PARTICIPATION AGREEMENT
Among
PANORAMA SERIES FUND, INC.
OPPENHEIMERFUNDS, INC.
and
PHL VARIABLE INSURANCE COMPANY
THIS AGREEMENT (the "Agreement"), made and entered into as of the 1st day of
February, 2008 by and among PHL Variable Insurance Company (hereinafter the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Schedule 1 to this Agreement, as may be amended from time to
time by mutual consent (hereinafter collectively the "Accounts"), Panorama
Series Fund, Inc. (hereinafter the "Fund") and OppenheimerFunds, Inc.
(hereinafter the "Adviser").
WHEREAS, the Fund is an open-end management investment company and is
available to act as the investment vehicle for separate accounts now in
existence or to be established at any date hereafter for variable life
insurance policies, variable annuity contracts and other tax-deferred products
(collectively, the "Variable Insurance Products") offered by life insurance
companies (hereinafter "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares, each designated a "Portfolio", and each representing the interests
in a particular managed pool of securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (the "SEC"), dated August 31, 1994 (File No. 812-8936) 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
Investment Company Act of 1940, as amended, (hereinafter 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 Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies (hereinafter the "Mixed and Shared Funding Exemptive
Order");
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and each class of shares of the Portfolios of the Fund is
registered under the Securities Act of 1933, as amended (hereinafter the "1933
Act");
WHEREAS, the Adviser is duly registered as an investment adviser under the
federal Investment Advisers Act of 1940;
WHEREAS, the Company has registered or will register certain variable
annuity and/or life insurance contracts under the 1933 Act (hereinafter
"Contracts") (unless an exemption from registration is available);
WHEREAS, the Accounts are or will be duly organized, validly existing
segregated asset accounts under applicable insurance law, established by
resolution of the Board of Directors of the Company, to set aside and invest
assets attributable to the aforesaid variable contracts (the Separate
Account(s) covered by the Agreement are specified in Schedule 1 attached
hereto, as may be modified by mutual consent from time to time);
WHEREAS, the Company has registered or will register the Accounts as unit
investment trusts under the 1940 Act (unless an exclusion from registration is
available);
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios (the
Portfolios covered by this
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Agreement are specified in Schedule 2 attached hereto as may be modified by
mutual consent from time to time), on behalf of the Accounts to fund the
Contracts, and the Fund is authorized to sell such shares to unit investment
trusts such as the Accounts at net asset value; and
NOW, THEREFORE, in consideration of their mutual promises, the Fund, the
Adviser and the Company agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares
1.1. The Fund agrees to make available to the Company for purchase on behalf
of the Accounts those shares of a Portfolio of the Fund which the Company
orders on behalf of the Accounts, executing such orders on a daily basis at the
net asset value next computed after receipt by the Fund or its designee of the
order for such shares, as established in accordance with the provisions of the
then current prospectus of the Fund.
1.2. The Fund will not sell shares of any Portfolio to any other
Participating Insurance Company separate account unless an agreement containing
provisions similar in substance to Sections 2.1 and 2.2 of Article II, Sections
3.7 and 3.8 (other than the provision requiring the Fund to provide voting
standards) of Article III and Article V of this Agreement is in effect to
govern such sales, it being agreed and understood by Company and the Fund that
this provision is not intended to prevent the Fund from selling its shares to
any potential investor whose purchase of shares does not render the shares of
the Fund or any Portfolio ineligible for continued or additional investment by
the Company and its Account(s), and it being further understood and agreed by
the Company and the Fund that this provision shall apply prospectively to
participation agreements that the Fund enters into on or after the date hereof.
1.3. The Company shall be the designee of the Fund for receipt of purchase
orders and requests for redemptions or exchanges of shares of a Portfolio
("Instructions"). The Business Day on which such Instructions are received in
proper form by the Company and time
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stamped by the Company by the close of trading will be the date and time as of
which Portfolio shares shall be deemed purchased, exchanged or redeemed as a
result of such Instructions; provided that the Fund receives such Instructions
by 9:30 a.m. Eastern Standard Time on the next following business day.
Instructions received in proper form by the Company and time stamped after the
close of trading on any given Business Day or received by the Fund after 9:30
a.m. Eastern Standard Time on the next following business day shall be treated
as if received on the next following Business Day. The Company warrants that
all orders transmitted to the Fund by 9:30 a.m. Eastern Standard Time on a
Business Day were received by the Company in proper form and time stamped prior
to the close of trading on the prior Business Day. "Business Day" shall mean
any day on which the New York Stock Exchange is open for trading and on which
the Fund calculates its net asset value pursuant to the rules of the SEC and
its current prospectus.
The Fund shall calculate the net asset value per share of each Portfolio on
each Business Day, and shall communicate these net asset values to the Company
or its designee on a daily basis as soon as reasonably practicable after the
calculation is completed (normally by 6:30 p.m. Eastern Standard Time). If the
Fund is unable to meet the 6:30 p.m. time stated herein, the Fund shall provide
additional time equal to the additional time it takes the Fund to make the net
asset value available to the Company for the Company to place orders for the
purchase and redemption of shares and make any applicable purchase payments.
