FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 1st day of April , 2008, between PHL
Variable Insurance Company, a life insurance company organized under the laws
of the State of Connecticut ("Insurance Company"), on behalf of itself and on
behalf of the separate accounts set forth on Exhibit A, and each Participating
Fund (as defined below).
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Directors or Trustees, as the case may be,
of a Participating Fund, which has the responsibility for management and
control of the Participating Fund.
1.3 "Business Day" shall mean any day for which a Participating Fund calculates
net asset value per Share (as defined below) as described in the
Participating Fund's Prospectus.
1.4 "Commission" shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity or variable life insurance
contract that uses any Participating Fund as an underlying investment
medium. Individuals who participate under a group Contract are
"Participants."
1.6 "Contractholder" shall mean any entity that is a party to a Contract
(including any Participants thereunder) with a Participating Company (as
defined below).
1.7 "Disinterested Board Members" shall mean those members of the Board of a
Participating Fund that are not deemed to be "interested persons" of the
Participating Fund, as defined by the Act.
1.8 "Dreyfus" shall mean The Dreyfus Corporation and its affiliates, including
MBSC Securities Corporation.
1.9 "Insurance Company's General Account(s)" shall mean the general account(s)
of Insurance Company and its affiliates that invest in Shares of a
Participating Fund.
1.10 "Participating Companies" shall mean any insurance company (including
Insurance Company) that offers variable annuity and/or variable life
insurance contracts to the public and that has entered into an agreement
with one or more of the Participating Funds for the purpose of making
Participating Fund Shares available to serve as the underlying investment
medium for the aforesaid Contacts.
1.11 "Participating Fund" shall mean each investment company, including, as
applicable, any series thereof, specified in Exhibit B, as such Exhibit
may be amended from time to time by agreement of the parties hereto, the
Shares of which are available to serve as the underlying investment medium
for the aforesaid Contracts.
1.12 "Prospectus" shall mean the current prospectus and statement of additional
information of a Participating Fund, relating to its Shares, as most
recently filed with the Commission.
1.13 "Separate Account" shall mean a separate account established by Insurance
Company in accordance with the laws of the State of Connecticut and set
forth on Exhibit A, as such Exhibit may be revised from time to time.
1.14 "Shares" shall mean (i) each class of shares of a Participating Fund set
forth on Exhibit A next to the name of such Participating Fund, as such
Exhibit may be revised from time to time, or (ii) if no class of shares is
set forth on Exhibit B next to the name of such Participating Fund, the
shares of the Participating Fund.
1.15 "Software Program" shall mean the software program used by a Participating
Fund for providing Fund and account balance information including net
asset value per Share. Such Program may include the Lion System. In
situations where the Lion System or any other Software Program used by a
Participating Fund is not available, such information may be provided by
telephone. The Lion System shall be provided to Insurance Company at no
charge.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law; (b) it
has legally and validly established each Separate Account pursuant to the
insurance laws of the State of Connecticut and the regulations thereunder
for the purpose of offering to the public certain individual and group
variable annuity and variable life insurance contracts; (c) it has, to the
extent required under applicable law, registered each Separate Account as a
unit investment trust under the Act to serve as the segregated investment
account for it's Contracts; and (d) each Separate Account is eligible to
invest in Shares of each Participating Fund without such investment
disqualifying any Participating Fund as an investment medium for insurance
company separate accounts supporting variable annuity contracts or variable
life insurance contracts.
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2.2 Insurance Company represents and warrants that (a) to the extent required
under applicable law, its Contracts will be described in a registration
statement filed under the Securities Act of 1933, as amended ("1933 Act");
(b) its Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws; and (c) the sale of
its Contracts shall comply in all material respects with state insurance
law requirements. Insurance Company agrees to notify each Participating
Fund promptly of any investment restrictions imposed by state insurance law
and applicable to the Participating Fund.
2.3 Insurance Company represents and warrants that the income, gains and
losses, whether or not realized, from assets allocated to the Separate
Account are, in accordance with the applicable Contracts, to be credited to
or charged against such Separate Account without regard to other income,
gains or losses from assets allocated to any other accounts of Insurance
Company. Insurance Company represents and warrants that the assets of the
Separate Account are and will be kept separate from Insurance Company's
General Account and any other separate accounts Insurance Company may have,
and will not be charged with liabilities from any business that Insurance
Company may conduct or the liabilities of any companies affiliated with
Insurance Company.
2.4 Each Participating Fund represents that it is registered with the
Commission under the Act as an open-end, management investment company and
possesses, and shall maintain, all legal and regulatory licenses,
approvals, consents and/or exemptions required for the Participating Fund
to operate and offer its Shares as an underlying investment medium for
Participating Companies.
