PARTICIPATION AGREEMENT
AMONG
PIONEER VARIABLE CONTRACTS TRUST,
FIRST SYMETRA NATIONAL LIFE INSURANCE COMPANY OF NEW YORK
PIONEER INVESTMENT MANAGEMENT, INC.
AND
PIONEER FUNDS DISTRIBUTOR, INC.
THIS AGREEMENT, made and entered into this 3rd day of December 2004 by
and among PIONEER VARIABLE CONTRACTS TRUST, a Delaware business trust (the
"Trust"), FIRST SYMETRA NATIONAL LIFE INSURANCE COMPANY OF NEW YORK , a New
York life insurance company (the "Company") on its own behalf and on behalf
of each of the segregated asset accounts of the Company set forth in Schedule
A hereto, as may be amended from time to time (the "Accounts"), PIONEER
INVESTMENT MANAGEMENT, INC., a Delaware corporation ("PIM") and PIONEER FUNDS
DISTRIBUTOR, INC. ("PFD"), a corporation organized under the laws of The
Commonwealth of Massachusetts. PIM and PFD are members of the UniCredito
Italiano banking group, register of banking groups.
WHEREAS, the Trust 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 or will be registered under the Securities Act
of 1933, as amended (the "1933 Act");
WHEREAS, shares of beneficial interest of the Trust are divided into
several series and classes of shares, each series being designated a
"Portfolio" and representing an interest in a particular managed pool of
securities and other assets;
WHEREAS, the Trust is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and/or
variable annuity contracts to be offered by insurance companies, including
the Company, which have entered into participation agreements with the Trust
(the "Participating Insurance Companies");
WHEREAS, the Trust has obtained an order from the Securities and
Exchange Commission (the "SEC"), dated July 9, 1997 (File No. 812-10494)
(the "Mixed and Shared Funding Exemptive Order") granting Participating
Insurance Companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of Sections 9(a), 13(a), 15(a) and
15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder,
to the extent necessary to permit shares of the Trust to be sold to and held
by variable annuity and variable life insurance companies that may or may not
be affiliated with one another and qualified pension and retirement plans
("Qualified Plans");
WHEREAS, PIM is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and any applicable state
securities law, and is the Trust's investment adviser;
WHEREAS, the Company will issue certain variable annuity and/or
variable life insurance contracts (individually, the "Contract" or,
collectively, the "Contracts") which, if required by applicable law, will
be registered under the 1933 Act;
WHEREAS, the Accounts are duly organized, validly existing segregated
asset accounts, 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 variable life insurance contracts that are allocated to the
Accounts (the Contracts and the Accounts covered by this Agreement, and each
corresponding Portfolio covered by this Agreement in which the Accounts may
invest, is specified in Schedule A attached hereto as may be modified from
time to time);
WHEREAS, the Company has registered or will register the Accounts as
unit investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, the Portfolios offered by the Trust to the Company and the
Accounts are set forth on Schedule A attached hereto;
WHEREAS, PFD is registered as a broker-dealer with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934, as
amended (hereinafter the "1934 Act"), and is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") and is
authorized to sell shares of the Portfolios to unit investment trusts such as
the Accounts;
WHEREAS, Symetra Securities, Inc. ("Policy Underwriter"), the
underwriter for the variable annuity and the variable life policies, is
registered as a broker-dealer with the SEC under the 1934 Act and is a member
in good standing of the NASD; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in one or more of the
Portfolios specified in Schedule A attached hereto (the "Shares") on behalf of
the Accounts to fund the Contracts, and PFD intends to sell such Shares to the
Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Trust,
PIM, PFD and the Company agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. PFD and the Company agree to provide pricing information,
execute orders and wire payments for purchases and redemptions of Fund
shares as set forth in this Article I until such time as they mutually
agree to utilize the National Securities Clearing Corporation ("NSCC").
Upon such mutual agreement, PFD and the Company agree to provide
pricing information, execute orders and wire payments for purchases
and redemptions of Fund shares through NSCC and its subsidiary
systems as set forth in Exhibit I.
1.2 PFD agrees to sell to the Company those Shares which the
Accounts order in accordance with the terms of this Agreement (based
on orders placed by Contract owners or participants on that Business
Day, as defined below) and which are available for purchase by such
Accounts. Each such order will be executed on a daily basis at the
net asset value next computed after receipt by the Trust or its
designee of the order for the Shares. For purposes of this
Section 1.2, the Company shall be the designee of the Trust for
receipt of such orders from Contract owners or participants and
receipt by such designee shall constitute receipt by the Trust;
provided that the Trust or its designee receives written
(or facsimile) notice of such orders by the time the Trust ordinarily
calculates its net asset value as described from time to time in the
Trust's prospectus (which as of the date of this Agreement is
4:00 p.m. New York time on such Business Day. "Business Day"
shall mean any day on which the New York Stock Exchange, Inc.
(the "NYSE") is open for trading and on which the Trust calculates
its net asset value pursuant to the rules of the SEC.
1.3. PFD agrees to make the Shares available for purchase at the
applicable net asset value per share by the Company and the Accounts
on those days on which the Trust calculates its net asset value in
accordance with the rules of the SEC. Notwithstanding the foregoing,
the Board of Trustees of the Trust (the "Board") may refuse to sell
any Shares to the Company and the Accounts, or suspend or terminate
the offering of the Shares to the Company and the Accounts if such
action is required by law or by regulatory authorities having
jurisdiction over PIM, PFD or the Trust or is, in the sole discretion
of the Board acting in good faith and in light of its fiduciary duties
under federal and any applicable state laws, in the best interest of
the Shareholders of such Portfolio.
1.4. The Trust and PFD will sell Trust shares only to Participating
Insurance Companies and Qualified Plans which have agreed to
participate in the Trust to fund their Separate Accounts and/or
Qualified Plans all in accordance with the requirement of Section
817(h) of the Internal Revenue Code, as amended (the "Code") and the
Treasury regulations thereunder. The Company will not resell the
Shares except to the Trust or its agents.
1.5. The Trust agrees, upon the Company's request, to redeem for
cash, any full or fractional Shares held by the Accounts (based on
orders placed by Contract owners on that Business Day). Each such
redemption request shall be executed on a daily basis at the net
asset value next computed after receipt by the Trust or its designee
of the request for redemption. For purposes of this Section 1.5, the
Company shall be the designee of the Trust for receipt of requests for
redemption from Contract owners or participants and receipt by such
designee shall constitute receipt by the Trust; provided that the
Trust or its designee receives written (or facsimile) notice of such
request for redemption by the time the Trust ordinarily calculates
its net asset value as described from time to time in the Trust's
prospectus (which as of the date of this Agreement is 4:00 p.m. New
York time on such Business Day).
1.6. Each purchase, redemption and exchange order placed by the
Company shall be placed separately for each Portfolio and shall not be
netted with respect to any Portfolio. However, with respect to
payment of the purchase price by the Company and of redemption
proceeds by the Trust, the Company and the Trust shall net purchase
and redemption orders with respect to each Portfolio and shall
transmit one net payment for all of the Portfolios in accordance with
Section 1.7 hereof.