The Company shall submit payment for the purchase of shares of a Portfolio
in federal funds transmitted by wire to the Fund or to its designated
custodian, which must receive such wires no later than the close of the Federal
Reserve Bank of New York, which is 6:00 p.m. Eastern Standard Time, on the
Business Day following the Business Day for which such purchase orders have
been placed.
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Issuance and transfer of the Portfolio shares will be by book entry only.
Stock certificates will not be issued to the Company or the Accounts. Portfolio
shares purchased from the Fund will be recorded in the name of the appropriate
Account or the appropriate subaccount of each Account.
The Fund shall furnish, on or before the ex-dividend date, notice to the
Company of any income dividends or capital gain distributions payable on the
shares of any Portfolio. The Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on shares of a
Portfolio in additional shares of that Portfolio, and the Company reserves the
right to change this election in the future. The Fund will notify the Company
of the number of shares so issued as payment of such dividends and
distributions.
Each party to this Agreement agrees that, in the event of a material error
resulting from incorrect information or confirmations, the parties will seek to
comply in all material respects with the provisions of applicable federal
securities laws.
1.4. The Fund may refuse to sell Shares of any Portfolios to any person, or
suspend or terminate the offering of the Shares of any Portfolios if such
action is required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of the Board of Directors/Trustees of the Fund (the
"Board"), deemed necessary, desirable or appropriate. Without limiting the
foregoing, it has been determined that there is a significant risk that the
Fund and its shareholders may be adversely affected by short-term or excessive
trading activity, particularly activity used to try and take advantage of
short-term swings in the market. Accordingly, the Fund reserves right to reject
any purchase order, including those purchase orders with respect to
shareholders or accounts whose trading has been or may be disruptive to
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the Fund or that may otherwise adversely affect the Fund. The Company agrees to
render assistance to, and to cooperate with, the Fund to achieve compliance
with the Fund's policies and restrictions on short-term or excessive trading
activity as they may be amended from time to time, or to the extent required by
applicable regulatory requirements.
1.5. The Fund agrees to redeem or exchange, upon the Company's request, any
full or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after receipt by
the Fund or its designee of the request for redemption, reduced by any
redemption fee or deferred sales charge, if the Fund's prospectus in effect as
of the date of such redemption imposes such a fee or charge on such
redemptions. For purposes of this Section 1.5, the Company shall be the
designee of the Fund for receipt of requests for redemption and receipt by such
designee shall constitute receipt by the Fund; provided that the Fund receives
written (or facsimile) notice of such request for redemption by 9:30 a.m.
Eastern Standard Time on the next following Business Day; however the Company
undertakes to use its best efforts to provide such notice to the Fund by no
later than 9:00 A.M. Eastern Standard Time on the next following Business Day.
Payment shall be made within the time period specified in the Fund's prospectus
or statement of additional information ("SAI"), provided, however, that in no
event shall payment be delayed for a greater period than is permitted by the
1940 Act. In the event the Fund does not pay for the Fund shares that are
redeemed on the next Business Day after a request to redeem shares is made,
then the Fund shall apply any such delay in redemptions uniformly to all
records holders of shares of that Portfolio. Payment shall be in federal funds
transmitted by wire to the Company's bank accounts as designated by the Company
in writing from time to time. The Company further agrees to furnish, or cause
to be furnished, to the Fund, the Adviser and their duly appointed agents a copy
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of the Company's SAS 70 reports prepared by the Company's independent auditor
within a reasonable time such report is completed and to submit to an
inspection by the Fund, the Adviser or their duly authorized agents of its
books and records upon reasonable notice.
1.6. The Company agrees to purchase and redeem the shares of the Portfolios
named in Schedule 2 offered by the then current prospectus and SAI of the Fund
in accordance with the provisions of such prospectus and SAI. The Company shall
not permit any person other than a Contract owner to give instructions to the
Company which would require the Company to purchase, redeem or exchange shares
of the Fund.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the securities deemed to be
issued by the Accounts under the Contracts are or, prior to any issuance or
sale will be, registered under the 1933 Act (unless an exemption from
registration is available) and, that the Contracts will be issued, offered and
sold in compliance in all material respects with all applicable federal and
state laws and regulations, including without limitation state insurance
suitability requirements and Financial Industry Regulatory Authority ("FINRA")
conduct rules. The Company further represents and warrants that it is an
insurance company duly organized and in good standing under applicable state
law and that it has legally and validly established the Accounts prior to the
issuance or sale of units thereof as a segregated asset account under
applicable insurance law and has registered the Accounts as unit investment
trusts in accordance with the provisions of the 1940 Act (unless an exclusion
from registration is available) to serve as segregated investment accounts for
the Contracts, and that it will maintain such registration for so long as any
Contracts are outstanding or until registration is no longer required under
federal and state securities laws. The Company shall amend the registration
statement under the 1933 Act for the Contracts and the registration statement
under the 1940 Act for the Accounts
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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 sale in accordance with the securities
laws of the various states only if and to the extent deemed necessary by the
Company.