2.5 Each Participating Fund represents that it is currently qualified as a
regulated investment company under Subchapter M of the Internal Revenue
Code of 1986, as amended (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 Insurance Company immediately
upon having a reasonable basis for believing that it has ceased to so
qualify or that it might not so qualify in the future.
2.6 Insurance Company represents and agrees that the Contracts are currently,
and at the time of issuance will be, treated as life insurance policies or
annuity contracts, whichever is appropriate, under applicable provisions of
the Code, and that it will make every effort to maintain such treatment and
that it will notify each Participating Fund and Dreyfus immediately upon
having a reasonable basis for believing that the Contracts have ceased to
be so treated or that they might not be so treated in the future. Insurance
Company agrees that any prospectus offering a Contract that is a "modified
endowment contract," as that term is defined in Section 7702A of the Code,
will identify such Contract as a modified endowment contract (or policy).
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2.7 Each Participating Fund represents that it will maintain its assets such
that, at the close of each calendar quarter (or within 30 days
thereafter), it will be "adequately diversified" within the naming of
Section 817(h) of the Code and Treasury Regulation 1.817-5.
2.8 Insurance Company agrees that each Participating Fund shall be permitted
(subject to the other terms of this Agreement) to make its shares
available to other Participating Companies and Contractholders.
2.9 Each Participating Fund represents and warrants that any of its directors,
trustees, officers, employees, investment advisers, and other
individuals/entities who deal with the money and/or securities of the
Participating Fund are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the
Participating Fund in an amount not less than that required by Rule 17g-1
under the Act. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.10 Insurance Company represents and warrants that all of its employees and
agents who deal with the money and/or securities of each Participating
Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the coverage
required to be maintained by the Participating Fund. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by
a reputable bonding company.
2.11 Insurance Company represents and warrants that it has reviewed each
Participating Fund's policy regarding market timing and frequent trading
of shares, and none of its Contractholders is or will be permitted to
engage in trading activity which would violate such policy.
ARTICLE III
PARTICIPATING FUND SHARES
3.1 The Contracts funded through the Separate Account will provide for the
investment of certain amounts in Shares of each Participating Fund.
3.2 Each Participating Fund agrees to make its Shares available for purchase at
the then applicable net asset value per Share by Insurance Company and the
Separate Account on each Business Day pursuant to rules of the Commission.
Notwithstanding the foregoing, each Participating Fund may refuse to sell
its Shares to any person, or suspend or terminate the offering of its
Shares, if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of its Board, acting in
good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary and in the best interests of the
Participating Fund's shareholders.
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3.3 Each Participating Fund agrees that Shares of the Participating Fund will
be sold only to (a) Participating Companies and their separate accounts or
(b) "qualified pension or retirement plans" as determined under
Section 817(h)(4) of the Code. Except as otherwise set forth in this
Section 3.3, no shares of any Participating Fund will be sold to the
general public.
3.4 Each Participating Fund shall use its best efforts to provide closing net
asset value, dividend and capital gain information on a per Share basis to
Insurance Company by 6:00 p.m. Eastern time on each Business Day. Any
material errors in the calculation of net asset value, dividend and capital
gain information shall be reported immediately upon discovery to Insurance
Company. Non-material errors will be corrected in the next Business Day's
net asset value per Share.
3.5 At the end of each Business Day, Insurance Company will use the information
described in Sections 3.2 and 3.4 to calculate the unit values of the
Separate Account for the day. Using this unit value, Insurance Company will
process the day's Separate Account transactions received by it by the close
of trading on the floor of the New York Stock Exchange (currently 4:00 p.m.
Eastern time) to determine the net dollar amount of the Shares of each
Participating Fund that will be purchased or redeemed at that day's closing
net asset value per Share. The net purchase or redemption orders will be
transmitted to each Participating Fund by Insurance Company by 11:00 a.m.
Eastern time on the Business Day next following Insurance Company's receipt
of that information. Subject to Sections 3.6 and 3.8, all purchase and
redemption orders for Insurance Company's General Accounts shall be
effected at the net asset value per Share of each Participating Fund next
calculated after receipt of the order by the Participating Fund or its
Transfer Agent.
