Amended Schedule A
Page 2 of 2
ENDEAVOR MANAGEMENT CO. AUSA LIFE INSURANCE CO., INC.
By its authorized officer By its authorized officer
By: /s/ Xxxxx X. XxXxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- --------------------------
Title: President Title: Vice President
----------------------- -----------------------
Date: Date: 10/7/97
------------------------ ------------------------
PROVIDIAN LIFE AND HEALTH FIRST PROVIDIAN LIFE AND
INSURANCE COMPANY HEALTH INSURANCE COMPANY
By its authorized officer By its authorized officer
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
-------------------------- --------------------------
Title: Vice President Title: Second Vice President
----------------------- -----------------------
Date: 10/2/97 Date: 10/2/97
------------------------ ------------------------
