Exhibit 8(e): Participation Agreement, as amended, by and among Companion Life
Insurance Company and Pioneer Variable Contracts Trust and Pioneer Funds
Distributor, Inc.
PARTICIPATION AGREEMENT
Among
PIONEER VARIABLE CONTRACTS TRUST,
PIONEER FUNDS DISTRIBUTOR, INC.
and
COMPANION LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of this 1st day of May, 1997 by
and among Companion Life Insurance Company (hereinafter, the "Company"), a New
York life insurance company, on its own behalf and on behalf of each segregated
asset account of the Company set forth on Schedule A hereto as may be amended
from time to time (each account hereinafter referred to as the "Account"), and
the undersigned fund, a business trust organized under the laws of Delaware
(hereinafter the "Fund") and Pioneer Funds Distributor, Inc., the Fund's
distributor (hereinafter the "Distributor"), a Massachusetts corporation.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance and variable annuity contracts (the
"Variable Insurance Products") to be offered by insurance companies which have
entered into participation agreements with the Fund and Distributor (hereinafter
"Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several series
or classes of shares, each designated a "Portfolio" and each series of shares
representing the interest in a particular managed portfolio of securities and
other assets; and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission ("SEC") 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)(l5) and
6e-3(T) (b)(l5) thereunder, if and 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 "Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolios are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, Pioneering Management Corporation (hereinafter referred to as the
"Adviser") is duly registered as an investment adviser under the federal
Investment Advisers Act of 1940, as amended, and any applicable state securities
laws; and
WHEREAS, the Company has registered or will register certain variable life
insurance and variable annuity contracts supported wholly or partially by the
Account (the "Contracts") under the 1933 Act, and said Contracts are listed in
Schedule A hereto, as it may be amended from time to time by mutual written
agreement; and
WHEREAS, the Account is duly established and maintained as a segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to the aforesaid Contracts; and
WHEREAS, the Company has registered or will register the Account as a unit
investment trust under the 1940 Act; and
WHEREAS, the Distributor is registered as a broker dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios listed in
Schedule A hereto, as it may be amended from time to time by mutual
1
written agreement (the "Designated Portfolios") on behalf of the Account to fund
the aforesaid Contracts, and the Distributor is authorized to sell such shares
to unit investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund and the Distributor as follows:
ARTICLE I. Sale of Fund Shares
-------------------
1.1 The Distributor agrees to sell to the Company those shares of the
Designated Portfolios which the Account orders, 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 the shares of the Designated Portfolios.
1.2 The Fund agrees to make shares of the Designated Portfolios available
for purchase at the applicable net asset value per share by the Company and on
behalf of the Account on Business Days as defined in Section 1.5, and the Fund
shall use reasonable efforts to calculate such net asset value on each day which
the New York Stock Exchange (the "Exchange") is open for trading.
Notwithstanding the foregoing, the Board of Trustees of the Fund (hereinafter
the "Board") may refuse to sell shares of any Designated Portfolio to any
person, or suspend or terminate the offering of shares of any Designated
Portfolio if such action is required by law or by regulatory authorities having
jurisdiction, or is, in the sole discretion of the Board acting in good faith
and in light of their fiduciary duties under federal and any applicable state
laws, necessary in the best interests of the shareholders of such Designated
Portfolio.
1.3 The Fund and the Distributor agree that shares of the Fund will be
sold only to Participating Insurance Companies and their separate accounts and
certain qualified pension plans, as may be permitted by Section 817 of the
Internal Revenue Code of 1986, as amended. No shares of any Designated
portfolios will be sold to the general public. The Fund and the Distributor will
not sell Fund shares to any insurance company, separate account or qualified
plan unless an agreement containing provisions substantially the same as Article
VII, as it may be amended from time to time, of this Agreement is in effect to
govern such sales.
1.4 The Fund agrees to redeem, on the Company's request, any full or
fractional shares of the Designated Portfolios 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, except that
the Fund reserves the right to suspend the right of redemption or postpone the
date of payment or satisfaction upon redemption consistent with Section 22(e) of
the 1940 Act and any rules thereunder, and in accordance with the procedures and
policies of the Fund as described in the then current prospectus.