3.6 Each Participating Fund appoints Insurance Company as its agent for the
limited purpose of accepting orders for the purchase and redemption of
Shares of the Participating Fund for the Separate Account. Each
Participating Fund will execute orders at the applicable net asset value
per Share determined as of the close of trading on the day of receipt of
such orders by Insurance Company acting as agent ("effective trade date"),
provided that the Participating Fund receives notice of such orders by
11:00 a.m. Eastern time on the next following Business Day and, if such
orders request the purchase of Shares of the Participating Fund, the
conditions specified in Section 3.8, as applicable, are satisfied. A
redemption or purchase request that does not satisfy the conditions
specified above and in Section 3.8, as applicable, will be effected at the
net asset value per Share computed on the Business Day immediately
preceding the next following Business Day upon which such conditions have
been satisfied in accordance with the requirements of this Section and
Section 3.8. Insurance Company represents and warrants that all orders
submitted by the Insurance Company for execution on the effective trade
date shall represent purchase or redemption orders received from its
Contractholders prior to the close of trading on the New York Stock
Exchange on the effective trade date.
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3.7 Insurance Company will make its best efforts to notify each applicable
Participating Fund in advance of any unusually large purchase or
redemption orders.
3.8 If Insurance Company's order requests the purchase of Shares of a
Participating Fund, Insurance Company will pay for such purchases by
wiring Federal Funds to the Participating Fund or its designated custodial
account on the day the order is transmitted. Insurance Company shall make
all reasonable efforts to transmit to the applicable Participating Fund
payment in Federal Funds by 12:00 noon Eastern time on the Business Day
the Participating Fund receives the notice of the order pursuant to
Section 3.5. Each applicable Participating Fund will execute such orders
at the applicable net asset value per Share determined as of the close of
trading on the effective trade date if the Participating Fund receives
payment in Federal Funds by 12:00 midnight Eastern time on the Business
Day the Participating Fund receives the notice of the order pursuant to
Section 3.5. If payment in Federal Funds for any purchase is not received
or is received by a Participating Fund after 12:00 noon Eastern time on
such Business Day, Insurance Company shall promptly, upon each applicable
Participating Fund's request, reimburse the respective Participating Fund
for any charges, costs, fees, interest or other expenses incurred by the
Participating Fund in connection with any advances to, or borrowings or
overdrafts by, the Participating Fund, or any similar expenses incurred by
the Participating Fund, as a result of portfolio transactions effected by
the Participating Fund based upon such purchase request. If Insurance
Company's order requests the redemption of any Shares of a Participating
Fund valued at or greater than $1 million dollars, the Participating Fund
will wire such amount to Insurance Company within seven days of the order.
3.9 Each Participating Fund has the obligation to ensure that its Shares are
registered with the Commission at all times.
3.10 Each Participating Fund will confirm each purchase or redemption order
made by Insurance Company. Transfers of Shares of a Participating Fund
will be by book entry only. No share certificates will be issued to
Insurance Company. Insurance Company will record Shares ordered from a
Participating Fund in an appropriate title for the corresponding account.
3.11 Each Participating Fund shall credit Insurance Company with the
appropriate number of Shares.
3.12 On each ex-dividend date of a Participating Fund or, if not a Business
Day, on the first Business Day thereafter, each Participating Fund shall
communicate to Insurance Company the amount of dividend and capital gain,
if any, per Share.
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All dividends and capital gains shall be automatically reinvested in
additional Shares of the applicable Participating Fund at the net asset
value per Share on the ex-dividend date. Each Participating Fund shall, on
the day after the ex-dividend date or, if not a Business Day, on the first
Business Day thereafter, notify Insurance Company of the number of Shares
so issued.
3.13 To the extent that a Separate Account is properly exempt from registration
under the Act, at least once annually, at the request of a Participating
Fund, or its designee, Insurance Company will certify the amount of
purchases and redemptions of Shares from such Separate Account for the
Participating Fund's most recent fiscal year end.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 Each Participating Fund shall provide monthly statements of account as of
the end of each month for all of Insurance Company's Participating Fund
accounts by the fifteenth (15th) Business Day of the following month.
4.2 Each Participating Fund shall distribute to Insurance Company copies of the
Participating Fund's Prospectus, proxy materials, notices, periodic reports
and other printed materials (which the Participating Fund customarily
provides to the holders of its Shares) in quantities as Insurance Company
may reasonably request for distribution to each of its Contractholders.
Insurance Company may elect to print the Participating Fund's prospectus
and/or its statement of additional information in combination with other
fund companies' prospectuses and statements of additional information,
which are also offered in Insurance Company's insurance product at its own
cost. At Insurance Company's request, the Participating Fund will provide,
in lieu of printed documents, camera-ready copy or diskette of its
prospectuses, annual and semi-annual reports for printing by the Insurance
Company.