2.2. The Company represents and warrants that the Contracts are currently
and at the time of issuance will be treated as life insurance or annuity
contracts under applicable provisions of the Internal Revenue Code of 1986, as
amended (the "Code") and the regulations issued thereunder, and that it will
make every effort to maintain such treatment and that it will notify the Fund
and the Adviser 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 the
Accounts are a "segregated asset accounts" and that interests in the Accounts
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 issued thereunder and any amendments or other modifications to
such section or such regulations (and any revenue rulings, revenue procedures,
notices and other published announcements of the Internal Revenue Service
interpreting these provisions). The Company shall continue to meet such
definitional requirements, and it will notify the Fund and the Adviser
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 Fund shares with assets
derived from tax-qualified retirement plans except indirectly, through
Contracts purchased in connection with such plans.
2.3. The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act and duly authorized for
issuance and sold in
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accordance with applicable state and federal law and that the Fund is and shall
remain registered under the 1940 Act for as long as the Fund shares are sold.
The Fund shall amend the registration statement for its shares under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and
to the extent deemed advisable by the Fund.
2.4. The Fund will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable contracts
under the Code and the regulations issued thereunder. Without limiting the
scope of the foregoing, the Fund represents and warrants that each Portfolio of
the Fund will comply with Section 817(h) of the Code and Treasury Regulation
1.817-5, relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts and any amendments or other
modifications to such Section or Regulations (and any revenue rulings, revenue
procedures, notices, and other published announcements of the Internal Revenue
Service interpreting these provisions). In the event the Fund should fail to so
qualify, it will take all reasonable steps (a) to notify the Company of such
breach and (b) to resume compliance with such diversification requirement
within the grace period afforded by Treasury Regulation 1.817.5. The Fund and
Adviser represent that each Portfolio is qualified as a Regulated Investment
Company under Subchapter M of the Code and that it will maintain such
qualification (under Subchapter M or any successor provision), and that it will
notify the Company immediately upon having a reasonable basis for believing
that it has ceased to so qualify or that it might not so qualify in the future.
2.5. If the Contracts purchase shares of a series and class of the Fund that
have adopted a plan under Rule 12b-1 under the 1940 Act to finance distribution
expenses (a "12b-1
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Plan"), the Company agrees to provide the Trustees any information as may be
reasonably necessary for the Trustees to review the Fund's 12b-1 Plan or Plans.
2.6. The Fund represents that it is lawfully organized and validly existing
under the laws of the Commonwealth of Massachusetts and that it does and will
comply with applicable provisions of the 0000 Xxx.
2.7. The Adviser represents and warrants that it is and will remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for the Fund in compliance with any applicable
state and federal securities laws.
2.8. The Fund and Adviser each represent and warrant that all of its
respective directors, trustees, officers, employees, investment advisers, and
transfer agent of the Fund are and shall continue to be at all times covered by
a blanket fidelity bond (which may, at the Fund's election, be in the form of a
joint insured bond) or similar coverage for the benefit of the Fund in an
amount not less than the minimal coverage as required currently by
Section 17(g) and Rule 17g-1 under the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid Bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable insurance company.
The Adviser agrees to make all reasonable efforts to see that this bond or
another bond containing these provisions is always in effect, and agrees to
notify the Company in the event that such coverage no longer applies.
2.9. The Company represents and warrants that all of its directors,
officers, employees, agents, investment advisers, and other individuals and
entities dealing with the money and/or securities of the Fund are covered by a
blanket fidelity bond or similar coverage in an adequate amount necessary to
satisfy any obligations or claims arising under this Agreement. The aforesaid
bond shall include coverage for larceny and embezzlement and shall be issued by
a
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reputable insurance company. The Company agrees that any amount received under
such bond in connection with claims that derive from arrangements described in
this Agreement will be paid by the Company for the benefit of the Fund. The
Company agrees to make all reasonable efforts to see that this bond or another
bond containing these provisions is always in effect, and agrees to notify the
Fund and the Adviser in the event that such coverage no longer applies.
2.10. The Fund and the Adviser represent that they will make a good faith
effort to furnish information to the Company about the Fund not otherwise
available to the Company which is required by state insurance law to enable the
Company to obtain the authority needed to issue the Contracts in any applicable
state.
The Company undertakes and agrees to comply, and to take full responsibility
in complying with any and all laws, regulations, protocols and other
requirements relating to money laundering, both United States and foreign,
including, without limitation, the International Money Laundering Abatement and
Anti-Terrorist Financing Act of 2001 (Title III of the USA Patriot Act),
hereinafter, collectively with the rules, regulations and orders promulgated
thereunder (the "Patriot Act") and any requirements and/or requests in
connection therewith, made by regulatory authorities, the Fund or their duly
appointed agents, either generally or in respect of a specific transaction,
and/or in the context of a "primary money laundering concern" as defined in the
Patriot Act. The Company agrees as a condition precedent to any transaction
taking or continuing to be in effect under this Agreement, to comply with any
and all anti-money laundering laws, regulations, orders or requirements, and
without prejudice to the generality of the above, to provide regulatory
authorities, the Fund or its duly appointed agents, with all necessary reports
and information for the Fund or its agents to fulfill their obligations, if
any, under the Patriot Act for the purposes of the Fund or other third parties
complying with any and
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all anti-money laundering requirements imposed by the Patriot Act, including,
without limitation, enhanced due diligence obligations, the filing of Currency
Transaction Reports and/or of Suspicious Activity Reports obligations, and/or
the sharing of information requirements. In the event reports and information
deemed satisfactory by the Fund are not received within a reasonable time
period from the date of the request, the Fund reserve the right to reject any
transaction and/or cease to transact with the Company and/or the Accounts.