1.5 For purposes of Section 1.1 and 1.4, the Company shall be the agent
of the Fund for the limited purpose of receipt of purchase and redemption orders
from the Account, and receipt by such agent on any Business Day shall constitute
receipt by the Fund; provided that the Company receives the order by the close
of regular trading on the Exchange, normally 4:00 p.m. Boston time and the Fund
receives notice of such order by 11:00 a.m. Boston time on the next following
Business Day. "Business Day" shall mean any day on which the Exchange is open
for trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC.
1.6 The Company agrees to purchase and redeem the shares of each
Portfolio offered by the then current prospectus of the Fund and in accordance
with the provisions of such prospectus.
1.7 The Company shall pay for Fund shares on the same Business Day an
order to purchase Fund shares is made in accordance with the provisions of
Section 1.5 hereof. Payment shall be in federal funds transmitted by wire to
the Fund to be received by 11:00 a.m. Boston Time of the Business Day the Fund
is notified of the purchase order for Fund shares. If payment in Federal Funds
for any purchase is not received or is received by the Fund after 11:00 a.m.
Boston time on such Business Day, the Company shall promptly, upon the Fund's
request, reimburse the Fund for any charges, costs, fees, interest or other
expenses incurred by the Fund in connection with any advances to, or borrowings
or overdrafts by, the Fund, or any similar expenses incurred by the Fund, as a
result of portfolio transactions effected by the Fund based upon such purchase
request. For purposes of Section 2.8 and 2.9 hereof, upon receipt by the Fund of
the federal funds so wired, such funds shall cease to be the responsibility of
the Company and shall become the responsibility of the Fund.
1.8 Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
2
1.9 The Fund shall furnish notice as soon as reasonably practicable (by
wire or telephone, followed by written confirmation) to the Company of any
income, dividends or capital gain distributions payable on the Designated
Portfolios' shares. The Company hereby elects to receive all such income,
dividends, and capital gain distributions as are payable on Designated Portfolio
shares in additional shares of that Portfolio. The Company reserves the right to
revoke this election and to receive all such income dividends and capital gain
distributions in cash. The Fund shall notify the Company of the number of
shares so issued as payment of such dividends and distributions.
1.10 The Fund shall make the net asset value per share for each Designated
Portfolio available to the Company as soon as reasonably practical after the net
asset value per share is calculated and shall use its best efforts to make such
net asset value per share available by 7 p.m. Boston time each Business Day.
1.11 The Parties hereto acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the Fund's shares may be sold to other
insurance companies and certain qualified plans (subject to Section 1.3 and
Article VI hereof) and the cash value of the Contracts may be invested in other
investment companies; provided, however, that (a) the Company gives the Fund and
the Distributor 45 days written notice of its intention to make such other
investment company available as a funding vehicle for the Contracts; or (b) such
other investment company was available as a funding vehicle for the Contracts
prior to the date of this Agreement and the Company so informs the Fund and
Distributor prior to their signing this Agreement; or (c) the Fund or
Distributor consents to the use of such other investment company, such consent
not to be unreasonably withheld.
ARTICLE II. Representations and Warranties
------------------------------
2.1 The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act; that the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state laws
and that the sale of the Contracts shall comply in all material respects with
state insurance suitability requirements. The Company further represents and
warrants that it is an insurance company duly organized and in good standing
under applicable law and that it has legally and validly established the Account
prior to any issuance or sale thereof as a segregated asset account under New
York insurance laws and has registered or, prior to any issuance or sale of the
Contracts, will register the Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a segregated investment account
for the Contracts.
2.2 The Fund represents and warrants that Fund shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with all applicable federal and state securities
laws and that the Fund is and shall remain registered under the 0000 Xxx. 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 or the Distributor.
2.3 The Fund currently does not make any payments to finance distribution
expenses pursuant to Rule l2b-l under the 1940 Act, although it may make such
payments in the future. To the extent that it decides to finance distribution
expenses pursuant to Rule l2b-l, the Fund will undertake to have the Board, a
majority of whom are not interested persons of the Fund, formulate and approve
any plan pursuant to Rule l2b-I under the 1940 Act to finance distribution
expenses.
2.4 The Fund makes no representations as to whether any aspect of its
operations, including but not limited to, investment policies, fees, and
expenses, complies with the insurance and other applicable laws of the various
states, except that the Fund represents that the Fund's investment policies,
fees, and expenses are and shall at all times remain in compliance with the laws
of the State of New York to the extent required to perform this Agreement.