4.3 Each Participating Fund will provide to Insurance Company at least one
complete copy of all registration statements, Prospectuses, 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 the Participating Fund or its Shares (except
for such materials that are designed only for a class of shares of a
Participating Fund not offered to the Insurance Company pursuant to this
Agreement), contemporaneously with the filing of such document with the
Commission or other regulatory authorities.
4.4 Insurance Company will provide to each Participating Fund at least one copy
of all registration statements, prospectuses, 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 its Contracts or the Separate Account,
contemporaneously with the filing of such document with the Commission or
other regulatory authorities.
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4.5 Insurance Company will provide Participating Funds on a semi-annual basis,
or more frequently as reasonably requested by the Participating Funds, with
a current tabulation of the number its existing Contractholders whose
Contract values are invested in the Participating Funds. This tabulation
will be sent to Participating Funds in the form of a letter signed by a
duly authorized officer of the Insurance Company attesting to the accuracy
of the information contained in the letter.
ARTICLE V
EXPENSES
5.1 The charge to each Participating Fund for all expenses and costs of the
Participating Fund, including but not limited to management fees, Rule
12b-1 fees, if any, administrative expenses and legal and regulatory costs,
will be included in the determination of the Participating Fund's daily net
asset value per Share.
5.2 Except as otherwise provided in this Agreement and, in particular in the
next sentence, Insurance Company shall not be required to pay directly any
expenses of any Participating Fund or expenses relating to the distribution
of its Shares. Insurance Company shall pay the following expenses or costs:
a. Such amount of the production expenses of any Participating Fund
materials, including the cost of printing a Participating Fund's
Prospectus, or marketing materials for prospective Insurance Company
Contractholders as Dreyfus and Insurance Company shall agree from time
to time.
b. Distribution expenses of any Participating Fund materials or
marketing materials for prospective Insurance Company Contractholders.
c. Distribution expenses of any Participating Fund materials or
marketing materials for Insurance Company Contractholders.
A Participating Fund's principal underwriter may pay Insurance Company, or
the broker-dealer acting as principal underwriter for the Insurance
Company's Contracts, for distribution and other services related to the
Shares of the Participating Fund pursuant to any distribution plan adopted
by the Participating Fund in accordance with Rule 12b-1 under the Act,
subject to the terms and conditions of an agreement between the
Participating Fund's principal underwriter and Insurance Company or the
principal underwriter for the Insurance Company's Contracts, as applicable,
related to such plan.
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Except as provided herein, all other expenses of each Participating Fund
shall not be borne by Insurance Company.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 Insurance Company has reviewed a copy of the Order dated February 5, 1998
of the Commission under Section 6(c) of the Act with respect to the
Participating Funds and, in particular, has reviewed the conditions to the
relief set forth in the Notice of Application for agenda order. As set
forth therein, Insurance Company agrees, as applicable, to report any
potential or existing conflicts promptly to the Board and, in particular,
whenever contract voting instructions are disregarded, and recognizes that
it will be responsible for assisting the Board in carrying out its
responsibilities under such application. Insurance Company agrees to carry
out such responsibilities with a view to the interests of existing
Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board Members,
determines that a material irreconcilable conflict exists with regard to
Contractholder investments in a Participating Fund, the Board shall give
prompt notice to all Participating Companies and any other Participating
Fund. If the Board determines that Insurance Company is responsible for
causing or creating said conflict, Insurance Company shall at its sole cost
and expense, and to the extent reasonably practicable (as determined by a
majority of the Disinterested Board Members), take such action as is
necessary to remedy or eliminate the irreconcilable material conflict. Such
necessary action may include, but shall not be limited to:
a. Withdrawing the assets allocable to the Separate Account from the
Participating Fund and reinvesting such assets in another Participating
Fund (if applicable) or a different investment medium, or submitting the
question of whether such segregation should be implemented to a vote of
all affected Contractholders; and/or
b. Establishing a new registered management investment company.
6.3 If a material irreconcilable conflict arises as a result of a decision by
Insurance Company to disregard Contractholder voting instructions and said
decision represents a minority position or would preclude a majority vote
by all Contractholders having an interest in a Participating Fund,
Insurance Company may be required, at the Board's election, to withdraw the
investments of the Separate Account in that Participating Fund.
6.4 For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will any
Participating Fund be
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required to bear the expense of establishing a new funding medium for any
Contract. Insurance Company shall not be required by this Article to
establish a new funding medium for any Contract if an offer to do so has
been declined by vote of a majority of the Contractholders materially
adversely affected by the irreconcilable material conflict.
6.5 No action by Insurance Company taken or omitted, and no action by the
Separate Account or any Participating Fund taken or omitted as a result of
any act or failure to act by Insurance Company pursuant to this Article VI,
shall relieve Insurance Company of its obligations under, or otherwise
affect the operation of, Article V.