Furthermore, the Company represents that the Company has not received notice
of, and to the Company's knowledge, there is no basis for, any claim, action,
suit, investigation or proceeding that might result in a finding that the
Company is not or has not been in compliance with the Patriot Act, and the
rules and regulations promulgated thereunder.
2.11 The Company, the Fund and the Advisor each agree to notify the others
immediately upon having a reasonable basis for believing that any of these
representations and warranties are no longer true or accurate to a material
extent.
2.12 The Company shall maintain and enforce policies and procedures
reasonably designed to ensure that Portfolio share orders transmitted to the
Fund are segregated by time of receipt in order to prevent Share orders from
being executed at a price based on a previously determined net asset value.
2.13 The Company shall facilitate and cooperate with third-party audits
arranged by the Fund or the Adviser to evaluate the effectiveness of its
compliance controls.
2.14 The Company shall provide the Fund's chief compliance officer with
direct access to its compliance personnel.
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2.15 The Company shall provide the Fund's chief compliance officer with
periodic reports and shall promptly provide the Fund's chief compliance officer
with special reports in the event of any compliance problems that arise.
ARTICLE III. Sales Material, Prospectuses and Other Reports
3.1. The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material
in which the Fund or the Adviser is named, at least ten Business Days prior to
its use. No such material shall be used if the Fund or its designee reasonably
object to such use within ten Business Days after receipt of such material.
3.2. The Company shall not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus for the Fund shares, as
such registration statement and prospectus may be amended or supplemented from
time to time, or in reports or proxy statements for the Fund, or in sales
literature or other promotional material approved by the Fund or its designee,
except with the permission of the Fund.
3.3. For purposes of this Article III, the phrase "sales literature or other
promotional material" includes, but is not limited to, portions of the
following that use any logo or other trademark related to the Fund or its
affiliates, and any of the following that refer to the Fund or an affiliate of
the Fund: advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboard or electronic media), and
sales literature (i.e., any written communication distributed or made generally
available to customers or the public, including
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brochures, circulars, market letters and form letters, seminar texts, reprints
or excerpts from any advertisement, sales literature or published article),
educational training materials or other communications distributed or made
generally available to some or all agents or employees, and registration
statements, prospectuses, SAIs, shareholder reports, and any other
communications distributed or made generally available with regard to the Fund.
3.4. The Fund shall provide to the Company a copy of its current prospectus
within a reasonable period of its filing date, and provide other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus for the Fund is supplemented or amended) to have
the prospectus printed. The Adviser shall be permitted to review and approve
the electronic or draft form of the Fund's Prospectus prior to such printing.
3.5. The Fund or the Adviser shall provide the Company with either: (i) a
copy of the Fund's proxy material, reports to shareholders, other information
relating to the Fund necessary to prepare financial reports, and other
communications to shareholders for printing and distribution to Contract
owners, or (ii) electronic file and/or printed copies, if appropriate, of such
material for distribution to Contract owners at the Company's expense, within a
reasonable period of the filing date for definitive copies of such material.
The Adviser shall be permitted to review and approve the electronic form of
such proxy material, shareholder reports and communications prior to such
printing.
3.6. The Company assumes sole responsibility for ensuring that the Fund's
prospectus, shareholder reports and communications, and proxy materials are
delivered to Contract owners in accordance with applicable federal and state
securities laws.
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3.7. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii)vote Fund shares in accordance with instructions received from
Contract owners; and
(iii)vote Fund shares for which no instructions have been received in the
same proportion as Fund shares of such Portfolio(s) for which
instructions have been received,
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 or to
the extent otherwise required by law. The Company will vote Fund shares held in
any segregated asset account, as well as shares owned by the Company, in the
same proportion as Fund shares of such Portfolio for which voting instructions
have been received from Contract owners, to the extent permitted by law.
3.8 Participating Insurance Companies shall be responsible for assuring that
each of their separate accounts participating in a Portfolio calculates voting
privileges as required by the Mixed and Shared Funding Exemptive Order and
consistent with any reasonable standards that the Fund may adopt and provide in
writing.
ARTICLE IV. Fees and Expenses
4.1 The Fund and Adviser shall pay no fee or other compensation to the
Company under this agreement, and the Company shall pay no fee or other
compensation to the Fund or Adviser, except as provided herein.
