THE XXXXX AMERICAN FUND
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between The Xxxxx American Fund, ("Fund") and Phoenix Life Insurance Company
("Agent").
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent for the Intermediary in
terms of the administration of the variable life and variable annuity insurance
products;
WHEREAS, the Intermediary and the Fund previously entered into Participation
Agreements allowing the Intermediary to offer certain Xxxxx insurance dedicated
mutual funds through its Separate Accounts by way of the Intermediary's variable
life and variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22C-2 allows the agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Fund and the Agent enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 - Intermediary: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds ("Separate
Account") and/or the insurance company acting as the depositor for the Separate
Account as well as the Agent administering the functions of the Separate Account
with respect to the Intermediary's variable life and annuity business.
1.2 - Fund: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the Act.
The term "Fund" includes (i) an investment adviser to or administrator for the
Fund; (ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund. The term not does include any "excepted funds" as
defined in Rule 22c-2(b) under the Act.
1.3 - Shares: The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund under
the Act that are held by the Intermediary.
1.4-Shareholder: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5-Shareholder -Initiated Transfer Purchase: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6-Shareholder Initiated Transfer Redemption: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7-Shareholder Information: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8-Written or In Writing: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2.1 Information Sharing - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN");
(ii) the Contract owner number or participant account
number associated with the Shareholder;
(iii) the amount, date and transaction type of every
purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the
Intermediary during the period covered by the
request.
2.2 Period Covered by Request - Requests must set forth a specific period, not
to exceed ninety (90) days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older than
ninety (90) days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.3 Timing of Requests- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 Form and Timing of Response-
(a) Intermediary agrees to provide Shareholder Information to the Fund promptly
upon request If the Fund requests, the Intermediary agrees to use its best
efforts to promptly determine whether any specific person about whom it has
received Shareholder Information is itself a financial intermediary
("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests, the Intermediary
will, with notice to the Fund, promptly either: (i) provide Shareholder
Information for those shareholders who hold an account with an indirect
intermediary; or (ii) prohibit the indirect intermediary from purchasing,
in nominee name on behalf of other persons, securities issued by the Fund.
(b) Responses required by this paragraph must be communicated in writing and in
a format mutually agreed upon by the Fund or its designee and the
Intermediary; and according to the IRS' website, the ITIN refers to the
Individual Taxpayer Identification number, which is a nine-digit number
that always begins with the number 9 and has a 7 or 8 in the fourth digit,
example 9XX-7X-XXXX. The IRS issues ITINs to individuals who are required
to have a U.S. taxpayer identification number but who do not have, and are
not eligible to obtain a Social Security Number (SSN) from the Social
Security Administration (SSA). SEC Rule 22c-2 inadvertently refers to the
ITIN as the International Taxpayer Identification Number.
(c) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
2.5 Limitations on Use of Shareholder Information- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliley Act (Public Law 106-102) and comparable state laws. The Fund further
agrees that the Shareholder Information is confidential and that the Fund will
not share the Shareholder Information externally, unless the Intermediary
provides the Fund with prior written consent to share such Shareholder
Information. The Fund further agrees not to share the Shareholder Information
internally, except on a "need to know basis."
III. PROHIBITIONS ON TRADING
3.1 Agreement to Prohibit Trading. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of Shares
by a Shareholder that has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions must be received by Intermediary
at the following address, or such other address that Intermediary may
communicate to you in writing from time to time, including, if applicable, an
e-mail and/or facsimile telephone number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Should the Fund decide to implement a restriction, such as a holding requirement
or a dollar threshold, the Fund agrees to give the Intermediary at least six (6)
months to program its systems to administer such a restriction. If such notice
is not practicable, the Fund agrees to negotiate with the Intermediary, in good
faith, a restriction that the Intermediary can effectively administer.
3.2 Form of Instructions. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed, including how long the prohibition(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific individual Contract owner number or
participant account number associated with the Shareholder is not known, the
instructions must include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, Fund agrees to provide to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Shareholder, information regarding those trades of the contract
holder that violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
3.3 Timing of Response. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary.
3.4 Confirmation by Intermediary. Intermediary must provide written confirmation
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
3.5 Redemption Fees. The Fund agrees to rely on the Intermediary's market timing
procedures to control market timing activity in lieu of imposing a redemption
fee. If the Fund ultimately decides to impose a redemption fee on variable
contracts, the Fund agrees to notify the Intermediary at least six (6) months in
advance so that the Intermediary can program its systems to administer the fee.
If such notice is not practicable, the Fund agrees to reimburse the Intermediary
for its costs in completing the systems work.
IV. GENERAL PROVISIONS
4.1 Construction of the Agreement; Fund Participation Agreements. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. The Fund Participation Agreements are hereby
incorporated by reference into this Agreement, as this Agreement is intended to
be a supplement to the Fund Participation Agreements. To the extent the terms of
this Agreement conflict with the terms of a Fund Participation Agreement, the
terms of this Agreement shall control.
4.2 Indemnification. The Fund agrees to indemnify and hold harmless Intermediary
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable attorney's fees) arising in connection with third party
claim or action brought against Intermediary as a result of any unauthorized
disclosure of a shareholder's taxpayer identification number provided to the
Fund in response to a request for Shareholder Information pursuant to the terms
of this Agreement.
4.3 Force Majeure. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in part,
caused by the occurrence of any event or contingency beyond the control of the
parties including, but not limited to, work stoppages, fires, civil
disobedience, riots, rebellions, natural disasters, acts of God, and acts of war
or terrorism. The party who has been so affected shall promptly give written
notice to the other Party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
4.4 Dispute Resolution. The parties hereby mutually agree to use their best
efforts to seek an amicable solution to any controversy or dispute regarding the
subject matter hereof. Any unresolved controversy, claim or dispute shall be
submitted to binding arbitration in accordance with the Commercial Rules of the
American Arbitration Association and judgment upon any such award may be entered
in any court having jurisdiction thereof. Arbitration shall be conducted by a
single arbitrator who shall have the authority to grant any and all appropriate
relief, including, but not limited to, granting injunctive relief or demanding
specific performance. The arbitrator may make an initial determination of the
location of the arbitration or whether proceedings may ensue based entirely upon
documentary evidence. Unless otherwise mutually agreed in writing by the
parties, said determination by the arbitrator shall become final and binding 3
days after the arbitrator's ruling. Arbitration costs and expenses shall be
borne equally by the parties. Each party hereby agrees to waive and suspend
enforcement of any and all rights pursuant to this and all related agreements
during the pendency of such arbitration proceedings
4.5 Termination. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
The Xxxxx American Fund
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Assistant Secretary
Date: 3/15/07
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Phoenix Life Insurance Company, as Agent for Valley Forge Life Insurance Company
By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: SVP L&A Fin. & Inf. Mgmt
Date: 3/20/07
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