2.5 The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply in all material respects with the 0000 Xxx.
2.6 The Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Distributor further represents that it will sell and distribute the Fund shares
in accordance with the laws of any applicable state and federal securities laws.
2.7 The Distributor, on behalf of the Adviser, represents and warrants
that the Adviser is and shall remain duly registered under all applicable
federal and state securities laws and that the Adviser shall perform its
3
obligations for the Fund in compliance in all material respects with the laws of
any applicable state and federal securities laws.
2.8 The Fund and the Distributor represent and warrant that all of their
directors, officers, employees, investment advisers, and other individuals or
entities dealing with the money and/or securities of the Fund are and shall
continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund in an amount not less than the minimum
coverage as required currently by Rule l7g-(l) of 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
bonding company.
2.9 The Company represents and warrants that all of its directors,
officers, employees, and other individuals/entities employed or controlled by
the Company dealing with the money and/or securities of the Fund are covered by
a blanket fidelity bond or similar coverage in an amount not less than $2
million. The aforesaid bond includes coverage for larceny and embezzlement and
is issued by a reputable bonding company. The Company agrees that any amounts
received under such bond will be held 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 in writing the Fund and the Distributor in the event that such coverage
no longer applies. The Company agrees to exercise its best efforts to ensure
that other individuals/entities not employed or controlled by the Company and
dealing with the money and/or securities of the Fund maintain a similar bond or
coverage in a reasonable amount.
ARTICLE III. Prospectuses and Proxy Statements: Voting
-----------------------------------------
3.1 The Distributor shall provide the Company with as many copies of the
Fund's current prospectus as the Company may reasonably request. The Fund shall
bear the expense of printing copies of its current prospectus that will be
distributed to existing Contract owners who are also indirect shareholders of
the Fund, and the Company shall bear the expense of printing copies of the
Fund's prospectuses that are used in connection with offering the contracts
issued by the Company. If requested by the Company in lieu thereof, the Fund
shall provide such documentation (including a final copy of the new prospectus
as set in type at the Fund's expense) and other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus for the Fund is amended) to have the prospectus for the Contracts and
the Fund's prospectus printed together in one document (such printing to be at
the Company's expense).
3.2 The Fund's prospectus shall state that the Statement of Additional
Information ("SAI") for the Fund is available from the Company, and the
Distributor (or the Fund), at its expense, shall print and provide a copy of
such SAI free of charge to the Company for itself and for any owner of a
Contract who requests such SAI.
3.3 The Fund, at its expense, shall provide the Company with copies of
its proxy material, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners.
3.4 If and to the extent required by law, the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the 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 for
which instructions have been received, so long as and to the
extent that the SEC continues to interpret the 1940 Act to
require passthrough voting privileges for variable contract
owners or to the extent otherwise required by law. The Company
reserves the right to vote Fund shares held in any segregated
asset account in its own right, to the extent permitted by
law.
3.5 Participating Insurance Companies shall be responsible for assuring
that each of their separate accounts participating in a Designated Portfolio
calculates voting privileges as required by the Shared Funding Exemptive Order
and consistent with any reasonable standards that the Fund may adopt and provide
in writing.
3.6 The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders (which, for these purposes, shall be the persons having a
voting interest in the shares of a Designated Portfolio), and in
4
particular the Fund will either provide for annual meetings (except insofar as
the SEC may interpret Section 16 as not to require such meeting), or, if annual
meetings are not held, comply with Section 16(c) of the 1940 Act (although the
Fund is not one of the trusts described in Section 16(c) of that Act) as well as
with Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will
act in accordance with the SEC's interpretation of the requirements of Section
16(a) with respect to periodic elections of directors or trustees and with
whatever rules the Commission may promulgate with respect thereto.
3.7 The Fund will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Designated Portfolio,
and of any material change in the Fund's registration statement, particularly
any change resulting in change to the registration statement or prospectus for
any Account. The Fund will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or
registration statement, in an orderly manner. The Fund will make reasonable
efforts to attempt to have changes affecting Contract prospectuses become
effective simultaneously with the annual updates for such prospectuses.
ARTICLE IV. Sales Material and Information
------------------------------
4.1 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 that the Company develops or uses and in which the Fund (or a Portfolio
thereof) or the Adviser or the Distributor is named, at least fifteen Business
Days prior to its use. No such material shall be used if the Fund or its
designee reasonably object to such use within fifteen Business Days after
receipt of such material. The Fund or its designee reserves the right to
reasonably object to the continued use of any such material, and no such
material shall be used if the Fund or its designee so object.
