Exhibit 8
Product Development and
Fund Participation Agreement
PRODUCT DEVELOPMENT AND FUND PARTICIPATION AGREEMENT
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THIS AGREEMENT is made this 8th day of January, 1988 by and between Phoenix
Mutual Life Insurance Company ("The Phoenix"), Phoenix Mutual Variable
Accumulation Account (the "VA Account"), Xxxxxxxxx Investment Counsel, Inc.
("TICI"), Xxxxxxxxx Funds Distributor, Inc. ("TFD"), Xxxxxxxxx, Xxxxxxxxx &
Xxxxxxxxxx Ltd. ("TGH"), Xxxxxxxxx Funds Management, Inc. ("TFM"); and the
Templeton Variable Products Series Fund (hereinafter "Fund") provided that the
Agreement is adopted by and executed in behalf of the Fund.
WHEREAS, the VA Account is registered as a unit investment trust under
the Investment Company Act of 1940 ("1940 Act") and it is intended that certain
variable annuity contracts ("Contracts") shall be funded by the VA Account; and
WHEREAS, it is the intention of the parties to this Agreement that the
Fund will serve as the sole funding vehicle for certain sub-accounts of the VA
Account under the Contracts; and
WHEREAS, the undersigned further contemplate The Phoenix's eventual
development of a variable life insurance policy likewise utilizing the Fund as
the underlying investment vehicle, except to such extent as otherwise provided
in this Agreement; and
THEREFORE, in consideration of the mutual agreements herein made and
intending to be legally bound hereby, the parties agree as follows:
General:
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1. The Contract when offered utilizing the Fund as the underlying
investment vehicle shall hereinafter be referred to as the "Product."
2. The undersigned agree to use their good faith best efforts to make the
Product available to the public as soon as reasonably practicable.
3. The trade name of the Product shall be as mutually agreed to by The
Phoenix and TFD.
4. The Product will be offered through a prospectus for the Contracts
drafted by The Phoenix and a prospectus for the Fund drafted by TFD.
Each prospectus will be at all times part of a currently effective
registration statement on file with the Securities and Exchange
Commission ("SEC"). The Phoenix will be responsible for maintaining
such registration with respect to the Contract and the VA Account and
the Fund will be responsible for maintaining such registration
statement with respect to the Fund. The Phoenix and TFD will use
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4. Cont'd
their best efforts to insure that the registration statements will
conform in all respects to the requirements of the 1933 Act and the
rules and regulations of the SEC and that at no time will the
registration statements include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The
undersigned will cooperate with the other parties in the preparation of
the respective registration statements and in supplying any other
information as may be required by federal and state regulators.
5. Each party will be responsible for its own expenses in carrying out its
respective responsibilities for the Product, except to such extent as
may otherwise be provided under this Agreement or as may subsequently
be agreed to in writing by the party to bear the expense.
6. While the offering of the Product is not possible without the combined
efforts of the parties as provided herein, it is not intended by this
Agreement to create a partnership or joint venture but rather simply an
arrangement between independent contracting parties for the mutual
performance of services. No provision of this Agreement shall be
construed to obligate TGH to perform any services in the United States.
The Fund:
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7. TFM will organize the Fund as a business trust under the laws of the
Commonwealth of Massachusetts. The VA Account, as the initial
shareholder, shall select the initial trustees and officers of the Fund
from those persons that TFM, in its sole discretion, recommends. TFD
agrees to comply with all federal and state law applicable to the
offering of Fund shares and TFM, TICI and TGH agree to comply with all
federal and state law applicable to the administration of the Fund.
8. The Fund agrees that it will sell shares of each portfolio of the Fund,
redeem Fund shares and exchange such shares of any portfolio for shares
of any other portfolio, all in such amount as The Phoenix, on behalf of
the VA Account, may from time to time direct and upon the terms set
forth in the registration statement of the Fund as declared effective
by the SEC and as it may be from time to time amended.
9. The Fund will have such separate investment portfolios as TFM shall
determine, but shall at least include a money market portfolio for The
Phoenix's administration of its premium refund obligations as required
under various state insurance laws.