1.7. In the event of net purchases, the Company shall pay for the
Shares by 11:00 a.m. Pacific Standard time on the next Business Day
after an order to purchase the Shares is made in accordance with the
provisions of Section 1.2. hereof. Company shall transmit all such
payments in federal funds by wire. If payment in federal funds for
any purchase is not received or is received by the Trust after 11:00
a.m. on such Business Day, the Company shall promptly, upon the
Trust's request, reimburse the Trust for any charges, costs, fees,
interest or other expenses incurred by the Trust in connection with
any advances to, or borrowings or overdrafts by, the Trust, or any
similar expenses (including the cost of and any loss incurred by the
Trust in unwinding any purchase of securities by the Trust) incurred
by the Trust as a result of portfolio transactions effected by the
Trust based upon such purchase request. In the event of net
redemptions, the Trust ordinarily shall pay and transmit the proceeds
of redemptions of Shares by 11:00 a.m. Pacific Standard time on the
next Business Day after a redemption order is received from the
Company in accordance with Section 1.5. hereof, although the Trust
reserves the right to postpone the date of payment or satisfaction
upon redemption consistent with Section 22(e) of the 1940 Act and any
rules pomulgated thereunder. Payments for net redemptions shall be
in federal funds transmitted by wire.
1.8. Issuance and transfer of the Shares will be by book entry
only. Stock certificates will not be issued to the Company or the
Accounts. The Shares ordered from the Trust will be recorded in an
appropriate title for the Accounts or the appropriate subaccounts of
the Accounts.
1.9. The Trust shall furnish notice (by wire or telephone, followed
by written confirmation) no later than 7:00 p.m. New York time on the
ex-dividend date to the Company of any dividends or capital gain
distributions payable on the Shares. The Company hereby elects to
receive all such dividends and distributions as are payable in cash or
Shares on a Portfolio's Shares in additional Shares of that
Portfolio. The Trust shall notify the Company by the end of the next
following Business Day of the number of Shares so issued as payment of
such dividends and distributions.
1.10. The Trust or its custodian 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 share is
calculated and shall use its best efforts to make such net asset
value per share available by 6:00 p.m. New York time. In the event of
an error in the computation of a Portfolio's net asset value per share
("NAV") or any dividend or capital gain distribution (each, a
"pricing error"), PIM or the Trust shall notify the Company as soon
as possible after the discovery of the error. Such notification may
be verbal, but shall be confirmed promptly in writing in accordance
with Article XII of this Agreement. A pricing error shall be
corrected in accordance with the Trust's internal policies and
procedures. If an adjustment is necessary to correct a material
error that occurred through no fault of the Company and such
adjustment has caused Contract owners to receive less than the number
of Shares or redemption proceeds to which they are entitled, the
number of Shares of the applicable Account will be adjusted and the
amount of any underpayments will be paid by the Trust or PIM to the
Company for crediting of such amounts to the Contract owners'
accounts. Upon notification by PIM of any overpayment due to a
material error, the Company shall promptly remit to the Trust or PIM,
as appropriate, any overpayment that has not been paid to Contract
owner; however, PIM acknowledges that the Company does not intend to
seek additional payments form any Contract owner who, because of a
pricing error, may have underpaid for units of interest credited to
his/her account. The costs of correcting such adjustments shall be
borne by the Trust or PIM unless the Company is at fault in which
case such costs shall be borne by the Company.
ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act or are exempt from or not
subject to registration thereunder, and that the Contracts will be
issued, sold, and distributed in compliance in all material respects
with all applicable state and federal laws, including without
limitation the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and the 1940 Act. The Company further
represents and warrants that it (i) is an insurance company duly
organized and in good standing under applicable law; (ii) has
legally and validly established each Account as a segregated asset
account under applicable law; (iii) has registered or, prior to any
issuance or sale of the Contracts, will register the Accounts as unit
investment trusts in accordance with the provisions of the 1940 Act
(unless exempt therefrom) to serve as segregated investment accounts
for the Contracts, and (iv) will maintain such registration for so
long as any Contracts are outstanding. The Company shall amend the
registration statements under the 1933 Act for the Contracts and the
registration statements under the 1940 Act for the Accounts from time
to time as required in order to effect the continuous offering of the
Contracts or as may otherwise be required by applicable law. The
Company shall register and qualify the Contracts for sales in
accordance with the securities laws of the various states only if and
to the extent deemed necessary by the Company. At the time the
Company is required to deliver the Trust's prospectus or statement of
additional information to a purchaser of Shares in accordance with the
requirements of federal or state securities laws, the Company shall
distribute to such Contract purchasers the then current Trust
prospectus, as supplemented.
2.2. The Company represents and warrants that the Contracts are
currently and at the time of issuance will be treated as life
insurance, endowment or annuity contracts under applicable provisions
of the Code, that it will maintain such treatment and that it will
notify the Trust or PIM immediately upon having a reasonable basis for
believing that the Contracts have ceased to be so treated or that they
might not be so treated in the future.
2.3. The Company represents and warrants that Policy Underwriter,
the underwriter for the individual variable annuity contracts and the
variable life policies, is a member in good standing of the NASD and
is a registered broker-dealer with the SEC. The Company represents
and warrants that the Company and Policy Underwriter will sell and
distribute such contracts and policies in accordance in all material
respects with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and the
1940 Act and state insurance law suitability requirements.
2.4. The Trust represents and warrants that the Shares sold
pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for issuance in compliance with the laws of Delaware
and that the Trust is and shall remain registered under the 1940 Act.
The Trust 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 Trust
shall register and qualify the Shares for sale in accordance with
the laws of the various states only if and to the extent deemed
necessary by the Trust.
2.5. The Trust represents that it is lawfully organized and
validly existing under the laws of the State of Delaware. The Trust
further represents that it has adopted a plan pursuant to Rule
12b-1 under the 1940 Act and imposes an asset-based charge to finance
its distribution expenses with respect to the Class II shares of
certain of the Trust's Portfolios as permitted by applicable law and
regulation.
2.6. PFD represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the
SEC. PFD represents that it will sell and distribute the Shares in
accordance in all material respects with all applicable state and
federal securities laws, including without limitation the 1933 Act,
the 1934 Act, and the 0000 Xxx.
2.7. PIM represents and warrants that it is and shall remain duly
registered as an investment adviser under the Investment Advisers Act
of 1940, as amended.
2.8. No less frequently than annually, the Company shall submit to
the Board such reports, material or data as the Board may reasonably
request so that it may carry out fully the obligations imposed upon it
by the conditions contained in the Mixed and Shared Funding Exemptive
Order pursuant to which the SEC has granted exemptive relief to
permit mixed and shared funding.
