FIRST EAGLE VARIABLE FUNDS
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between First Eagle Variable Funds ("Fund") and Phoenix Life Insurance Company
("Agent").
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent for the Intermediary in
terms of the administration of the variable life and variable annuity insurance
products;
WHEREAS, the Intermediary and the Fund previously entered into Participation
Agreements allowing the Intermediary to offer certain First Eagle insurance
dedicated mutual funds through its Separate Accounts by way of the
Intermediary's variable life and variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22C-2 allows the agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Fund and the Agent enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 Intermediary: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds
("Separate Account") and/or the insurance company acting as the depositor
for the Separate Account as well as the Agent administering the functions
of the Separate Account with respect to the Intermediary's variable life
and annuity business.
1.2 Fund: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the
Act. The term "Fund" includes (i) an investment adviser to or administrator
for the Fund; (ii) the principal underwriter or distributor for the Fund;
or (iii) the transfer agent for the Fund. The term not does include any
"excepted funds" as defined in Rule 22c-2(b) under the Act.
1.3 Shares: The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by the Fund under the Act
that are held by the Intermediary.
1.4 Shareholder: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan
with a beneficial interest in a contract.
1.5 Shareholder -Initiated Transfer Purchase: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a
Fund, but does not include transactions that are executed: (i)
automatically pursuant to a contractual or systematic program or enrollment
such as transfer of assets within a Contract to a Fund as a result of
"dollar cost averaging" programs, insurance company approved asset
allocation programs, or automatic rebalancing programs; (ii) pursuant to a
Contract death benefit; (iii) one-time step-up in Contract value pursuant
to a Contract death benefit; (iv) allocation of assets to a Fund through a
Contract as a result of payments such as loan repayments, scheduled
contributions, retirement plan salary reduction contributions, or planned
premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6 Shareholder Initiated Transfer Redemption: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i)
automatically pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Contract out of a Fund as
a result of annuity payouts, loans, systematic withdrawal programs,
insurance company approved asset allocation programs and automatic
rebalancing programs; (ii) as a result of any deduction of charges or fees
under a Contract; (iii) within a Contract out of a Fund as a result of
scheduled withdrawals or surrenders from a Contract; or (iv) as a result of
payment of a death benefit from a Contract.
1.7 Shareholder Information: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8 Written or In Writing: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2.1 Information Sharing - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information: (i) the taxpayer
identification number ("TIN"); (ii) the Contract owner number or
participant account number associated with the Shareholder; (iii) the
amount, date and transaction type of every purchase, redemption, transfer,
or exchange of Shares held through an account maintained by the
Intermediary during the period covered by the request.
2.2 Period Covered by Request - Requests must set forth a specific period, not
to exceed 90 days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older
than 90 days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
2.3 Timing of Requests- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
2.4 Form and Timing of Response-
(a) Intermediary agrees to provide Shareholder Information to the Fund promptly
upon request If the Fund requests, the Intermediary agrees to use its best
efforts to promptly determine whether any specific person about whom it has
received Shareholder Information is itself a financial intermediary
("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests, the Intermediary
will, with notice to the Fund, promptly either: (i) provide Shareholder
Information for those shareholders who hold an account with an indirect
intermediary; or (ii) prohibit the indirect intermediary from purchasing,
in nominee name on behalf of other persons, securities issued by the Fund.
(c) Responses required by this paragraph must be communicated in writing and in
a format mutually agreed upon by the Fund or its designee and the
Intermediary; and according to the IRS' website, the ITIN refers to the
Individual Taxpayer Identification number, which is a nine-digit number
that always begins with the number 9 and has a 7 or 8 in the fourth digit,
example 9XX-7X-XXXX. The IRS issues ITINs to individuals who are required
to have a U.S. taxpayer identification number but who do not have, and are
not eligible to obtain a Social Security Number (SSN) from the Social
Security Administration (SSA). SEC Rule 22c-2 inadvertently refers to the
ITIN as the International Taxpayer Identification Number.
(d) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
2.5 Limitations on Use of Shareholder Information- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders
who may be violating the Funds policies and procedures with respect to
dilution of the Fund's value as contemplated by the Rule or to fulfill
other regulatory or legal requirements subject to the privacy provisions of
Title V of the Xxxxx-Xxxxx Xxxxxx Act (Public Law 106-102) and comparable
state laws. The Fund agrees that the Shareholder Information is
confidential and that the Fund will not share the Shareholder Information
externally, unless the Intermediary provides the Fund with prior written
consent to share such Shareholder Information. The Fund agrees not to share
the Shareholder Information internally, except on a "need to know basis."
The Fund further agrees to notify the Intermediary in the event that the
confidentiality of the Shareholder Information is breached.
III. PROHIBITIONS ON TRADING
3.1 Agreement to Prohibit Trading. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of
Shares by a Shareholder that has been identified by the Fund as having
engaged in transactions of the Fund's Shares (directly or indirectly
through the Intermediary's account) that violate policies established by
the Fund for the purpose of eliminating or reducing any dilution of the
value of the outstanding Shares issued by the Fund. Unless otherwise
directed by the Fund, any such prohibitions shall only apply to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions that are effected directly or indirectly through Intermediary.
Instructions must be received by us at the following address, or such other
address that Intermediary may communicate to you in writing from time to
time, including, if applicable, an e-mail and/or facsimile telephone
number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
3.2 Form of Instructions. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s)
to be executed, including how long the prohibition(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual Contract owner
number or participant account number associated with the Shareholder is not
known, the instructions must include an equivalent identifying number of
the Shareholder(s) or account(s) or other agreed upon information to which
the instruction relates. Upon request of the Intermediary, Fund agrees to
provide to the Intermediary, along with any written instructions to
prohibit further purchases or exchanges of Shares by Shareholder,
information regarding those trades of the contract holder that violated the
Fund's policies relating to eliminating or reducing any dilution of the
value of the Fund's outstanding Shares.
3.3 Timing of Response. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt
of the instructions by the Intermediary.
3.4 Confirmation by Intermediary. Intermediary must provide written
confirmation to the Fund that instructions have been executed. Intermediary
agrees to provide confirmation as soon as reasonably practicable, but not
later than ten business days after the instructions have been executed.
3.5 Redemption Fees. The Fund agrees to communicate any change in its short
term trading or redemption fee policy to the Intermediary and to work with
the intermediary, in good faith, to set up a mutually agreed upon
implementation date.
IV. GENERAL PROVISIONS
4.1 Construction of the Agreement; Fund Participation Agreements. The parties
have entered into one or more Fund Participation Agreements between or
among them for the purchase and redemption of shares of the Funds by the
Accounts in connection with the Contracts. The Fund Participation
Agreements are hereby incorporated by reference into this Agreement, as
this Agreement is intended to be a supplement to the Fund Participation
Agreements. To the extent the terms of this Agreement conflict with the
terms of a Fund Participation Agreement, the terms of this Agreement shall
control.
4.2 Indemnification. The Fund agrees to indemnify and hold harmless
Intermediary from any and all liability, claim, loss, demand, damages,
costs and expenses (including reasonable attorney's fees) arising in
connection with third party claim or action brought against Intermediary as
a result of any unauthorized disclosure of a shareholder's taxpayer
identification number provided to the Fund in response to a request for
Shareholder Information pursuant to the terms of this Agreement.
4.3 Force Majeure. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in
part, caused by the occurrence of any event or contingency beyond the
control of the parties including, but not limited to, work stoppages,
fires, civil disobedience, riots, rebellions, natural disasters, acts of
God, and acts of war or terrorism. The party who has been so affected shall
promptly give written notice to the other Party and shall use its best
efforts to resume performance. Upon receipt of such notice, all obligations
under this Agreement shall be immediately suspended for the duration of
such Force Majeure Event.
4.4 Termination. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
First Eagle Variable Funds
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Chief Operations & Finance Officer
Date: 4/13/07
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Phoenix Life Insurance Company, as Agent for Valley Forge Life Insurance Company
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
Date:
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