ARTICLE VII
VOTING SHARES OF PARTICIPATING FUND
7.1 Each Participating Fund shall provide Insurance Company with copies, at no
cost to Insurance Company, of the Participating Fund's proxy materials,
reports to shareholders and other communications to shareholders (except
for such materials that are designed only for a class of shares of a
Participating Fund not offered to the Insurance Company pursuant to this
Agreement) in such quantity as Insurance Company shall reasonably require
for distributing to its Contractholders.
Insurance Company shall:
(a) Solicit voting instructions from its Contractholders on a timely
basis and in accordance with applicable law;
(b) vote the Shares of the Participating Fund in accordance with
instructions received from its Contractholders; and
(c) vote the Shares of the Participating Fund for which no instructions
have been received in the same proportion as Shares of the Participating
Fund for which instructions have been received.
Insurance Company agrees at all times to vote Shares held by Insurance
Company's General Account in the same proportion as Shares of the
Participating Fund for which instructions have been received from Insurance
Company's Contractholders. Insurance Company further agrees to be
responsible for assuring that voting the Shares of the Participating Fund
for the Separate Account is conducted in a manner consistent with other
Participating Companies.
7.2 Insurance Company agrees that it shall not, without the prior written
consent of each applicable Participating Fund and Dreyfus, solicit, induce
or encourage Contractholders to (a) change or supplement the Participating
Fund's current investment adviser or (b) change, modify, substitute, add to
or delete from the current investment media for the Contracts.
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ARTICLE VIII
MARKETING AND REPRESENTATIONS
8.1 Each Participating Fund or its principal underwriter shall periodically
furnish Insurance Company with the following documents relating to the
Shares of the Participating Fund, in quantities as Insurance Company may
reasonably request:
a. Current Prospectus and any supplements thereto; and
b. Other marketing materials.
Expenses for the production of such documents shall be borne by Insurance
Company in accordance with Section 5.2 of this Agreement.
8.2 Insurance Company shall designate certain persons or entities that shall
have the requisite licenses to solicit applications for the sale of
Contracts. No representation is made as to the number or amount of
Contracts that are to be sold by Insurance Company. Insurance Company shall
make reasonable efforts to market the Contracts and shall comply with all
applicable federal and state laws in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to each
applicable Participating Fund or its designee, each piece of sales
literature or other promotional material in which the Participating Fund,
its investment adviser or the administrator, or Dreyfus is named, at least
fifteen Business Days prior to its use. No such material shall be used
unless the Participating Fund or its designee approves such material. Such
approval (if given) must be in writing and shall be presumed not given if
not received within ten Business Days after receipt of such material. Each
applicable Participating Fund or its designee, as the case may be, shall
use all reasonable efforts to respond within ten days of receipt.
8.4 Insurance Company shall not give any information or make any
representations or statements on behalf of a Participating Fund or
concerning a Participating Fund in connection with the sale of the
Contracts other than the information or representations contained in the
registration statement or Prospectus of, as may be amended or supplemented
from time to time, or in reports or proxy statements for, the applicable
Participating Fund, or in sales literature or other promotional material
approved by the applicable Participating Fund.
8.5 Each Participating Fund shall furnish, or shall cause to be furnished, to
Insurance Company, each piece of the Participating Fund's sales literature
or other promotional material in which Insurance Company or the Separate
Account is named, at least fifteen Business Days prior to its use. No such
material shall be used unless Insurance Company approves such material.
Such approval (if given) must be in writing and shall be presumed not given
if not received within ten Business Days after receipt of such material.
Insurance Company shall use all reasonable efforts to respond within ten
days of receipt.
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8.6 No Participating Fund shall, in connection with the sale of Shares of the
Participating Fund, give any information or make any representations on
behalf of Insurance Company or concerning Insurance Company, the Separate
Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as
may be amended or supplemented from time to time, or in published reports
for the Separate Account that are in the public domain or approved by
Insurance Company for distribution to Contractholders or Participants, or
in sales literature or other promotional material approved by Insurance
Company.