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10. TFM will advance The Phoenix without interest obligation, such initial
capital as TFM deems advisable, but not less than a total of $250,000,
for The Phoenix's initial purchase of shares in the Fund. The Phoenix
shall repay the advanced amount in accordance with an amortization
schedule as agreed to by the The Phoenix and TFD and as permitted by
federal and state law for The Phoenix's withdrawal of seed capital from
the Fund. Any gain or loss on the Fund shares held by The Phoenix in
the Fund shall be borne by The Phoenix without consequence to its
obligation for repayment of the advanced amount.
11. TICI and TGH will be the investment advisors for the Fund, subject to
the approval of Fund shareholders and the continuing approval of the
trustees as required under the Investment Company Act of 1940. For its
investment advisory services with respect to each investment portfolio
of the Fund, TICI or TGH will be entitled to an investment management
fee from the Fund in an amount not to exceed .50% of the average daily
net asset value of each portfolio. It is further contemplated that the
Fund shall pay TFM a business management fee in an amount not to exceed
0.15% of the average daily net asset value of the Fund.
12. TFD, as principal underwriter for the Fund and the Contracts, will
assume responsibility for distribution of the prospectuses for the Fund
and the Contracts. The cost of printing the Fund prospectus shall be
borne by TFD or the Fund as appropriate under law and the cost of
printing the Contract prospectus shall be borne by The Phoenix or the
VA Account as appropriate under law. The Phoenix or the VA Account, as
appropriate under law, shall be responsible for the preparation and
costs of all reports and other filings with respect to the Contract
required by regulatory authorities. Each contract owner will receive
proxy materials, reports and such other information about the Fund as
required under the 1940 Act which shall be prepared by TFM with the
assistance of The Phoenix and distributed by The Phoenix. It is
contemplated that the printing and distribution costs of such proxy
materials, reports and other information shall be borne by TFD or the
Fund as appropriate under law.
13. The Fund's organizational and filing expenses will be advanced by TFM.
To the extent consistent with federal securities law, it is
contemplated the Fund will reimburse TFM for such amounts as promptly
as reasonably possible.
14. Except as otherwise noted in this Agreement, it is contemplated that
the Fund will bear all normal expenses of operation of an open-end
registered investment company including, without limitation, fees paid
to the Fund's custodian, transfer agent, independent auditors and
outside counsel.
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15. Chase Manhattan Bank will serve as custodian for the Fund subject to
the continuing approval of the Fund's trustees. McGladrey Xxxxxxxxxxx
and Xxxxxx will serve as independent auditors subject to the continuing
approval of the Fund's trustees and shareholders. The Fund shall serve
as its own transfer agent. Dechert Price & Xxxxxx will serve as outside
counsel.
16. The Fund will inform The Phoenix in advance of all regular and special
meetings of the Fund's Board of Trustees. The Phoenix may be present at
such meetings and upon reasonable notice, make a presentation to the
Board of Trustees of the Fund. Permission to make a presentation shall
not be unreasonably withheld.
The Contract:
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17. The Product will be offered utilizing a contract generally of the type
presently distributed by Phoenix Equity Planning Corporation and as
described in the Prospectus dated May 1, 1987 for the Phoenix Mutual
Variable Accumulation Account (the "VA Prospectus"). In addition, the
Contract shall provide a guaranteed death benefit under which, in the
event of the death of the annuitant during the accumulation period
under the Contract, The Phoenix shall pay to the beneficiary under the
Contract the greater of the accumulated value or the amount of the
premiums paid to date under the Contract. The Phoenix also agrees,
within one year of the effective date of the registration statement, to
develop and file with the states for approval to issue, an amendment to
the Contract providing for at least one variable pay-out option (based
upon the investment experience of one or more sub-accounts of the VA
Account). The Phoenix shall comply with all federal and state law
applicable to the offering and administration of the Product.
18. Premiums paid for the Product will be allocated, according to
Contractowner instructions, to the sub-accounts of the Separate Account
corresponding to the Fund's investment portfolios, and each sub-account
will invest exclusively in the corresponding Fund portfolio.
19. The Phoenix shall be entitled under the Contract to charges, fees and
taxes of the type described in the VA Prospectus, and as shown on the
attached schedule of charges and fees (Exhibit 1).
