Exhibit 24(b)(8)(12)
Participation Agreement
Among
Phoenix Life Insurance Company,
Xxxxxxxxxxx Variable Account Funds, and
Xxxxxxxxxxx Funds, Inc.
PARTICIPATION AGREEMENT
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Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
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OPPENHEIMERFUNDS, INC.
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and
PHOENIX LIFE INSURANCE COMPANY
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THIS AGREEMENT (the "Agreement"), made and entered into as of
the 1st day of May, 2006 by and among Phoenix Life 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"),
Xxxxxxxxxxx Variable Account Funds (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 July 16, 1986 (File No. 812-6324)
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
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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
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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 National Association of Securities
Dealers, Inc. ("NASD") 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
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for the Accounts 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
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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.
3.7. The Company shall:
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(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
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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
NASD, 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 NASD,
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
-27-
means, to the Adviser or the Fund by or
on behalf of the Indemnified Party; 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 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:
Xxxxxxxxxxx Variable Account Funds
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
--------------
Xxxxxxxxxxx Variable Account Funds
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:
--------------
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
-30-
If to the Company:
Phoenix Life 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:
---------------
Phoenix Life 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 NASD, 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.
PHOENIX LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
------------------------------------
Xxxx Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
Date: May 1, 2006
----------------------------------
XXXXXXXXXXX VARIABLE ACCOUNT FUND
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Title: Treasurer
Date: 6-27-06
----------------------------------
OPPENHEIMERFUNDS, INC.
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Xxxxxxxxx Xxxxxx
Title: Vice President
Date: 5/1/06
----------------------------------
-35-
SCHEDULE 1
Name of Separate Account and Date Established by Board of Directors
Phoenix Life Variable Accumulation Account was established by the Board of
Directors June 21, 1982.
Phoenix Life Variable Universal Life Account was established by the Board of
Directors August 17, 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 Xxxxxxxxxxx Variable Account Funds shown below do not include
service class shares unless expressly indicated:
Main Street Small Cap VA - Service Shares
Global Securities VA - Service Shares
Capital Appreciation VA - Service Shares
-37-