8.7 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designed for
use, in a newspaper, magazine or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards, motion
pictures or other public media), sales literature (such as any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, or reprints or excerpts of any other
advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports and
proxy materials, and any other material constituting sales literature or
advertising under Financial Industry Regulatory Authority rules, the Act or
the 1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless each Participating
Fund, Dreyfus, each respective Participating Fund's investment adviser and
sub-investment adviser (if applicable), each respective Participating
Fund's distributor, and their respective affiliates, and each of their
directors, trustees, officers, employees, agents and each person, if any,
who controls or is associated with any of the foregoing entities or persons
within the meaning of the 1933 Act (collectively, the "Fund Indemnified
Parties"), against any and all losses, claims, damages or liabilities joint
or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in settlement
of, any action, suit or proceeding or any claim asserted) for which any
such Fund Indemnified Party may become subject, under the 1933 Act, the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in
information furnished by Insurance Company for use in the registration
statement or Prospectus or sales
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literature or advertisements of the respective Participating Fund or with
respect to the Separate Account or Contracts, or 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;
(ii) any conduct, statement or representation (other than statements or
representations contained in the Prospectus and sales literature or
advertisements of the respective Participating Fund) of Insurance Company
or its agents, with respect to the sale and distribution of Contracts for
which the Shares of the respective Participating Fund are an underlying
investment; (iii) wrongful conduct of Insurance Company or persons under
its control with respect to the sale or distribution of the Contracts or
the Shares of the respective Participating Fund; (iv) any incorrect
calculation and/or untimely reporting by Insurance Company of net purchase
or redemption orders; or (v) any misrepresentation breach by Insurance
Company of a material term of this Agreement or as a result of any failure
by Insurance Company to provide the services and furnish the materials or
to make any payments provided for in this Agreement. Insurance Company will
reimburse any Fund Indemnified Party in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that with respect to clauses (i) and (ii) above Insurance Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue
statement or omission or alleged omission made in such registration
statement, prospectus, sales literature, or advertisement in conformity
with written information furnished to Insurance Company by the respective
Participating Fund specifically for use therein. This indemnity agreement
will be in addition to any liability which Insurance Company may otherwise
have.
9.2 Dreyfus agrees to indemnify and hold harmless Insurance Company and each of
its directors, officers, employees, agents and each person, if any, who
controls Insurance Company within the meaning of the 1933 Act
("collectively, the Insurance Company Indemnified Parties"), against any
losses, claims, damages or liabilities to which any such Insurance Company
Indemnified Party may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement or Prospectus or sales literature or advertisements of the
respective Participating Fund; (ii) any omission to state in the
registration statement or Prospectus or sales literature or advertisements
of the respective Participating Fund any material fact required to be
stated therein or necessary to make the statements therein not misleading;
or (iii) any untrue statement or alleged untrue statement of any material
fact contained in the registration statement or Prospectus or sales
literature or advertisements with respect to the Separate Account or the
Contracts and such statements were based on information provided to
Insurance Company by the respective Participating Fund. Dreyfus will
reimburse any legal or other expenses reasonably incurred by any Insurance
Indemnified Party in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that neither
Dreyfus nor
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any Participating Fund will be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or omission or alleged omission made in such registration
statement, Prospectus, sales literature or advertisements in conformity
with written information furnished to the respective Participating Fund by
Insurance Company specifically for use therein. This indemnity agreement
will be in addition to any liability which Dreyfus may otherwise have.
9.3 Each Participating Fund severally shall indemnify and hold Insurance
Company harmless against any and all liability, loss, damages, costs or
expenses which Insurance Company may incur, suffer or be required to pay
due to the respective Participating Fund's (i) incorrect calculation of the
daily net asset value, dividend rate or capital gain distribution rate;
(ii) incorrect reporting of the daily net asset value, dividend rate or
capital gain distribution rate; and (iii) untimely reporting of the net
asset value, dividend rate or capital gain distribution rate; provided that
the respective Participating Fund shall have no obligation to indemnify and
hold harmless Insurance Company if the incorrect calculation or incorrect
or untimely reporting was the result of incorrect information furnished by
Insurance Company or information furnished untimely by Insurance Company or
otherwise as a result of or relating to a breach of this Agreement by
Insurance Company.
9.4 Insurance Company shall indemnify and hold harmless each Participating
Fund, Dreyfus and any investment adviser of the Participating Fund against
any tax liability incurred by the Participating Fund under Section 851 of
the Code arising from purchases or redemptions by Insurance Company's
General Account(s) or the account of its affiliates.
9.5 Promptly after receipt by an indemnified party under this Article of notice
of the commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party under this
Article, notify the indemnifying party of the commencement thereof. The
omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability under this Article IX, except to the
extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a
result of the failure to give such notice. In case any such action is
brought against any indemnified party, and it notified the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, assume the
defense thereof, with counsel satisfactory to such indemnified party, and
to the extent that the indemnifying party has given notice to such effect
to the indemnified party and is performing its obligations under this
Article, the indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof, other than reasonable costs of investigation.