4.2 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, prospectus or SAI for
the Fund shares, as such registration statement, prospectus or SAI 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 or by the Distributor, except with the permission of the
Fund or the Distributor or the designee of either.
4.3 The Fund, Distributor, or its designee shall furnish, or shall cause
to be furnished, to the Company, each piece of sales literature or other
promotional material that it develops or uses and in which the Company, and/or
its Account, is named at least fifteen Business Days prior to its use. No such
material shall be used if the Company reasonably objects to such use within
fifteen Business Days after receipt of such material. The Company reserves the
right to reasonably object to the continued use of any such material, and no
such material shall be used if the Company so objects. Neither the Fund nor the
Distributor has a current intention to develop or use sales literature or other
promotional material that names the Company and/or its Account.
4.4 The Fund and the Distributor shall not give any information or make
any representations on behalf of the Company or concerning the Company, the
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus, or SAI for the Contracts, as
such registration statement, prospectus, or SAI may be amended or supplemented
from time to time, or in published reports for the Account which are in the
public domain or approved by the Company for distribution to Contract owners, or
in sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of
all registration statements, prospectuses, SAIs, reports, proxy statements,
sales literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Designated Portfolios of the Fund or its shares, contemporaneously
with the filing of such document(s) with the SEC or other regulatory
authorities.
4.6 The Company will provide to the Fund at least one complete copy of
all registration statements, prospectuses, SAIs, reports, solicitations for
voting instructions, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Contracts or the Account,
contemporaneously with the filing of such document(s) with the SEC or other
regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature and
other promotional materials" includes, but is not limited to, any of the
following that refer to the Fund the Designated Portfolios of the Fund or the
Company's
5
relationship to 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 billboards,
motion pictures, or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, reports, market letters, form letters,
seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees, and registration statements, prospectuses, Statements of Additional
Information, shareholder reports, proxy materials.
ARTICLE V. Fees and Expenses
-----------------
5.1 The Fund shall pay no fee or other compensation to the Company under
this Agreement, except that if the Fund or any Portfolio adopts and implements a
plan pursuant to Rule l2b-l to finance distribution expenses, then the Fund or
the Distributor may make payments to the Company or to the underwriter for the
contracts if and in amounts agreed to by the Distributor in writing. Payments as
may otherwise be made by the Distributor will be made, if and in the amounts
agreed to by the Distributor in writing, out of fees otherwise payable to the
Distributor, past profits of the Distributor, or other resources available to
the Distributor. No such payments shall be made directly by the Fund. Nothing
herein shall prevent the parties from otherwise agreeing to perform, and
arranging for appropriate compensation for other services relating to the Fund
and/or to the Accounts.
5.2 All expenses incident to performance by the Fund under this Agreement
shall be paid by the Fund to the extent permitted by law. 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 deemed advisable by the
Fund, in accordance with applicable state laws prior to their sale. The Company
shall not bear the expenses for the cost of registration and qualification of
the Fund's shares, preparation and filing of the Fund's prospectus and
registration statement, proxy materials and reports, setting the prospectus in
type, setting in type and printing the proxy materials and reports to
shareholders (including the costs of printing a prospectus that constitutes an
annual report), the preparation of all statements and notices required by any
federal or state law, and all taxes on the issuance or transfer of the Fund's
shares.
5.3 The Company shall bear the expenses of 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.
ARTICLE VI. Diversification and Qualification
---------------------------------
6.1 Assuming that the Contracts comply with paragraph 6.3 below, the Fund
will invest its assets in such a manner as to ensure that the Contracts will be
treated as annuity or life insurance contracts, whichever is appropriate, under
the Code and the regulations issued thereunder (or any successor provisions).
Without limiting the scope of the foregoing, the Fund will comply with Section
817(h) of the Code and Treasury Regulation (S)1.817-5, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts, and any amendments or
other modifications or successor provisions to such Section or Regulations. In
the event of a breach of this Article VI by the Fund, it will take all
reasonable steps (a) to notify the Company of such breach and (b) to adequately
diversify the Fund so as to achieve compliance within the grace period afforded
by Regulation 817.5.