4.2 All expenses incident to performance by each party of its respective
duties under this Agreement shall be paid by that party. The Fund shall see to
it that all its shares are registered and authorized for issuance in accordance
with applicable federal law and, if and to the extent advisable by the Fund, in
accordance with applicable state laws prior to their sale. The Fund shall bear
the expenses for the cost of registration and qualification of the Fund's
shares,
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preparation and filing of the Fund's prospectus and registration statement,
proxy materials and reports, and the preparation of all statements and notices
required by any federal or state law.
4.3 The Fund will pay the expenses associated with the following: setting
the prospectus and profiles in type; printing copies of the prospectus and
profiles to be delivered to existing Contract owners investing in the
Portfolios; providing a reasonable number of copies of the SAI to the Company
for itself and for any current owner of a Contract who requests such SAI;
setting in type and printing the proxy materials and reports to shareholders
(including the costs of printing a prospectus that constitutes an annual
report); and the preparation of all statements and notices required by any
federal or state law.
4.4 Unless otherwise agreed, the Company shall bear the expenses of printing
copies of the current prospectus and profiles for the Contracts; printing
copies of the Fund's prospectus and profiles that are used in connection with
offering the Contracts; distributing the Fund's prospectus to owners of
Contracts issued by the Company; and of distributing the Fund's proxy materials
and reports to such Contract owners. If the prospectus for the Contracts and
the Fund's prospectus are printed together in one or more documents, printing
costs shall be allocated to reflect the Fund's share, pursuant to Section 4.3,
of the total costs for printing the Fund's prospectus(es) to be delivered to
existing Contract owners investing in the Portfolio(s), determined according to
the number of pages of the Fund's respective portions of the documents;
provided that the Fund receives invoices for such expense within 90 days after
printing.
4.5 In the event the Fund adds one or more additional Portfolios and the
parties desire to make such Portfolios available to the respective Contract
owners as an underlying investment medium, a new Schedule 2 or an amendment to
this Agreement shall be executed by the parties authorizing the issuance of
shares of the new Portfolios to the particular
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Accounts. The amendment may also provide for the sharing of expenses for the
establishment of new Portfolios among Participating Insurance Companies
desiring to invest in such Portfolios and the provision of funds as the initial
investment in the new Portfolios.
ARTICLE V. Potential Conflicts
5.1. The Trustees will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the Contract owners of all
separate accounts investing in the Fund. An irreconcilable material 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 interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by participating insurance companies or by variable annuity
contract and variable life insurance contract owners; or (f) a decision by an
insurer to disregard the voting instructions of Contract owners. The Trustees
shall promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
5.2. The Company has reviewed a copy of the Mixed and Shared Funding
Exemptive Order, and in particular, has reviewed the conditions to the
requested relief set forth therein. The Company agrees to be bound by the
responsibilities of a participating insurance company as set forth in the Mixed
and Shared Funding Exemptive Order, including without limitation the
requirement that the Company report any potential or existing conflicts of
which it is aware to the Trustees. The Company will assist the Trustees in
carrying out their responsibilities in monitoring such conflicts under the
Mixed and Shared Funding Exemptive Order, by providing the Trustees in a timely
manner with all information reasonably necessary
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for the Trustees to consider any issues raised. This includes, but is not
limited to, an obligation by the Company to inform the Trustees whenever
Contract owner voting instructions are disregarded and by confirming in
writing, at the Fund's request, that the Company are unaware of any such
potential or existing material irreconcilable conflicts.
5.3. If it is determined by a majority of the Trustees, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees), take whatever steps
are necessary to remedy or eliminate the irreconcilable material conflict, up
to and including: (1) withdrawing the assets allocable to some or all of the
separate accounts from the Fund or any Portfolio and reinvesting such assets in
a different investment medium, including (but not limited to) another Portfolio
of the Fund, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a change;
and (2) establishing a new registered management investment company or managed
separate accounts. The Company's obligations under this Section 5.3 shall not
depend on whether other affected participating insurance companies fulfill a
similar obligation.
5.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
could conflict with the majority of Contract owner instructions, the Company
may be required, at the Fund's election, to withdraw the Accounts' investment
in the Fund and terminate this Agreement;
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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 Trustees. Any such withdrawal and
termination must take place within six (6) months after the Fund gives written
notice that this provision is being implemented, and until the end of the six
month period the Fund shall continue to accept and implement orders by the
Company for the purchase and redemption of shares of the Fund.
5.5. If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the
Accounts' investment in the Fund and terminate this Agreement within six months
after the Trustees inform the Company in writing that it has determined that
such decision has created an irreconcilable material 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 Trustees. Until the end of the foregoing six
month period, the Fund shall continue to accept and implement orders by the
Company for the purchase and redemption of shares of the Fund, subject to
applicable regulatory limitation.
5.6. For purposes of Sections 5.3 through 5.6 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Fund be required to establish a new funding medium for the Contracts. The
Company shall not be required by Section 5.3 to establish a new funding medium
for Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable material
conflict. In the event that the Trustees determine that any proposed action
does not adequately remedy
-19-
any irreconcilable material conflict, then the Company will withdraw the
particular Accounts' investment in the Fund and terminate this Agreement within
six (6) months after the Trustees inform 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 disinterested
Trustees.
ARTICLE VI. Applicable Law
6.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of New York.
6.2. This Agreement shall be subject to the provisions of the 1933 Act, the
Securities Exchange Act of 1934 and the 1940 Act, and the rules and regulations
and rulings thereunder, including such exemption 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, provided however that the term "Registration
Statement or Prospectus for the Variable Contracts" and terms of similar import
shall include (i) any offering circular or similar document and sales
literature or other promotional materials used to offer and/or sell the
variable Contracts in compliance with the private offering exemption in the
1933 Act and applicable federal and state laws and regulations, and (ii) the
term "Registration Statement" and "Prospectus" as defined in the 1933 Act.
ARTICLE VII. Termination
7.1. This Agreement shall terminate:
(a) at the option of any party upon three month's advance written notice
to the other parties;
(b) at the option of the Company to the extent that shares of Portfolios
are not reasonably available to meet the requirements of its Contracts or
are not appropriate
-20-
funding vehicles for the Contracts, as determined by the Company reasonably
and in good faith. Prompt notice of the election to terminate for such cause
and an explanation of such cause shall be furnished by the Company;
(c) as provided in Article V;
(d) at the option of the Fund or the Adviser upon institution of formal
proceedings against the Company (or its parent) by the FINRA, the SEC, the
insurance commission of any state or any other regulatory body having
jurisdiction over that party, which would have a material adverse effect on
the Company's ability to perform its obligations under this Agreement;
(e) at the option of the Company upon institution of formal proceedings
against the Fund or the Adviser (or its parent) by the FINRA, the SEC, or
any state securities or insurance department or any other regulatory body
having jurisdiction over that party, which would have a material adverse
effect on the Adviser's or the Fund's ability to perform its obligations
under this Agreement;
(f) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals or the vote of the Contract owners having an
interest in the Account (or any subaccount) to substitute the shares of
another investment company for the corresponding Portfolio shares of the
Fund in accordance with the terms of the Contracts for which those Portfolio
shares have been selected to serve as the underlying investment media. The
Company will give 45 days prior written notice to the Fund of the date of
any proposed vote or other action taken to replace the Fund's shares;
(g) at the option of the Company or the Fund upon a determination by a
majority of the Trustees, or a majority of the disinterested Trustees, that
an irreconcilable
-21-
material conflict exists among the interests of (i) all Contract owners of
variable insurance products of all separate accounts or (ii) the interests
of the Participating Insurance Companies investing in the Fund as delineated
in Article VII of this Agreement;
(h) at the option of the Company if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code, or under any
successor or similar provision, or if the Company reasonably believes that
the Fund may fail to so qualify;
(i) at the option of the Company if the Fund fails to meet the
diversification requirements specified in Section 2.6 hereof or if the
Company reasonably believes that the Fund will fail to meet such
requirements;
(j) at the option of any party to this Agreement, upon another party's
failure to cure a material breach of any provision of this Agreement within
thirty days after written notice thereof;
(k) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that either the Fund or the Adviser has
suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material
adverse publicity which is likely to have a material adverse impact upon the
business and operations of the Company;
(l) at the option of the Fund or the Adviser, if the Fund or Adviser
respectively, shall determine in its sole judgment exercised in good faith,
that the Company has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Fund or the Adviser;
-22-
(m) subject to the Fund's compliance with Section 2.6 hereof, at the
option of the Fund in the event any of the Contracts are not issued or sold
in accordance with applicable requirements of federal and/or state law; or
(n) at the option of the Fund if (i) the Company breaches any of the
representations and warranties made in this Agreement; or (ii) the Company
notifies the Fund that any of such representations and warranties may no
longer be true or might not be true in the future; or (iii) any of the
Company's representations and warranties were not true on the effective date
of this Agreement, are at any time no longer true, or have not been true
during any time since the effective date of this Agreement.
7.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 7.1(a) may be exercised for cause
or for no cause.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund and the
Adviser, each member of their Board of Trustees or Board of Directors, each
of their officers, employees and agents, and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act
(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 litigation
expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, fine, liability or expense and reasonable legal
counsel fees incurred in connection therewith (collectively, "Losses")), to
which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect
-23-
thereof) or settlements are related to the sale or acquisition of the Fund's
shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or SAI for the Contracts or
contained in 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 in light of the
circumstances which they were made; provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement
or omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the
Fund or the Adviser for use in the registration statement,
prospectus or SAI for the Contracts or sales literature (or
any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(ii)arise out of or as a result of statements or representations
by or on behalf of the Company (other than statements or
representations contained in the Fund registration statement,
Fund prospectus or sales literature or other promotional
material of the Fund not supplied by the Company or persons
under its control) or wrongful conduct of the Company or
persons under its control, with respect to the sale or
disposition of the Contracts or Fund shares, provided any such
statement or representation or such wrongful conduct was not
made in reliance upon and in conformity with information
furnished in writing, via fax or via electronic means, to the
Company by or on behalf of the Advisor or the Fund; or
(iii)arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, SAI or sales
literature or other promotional material of the Fund or any
amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading in light of the circumstances in which they
were made, if such statement or omission was
-24-
made in reliance upon information furnished in writing, via fax
or via electronic means, to the Fund or the Adviser by or on
behalf of the Company or persons under its control;
(iv)arise out of or result from any material breach of this
Agreement by the Company;
(v) arise out of or result from any failure by the Company to
provide the services or furnish the materials required under
the terms of this Agreement; or
(vi)arise out of or result from a Contract failing to be
considered a life insurance policy or an annuity Contract,
whichever is appropriate, under applicable provisions of the
Code thereby depriving the Fund of its compliance with
Section 817(h) of the Code, unless such failure is due to the
failure of the Fund or any of the other investment companies
currently available as funding vehicles for the Contracts to
invest the assets of any portfolio in such a manner as to
ensure that the Contracts will be treated as annuity,
endowment, or life insurance contracts, whichever is
appropriate, under the Code and the regulations issued
thereunder (or any successor provisions).