Notwithstanding the foregoing, in any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless
14
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX. The
provisions of this Article IX shall survive termination of this Agreement.
9.6.The indemnity agreements contained in this Article IX shall not protect any
indemnified party against liability to which such party would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such party's
office, as the case may be.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall continue
in force until terminated in accordance with the provisions herein.
10.2 This Agreement shall terminate without penalty:
a. As to any Participating Fund, at the option of Insurance Company or the
Participating Fund at any time from the date hereof upon 180 days'
notice, unless a shorter time is agreed to by the respective
Participating Fund and Insurance Company;
b. As to any Participating Fund, at the option of Insurance Company, if
Shares of that Participating Fund are not reasonably available to meet
the requirements of the Contracts as determined by Insurance Company.
Prompt notice of election to terminate shall be furnished by Insurance
Company, said termination to be effective ten days after receipt of
notice unless the Participating Fund makes available a sufficient number
of Shares to meet the requirements of the Contracts within said ten-day
period;
c. As to a Participating Fund, at the option of Insurance Company, upon the
institution of formal proceedings against that Participating Fund by the
Commission, National Association of Securities Dealers or any other
regulatory body, the expected or anticipated ruling, judgment or outcome
of which would, in Insurance Company's reasonable judgment, materially
impair that Participating Fund's ability to meet and perform the
15
Participating Fund's obligations and duties hereunder. Prompt notice of
election to terminate shall be furnished by Insurance Company with said
termination to be effective upon receipt of notice;
d. As to a Participating Fund, at the option of each Participating Fund,
upon the institution of formal proceedings against Insurance Company by
the Commission, National Association of Securities Dealers or any other
regulatory body, the expected or anticipated ruling, judgment or outcome
of which would, in the Participating Fund's reasonable judgment,
materially impair Insurance Company's ability to meet and perform
Insurance Company's obligations and duties hereunder. Prompt notice of
election to terminate shall be furnished by such Participating Fund with
said termination to be effective upon receipt of notice;
e. As to a Participating Fund, at the option of that Participating Fund, if
the Participating Fund shall determine, in its sole judgment reasonably
exercised in good faith, that Insurance Company has suffered a material
adverse change in its business or financial condition or is the subject
of material adverse publicity and such material adverse change or
material adverse publicity is likely to have a material adverse impact
upon the business and operation of that Participating Fund or Dreyfus,
such Participating Fund shall notify Insurance Company in writing of
such determination and its intent to terminate this Agreement, and after
considering the actions taken by Insurance Company and any other changes
in circumstances since the giving of such notice, such determination of
the Participating Fund shall continue to apply on the sixtieth
(60th) day following the giving of such notice, which sixtieth day shall
be the effective date of termination;
f. As to a Participating Fund, at the option of Insurance Company, if
Insurance Company shall determine, in its sole judgment reasonably
exercised in good faith that the Participating Fund has suffered a
material adverse change in its business or financial condition or is the
subject of material adverse publicity and such material adverse change
or material adverse publicity is likely to have a material adverse
impact upon the business and operations of Insurance Company or its
Separate Account, the Insurance Company shall notify the Participating
Fund in writing of such determination and its intent to terminate this
Agreement, and after considering the actions taken by the Participating
Fund and any other changes in circumstances since the giving of such
notice, such determination of Insurance Company shall continue to apply
to the sixtieth (60th) day following the giving of such notice, which
sixtieth day shall be the effective date of termination;
16
g. As to a Participating Fund, upon termination of the Investment Advisory
Agreement between that Participating Fund and Dreyfus or its successors
unless Insurance Company specifically approves the selection of a new
Participating Fund investment adviser. Such Participating Fund shall
promptly furnish notice of such termination to Insurance Company;
h. As to a Participating Fund, in the event that Shares of the
Participating Fund are not registered, issued or sold in accordance with
applicable federal law, or such law precludes the use of such Shares as
the underlying investment medium of Contracts issued or to be issued by
Insurance Company. Termination shall be effective immediately as to that
Participating Fund only upon such occurrence without notice;
i. At the option of a Participating Fund upon a determination by its Board
in good faith that it is no longer advisable and in the best interests
of shareholders of that Participating Fund to continue to operate
pursuant to this Agreement. Termination pursuant to this Subsection
(i) shall be effective upon notice by such Participating Fund to
Insurance Company of such termination;
j. At the option of a Participating Fund if the Contracts cease to qualify
as annuity contracts or life insurance policies, as applicable, under
the Code, or if such Participating Fund reasonably believes that the
Contracts may fail to so qualify;
k. At the option of any party to this Agreement, upon another party's
breach of any material provision of this Agreement;
l. At the option of a Participating Fund, if the Contracts are not
registered, issued or sold in accordance with applicable federal and/or
state law; or
m. Upon assignment of this Agreement, unless made with the written consent
of every other non-assigning party.
Any such termination pursuant to Section 10.2a, 10.2d, 10.2e, 10.2f or 10.2k
herein shall not affect the operation of Article V of this Agreement. Any
termination of this Agreement shall not affect the operation of Article IX
of this Agreement.
10.3 Notwithstanding any termination of this Agreement pursuant to Section 10.2
hereof, each Participating Fund and Dreyfus may, at the option of the
Participating Fund, continue to make available additional Shares of that
Participating Fund for as long as the Participating Fund desires pursuant
to the terms and conditions of this Agreement as provided below, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, without
limitation, if that Participating Fund and Dreyfus so elect to make
additional Shares of the Participating Fund available, the owners of the
Existing Contracts or Insurance Company, whichever
17
shall have legal authority to do so, shall be permitted to reallocate
investments in that Participating Fund, redeem investments in that
Participating Fund and/or invest in that Participating Fund upon the making
of additional purchase payments under the Existing Contracts. In the event
of a termination of this Agreement pursuant to Section 10.2 hereof, such
Participating Fund and Dreyfus, as promptly as is practicable under the
circumstances, shall notify Insurance Company whether Dreyfus and that
Participating Fund will continue to make Shares of that Participating Fund
available after such termination. If such Shares of the Participating Fund
continue to be made available after such termination, the provisions of
this Agreement shall remain in effect and thereafter either of that
Participating Fund or Insurance Company may terminate the Agreement as to
that Participating Fund, as so continued pursuant to this Section 10.3,
upon prior written notice to the other party, such notice to be for a
period that is reasonable under the circumstances but, if given by the
Participating Fund, need not be for more than six months.
10.4 Termination of this Agreement as to any one Participating Fund shall not
be deemed a termination as to any other Participating Fund unless
Insurance Company or such other Participating Fund, as the case may be,
terminates this Agreement as to such other Participating Fund in
accordance with this Article X.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the addition
or deletion of any Participating Fund or class of Shares of a
Participating Fund as specified in Exhibit B, shall be made by agreement
in writing between Insurance Company and each respective Participating
Fund.
ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be given by certified mail,
return receipt requested, to the appropriate parties at the following
addresses:
Insurance Company: PHL Variable Insurance Company
Xxxx X. Xxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
18
With copies (which shall not constitute notice) to:
Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000]
Telephone: 000-000-0000
Fax: 000-000-0000
Participating Funds: Name of Participating Fund
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Telephone: 000-000-0000
Fax: 000-000-0000
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the addresses as
evidenced by the return receipt.
ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement has been executed on behalf of each Participating Fund by
the undersigned officer of the Participating Fund in his capacity as an
officer of the Participating Fund. The obligations of a Participating Fund
under this Agreement shall only be binding upon the assets and property of
such Participating Fund and shall not be binding upon any director,
trustee, officer or shareholder of the Fund individually. It is agreed
that the obligations of the Participating Funds are several and not joint,
that no Participating Fund shall be liable for any amount owing by another
Participating Fund and that the Participating Funds have executed one
instrument for convenience only.
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ARTICLE XIV
LAW
14.1 This Agreement shall be construed in accordance with the internal laws of
the State of New York, without giving effect to principles of conflict of
laws.
ARTICLE XV
FOREIGN TAX CREDITS
15.1 Each Participating Fund agrees to consult in advance with Insurance
Company concerning any decision to elect or not to pass through the
benefit of any foreign tax credits to the Participating Fund's
shareholders pursuant to Section 853 of the Code.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
PHL VARIABLE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
Xxxx Xxxxxxx X'Xxxxxxx
Its: Senior Vice President
Attest: /s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
EACH PARTICIPATING FUND
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx
Its: Secretary
Attest:
-------------------------------
THE DREYFUS CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
Its: Controller
Attest:
-------------------------------
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EXHIBIT A
SEPARATE ACCOUNTS
PHL Variable Accumulation Account II
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EXHIBIT B
LIST OF PARTICIPATING FUNDS
Fund Name Share Class
--------- -----------
Dreyfus Variable Investment Fund
International Equity Portfolio Service Shares
International Value Portfolio Service Shares
Dreyfus Investment Portfolios
MidCap Stock Portfolio Service Shares
Small Cap Stock Index Portfolio Service Shares
Dreyfus Stock Index Fund, Inc. Service Shares
22