20. The Phoenix will use its best efforts to secure and shall bear the cost
of any necessary state insurance regulatory approvals for sale of the
Product in such states as The Phoenix customarily offers its individual
insurance products. TICI, TGH, TFM, TFD, and the Fund will cooperate
with The Phoenix in furnishing such information as may be required by
appropriate state regulatory authorities in connection with such
Product efforts. It is understood The Phoenix may make minor changes to
the Contracts to comply with various state insurance
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20. Cont'd
law requirements as may be requested in connection with such filings
for state approval, without the consent of the Fund or TFD, but The
Phoenix shall promptly notify TFD of any such changes. No substantial
changes shall be made without TFD's consent, which consent shall not be
unreasonably withheld.
21. The Product shall further include such amendatory riders, features,
applications and related contract forms as are consented to by TFD,
which consent shall not be unreasonably withheld, and shall not include
a fixed return option without the consent of TFD. Riders presently
contemplated include a Temporary Money Market Allocation Amendment to
accommodate premium refund obligations as required under various state
insurance laws, and an XXX amendment and tax-qualified plan amendment
to satisfy federal tax law requirements.
22. The undersigned expressly contemplate The Phoenix's later development
of a variable life insurance policy which would also use the Fund as
the underlying investment vehicle. All terms of this Agreement shall
apply to any such policy, except that the terms otherwise covered by
items 1, 10, 17, 19, 21, and 26 of this Agreement shall as to any such
variable life insurance policy be as later agreed to by the undersigned
parties. The undersigned shall make a good faith effort to agree upon
the terms of such items as they are to apply to the variable life
policy.
23. In the event that the Fund offers its shares to a separate account that
is a funding vehicle for variable life insurance policies or to a
separate account of an insurer other than The Phoenix or an affiliate
thereof that is a funding vehicle for variable life insurance policies,
then the parties agree to comply with any conditions imposed under law
upon the use of an open-end management investment company as the common
investment medium for both variable life insurance policies and
variable annuity contracts or for variable life insurance policies
issued by one insurer and another variable insurance product issued by
another insurer, as such conditions are:
(i) specified in Rule 6e-2 or Rule 6e-3(T) under the 1940 Act or, if
permanently adopted, Rule 6e-3, whichever is applicable, or, if
appropriate,
(ii) required by an exemptive order from the Securities and Exchange
Commission to permit such use of an investment company as a common
investment medium.
Administration:
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24. With the exception of matters pertaining solely to the Fund, which
shall be in the sole control and discretion of the Fund, The Phoenix
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24. Cont'd
shall be solely responsible for the issuance, administration,
maintenance, claims processing and customer dispute handling and
disposition of all matters pertaining to the Product.
Marketing:
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25. TFD shall be the exclusive principal underwriter for the Product,
subject to the continuing approval of the Trustees as required under
the 1940 Act, and shall promote the Product in compliance with all
applicable federal and state law. TFD shall use its best efforts to
sell the Product. The Phoenix will appoint TFD or one or more persons
designated by TFD and acceptable to the Phoenix as agent or agents of
The Phoenix authorized to sell the Product.
26. The Phoenix will compensate TFD for sales of the Product at the rate
set forth in Exhibit I (Item II). TFD shall in turn compensate any
broker/dealers engaged by TFD to sell the Product at a rate mutually
agreed upon by TFD and the broker-dealer. It is understood that any
such broker/dealers shall be contracted insurance agents with The
Phoenix and properly state-licensed to sell variable annuity contracts
and, if applicable, variable life insurance policies. The Phoenix will
pay the initial costs associated with contracting and appointing agents
with The Phoenix who are already variable annuity licensed.
27. The Phoenix will furnish TFD information concerning the Product for use
in TFD's training of broker/dealers engaged by TFD to sell the Product,
and shall make a good faith effort to provide representatives to attend
such product information seminars for broker/dealers as TFD may
reasonably request.
28. TFD will develop and bear the cost of all advertising and promotional
material for the Product. The Phoenix's name shall not be used in any
promotional material without its consent, nor shall any material about
the Product be used in any manner without the prior review and consent
of The Phoenix. It is understood that, except for reference by name of
any of the entities responsible for performing services in connection
with the Product, use of the name "Xxxxxxxxx" is only available through
license from Xxxxxxxxx, Xxxxxxxxx & Xxxxxxxxxx Ltd.