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation to
which an Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
8.2. Indemnification by Adviser and Fund
(a)(1) The Adviser agrees to indemnify and hold harmless the Company and
each of its directors and officers, employees and agents, and each person,
if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims,
-25-
damages, liabilities (including amounts paid in settlement with the written
consent of the Adviser) or litigation expenses (including any Losses) to
which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or
the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus, SAI or sales literature of
the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which
they were made; provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such statement
or omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished in
writing, via fax or via electronic means, to the Adviser or
the Fund by or on behalf of the Company for use in the Fund
registration statement, prospectus or SAI, or sales literature
or other promotional material for the Contracts or of the
Fund; or
(ii)arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract registration statement, the
Contract prospectus, SAI, or sales literature or other
promotional material for the Contracts not supplied by the
Adviser or the Fund or persons under the control of the
Adviser or the Fund respectively) or wrongful conduct of the
Adviser or persons under its control, with respect to the sale
or distribution of the Contracts, provided any such statement
or representation or such wrongful conduct was not made in
reliance upon and in conformity with information furnished in
writing, via fax or via electronic means, to the Adviser or
the Fund by or on behalf of the Company; or
(iii)arise out of any untrue statement or allegedly untrue
statement of a material fact contained in a registration
statement, prospectus, SAI or sales literature covering the
-26-
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 in light of the
circumstances in which they were made, if such statement or
omission was made in reliance upon information furnished in
writing, via fax or via electronic means, to the Company by or on
behalf of the Fund or persons under the control of the Adviser; or
(iv)arise out of or result from any material breach of this
Agreement by the Adviser.
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Adviser may
otherwise have.
(a)(2) The Fund agrees to indemnify and hold harmless the Indemnified
Parties against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Fund) or
litigation expenses (including Losses) to which the Indemnified Parties may
become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions
in respect thereof) or settlements are related to the operations of the Fund
or the sale or acquisition of the Fund's shares and:
(i) arise out of or are based upon (a) any untrue statement or
alleged untrue statement of any material fact or (b) the
omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in
which they were made, not misleading, if such fact, statement
or omission is contained in the registration statement for the
Fund or the Contracts, or in the prospectus or SAI for the
Contracts or the Fund, or in any amendment to any of the
foregoing, or in sales literature or other promotional
material for the Contracts or of the Fund, provided, however,
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement, fact or omission or such
alleged statement, fact or omission was made in reliance upon
and in conformity with information furnished in writing, via
fax or via electronic means, to the Adviser or the Fund by or
on behalf of the Indemnified Party; or
-27-
(ii)arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract registration statement, the
Contract prospectus, SAI, or sales literature or other
promotional material for the Contracts not supplied by the
Adviser or the Fund or persons under the control of the
Adviser or the Fund respectively) or wrongful conduct of the
Fund or persons under its control with respect to the sale or
distribution of Contracts, provided any such statement or
representation or such wrongful conduct was not made in
reliance upon and in conformity with information furnished in
writing, via fax or via electronic means, to the Adviser or
the Fund by or on behalf of the Company; or
(iii)arise out of or result from any material breach of this
Agreement by the Fund (including a failure to comply with the
diversification requirements specified in Section 2.6 of this
Agreement).
except to the extent provided in Section 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Fund may
otherwise have.
(b) The Fund and Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by
reason of such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement.
8.3. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.3) shall not be liable
under the indemnification provisions of this Article VIII with respect to any
claim made against a party
-28-
entitled to indemnification under this Article VIII ("indemnified party" for
the purpose of this Section 8.3) unless such indemnified party shall have
notified the indemnifying party in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such indemnified party (or after such party
shall have received notice of such service on any designated agent), but
failure to notify the indemnifying party of any such claim shall not relieve
the indemnifying party from any liability which it may have to the indemnified
party against whom such action is brought under the indemnification provisions
of this Article VIII, except to the extent that the failure to notify results
in the failure of actual notice to the indemnifying party and such indemnifying
party is damaged solely as a result of failure to give such notice. In case any
such action is brought against the indemnified party, the indemnifying party
will be entitled to participate, at its own expense, in the defense thereof.