6.2 Assuming that the Contracts comply with paragraph 6.3 below, the Fund
represents that it and each Designated Portfolio is or will be qualified as a
Regulated Investment Company under Subchapter M of the Code, and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provisions) 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.
6.3 Assuming that the Designated Portfolios in which the Account invests
comply with paragraphs 6.1 and 6.2 above, the Company represents that the
Contracts are currently, and at the time of issuance shall be, treated as life
insurance or annuity insurance contracts, under applicable provisions to the
Code, and that it will make every effort to maintain such treatment, and that it
will notify the Fund and the Distributor immediately upon having a reasonable
basis for believing the Contracts have ceased to be so treated or that they
might not be so treated in the future. The Company agrees that any prospectus
offering a contract that is a "modified endowment contract" as that term is
defined in Section 7702A of the Code (or any successor or similar provision),
shall identify such contract as modified endowment contract.
ARTICLE VII. Potential Conflicts
-------------------
6
7.1 The Board 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 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 Board shall promptly inform the Company if
it determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. The Company will report any potential or existing conflicts of which
it is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order by providing the Board
with all information reasonably necessary for the Board to consider any issues
raised. This includes, but is not limited to, an obligation by the Company to
inform the Board whenever Contract owner voting instructions are disregarded.
7.3 If it is determined by a majority of the Board, or a majority of its
disinterested members, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested Board members), 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 account.
7.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the Account's investment in
the Fund and terminate this Agreement with respect to each Account; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested members of the Board. 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 that 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.
7.5 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
affected Account's investment in the Fund and terminate this Agreement with
respect to such Account within six months after the Board informs 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 members of the Board.
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.
7.6 For purposes of Section 7.3 through 7.6 of this Agreement, a majority
of the disinterested members of the Board shall determine whether any proposed
action adequately remedies any 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 7.3 to establish a new funding
medium for the Contract 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 Board determines that any proposed
action does not adequately remedy any irreconcilable material conflict, then the
Company will withdraw the Account's investment in the Fund and terminate this
Agreement within six (6) months after the Board informs the Company in writing
of the foregoing determination; provided, however, that such withdrawal and
termination shall be limited to the extent required by any such material
irreconcilable conflict as determined by a majority of the disinterested members
of the Board.
7
7.7 If and to the extent the Shared Funding Order contains terms and
conditions different from Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3 and 7.5 of this
Agreement, then the Fund and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with the Shared
Funding Exemptive Order, and Sections 3.3, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5
of the Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in the Shared
Funding Exemptive Order or any amendment thereto. If and to the extent that
Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide
exemptive relief from any provision of the Act or the rules promulgated
thereunder with respect to mixed or shared funding (as defined in the Shared
Funding Exemptive Order) on terms and conditions materially different from those
contained in the Shared Funding Exemptive Order, then (a) the Fund and/or the
participating Insurance Companies, as appropriate, shall take such steps as may
be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3,
as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5,
3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect
only to the extent that terms and conditions substantially identical to such
Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
---------------
8.1 Indemnification by the Company
------------------------------
8.1(a). The Company agrees to indemnify and hold harmless the Fund and the
Distributor, and each of its directors and officers and each person, if any, who
controls the Fund or Distributor within the meaning of Section 15 of the 1933
Act (except for those persons who are not associated with the Distributor,
Adviser, or any of their affiliates or subsidiaries) (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 (including legal and other
expenses), to which the Indemnified Parties may become subject under any statute
or 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 statements or alleged
untrue statements of any material fact contained in the registration
statement, prospectus, or SAI for the Contracts or contained in the
Contracts or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Fund for use in the
registration statement, prospectus or SAI or the Contracts or in 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 (other
than statements or representations contained in the Registration
Statement, prospectus, SAI or sales literature of the Fund not
supplied by the Company or persons under its control) or wrongful
conduct of the Company or persons under its authorization or control,
with respect to the sale or distribution of the Contracts or Fund
Shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI,
or sales literature 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 if such a statement or
omission was made in reliance upon information furnished to the Fund
by or on behalf of the Company; or
(iv) arise as a result of any material failure by the Company to provide
the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the qualification requirements
specified in Article VI of this agreement); or
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Company, as limited by and in accordance with the provisions of
Sections 8.1(b) and 8.1(c) hereof.
8
8.1(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 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 its obligations or duties under this Agreement.