2.9. The Trust and PIM represent and warrant that all of their
respective officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of
the Trust are, and shall continue to be at all times, covered by
one or more blanket fidelity bonds or similar coverage for the benefit
of the Trust in an amount not less than the minimal coverage
required by Rule 17g-1 under the 1940 Act or related provisions as
may be promulgated form time to time. The aforesaid bonds shall
include coverage for larceny and embezzlement and shall be issued
by a reputable bonding company. The Company represents and warrants
that all of its respective officers, employees, and other individuals
or entities employed or controlled by the Company dealing with the
money and/or securities of the Trust are, and shall continue to be
at all times, covered by a blanket fidelity bond or similar coverage
in an deemed appropriate by the Company. The aforesaid bond shall
include coverage for larceny and embezzlement and shall be issued by
a reputable bonding company. The Company agrees that any amounts
received under such bond relating to a claim arising under this
Agreement will be held by the Company for the benefit of the Trust.
The Company agrees to make all reasonable efforts to maintain such
bond and agrees to notify the Trust and PIM in writing in the event
such coverage terminates.
2.10. The Company represents and warrants, for purposes other than
diversification under Section 817 of the Code, that the Contracts are
currently at the time of issuance and, assuming the Trust meets the
requirements of Article VI, will be treated as annuity contracts under
applicable provisions of the Code, and that it will make every effort
to maintain such treatment and that it will notify the Trust, PFD and
PIM 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. In addition, the Company represents and
warrants that each Account is a "segregated asset account" and that
interests in the Account are offered exclusively through the purchase
of or transfer into a "variable contract" within the meaning of
such terms under Section 817 of the Code and the regulations
thereunder. The Company will use every effort to continue to meet
such definitional requirements, and it will notify the Trust, PFD and
PIM immediately upon having a reasonable basis for believing that
such requirements have ceased to be met or that they might not be met
in the future. The Company represents and warrants that it will
not purchase Trust shares with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in
connection with such plans.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. At least annually, the Trust or its designee shall provide the
Company, free of charge, with as many copies of the current prospectus
(describing only the Portfolios listed in Schedule A hereto) for the
Shares as the Company may reasonably request for distribution to
existing Contract owners whose Contracts are funded by such Shares.
The Trust or its designee shall provide the Company, at the Company's
expense, with as many copies of the current prospectus for the Shares
as the Company may reasonably request for distribution to prospective
purchasers of Contracts. If requested by the Company in lieu thereof,
the Trust or its designee shall provide such documentation
(including a "camera ready" copy of the new prospectus as set in type
or, at the request of the Company, as a diskette in the form sent to
the financial printer) and other assistance as is reasonably necessary
in order for the parties hereto once each year (or more frequently if
the prospectus for the Shares is supplemented or amended) to have the
prospectus for the Contracts and the prospectus for the Shares printed
together in one document; the expenses of such printing to be
apportioned between (a) the Company and (b) the Trust or its designee
in proportion to the number of pages of the Contract and Shares'
prospectuses, taking account of other relevant factors affecting the
expense of printing, such as covers, columns, graphs and charts; the
Trust or its designee to bear the cost of printing the Trust's
prospectus portion of such document for distribution to owners of
existing Contracts funded by the Shares and the Company to bear the
expenses of printing the portion of such document relating to the
Accounts; provided, however, that the Company shall bear all printing
expenses of such combined documents where used for distribution to
prospective purchasers or to owners of existing Contracts not funded
by the Shares. In the event that the Company requests that the Trust
or its designee provides the Trust's prospectus in a "camera ready,"
diskette format or other mutually agreed upon format, the Trust shall
be responsible for providing the prospectus in the format in which it
or PIM is accustomed to formatting prospectuses and shall bear the
expense of providing the prospectus in such format (e.g., typesetting
expenses), and the Company shall bear the expense of adjusting or
changing the format to conform with any of its prospectuses,
subject to PIM's approval which shall not be unreasonably withheld.
Notwithstanding the foregoing, the Trust shall also provide the
Company, at the Trust's expense, no less frequently than annually,
copies of the Portfolios prospectuses in PDF format for use on the
Company's and/or affiliated producer's websites.
3.2. The prospectus for the Shares shall state that the statement
of additional information for the Shares is available from the Trust
or its designee. The Trust or its designee, at its expense, shall
print and provide such statement of additional information to the
Company (or a master of such statement suitable for duplication by the
Company) for distribution to any owner of a Contract funded by the
Shares. The Trust shall also provide such statement of additional
information to the Company in a mutually agreed upon electronic
format. The Trust or its designee, at the Company's expense, shall
print and provide such statement to the Company (or a master of such
statement suitable for duplication by the Company) for distribution
to a prospective purchaser who requests such statement or to an owner
of a Contract not funded by the Shares.
3.3. The Trust or its designee shall provide the Company free of
charge, if and to the extent applicable to the Shares, copies of the
Trust's proxy materials, reports to Shareholders and other
communications to Shareholders in such quantity as the Company shall
reasonably require for distribution to Contract owners. The cost of
distributing such documents shall be borne the Trust or its designee.
3.4 The Trust or PIM will provide the Company with as much notice
as is reasonably practicable of any proxy solicitation for any
Portfolio, and of any material change in the Trust's registration
statement, particularly any change resulting in change to the
registration statement or prospectus or statement of additional
information for any Account. The Trust and PIM will cooperate with
the Company so as to enable the Company to solicit proxies from
Contract owners or to make changes to its prospectus, statement of
additional information or registration statement, in an orderly
manner. The Trust and PIM will make reasonable efforts to attempt to
have changes affecting Contract prospectuses become effective
simultaneously with the annual updates for such prospectuses.
3.5. The Trust hereby notifies the Company that it may be
appropriate to include in the prospectus pursuant to which a Contract
is offered disclosure regarding the potential risks of mixed and
shared funding.
3.6. If and to the extent required by law, the Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Shares in accordance with instructions
received from Contract owners; and
(c) vote the Shares for which no instructions have been
received in the same proportion as the Shares of such
Portfolio for which instructions have been received
from Contract owners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
contract owners. The Company will in no way recommend action in
connection with or oppose or interfere with the solicitation of
proxies for the Shares held for such Contract owners. The Company
reserves the right to vote shares held in any segregated asset account
in its own right, to the extent permitted by law. Participating
Insurance Companies shall be responsible for assuring that each of
their separate accounts holding Shares calculates voting privileges
in the manner required by the Mixed and Shared Funding Exemptive
Order. The Trust and PIM will notify the Company of any changes of
interpretations or amendments to the Mixed and Shared Funding
Exemptive Order.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to
PFD or its designee, each piece of sales literature or other
promotional material in which the Trust, PIM, any other investment
adviser to the Trust, or any affiliate of PIM are named, at least five
(5) Business Days prior to its use. No such material shall be used
if PFD or its designee reasonably objects to such use within five
(5) Business Days after receipt of such material. PFD or its designee
shall notify the Company within five (5) Business Days of receipt of
its approval or disapproval of such materials.