Offerings with Other Companies
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29. The Fund may serve as the investment vehicle for other variable annuity
or variable life insurance policies offered by The Phoenix or parties
other than The Phoenix.
30. The Phoenix may offer the Contract or other variable annuity or
variable life insurance policies to serve as "wrap-around" contracts
for investment funds managed by parties other than TICI or TGH;
however, with respect to the Product, the VA Account will not invest in
any medium other than the Fund and its portfolios unless otherwise
agreed to by The Phoenix and TFD, provided, that The Phoenix may
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30. Cont'd
substitute another or other investment medium for the Fund or any
investment portfolio thereof if one or more portfolios of the Fund
becomes unsuitable for investment by Contractowners because of a change
in investment policy as determined by The Phoenix in accordance with
Rule 6e-3(T)(b)(5) under the 1940 Act, a change in the tax laws,
because the shares are no longer available for investment, or if the
substitution is required by law, by any regulatory authority or by the
terms of the Contract. Before this is done the approval of the SEC and
one or more state insurance departments will be required.
31. The Phoenix may offer other variable annuity contracts or variable life
insurance policies using an investment medium other than the Fund,
which contracts or policies may be substantially similar to the
Contract or to the variable life insurance policy described in item 23,
provided that such contracts or policies are offered by a prospectus
other than the prospectus for the Contract or for the variable life
insurance policy described in item 23.
Miscellaneous
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32. The undersigned will provide such records, reports or other materials
relative to the development, distribution and administration of the
Product as may reasonably be required by another party to this
Agreement in performance of its respective obligations for the Product,
or as may be required by any governmental authority. Each party shall
further cooperate with the others and all appropriate governmental
authorities (including without limitation the SEC, the National
Association of Securities Dealers, Inc. ("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 activities contemplated hereunder,
provided such access is consistent with federal and state law.
33. Any information, documents and materials, other than those included in
the registration statements for the Contract and the Fund or otherwise
in the public domain, shall be treated as confidential and not given to
any third-party without the written consent of the party to whom the
information pertains.
34. Each party shall have the right to rely on information provided to it
by the party about whom the information pertains.
35. The undersigned agree to be accountable for the complete and accurate
performance of the duties under this Agreement including, but not
limited to accountability for any fraudulent or dishonest acts,
negligence, errors, or omissions committed by any of its employees or
other agents. Each party agrees to indemnify and hold harmless the
others from all damages, including punitive damages, expenses, and
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35. Cont'd
attorney's fees to which the party may be subject, arising out of the
performance of its duties under this Agreement. In addition, TICI, TGH,
TFD and TFM will indemnify and hold harmless The Phoenix against any
and all losses, claims, damages, liabilities, or expenses (including,
without limitation, any expenses reasonably incurred in investigating
or defending against any litigation commenced or threatened, or any
claim) to which The Phoenix may become subject arising out of or based
upon (i) any untrue statement or alleged untrue statement relating to
the Fund contained in the Registration Statement or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the
Fund, TICI, TGH, TFD and TFM shall not be liable in any such case under
(i) and (ii) above to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in
good faith reliance upon and in conformity with written information
furnished by The Phoenix specifically for use in the preparation
thereof. Moreover, the Phoenix will indemnify and hold harmless the
Fund, TICI, TGH, TFD and TFM against any and all losses, claims,
damages, liabilities, or expenses (including without limitation, any
expenses reasonably incurred in investigating or defending against any
litigation commenced or threatened, or any claim) to which the Fund,
TICI, TGH, TFD or TFM become subject arising out of or based upon (i)
any untrue statement or alleged untrue statement relating to the VA
Account or the Contracts contained in the Registration Statement or any
amendment or supplement thereto, or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, The Phoenix shall not be liable to the extent that any such
loss, claim, damage, liability or expense arises out of or is based
upon the Fund's failure to comply with the investment policies and
restrictions set forth in its Registration Statement. No party shall be
required to indemnify another for any losses, claims, damages, or
expense contributed by the otherwise indemnified party's willful
misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of such otherwise indemnified party's reckless
disregard of its obligations and duties under this Agreement. Nor shall
a party be liable under this indemnification provision with respect to
any claim made against the otherwise indemnified party unless the party
seeking indemnification shall have notified the other in writing within
a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon the
party seeking indemnification. Failure to provide notice as provided
above shall not relieve a party from any liability that it may
otherwise have against another without regard to this indemnification
provision. The indemnifying party shall be entitled to participate, at
its own expense, in the defense of the action.