8.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company 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 Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against an Indemnified Party, the Company shall be entitled to participate, at
its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company'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
Company 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.
8.1(d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund Shares or the Contracts or the operation of the
Fund.
8.2 Indemnification by the Distributor
----------------------------------
8.2(a). The Distributor agrees to indemnify and hold harmless the Company
and each of its directors and officers 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, damages, liabilities (including amounts paid in settlement with
the written consent of the Distributor) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or 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 herein or necessary
to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party
if such statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished in writing to the Distributor or Fund by or on behalf of
the Company for use in the registration statement, prospectus, or
SAI for the Fund or in 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 (other
than statements or representations contained in the registration
statement, prospectus, SAI or sales literature for the Contracts
not supplied by the Distributor or persons under its control) or
wrongful conduct of the Fund, Adviser, Distributor or persons under
their control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
SAI or sales literature covering the Contracts, or any amendment
thereof or supplement thereto, or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance upon
information furnished in writing to the Company by or on behalf of
the Fund; or
(iv) arise as a result of any material failure by the Fund to provide
the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good
faith or
9
otherwise, to comply with the diversification and other
qualification requirements specified in Article VI of this
Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Distributor; as limited by and in
accordance with the provisions of Sections 8.2(b) and 8.2(c)
hereof.
8.2(b). The Distributor 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 or to
the Company or the Account, whichever is applicable.
8.2(c). The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor 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 Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Party, the Distributor will be entitled to participate,
at its own expense, in the defense thereof. The Distributor also shall be
entitled to assume the defense thereof; with counsel satisfactory to the party
named in the action. After notice from the Distributor to such party of the
Distributor'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 Distributor 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.
8.2(d). The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
8.3 Indemnification by the Fund
---------------------------
8.3(a). The Fund agrees to indemnify and hold harmless the Company and each
of its directors and officers 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 8.3) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in settlement with the
written consent of the Fund) or litigation (including legal and other expenses)
to which the Indemnified Parties may be required to pay or may become subject
under any statute or regulation, at common law or otherwise, insofar as such
losses, claims, expenses, damages, liabilities or expenses (or actions in
respect thereof) or settlements, are related to the operations of the Fund and:
(i) arise as a result of any material failure by the Fund to provide
the services and furnish the materials under the terms of this
Agreement including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification and other
qualification requirements specified in Article VI of this
Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Fund; as limited by and in accordance with the
provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(b). The Fund 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 or to the
Company, the Fund, the Distributor or the Account, whichever is applicable.
8.3(c). The Fund shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Fund 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
10
upon such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the Fund
of any such claim shall not relieve the Fund from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Fund will be entitled to participate, at
its own expense, in the defense thereof. The Fund also shall be entitled to
assume the expense thereof, with counsel satisfactory to the party named in the
action. After notice from the Fund to such party of the Fund'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 Fund 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.
8.3(d). The Company and the Distributor agree promptly to notify the Fund
of the commencement of any litigation or proceeding against it or any of its
respective officers or directors in connection with the Agreement, the issuance
or sale of the Contracts, the operation of the Account, or the sale or
acquisition of share of the Fund.