4.2. The Company shall not make any representation on behalf of the
Trust, PIM, any other investment adviser to the Trust or any affiliate
of PIM and shall not give any information on behalf of the Trust, PIM,
any other investment adviser to the Trust, or any affiliate of PIM or
concerning the Trust or any other such entity in connection with the
sale of the Contracts other than the information contained in the
registration statement, prospectus or statement of additional
information for the Shares, as such registration statement, prospectus
and statement of additional information may be amended or supplemented
from time to time, or in reports or proxy statements for the Trust,
or in sales literature or other promotional material approved by the
Trust, PIM, PFD or their respective designees, except with the
permission of the Trust, PIM or their respective designees. The
Trust, PIM, PFD or their respective designees each agrees to respond
to any request for approval on a prompt and timely basis. The Company
shall adopt and implement procedures reasonably designed to ensure
that information concerning the Trust, PIM, PFD or any of their
affiliates which is intended for use only by brokers or agents selling
the Contracts (i.e., information that is not intended for distribution
to Contract owners or prospective Contract owners) is so used, and
neither the Trust, PIM, PFD nor any of their affiliates shall be
liable for any losses, damages or expenses relating to the improper
use of such broker only materials.
4.3. PFD 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 the Accounts is
named, at least five (5) Business Days prior to its use. No such
material shall be used if the Company or its designee reasonably
objects to such use within five (5) Business Days after receipt of
such material. The Company shall notify PFD within five (5) Business
Days of receipt of its approval or disapproval of such materials.
4.4. The Trust, PIM and PFD shall not give any information or make
any representations on behalf of the Company or concerning the
Company, the Accounts, or the Contracts in connection with the sale of
the Contracts other than the information or representations contained
in a registration statement, prospectus, or statement of additional
information for the Contracts, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in reports for the Accounts, or in
sales literature or other promotional material approved by the Company
or its designee, except with the permission of the Company. The
Company or its designee agrees to respond to any request for
approval on a prompt and timely basis. The parties hereto agree that
this Section 4.4. is neither intended to designate nor otherwise imply
that PIM is an underwriter or distributor of the Contracts.
4.5. The Company and the Trust shall provide, or shall cause to be
provided, to the other at least one complete copy of all registration
statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional
materials, and all amendments to any of the above, that relate to the
Contracts, or to the Trust or its Shares, prior to or
contemporaneously with the filing of such document with the SEC or
other regulatory authorities.
4.6. For purpose of this Article IV and Article VIII, the phrase
"sales literature or other promotional material" includes but is not
limited to advertisements (such as material published, or designed for
use in, a newspaper, magazine, or other periodical, radio, television,
telephone, electronic messages or tape recording, videotape display,
signs or billboards, motion pictures, or other public media,
including, for example, on-line networks such as the Internet or other
electronic media), and sales literature (such as brochures,
electronic messages, circulars, reprints or excerpts or any other
advertisement, sales literature, or published articles), distributed
or made generally available to customers or the public, educational or
training materials or communications distributed or made generally
available to some or all agents or employees, and shareholder reports,
proxy materials (including solicitations for voting instructions) and
any other material constituting sales literature or advertising under
the NASDR Conduct Rules, the 1933 Act or the 1940 Act. However, such
phrase "sales literature or other promotional material" shall not
include any material that simply lists the names of Portfolios of the
Trust in a list of investment options.
4.7. At the request of any party to this Agreement, each other
party will make available to the other party's independent auditors
and/or representative of the appropriate regulatory agencies, all
records, data, access to operating procedures that may be reasonably
requesting in connection with compliance and regulatory requirements
related to the Agreement or any party's obligations under this
Agreement.
4.8 Subject to the terms of Sections 4.1 and 4.2 of this Agreement,
the Trust (and its Portfolios), PIM and PFD hereby each consents in
connection with the marketing of the Contracts to the Company's use
of their names or other identifying marks, including PIONEER
INVESTMENTS[registered trademark symbol] and Pioneer's sail logo, in
connection with the marketing of the Contracts. The Trust, PIM or
PFD or their affiliates may withdraw this authorization as to any
particular use of any such name or identifying xxxx at any time:
(i) upon a reasonable determination that such use would have a
material adverse effect on its reputation or marketing efforts or its
affiliates or (ii) if any of the Portfolios of the Trust cease to be
available through the Company. Except as set forth in the previous
sentence, the Company will not cause or permit, without prior written
permission, the use, description or reference to a Pioneer party's
name, or to the relationship contemplated in this Agreement, in any
advertisement, or promotional materials or activities, including
without limitation, any advertisement or promotional materials
published, distributed, or made available, or any activity conducted
through, the Internet or any other electronic medium.
ARTICLE V. FEES AND EXPENSES
5.1. Neither the Trust, PIM nor PFD shall pay any fee or other
compensation to the Company under this Agreement, and the Company
shall pay no fee or other compensation to the Trust, PIM or PFD under
this Agreement. Notwithstanding the foregoing, the parties hereto
will bear certain expenses under the provisions of this Agreement and
shall reimburse other parties for expenses initially paid by one party
but allocated to another party. In addition, nothing herein shall
prevent the parties hereto from otherwise agreeing to perform, and
arranging for appropriate compensation for, other services relating to
the Trust and/or to the Accounts pursuant to this Agreement.
5.2. The Trust or its designee shall bear the expenses for the cost
of registration and qualification of the Shares under all applicable
federal and state laws, including preparation and filing of the
Trust's registration statement, and payment of filing fees and
registration fees; preparation and filing of the Trust's proxy
materials and reports to Shareholders; setting in type and printing
its prospectus and statement of additional information (to the extent
provided by and as determined in accordance with Article III above);
setting in type and printing the proxy materials and reports to
Shareholders (to the extent provided by and as determined in
accordance with Article III above); the preparation of all statements
and notices required of the Trust by any federal or state law with
respect to its Shares; all taxes on the issuance or transfer of the
Shares; and the costs of distributing the Trust's prospectuses,
reports to Shareholders and proxy materials to owners of Contracts
and participants funded by the Shares and any expenses permitted to be
paid or assumed by the Trust pursuant to a plan, if any, under
Rule 12b-1 under the 1940 Act. The Trust shall not bear any
expenses of marketing the Contracts.
5.3. The Company shall bear the expenses of distributing
the Shares' prospectus or prospectuses in connection with new sales
of the Contracts and of distributing the Trust's Shareholder reports
to Contract owners. The Company shall bear all expenses associated
with the registration, qualification, and filing of the Contracts
under applicable federal securities and state insurance laws; the
cost of preparing, printing and distributing the Contract prospectus
and statement of additional information; and the cost of preparing,
printing and distributing annual individual account statements for
Contract owners as required by state insurance laws.