The indemnifying party also shall 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 indemnified party of the indemnifying party's
election to assume the defense thereof, the indemnified party shall bear the
fees and expenses of any additional counsel retained by it, and the
indemnifying party will not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by such party independently
in connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its
-29-
written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
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. Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify to the other party.
If to the Fund:
Panorama Series Fund, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Panorama Series Fund, Inc.
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Adviser:
OppenheimerFunds, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Panorama Series Fund, Inc.
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
-30-
If to the Company:
PHL Variable Insurance Company
Xxx Xxxxxxxx Xxx
X X Xxx 0000
Xxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx, Vice President and Secretary
With a copy to:
PHL Variable Insurance Company
Xxx Xxxxxxxx Xxx
X X Xxx 0000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxx, Second Vice President
ARTICLE X. Miscellaneous
10.1. The Company represents and warrants that any Contracts eligible to
purchase shares of the Fund and offered and/or sold in private placements will
comply in all material respects with the exemptions from the registration
requirements of the 1933 Act and applicable federal and state laws and
regulations.
10.2. Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
(i) this Agreement and (ii) by Title V, Subtitle A of the Xxxxx-Xxxxx-Xxxxxx
Act and by regulations adopted thereunder by regulators having jurisdiction
over the parties hereto, shall not disclose, disseminate or utilize such names
and addresses and other confidential information without the express written
consent of the affected party until such time as it may come into the public
domain.
10.3. Each party shall treat as confidential all information of the other
party which the parties agree in writing is confidential ("Confidential
Information"). Except as permitted by this Agreement or as required by
appropriate governmental authority (including,
-31-
without limitation, the SEC, the FINRA, or state securities and insurance
regulators) the receiving party shall not disclose or use Confidential
Information of the other party before it enters the public domain, without the
express written consent of the party providing the Confidential Information.
10.4. 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.
10.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.6. 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.
10.7. The parties to this Agreement acknowledge and agree that all
liabilities of the Fund arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Fund and that no Trustee, director, officer, agent or holder of shares
of beneficial interest of the Fund shall be personally liable for any such
liabilities.
10.8. The parties to this Agreement agree that the assets and liabilities of
each Portfolio of the Fund are separate and distinct from the assets and
liabilities of each other Portfolio. No Portfolio shall be liable or shall be
charged for any debt, obligation or liability of any other Portfolio.
10.9. Each party hereto shall cooperate with, and promptly notify each other
party and all appropriate governmental authorities (including without
limitation the Securities and Exchange Commission, the National Association of
Securities Dealers, Inc. and state
-32-
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.
10.10. 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.
10.11. It is understood by the parties that this Agreement is not an
exclusive arrangement in any respect.
10.12. The Company and the Adviser each understand and agree that the
obligations of the Fund under this Agreement are not binding upon any Trustee
or shareholder of the Fund personally, but bind only the Fund with respect to
the Portfolio and the Portfolio's property; the Company and the Adviser each
represent that it has notice of the provisions of the Declaration of Trust of
the Fund disclaiming Trustee and shareholder liability for acts or obligations
of the Fund.
10.13. This Agreement shall not be assigned by any party hereto without the
prior written consent of all the parties. Notwithstanding the foregoing or
anything to the contrary set forth in this Agreement, the Adviser may transfer
or assign its rights, duties and obligations hereunder or interest herein to
any entity owned, directly or indirectly, by Xxxxxxxxxxx Acquisition Corp. (the
Adviser's parent corporation) or to a successor in interest pursuant to a
merger, reorganization, stock sale, asset sale or other transaction, without
the consent of the Company, as long as (i) that assignee agrees to assume all
the obligations imposed on the Adviser by this Agreement, and (ii) the Fund
consents to that assignment.
-33-
10.14. This Agreement sets forth the entire agreement between the parties
and supercedes all prior communications, agreements and understandings, oral or
written, between the parties regarding the subject matter hereof.
-34-
IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized officers to execute this Agreement.
PHL VARIABLE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
Xxxx Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
Date: 04/01/08
PANORAMA SERIES FUND, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
Title: Treasurer
Date: 4/1/08
OPPENHEIMERFUNDS, INC.
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------
Xxxxxxxxx Xxxxxx
Title: Vice President
Date: 4/1/08
-35-
SCHEDULE 1
Name of Separate Account and Date Established by Board of Directors
PHL Variable Accumulation Account was established by the Board of Directors of
PHL Variable Insurance Company December 7, 1994.
PHL Variable Accumulation Account II was established by the Board of Directors
of PHL Variable Insurance Company October 25, 2007.
PHLVIC Variable Universal Life Account was established by the Board of
Directors of PHL Variable Insurance Company September 10, 1998.
and all underlying registered contracts in which they invest.*
--------
* Company shall promptly provide a complete list of all such underlying
registered contracts upon request by the Fund or the Adviser.
-36-
SCHEDULE 2
Portfolios of Panorama Series Fund, Inc. shown below do not include service
class shares unless expressly indicated:
International Growth/VA - Service Shares
-37-