ARTICLE IX. Applicable Law
--------------
9.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
9.2 This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, any Shared Funding Exemptive Order) and the
terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
-----------
10.1 This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party, for any reason with respect to some or
all Designated Portfolios, by six (6) months' advance written
notice delivered to the other parties; or
(b) termination by the Company by prior written notice to the Fund and
the Distributor with respect to any Designated Portfolio based upon
the Company's determination that shares of the Fund are not
reasonably available to meet the requirements of the Contracts; or
(c) termination by the Company by prior written notice to the Fund and
the Distributor with respect to any Designated Portfolio in the
event any of such Portfolio's shares are not registered, issued or
sold in accordance with applicable state and/or federal law or such
law precludes the use of such shares as the underlying investment
media of the Contracts issued or to be issued by the Company; or
(d) termination by the Fund or Distributor in the event that formal
administrative proceedings are instituted against the Company by
the NASD, the SEC, the Insurance Commissioner or like official of
any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the
Contracts, the operation of any Account, or the purchase of the
Fund shares, provided, however, that the Fund or Distributor
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 Company to perform its obligations under
this Agreement; or
(e) termination by the Company in the event that formal administrative
proceedings are instituted against the Fund or Distributor by the
NASD, the SEC, or any state securities or insurance department or
any other regulatory body, provided, however, that the Company
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 Fund or Distributor to perform its
obligations under this Agreement; or
(f) termination by the Company by written notice to the Fund and the
Distributor with respect to any Designated Portfolio in the event
that such Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M or fails to comply with the Section
817(h) diversification requirements specified in Article VI hereof,
or if the Company reasonably believes that such Portfolio may fail
to so qualify or comply; or
11
(g) termination by the Fund or Distributor by written notice to the
Company in the event that the Contracts fail to meet the
qualifications specified in Article VI hereof, or if the Fund or
Distributor reasonably believes that such Contracts may fail to so
qualify; or
(h) termination by either the Fund or the Distributor by written notice
to the Company, if either one or both of the Fund or the Distributor
respectively, shall determine, in their sole judgment exercised in
good faith, that the Company has suffered a material adverse change
in its business, operations, financial condition, or prospects since
the date of this Agreement or is the subject of material adverse
publicity; or
(i) termination by the Company by written notice to the Fund and the
Distributor, if the Company shall determine, in its sole judgment
exercised in good faith, that the Fund or the Distributor has
suffered a material adverse change in its business, operations,
financial condition or prospects since the date of this Agreement or
is the subject of material adverse publicity.
10.2 Effect of Termination. Notwithstanding any termination of this
---------------------
Agreement, the Designated Portfolios of the Fund and the Distributor shall, at
the option of the Company, continue to make available additional shares of the
Designated Portfolios of the Fund pursuant to the terms and conditions of this
Agreement, for all Contracts in effect on the effective date of termination of
this Agreement (hereinafter referred to as "Existing Contracts"). Specifically,
the owners of the Existing Contracts may be permitted to reallocate investments
in the Designated Portfolios the Fund, redeem investments in the Designated
Portfolios of the Fund and/or invest in the Designated Portfolios of the Fund
upon the making of additional purchase payments under the Existing Contracts.
The parties agree that this Section 10.2 shall not apply to any termination
under Article VII and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement. The parties further agree that this
Section 10.2 shall not apply to any termination under Section 10.1(g) of this
Agreement.
10.3 The Company shall not redeem Fund shares attributable to the
Contracts except (i) as necessary to implement Contract owner initiated or
approved transactions, (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption), or (iii) pursuant
to the terms of a substitution order issued by the SEC pursuant to Section 26(b)
of the 1940 Act. Upon request, the Company will promptly furnish to the Fund and
the Distributor the opinion of counsel for the Company (which counsel shall be
reasonably satisfactory to the Fund and the Distributor) to the effect that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Contracts,
the Company shall not prevent Contract owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first giving
the Distributor 90 days notice of its intention to do so.
ARTICLE XI. 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 in writing to the other
party.
If to the Fund:
The Pioneer Group, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, General Counsel
ph: 617/742-7825
fax: 617/000-0000
If to the Company:
Companion Life Insurance Company
Mutual of Xxxxx Xxxxx, 0-Xxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: Variable Products Counsel
ph: 402/351-5087
fax: 402/000-0000
If to Distributor:
12
Pioneer Funds Distributor, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx, Senior Vice President
ph: 617/742-7825
fax: 617/000-0000
ARTICLE XII. Miscellaneous
-------------
12.1 All references herein to the "Fund" are to the undersigned Fund. All
references herein to the "Adviser" relate solely to the Adviser of a Designated
Portfolio of the Fund, as appropriate. All persons dealing with the Fund must
look solely to the property of the Fund and the respective Designated Portfolios
listed on Schedule A hereto as though each such Designated Portfolio had
separately contracted with the Company and Distributor for the enforcement of
any claims against the Fund. The parties agree that neither the Board, officers,
agents or shareholders assume any personal liability or responsibility for
obligations entered into by or on behalf of the Fund.
12.2 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
this Agreement, 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 such information may come into the
public domain.
12.3 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.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5 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.
12.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the New York Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity and
variable life operations of the Company are being conducted in a manner
consistent with the New York variable annuity laws and regulations and any other
applicable law or regulations.
12.7 This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto.
12.8 This Agreement may not be added to or changed orally, and may not be
modified except by written agreement of all the parties, such agreement not to
be unreasonably withheld.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative and
its seal to be hereunder affixed hereto as of the date specified below.