5.4. The Company agrees to provide certain administrative services,
specified in Schedule B attached hereto, in connection with the
arrangements contemplated by this Agreement. The parties intend that
the services referred to in the Section 5.4 be recordkeeping,
shareholder communication, and other transaction facilitation and
processing, and related administrative serves and are not the services
of an underwriter or principal underwriter of the Trust and the
Company is not an underwriter for Shares within the meaning of the
1933 Act.
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1. The Trust and PIM represent and warrant that each Portfolio of
the Trust in which an Account invests will meet the diversification
requirements of Section 817(h)(1) of the Code and Treas. Reg. 1.817-5,
relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts, as they may be amended from
time to time (and any revenue rulings, revenue procedures, notices,
and other published announcements of the Internal Revenue Service
interpreting these sections), as if those requirements applied
directly to each such Portfolio.
6.2. The Trust and PIM represent that each Portfolio will elect to
be qualified as a Regulated Investment Company under Subchapter M of
the Code and that they will maintain such qualification (under
Subchapter M or any successor or similar provision).
6.3. No Shares of the Trust will be sold directly to the general
public.
ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1. The Trust agrees that the Board, constituted with a majority
of disinterested trustees, will monitor each Portfolio of the Trust
for the existence of any material irreconcilable conflict between the
interests of the variable annuity contract owners and the variable
life insurance policy owners of the Company and/or affiliated
companies ("contract owners") investing in the Trust. A material
irreconcilable conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretive letter, or any similar action by
insurance, tax or securities regulatory authorities; (c) an
administrative or judicial decision in nay relevant proceeding;
(d) the manner in which the investments of any Portfolio are being
managed; (e) a difference in voting instructions given by variable
annuity contract and variable life insurance contract owners or by
contract owners of different Participating Insurance Companies; or
(f) a decision by a Participating Insurance Company to disregard the
voting instructions of contract owners. The Board shall have the sole
authority to determine if a material irreconcilable conflict exists,
and such determination shall be binding on the Company only if
approved in the form of a resolution by a majority of the Board, or a
majority of the disinterested trustees of the Board. The Board will
give prompt notice of any such determination to the Company.
7.2. The Company agrees that it will be responsible for assisting
the Board in carrying out its responsibilities under the conditions
set forth in the Trust's exemptive application pursuant to which the
SEC has granted the Mixed and Shared Funding Exemptive Order by
providing the Board, as it may reasonably request, with all
information necessary for the Board to consider any issues raised and
agrees that it will be responsible for promptly reporting any
potential or existing conflicts of which it is aware to the Board
including, but not limited to, an obligation by the Company to inform
the Board whenever contract owner voting instructions are disregarded.
The Company also agrees that, if a material irreconcilable conflict
arises, it will at its own cost remedy such conflict up to and
including (a) withdrawing the assets allocable to some or all of the
Accounts from the Trust or any Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to)
another Portfolio of the Trust, or submitting to a vote of all
affected contract owners whether to withdraw assets from the Trust or
any Portfolio and reinvesting such assets in a different investment
medium and, as appropriate, segregating the assets attributable to any
appropriate group of contract owners (e.g., annuity contract owners,
life insurance owners or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such
segregation, or offering to any of the affected contract owners the
option of segregating the assets attributable to their contracts or
policies, and (b) establishing a new registered management investment
company and segregating the assets underlying the Contracts, unless a
majority of Contract owners materially adversely affected by the
conflict have voted to decline the offer to establish a new registered
management investment company.
7.3. A majority of the disinterested trustees of the Board shall
determine whether any proposed action by the Company adequately
remedies any material irreconcilable conflict. In the event that the
Board determines that any proposed action does not adequately remedy
any material irreconcilable conflict, the Company will withdraw from
investment in the Trust each of the Accounts designated by the
disinterested trustees and terminate this Agreement within six
(6) months after the Board informs the Company in writing of the
foregoing determination; provided, however, that such withdrawal and
termination shall be limited to the extent required to remedy any
such material irreconcilable conflict as determined by a majority of
the disinterested trustees of the Board.
7.4 If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting
instructions and that decision represents a minority position or would
preclude a majority vote, the Company may be required, at the Trust's
election, to withdraw the Account's investment in the Trust and
terminate this Agreement; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the
Trust's independent trustees. Any such withdrawal and termination
must take place within six (6) months after the Trust gives written
notice that this provision is being implemented, and until the end
of that six-month period PFD and the Trust shall continue to accept
and implement orders by the Company for the purchase and redemption
of shares of the Trust.
7.5. If material irreconcilable conflict arises because of
particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state regulators, then
the Company will withdraw the Account's investment in the Trust and
terminate this Agreement within six (6) months after the Trust's
Board informs the Company in writing that it has determined that
such decision has created a material irreconcilable conflict;
provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the
disinterested members of the Trust's Board. Until the end of the
foregoing six (6) month period, the Trust and PFD shall continue to
accept and implement orders by the Company for the purchase and
redemption of shares of the Trust.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement,
a majority of the disinterested members of the Board shall determine
whether any proposed action adequately remedies any material
irreconcilable conflict, but in no event will the Trust be required
to establish a new funding medium for the Contracts. The Company
shall not be required by Section 7.2 to establish a new funding medium
for the contracts if an offer to do so has been declined by vote of
a majority of Contract owners affected by the material irreconcilable
conflict. In the event that the Board determines that any proposed
action does not adequately remedy any material irreconcilable
conflict, then the Company will withdraw the Account's investment
in the Trust and terminate this Agreement within six (6) months
after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and
termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
independent trustees.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from
any provision of the 1940 Act or the rules promulgated thereunder
with respect to mixed or shared funding (as defined in the Mixed and
Shared Funding Exemptive Order) on terms and conditions materially
different from those contained in the Mixed and Shared Funding
Exemptive Order, then (a) the Trust and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may
be necessary to comply with Rule 6e-2 and 6e-3(T), as amended, and
Rule 6e-3, as adopted, to the extent such rules are applicable;
and (b) Sections 3.5, 3.6, 7.1, 7.2, 7.3 and 7.7 of this Agreement
shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. Indemnification by the Company
The Company agrees to indemnify and hold harmless the Trust, PIM, PFD,
any affiliates of PIM, and each of their respective directors,
trustees, officers and each person, if any, who controls the Trust or
PIM within the meaning of Section 15 of the 1933 Act, and any agents
or employees of the foregoing (each an "Indemnified Party," or
collectively, the "Indemnified Parties" for purposes of this Section
8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Company) or expenses (including reasonable counsel fees) to which any
Indemnified Party 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:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement, prospectus or statement
of additional information for the Contracts or
contained in the Contracts or sales literature or
other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or
arise out of 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
reasonable reliance upon and in conformity with
information furnished to the Company or its designee
by or on behalf of the Trust, PIM or PFD for use in
the registration statement, prospectus or statement
of additional information for the Contracts or in the
Contracts or sales literature or other promotional
material (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts
or Shares; or
(b) arise out of or as a result of statements or
representations not supplied by the Company or its
designee, or persons under its control (other than
statements or representations contained in the Trust's
registration statement, prospectus, statement of
additional information or in sales literature or
other promotional material of the Trust and on which
the Company has reasonably relied) or wrongful conduct
of the Company or persons under its control, with
respect to the sale or distribution of the Contracts
or Shares; or
(c) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the
registration statement, prospectus, statement of
additional information, or sales literature or other
promotional literature of the Trust, 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 Trust by or on
behalf of the Company; or
(d) 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; or
(e) arise as a result of any failure by the Company to
perform any of its obligations under this Agreement;
as limited by and in accordance with the provisions of this Article
VIII.
8.2. Indemnification by PIM and PFD
PIM and PFD agree to indemnify and hold harmless the Company
and Policy Underwriter and each of their trustees and officers and
each person, if any, who controls the Company or Policy Underwriter
within the meaning of Section 15 of the 1933 Act, and any agents or
employees of the foregoing (each an "Indemnified Party," or
collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Trust) or expenses (including reasonable counsel fees) to which any
Indemnified Party 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 Shares or the Contracts and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact
contained in the registration statement, prospectus,
statement of additional information or sales
literature or other promotional material of the Trust
(or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement therein not
misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reasonable reliance upon and in
conformity with information furnished to the Trust,
PIM, PFD or their respective designees by or on behalf
of the Company for use in the registration statement,
prospectus or statement of additional information for
the Trust or in sales literature or other promotional
material for the Trust (or any amendment or supplement)
or otherwise for use in connection with the sale of
the Contracts or Shares; or
(b) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contract's
registration statement, prospectus, statement of
additional information or in sales literature or other
promotional material for the Contracts not supplied by
the Trust, PIM, PFD or any of their respective
designees or persons under their respective control
and on which any such entity has reasonably relied) or
wrongful conduct of the Trust, PIM, PFD or persons
under their control, with respect to the sale or
distribution of the Contracts or Shares; or
(c) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the
registration statement, prospectus, statement of
additional information, or sales literature or other
promotional literature of the Accounts or relating to
the Contracts, 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 Trust, PIM or PFD;
or
(d) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in
this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply
with the diversification requirements specified in
Article VI of this Agreement) or arise out of or
result from any other material breach of this
Agreement by the Trust; or
(e) arise out of or result from the materially incorrect
or untimely calculation or reporting of the daily net
asset value per share or dividend or capital gain
distribution rate; or
(f) arise as a result of any failure by PIM or PFD to
perform any of their respective obligations under
this Agreement;
as limited by and in accordance with the provisions of this Article
VIII.
8.3. In no event shall the Trust, PIM or PFD be liable under the
indemnification provisions contained in this Agreement to any
individual or entity, including without limitation, the Company, or
any Participating Insurance Company or any Contract owner, with
respect to any losses, claims, damages, liabilities or expenses that
arise out of or result from (i) a breach of any representation,
warranty, and/or covenant made by the Company hereunder or by any
Participating Insurance Company under an agreement containing
substantially similar representations, warranties and covenants;
(ii) the failure by the Company or any Participating Insurance Company
to maintain its segregated asset account (which invests in any
Portfolio) as a legally and validly established segregated asset
account under applicable state law and as a duly registered unit
investment trust under the provisions of the 1940 Act (unless exempt
therefrom); or (iii) the failure by the Company or any Participating
Insurance Company to maintain its variable annuity and/or variable
life insurance contracts (with respect to which any Portfolio serves
as an underlying funding vehicle) as life insurance, endowment or
annuity contracts under applicable provisions of the Code.
8.4. Neither the Company, the Trust, PIM nor PFD shall be liable
under the indemnification provisions contained in this Agreement with
respect to any losses, claims, damages, liabilities or expenses to
which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, willful misconduct,
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.
8.5. Promptly after receipt by an Indemnified Party under this
Section 8.5. of notice of commencement of any action, such Indemnified
Party will, if a claim in respect thereof is to be made against the
indemnifying party under this section, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it
may have to any Indemnified Party otherwise than under this section.
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. After notice from the
indemnifying party of its intention to assume the defense of an
action, the Indemnified Party shall bear the expenses of any
additional counsel obtained by it, and the indemnifying party shall
not be liable to such Indemnified Party under this section for any
legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof other than reasonable
costs of investigation.
8.6. A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained in this
Article VIII shall survive any termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth
of Massachusetts.
9.2. 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 statutes, rules and
regulations as the SEC may grant (including, but not limited to,
the Mixed and Shared Funding Exemptive Order) and the terms hereof
shall be interpreted and construed in accordance therewith.
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS OR LITIGATION
The Trust, PIM, PFD and the Company agree that each such
party shall promptly notify the other parties to this Agreement, in
writing, of the institution of any formal proceedings brought against
such party or its designees by the NASD, the SEC, or any insurance
department or any other regulatory body regarding such party's duties
under this Agreement or related to the sale of the Contracts, the
operation of the Accounts, or the purchase of the Shares. Each of the
parties further agrees promptly to notify the other parties of the
commencement of any litigation or proceeding against it or any of
its respective officers, directors, trustees, employees or 1933 Act
control persons in connection with this Agreement, the issuance or
sale of the Contracts, the operation of the Accounts, or the sale or
acquisition of Shares. The indemnification provisions contained in
this Article X shall survive any termination of this Agreement.
ARTICLE XI. TERMINATION
11.1. This Agreement shall terminate with respect to the Accounts,
or one, some, or all Portfolios:
(a) at the option of any party upon six (6) months'
advance written notice delivered to the other parties;
provided, however, that such notice shall not be given
earlier than six (6) months following the date of
this Agreement; or
(b) at the option of the Company to the extent that the
Shares of Portfolios are not reasonably available to
meet the requirements of the Contracts or are not
"appropriate funding vehicles" for the Contracts, as
reasonably determined by the Company. Without
limiting the generality of the foregoing, the 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 Company would be
permitted to disregard Contract owner voting
instructions pursuant to Rule 6e-2 or 6e-3(T) under
the 1940 Act. Prompt notice of the election to
terminate for such cause and an explanation of such
cause shall be furnished to the Trust by the Company;
or
(c) at the option of the Trust, PIM or PFD upon
institution of formal proceedings against the Company
by the NASD, the SEC, or any insurance department or
any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of
the Contracts, the operation of the Accounts, or the
purchase of the Shares; provided that the party
terminating this Agreement under this provision shall
give notice of such termination to the other parties
to this Agreement; or
(d) at the option of the Company upon institution of
formal proceedings against the Trust by the NASD, the
SEC, or any state securities or insurance department
or any other regulatory body regarding the duties of
the Trust, PIM or PFD under this Agreement or related
to the sale of the Shares; provided that the party
terminating this Agreement under this provision shall
give notice of such termination to the other parties
to this Agreement; or
(e) at the option of the Company, the Trust, PIM or PFD
upon receipt of any necessary regulatory approvals
and/or the vote of the Contract owners having an
interest in the Accounts (or any subaccounts) to
substitute the shares of another investment company
for the corresponding Portfolio Shares in accordance
with the terms of the Contracts for which those
Portfolio Shares had been selected to serve as the
underlying investment media. The Company will give
thirty (30) days' prior written notice to the Trust of
the Date of any proposed vote or other action taken to
replace the Shares; or
(f) at the option of the Trust, PIM or PFD by written
notice to the Company, if any one or all of the Trust,
PIM or PFD respectively, shall determine, in their
sole judgment exercised in good faith, that the
Company has suffered a material adverse change in its
business, operations, financial condition, or
prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(g) at the option of the Company by written notice to the
Trust, PIM or PFD, if the Company shall determine, in
its sole judgment exercised in good faith, that the
Trust, PIM or PFD has suffered a material adverse
change in this business, operations, financial
condition or prospects since the date of this
Agreement or is the subject of material adverse
publicity; or
(h) at the option of any party to this Agreement, upon
another unaffiliated party's material breach of any
provision of or representation contained in this
Agreement.
11.2. The notice shall specify the Portfolio or Portfolios,
Contracts and, if applicable, the Accounts as to which the Agreement
is to be terminated.
11.3. It is understood and agreed that the right of any party hereto
to terminate this Agreement pursuant to Section 11.1(a) may be
exercised for cause or for no cause.
11.4. Except as necessary to implement Contract owner initiated
transactions, or as required by state insurance laws or regulations,
the Company shall not redeem the Shares attributable to the Contracts
(as opposed to the Shares attributable to the Company's assets held in
the Accounts), and the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under
the Contracts, until thirty (30) days after the Company shall have
notified the Trust of its intention to do so.
11.5. Notwithstanding any termination of this Agreement, the Trust
and PFD shall, at the option of the Company, continue for a period not
exceeding six (6) months to make available additional shares of the \
Portfolios pursuant to the terms and conditions of this Agreement,
for all Contracts in effect on the effective date of termination of
this Agreement (the "Existing Contracts"), except as otherwise
provided under Article VII of this Agreement; provided, however, that
in the event of a termination pursuant to Section 11.1. (c), (f) or
(h), the Trust, PIM and PFD shall at their option have the right to
terminate immediately all sales of Shares to the Company.
Specifically, without limitation, the owners of the Existing Contracts
shall be permitted to transfer or reallocate investment under the
Contracts, redeem investments in any Portfolio and/or invest in the
Trust upon the making of additional purchase payments under the
Existing Contracts.
11.6 Notwithstanding any termination of this Agreement, each
party's obligations under Article VIII to indemnify the other parties
shall survive and not be affected by any termination of this
Agreement. In addition, with respect to Existing Contracts, all
provisions of this Agreement shall also survive and not be affected by
any termination of this Agreement
ARTICLE XII. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail, overnight courier or facsimile 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 Trust:
Pioneer Variable Contracts Trust
c/o Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Secretary
If to the Company:
Symetra Life Insurance Company
Attn: Legal Department
0000 000xx Xxxxx XX
Xxxxxxx, XX 00000
If to PIM:
Pioneer Investment Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, General Counsel
If to PFD:
Pioneer Funds Distributor, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Senior Vice President
ARTICLE XIII. MISCELLANEOUS
13.1. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential all
information reasonably identified as confidential in writing by any
party hereto and, except as permitted by this Agreement or as
otherwise required by applicable law or regulation, shall not
disclose, disseminate or utilize such other confidential information
without the express written consent of the affected party until such
time as it may come into the public domain. Notwithstanding anything
to the contrary in this Agreement, in addition to and not in lieu of
other provisions in this Agreement:
(a) "Confidential Information" includes without limitation
all information regarding the customers of the
Company, the Trust, PIM, PFD or any of their
subsidiaries, affiliates or licensees; or the
accounts, account numbers, names, addresses, social
security numbers or any other personal identifier of
such customers; or any information derived therefrom.
(b) Neither the Company, the Trust, PIM or PFD may
disclose Confidential Information for any purpose
other than to carry out the purpose for which
Confidential Information was provided to the Company,
the Trust, PIM or PFD as set forth in this Agreement;
and the Company, the Trust, PIM and PFD agree to cause
their employees, agents and representatives, or any
other party to whom the Company, the Trust, PIM or
PFD may provide access to or disclose Confidential
Information to limit the use and disclosure of
Confidential Information to that purpose.
(c) The Company, the Trust, PIM and PFD agree to implement
appropriate measures designed to ensure the security
and confidentiality of Confidential Information, to
protect such information against any anticipated
threats or hazards to the security and integrity of
such information, and to protect against unauthorized
access to, or use of, Confidential Information that
could result in substantial harm or inconvenience to
any of the customers of the Company or any of its
subsidiaries, affiliates or licensees; the Company,
the Trust, PIM and PFD further agree to cause all
their respective agents, representatives or
subcontractors, or any other party to whom they
provide access to or disclose Confidential Information,
to implement appropriate measures to meet the
objectives set forth in this Section 13.1.
13.2. 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.
13.3. This Agreement may be executed simultaneously in one or more
counterparts, each of which taken together shall constitute one and
the same instrument.
13.4. 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.
13.5. The Schedule attached hereto, as modified from time to time,
is incorporated herein by reference and is part of this Agreement.
13.6. Each party hereto shall cooperate with each other party in
connection with inquiries by appropriate governmental authorities
(including without limitation the SEC, the NASD, and state insurance
regulators) and shall permit such authorities reasonable access to its
books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
13.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights,
remedies and obligations, at law or in equity, which the parties
hereto are entitled to under state and federal laws.
13.8. A copy of the Trust's Certificate of Trust is on file with
the Secretary of State of Delaware. The Company acknowledges that
the obligations of or arising out of this instrument are not binding
upon any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and
property of the Trust in accordance with its proportionate interest
hereunder. The Company further acknowledges that the assets and
liabilities of each Portfolio are separate and distinct and that the
obligations of or arising out of this instrument are binding solely
upon the assets or property of the Portfolio on whose behalf the Trust
has executed this instrument. The Company also agrees that the
obligations of each Portfolio hereunder shall be several and not
joint, in accordance with its proportionate interest hereunder, and
the Company agrees not to proceed against any Portfolio for the
obligations of another Portfolio.
13.9. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a
forum jointly selected by the relevant parties (but if applicable law
requires some other forum, then, such other forum) in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
13.10. Neither this Agreement nor any of the rights and obligations
hereunder may be assigned by any party without the prior written
consent of all parties hereto.
13.11. The Trust, PIM and PFD agree that the obligations assumed by
the Company shall be limited in any case to the Company and its
assets and neither the Trust, PIM nor PFD shall seek satisfaction of
any such obligation from the shareholders of Company, the directors,
officers, employees or agents of the Company, or any of them.
13.12. No provision of the Agreement may be deemed or construed to
modify or supersede any contractual rights, duties, or
indemnifications, as between PIM and the Trust and PFD and the Trust.
13.13. This Agreement, including any Schedules or Exhibits hereto,
may be amended only by a written instrument executed by each party
hereto.
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 above.
FIRST SYMETRA NATIONAL LIFE
INSURANCE COMPANY OF NEW YORK
By its authorized officer,
By: ___________
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Vice President
Date:
PIONEER VARIABLE CONTRACTS TRUST,
on behalf of the Portfolios
By its authorized officer and not
individually,
By:______________
Xxxxxxxxxxx Xxxxxx
Assistant Secretary
Date:
PIONEER INVESTMENT MANAGEMENT, INC.
By its authorized officer,
By: ________________
Xxxx Xxxxxxx
Senior Vice President
Date:
PIONEER FUNDS DISTRIBUTOR, INC.
By its authorized officer,
By: ________________
Xxxxxxx X'Xxxxx
Executive Vice President
Date:
SCHEDULE A
ACCOUNTS, CONTRACTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
As of December 10, 2004
Name of Separate
Account and Date Portfolios and
Established by Contracts Funded Class of Shares
Board of Directors by Separate Account Available to Contracts
----------------------------------------------------------------------------
First Symetra Separate Account S Variable Annuity Pioneer Small Cap Value VCT
established February 2, 1995 Portfolio (Class I Shares)
Pioneer Growth Opportunities
VCT Portfolio (Class I Shares)
Pioneer Fund VCT Portfolio
(Class I Shares )
Pioneer Mid-Cap Value VCT
Portfolio (Class I Shares)
Pioneer Bond VCT Portfolio
(Class I Shares)
Pioneer Money Market VCT Portfolio
(Class I Shares)
Schedule B
1. Administrative Services
Administrative services to Contract owners and participants shall be the
responsibility of the Company and shall not be the responsibility of the
Trust or PFD. The Company will provide properly registered and licensed
personnel and any systems needed for all Contract owners servicing and
support - for both fund and annuity and life insurance information and
questions, including:
- Communicate all purchase, withdrawal, and exchange orders
it receives from its customers to PFD;
- Respond to Contract owner and participant inquires;
- Delivery of both Trust and Contract prospectuses as
required under applicable law;
- Entry of initial and subsequent orders;
- Transfer of cash to Portfolios;
- Explanations of Portfolio objectives and characteristics;
- Entry of transfers between Portfolios;
- Portfolio balance and allocation inquires; and
- Mail Trust proxies.
Exhibit I
To
Participation Agreement
Procedures for Pricing and Order/Settlement Through National Securities
Clearing Corporation's Mutual Fund Profile System and Mutual Fund Settlement,
Entry and Registration Verification System
1. As provided in Section 1.1 of the Participation Agreement, the parties
hereby agree to provide pricing information, execute orders and wire
payments for purchases and redemptions of Fund shares through National
Securities Clearing Corporation ("NSCC") and its subsidiary systems
as follows:
(a) Distributor or the Funds will furnish to Company or its
affiliate through NSCC's Mutual Fund Profile System ("MFPS")
(1) the most current net asset value information for each
Fund, (2) a schedule of anticipated dividend and distribution
payment dates for each Fund, which is subject to change
without prior notice, ordinary income and capital gain
dividend rates on the Fund's ex-date, and (3) in the case of
fixed income funds that declare daily dividends, the daily
accrual or the interest rate factor. All such information
shall be furnished to Company or its affiliate by 6:30 p.m.
Eastern Time on each business day that the Fund is open for
business (each a "Business Day") or at such other time as
that information becomes available. Changes in pricing
information will be communicated to both NSCC and Company.
(b) Upon receipt of Fund purchase, exchange and redemption
instructions for acceptance as of the time at which a Fund's
net asset value is calculated as specified in such Fund's
prospectus ("Close of Trading") on each Business Day
("Instructions"), and upon its determination that there are
good funds with respect to Instructions involving the purchase
of Shares, Company or its affiliate will calculate the net
purchase or redemption order for each Fund. Orders for net
purchases or net redemptions derived from Instructions
received by Company or its affiliate prior to the Close of
Trading on any given Business Day will be sent to the Defined
Contribution Interface of NSCC's Mutual Fund Settlement,
Entry and Registration Verification System ("Fund/SERV") by
9:30 a.m. Eastern Time on the next Business Day. Subject to
Company's or its affiliate's compliance with the foregoing,
Company or its affiliate will be considered the agent of the
Distributor and the Funds, and the Business Day on which
Instructions are received by Company or its affiliate in
proper form prior to the Close of Trading will be the date
as of which shares of the Funds are deemed purchased,
exchanged or redeemed pursuant to such Instructions.
Instructions received in proper form by Company or its
affiliate after the Close of Trading on any given Business
Day will be treated as if received on the next following
Business Day. Dividends and capital gains distributions will
be automatically reinvested at net asset value in accordance
with the Fund's then current prospectuses.
(c) Company or its affiliate will wire payment for net purchase
orders by the Fund's NSCC Firm Number, in immediately
available funds, to an NSCC settling bank account designated
by Company or its affiliate no later than 5:00 p.m. Eastern
time on the same Business Day such purchase orders are
communicated to NSCC. For purchases of shares of daily
dividend accrual funds, those shares will not begin to accrue
dividends until the day the payment for those shares is
received.
(d) NSCC will wire payment for net redemption orders by Fund,
in immediately available funds, to an NSCC settling bank
account designated by Company or its affiliate, by 5:00 p.m.
Eastern Time on the Business Day such redemption orders
are communicated to NSCC, except as provided in a Fund's
prospectus and statement of additional information.
(e) With respect to (c) or (d) above, if Distributor does not
send a confirmation of Company's or its affiliate's purchase
or redemption order to NSCC by the applicable deadline to be
included in that Business Day's payment cycle, payment for
such purchases or redemptions will be made the following
Business Day.
(f) If on any day Company or its affiliate, or Distributor is
unable to meet the NSCC deadline for the transmission of
purchase or redemption orders, it may at its option transmit
such orders and make such payments for purchases and
redemptions directly to Distributor or Company or its
affiliate, as applicable, as is otherwise provided in the
Agreement.
(g) These procedures are subject to any additional terms in each
Fund's prospectus and the requirements of applicable law. The
Funds reserve the right, at their discretion and without
notice, to suspend the sale of shares or withdraw the sale
of shares of any Fund.
2. Company or its affiliate, Distributor and clearing agents (if
applicable) are each required to have entered into membership agreements with
NSCC and met all requirements to participate in the MFPS and Fund/SERV systems
before these procedures may be utilized. Each party will be bound by the
terms of their membership agreement with NSCC and will perform any and all
duties, functions, procedures and responsibilities assigned to it and as
otherwise established by NSCC applicable to the MFPS and Fund/SERV system
and the Networking Matrix Level utilized.
3. Except as modified hereby, all other terms and conditions of the
Agreement shall remain in full force and effect. Unless otherwise indicated
herein, the terms defined in the Agreement shall have the same meaning as in
this Exhibit.