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35. Cont'd
The indemnifying party shall also be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action.
After notice from the indemnifying party to the other of the
indemnifying party's election to assume the defense thereof, the party
seeking indemnification shall bear the fees and expenses of any
additional counsel retained by it.
36. Any claims or disputes between the parties arising out of or relating
to this Agreement or the breach thereof, shall be submitted to
arbitration for resolution in accordance with the Commercial
Arbitration Rules of the American Arbitration Association as in effect
on the date of delivery of demand for arbitration. Judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
37. In no event shall The Phoenix be liable to TFD, TFM, TICI, TGH or the
Fund, nor shall TFD, TFM, TICI, TGH or the Fund be liable to The
Phoenix for damages for breach of this Agreement for an aggregate
amount in excess of $200,000, except as may regard indemnification as
provided above for expenses, costs, damages, or liabilities in favor of
third-parties. Such amount is hereby stipulated as the parties'
reasonable assessment of the maximum aggregate monetary value of such
damages. Nothing contained in this item shall be held to deny or
prevent recovery of any Product charges, fees, or amounts to which a
party is entitled under items 10, 11, 19, or 26 of this Agreement.
38. The undersigned expressly contemplate the execution of a separate
agreement between The Phoenix, the VA Account and TFD ("Underwriter
Agreement"). It is agreed that upon execution, the provisions of the
Underwriter Agreement shall override any contrary provisions contained
in this Agreement.
39. The undersigned agree that under applicable law as currently
interpreted by the SEC, The Phoenix will exercise its voting rights
attributable to the shares of the Fund held in the sub-accounts of the
VA Account corresponding to Fund portfolios based on instructions
received from owners of the Contracts. The Phoenix further agrees that
voting rights attributable to such Contracts for which no timely voting
instructions are received will be voted in the same proportion as the
voting instructions that are received in a timely manner from the
owners of the Contracts, and that voting rights from assets, if any, in
the Fund held by the VA Account that are not attributable to such
Contracts will be voted in the same proportion as the voting
instructions that are received in a timely manner from the owners of
such Contracts, and that voting rights from assets, if any, in the Fund
held by the general account of The Phoenix will be voted in the same
proportion as the voting instructions that are received in a timely
manner from the owners of such Contracts and from the owners of other
contracts or policies issued by The Phoenix for which the Fund serves
as an investment medium. The Phoenix further agrees to
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39. Cont'd
provide a list of the names and addresses of owners of the Contracts
and other contracts or policies for which the Fund serves as an
investment medium to any other party to this Agreement so requesting
within five (5) days of receipt of a written request for such list. The
party requesting such list shall bear the reasonable cost incurred by
The Phoenix in preparing and/or providing such list, which shall be
paid upon delivery of the list. The Phoenix agrees that in the event it
or any of its affiliates has reason to know about a meeting of owners
of the Contracts or shareholders of the Fund respecting the voting or
providing instructions respecting the voting of the shares of the Fund,
The Phoenix will provide notice to the Fund and the Xxxxxxxxx Companies
respecting such meeting promptly after The Phoenix or its affiliate has
reason to know of such meeting.
40. No party hereto shall have any authority to enter into any agreements
or make any commitments on behalf of any of the others, except as may
be authorized in writing or by applicable federal securities law.
41. Failure of any party to enforce any provision of this Agreement shall
not constitute a course of conduct or waiver in the future of the right
to enforce the same or any other provision.
42. In the event that any provision of this Agreement is for any reason
held to be unenforceable, such unenforceability will not affect any of
the other provisions of this Agreement, but this Agreement will be
construed and enforced as if such unenforceable provision had never
been contained herein.
43. The headings in this Agreement are only inserted as a guide to assist
in the location of items and they are not to be construed as any
indication of the meaning or content of the respective items.
44. This Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original and such
counterparts together shall constitute of one and the same contract
which shall be sufficiently evidenced by any such original counterpart.
45. Each party agrees to deliver any notices or communications related to
this Agreement to the persons that are listed on the attached schedule
(Exhibit 2).
46. This Agreement shall be construed in accordance with the laws of the
State of Connecticut.
47. This Agreement may be terminated for any reason upon written notice by
any party to the others at least one year prior to the date that such
termination is to take effect. It may further be terminated for the
following reasons upon 30 days' prior written notice to the other:
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47. Cont'd
a. At the option of TGH, TICI, TFD, TFM or the Fund, in the event
that formal administrative proceedings are instituted against The
Phoenix by the SEC, or any state securities or insurance
department or any other regulatory body regarding The Phoenix's
duties under this Agreement or related to the sale or
administration of the Contract, the operation of the VA Account,
or the purchase of Fund shares, provided, however, that the party
electing termination determines in its sole judgment exercised in
good faith, that any such administrative proceeding will have a
material adverse effect upon the ability of The Phoenix to perform
its obligations under this Agreement;
b. At the option of The Phoenix, in the event that formal
administrative proceedings are instituted against TFD, TFM, TICI,
TGH, or the Fund by the SEC, NASD, or any state securities or
insurance department or any other regulatory body regarding that
party's duties under this Agreement or related to the issuance of
Fund shares or administration of the Fund, provided, however, that
The Phoenix determines in its sole judgment exercised in good
faith, that any such administrative proceedings will have a
material adverse effect upon the ability of the party to perform
its obligations under this Agreement.
48. Any termination of this Agreement by any party shall be without
prejudice to any rights or obligations accrued to the other parties
prior to the effective date of any such termination or to already
existing policyholders. The Fund agrees that notwithstanding
termination of this Agreement, the Fund shall continue to make its
shares available for investment by the VA Account of monies derived
from additional premium payments attributable to the Contracts in
effect on the effective date of termination, provided that making such
shares available is not, in the view of the Trustees of the Fund,
inconsistent with the best interests of the Fund and the fiduciary duty
owed to the owners of the Contracts. The Phoenix agrees that
notwithstanding termination of this Agreement, and presuming the Fund
makes its shares available as contemplated above, the Separate Account
shall invest in the Fund the monies derived from additional premium
payments attributable to Contracts in effect on the effective date of
termination, provided such investment is not inconsistent with The
Phoenix's duties owed to the owners of the Contracts under federal or
state law. Notwithstanding termination of this Agreement, and
regardless of the cause or reason for such termination, the provisions
of Paragraph 35 shall survive and be binding upon the parties for a
period of 20 years following such termination and upon the Fund for a
period of 20 years following such termination or until its
deregistration as an investment company under the 1940 Act, whichever
comes first.
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49. This Agreement shall be the complete and total understanding of the
parties and shall not be amended except in writing executed by the
parties. This Agreement supersedes all prior or contemporaneous
agreements, letters of intent, discussions, or understandings between
the parties concerning the Product or The Phoenix's offering of
variable annuity or variable life policies wrapped around funds managed
by TICI and/or TGH.
50. The parties hereto have taken all actions necessary to authorize the
execution, delivery and performance of this Agreement and have caused
this Agreement to be duly executed as of the day and year first written
above. TFM agrees to submit this Agreement to the Board of Trustees of
the Fund after the organization of the Fund for consideration by the
Board in behalf of the Fund. If adopted by the Fund and executed on
behalf of the Fund by an authorized person, the undersigned agree that
the Fund will be a party to this Agreement, subject to the rights and
bound by the obligations of this Agreement.
51. A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of The Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Fund by
an officer of the Fund as officer and not individually and that the
obligations of or arising out of this instrument are not binding upon
any of the Trustees, officers or shareholders individually but binding
only upon the assets and property of the Fund.
XXXXXXXXX FUNDS DISTRIBUTOR, INC. XXXXXXXXX INVESTMENT COUNSEL, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Title: President Title: Senior Vice President & Treasurer
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Date: February 25, 1988 Date: February 26, 1988
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XXXXXXXXX, XXXXXXXXX & XXXXXXXXX FUNDS MANAGEMENT, INC.
XXXXXXXXXX LTD.
Executed in Nassau, Bahamas
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
------------------------------- ----------------------------------------
Title: President Title: Chairman
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Date: February 26, 1988 Date: February 22, 1988
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PHOENIX MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. XxXxxxxxxx
---------------------------------
Title: Executive Vice President
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Date: January 8, 1988
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The undersigned Fund hereby enters into this Agreement and consents to be bound
by all of its obligations hereunder.
Fund Name: Xxxxxxxxx Variable Products Series Fund
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By: /s/ Xxxx X. Xxxxxxxxx
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Title: Vice President
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Date: February 22, 1988
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A 1.2
EXHIBIT 1
ITEM I. VARIABLE ANNUITY PRODUCT CHARGES AND FEES
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1. Investment Management Fee - up to .50% per portfolio on an annual basis.
2. Business Management Fee - 0.15% on an annual basis.
3. Mortality and Expense Risk Charge
a. Mortality Risk .40% on an annual basis
b. Expense Risk .850% on an annual basis
4. Administrative Charge - 0.125% on an annual basis.
5. Administrative Service Fee - $35.00 each year
6. Contingent Deferred Sales Charge
No deductions are made from payments beyond the deduction of any applicable
premium taxes. A deduction for sales charges may be taken from the proceeds
when a Contract is surrendered or when an amount is withdrawn, if assets
have not been held in the Account for a certain period of time. If a sales
charge is imposed, it is imposed on a first-in, first out basis.
If a withdrawal or surrender is made during the first year that a Contract
is in existence, a sales charge will apply to the total amount that is
withdrawn. After the first year, 10% of the value of the Contract at the
last anniversary may be withdrawn free of sales charges. A deduction for
sales charges expressed as a percentage of the amount withdrawn in excess
of the 10% allowable amount is as follows:
Age of Deposit in Whole Years: 0 1 2 3 4 5 6
Percentage of Sales Charge to be Applied: 6 5 4 3 2 1 0
In no event, however, will the total of all surrender charges applied to
the Contract exceed 9% of the total premiums paid on the Contract. No sales
charge will be imposed on any death benefits payable due to the Annuitant's
death before the date annuity payments commence.
EXHIBIT 1 (Cont'd)
7. Premium Tax
Phoenix Mutual will deduct the amount of any premium taxes levied by any
government entity when paid, unless Phoenix Mutual opts to defer such
deduction. Such premium taxes depend on, among other things, the state of
residence of the Owner, the state of residence of the Annuitant, the status
of Phoenix Mutual within such states and the insurance tax laws of such
states. Currently, such premium taxes range from 0% to 3.0%.
ITEM II. VARIABLE ANNUITY SALES COMPENSATION
--------------------------------------------
Phoenix will pay Xxxxxxxxx Funds Distributor, Inc., the principal
underwriter of the Contracts, an amount equal to 5-1/2% of the purchase
payments under the Contracts.
EXHIBIT 2
Notices or communications relating to the Agreement shall be given to the
following persons:
Templeton Variable Product Series
----------------------------------
Xxxxxxxxx, Xxxxxxxxx & Xxxxxxxxxx Ltd. Fund
-------------------------------------- --------------------------------------
Xxxxxxxxx Investment Counsel, Inc.
----------------------------------
Xxxxxxxxx Funds Distributor, Inc.
----------------------------------
Xxxxxxxxx Funds Management, Inc.
----------------------------------
Xxxxxx Xxxxxxxx
President
Xxxxxxxxx Funds Management, Inc. PHOENIX MUTUAL LIFE INSURANCE
000 Xxxxxxx Xxxxxx COMPANY AND PHOENIX MUTUAL
Xx. Xxxxxxxxxx, Xxxxxxx 00000 VARIABLE ACCUMULATION ACCOUNT
c/o Xxxxxxx X. Xxxxxx Xxxxxx X. XxXxxxxxxx
Xxxxxxxxx Funds Annuity Company Phoenix Mutual Life
000 Xxxxxxx Xxxxxx Insurance Company
Xx. Xxxxxxxxxx, Xxxxxxx 00000 Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
A 1.6