COMPANY: COMPANION LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Title: Second Vice President & Assistant Treasurer
Date:
FUND: PIONEER VARIABLE CONTRACTS TRUST
By its authorized officer
By:_________________________________
13
Title: Chairman
Date:
DISTRIBUTOR: PIONEER FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxxx X. Brute
------------------------------
Title: President
Date:
14
As of May 1, 1997
SCHEDULE A
ACCOUNTS, POLICIES AND PORTFOLIOS
SUBJECT TO THE PARTICIPATING AGREEMENT
--------------------------------------------------------------------------------------------------------------
Name of Separate Companion Life Insurance Company Companion Life Insurance Company
Account and Date Separate Account C Separate Account B
Established by Board of Directors Established 2/18/94 Established 8/27/97
---------------------------------
--------------------------------------------------------------------------------------------------------------
Policies Funded Variable Annuity Variable Life
by Separate Account #729Y-1/96 #745Y-6/97
-------------------
--------------------------------------------------------------------------------------------------------------
Portfolios Pioneer Variable Contracts Trust
Applicable to Policies Capital Growth Portfolio
------------------------ Real Estate Growth Portfolio
--------------------------------------------------------------------------------------------------------------
AMENDMENT NO. 1
This is an Amendment to the Participation Agreement (Agreement) dated May
1, 1997, among The Pioneer Group, Inc. (the Fund), Pioneer Funds Distributor,
Inc. (the Distributor) and Companion Life Insurance Company (the Company). This
Amendment is effective August 1, 1999.
The Fund, Distributor and the Company hereby agree to replace the Schedule A of
the Agreement by inserting the following in its entirety.
Schedule A
----------
Name of Separate Account and Contracts Funded by Designated Portfolios
Date Established by Board of Directors Separate Account
Companion Life Insurance Company 729Y-1/96 Pioneer Variable Contracts Trust
Separate Account C (2-18-94) 6500L-0898 Capital Growth Portfolio
(Variable Annuities) Real Estate Growth Portfolio
Companion Life Insurance Company 745Y-6/97 Pioneer Variable Contracts Trust
Separate Account B (8-27-97) Capital Growth Portfolio
(Variable Life) Real Estate Growth Portfolio
Signed by the parties:
Companion Life Insurance Company
By its authorized officer,
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Title: Assistant Treasurer
Date: July 22, 1999
Pioneer Variable Contracts Trust
By its authorized officer,
By: ____________________________________
Title: Trustee and Executive President
Date: November 13, 1999
Pioneer Funds Distributor, Inc.
By its authorized officer,
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Executive Vice President
Date: November 15, 1999
AMENDMENT NO. 2
This is Amendment Number 2 (Amendment) to the Participation Agreement
(Agreement) dated May 1, 1997, among Pioneer Variable Contracts Trust (the
Fund), Pioneer Funds Distributor, Inc. (the Distributor) and Companion Life
Insurance Company (the Company). This Amendment is effective January 3, 2000.
The Fund, the Distributor and the Company hereby agree to replace the Schedule A
of the Agreement, which was most recently amended effective August 1, 1999, by
inserting the following in its entirety.
Schedule A
----------
Name of Separate Account and Contracts Funded by Designated Portfolios
Date Established by Board of Directors Separate Account
Companion Life Insurance Company 729Y-1/96 Pioneer Variable Contracts Trust
Separate Account C (2-18-94) 6500L-0898 Capital Growth Portfolio - Class I
Variable Annuities) Real Estate Growth Portfolio - Class I
Growth Shares Portfolio - Class II
Growth and Income Portfolio - Class II
Equity Income Portfolio - Class II
Companion Life Insurance Company 745Y-6/97 Pioneer Variable Contracts Trust
Separate Account B (8-27-97) Capital Growth Portfolio - Class I
(Variable Life) Real Estate Growth Portfolio - Class I
Growth Shares Portfolio - Class II
Growth and Income Portfolio - Class II
Equity Income Portfolio - Class II
Signed by the parties:
Companion Life Insurance Company
By its authorized officer,
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Title: Assistant Treasurer
Date: February 14, 2000
Pioneer Variable Contracts Trust
By its authorized officer,
By: ____________________________________
Title:
Date:
Pioneer Funds Distributor, Inc.
By its authorized officer,
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Executive Vice President
Date:
