1
EXHIBIT 8(e)
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (the "Agreement") made by and between XXXXXXX,
XXXXXXX & XXXXX, INC., a Delaware corporation ("SS&C"), with a principal place
of business in Boston, Massachusetts, PROVIDENT MUTUAL LIFE INSURANCE COMPANY OF
PHILADELPHIA ("PMLIC"), a Pennsylvania corporation, with a principal place of
business in Philadelphia, Pennsylvania, and PROVIDENTMUTUAL LIFE AND ANNUITY
COMPANY OF AMERICA ("PLACA"), a Delaware corporation, with a principal place of
business in Newark, Delaware (together, the "Company"), on behalf of the
Provident Mutual Variable Annuity Separate Account, a separate account of PMLIC,
and Providentmutual Variable Annuity Separate Account, a separate account of
PLACA, and any other separate account of the Company as designated by the
Company from time to time, upon written notice to the Fund in accordance with
Section 9 herein (the "Account").
WHEREAS, PLACA is a wholly-owned subsidiary of PMLIC; and
WHEREAS, SS&C has caused to be organized Xxxxxxx Variable Life
Investment Fund (the "Fund"), a Massachusetts business trust created under a
Declaration of Trust dated March 15, 1985, as amended, the beneficial interest
in which is divided into several series, each designated a "Portfolio" and
representing the interest in a particular managed portfolio of securities; and
WHEREAS, the purpose of the Fund is to act as the investment vehicle
for the separate accounts established for variable life insurance policies and
variable annuity contracts to be offered by insurance companies which have
entered into reimbursement
2
agreements substantially identical to this Agreement
("Participating Insurance Companies"); and
WHEREAS, it is in the best interest of the parties hereto for
Participating Insurance companies, including the Company, to assume a portion of
the organization and other expenses incurred by SS&C in connection with the Fund
during the term of this agreement; and
WHEREAS, the parties desire to express their agreement as to certain
other matters;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Additional Definitions.
For purposes of this Agreement, the following definitions shall apply:
(a) The "average annual net asset value of the Shares of each
Portfolio of the Fund" shall mean the sum of the aggregate net
asset values of the Shares of such Portfolio owned by the
Account (referred to herein as the "Participating
Shareholder") determined as of each determination of the net
asset value per Share of the Fund during the fiscal year,
divided by the number of such determinations during such year.
(b) "Shares" means shares of beneficial interest, without par
value, of any Portfolio, now or hereafter created, of the
Fund.
2. Initial Reimbursement Fee.
Simultaneously with the execution of this Agreement, the Company on
behalf of the Account has paid to SS&C a fee
2
3
("Reimbursement Fee") in the amount of $10,000 in order partially to defray
expenses incurred by SS&C in connection with the organization of the Fund.
3. Access to Other Products.
SS&C shall permit a Participating Shareholder to participate in any
registered investment company other than the Fund which is intended as the
funding vehicle for insurance products and for which SS&C or an affiliate of
SS&C acts as investment adviser, on the same basis as other insurance companies
are permitted to participate in such a registered investment company. This
provision shall not require SS&C to make available to the Company shares of any
investment company which is organized solely as the funding vehicle for
insurance products offered by a single insurance company or a group of
affiliated insurance companies.
4. Right to Review and Approve Sales Materials.
The Company shall furnish, or shall cause to be furnished, to SS&C or
its designee, at least twenty days prior to its intended use, each piece of
promotional material in which SS&C or the Fund is named. No such material shall
be used unless SS&C or its designee shall have approved such use in writing, or
twenty days shall have elapsed without approval, rejection or objection since
receipt by SS&C or its designee of such material.
SS&C shall furnish, or shall cause to be furnished, to the Company or
its designee, at least twenty days prior to its intended use, each piece of
promotional material in which the Company or its separate account(s) is named.
No such material shall be used unless the Company or its designee shall have
approved such use in writing, or twenty days shall have elapsed without
approval,
3
4
rejection or objection since receipt by the Company or its designee of such
material.
5. Sales Organization Meetings.
Representatives of SS&C or its designee shall meet with the sales
organizations of the Company at such reasonable times and places as may be
agreed upon by the Company and SS&C or its designee for the purpose of educating
sales personnel about the Fund.
6. Duration.
This Agreement shall continue in effect as long as the Company owns
shares of any Portfolio, except that the obligation of each party hereto to
indemnify the other party hereto shall continue with respect to all losses,
claims, damages, liabilities or litigation based upon the acquisition of Shares
purchased as the funding vehicle for any variable life insurance policy or
variable annuity contract issued by the Company or any affiliated insurance
company.
7. Indemnification.
a. The Company agrees to indemnify and hold harmless SS&C and each of
its Directors and officers and each person, if any, who controls SS&C within the
meaning of Section 15 of the Securities Act of 1933 (the "Act") or any person,
controlled by or under common control with SS&C ("affiliate") against any and
all losses, claims, damages, liabilities or litigation (including legal and
other expenses) to which SS&C or such Directors, officers or controlling person
may become subject under the Act, under any other statute, at common law or
otherwise, arising out of the acquisition of any Shares by any person which (i)
may be based upon
4
5
any wrongful act by the Company, any of its employees or representatives, any
affiliate of or any person acting on behalf of the Company or a principal
underwriter of its insurance products, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering Shares 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 SS&C or the Fund by the Company, provided, however,
that in no case (i) is the Company's indemnity in favor of a Director or officer
or any other person deemed to protect such Director or officer or other person
against any liability to which any such person would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of his duties or by reason of his reckless disregard of obligations and duties
under this Agreement or (ii) is the Company to be liable under its indemnity
agreement contained in this Paragraph 7 with respect to any claim made against
SS&C or any person indemnified unless SS&C or such person, as the case may be,
shall have notified the Company in writing pursuant to Paragraph 9 within a
reasonable time after the summons or other first legal process giving
information of the nature of the claims shall have been served upon SS&C or upon
such person (or after SS&C or such person 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 has to SS&C or
any person against whom such
5
6
action is brought otherwise than on account of the indemnity agreement contained
in this Paragraph 7. The Company shall be entitled to participate, at its own
expense, in the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but, if it elects to assume the defense,
such defense shall be conducted by counsel chosen by it and satisfactory to
SS&C, to its officers and Directors, or to any controlling person or persons,
defendant or defendants in the suit. In the event that the Company elects to
assume the defense of any such suit and retain such counsel, SS&C, such officers
and Directors or controlling person or persons, defendant or defendants in the
suit, shall bear the fees and expenses of any additional counsel retained by
them, but, in case the Company does not elect to assume the defense of any such
suit, the Company will reimburse SS&C, such officers and Directors or
controlling person or persons, defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained by them. The Company agrees
promptly to notify SS&C pursuant to Paragraph 9 of the commencement of any
litigation or proceedings against it in connection with the issue and sale of
any Shares.
b. SS&C 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 Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
it or such directors, officers or controlling persons may become subject under
the Act, under any other statute, at common law or otherwise, arising out of the
acquisition of any Shares by any person which
6
7
(i) may be based upon any wrongful act by SS&C, any of its employees or
representatives or a principal underwriter of the Fund, or (ii) may be based
upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering Shares 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 statement or omission was made in
reliance upon information furnished to the Company by SS&C; provided, however,
that in no case (i) is SS&C's indemnity in favor of a director or officer or any
other person deemed to protect such director or officer or other person against
any liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of his
duties or by reason of his reckless disregard of obligations and duties under
this Agreement or (ii) is SS&C to be liable under its indemnity agreement
contained in this Paragraph 7 with respect to any claims made against the
Company or any such director, officer or controlling person unless it or such
director, officer or controlling person, as the case may be, shall have notified
SS&C in writing pursuant to Paragraph 9 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 it or upon such director, officer or
controlling person (or after the Company or such director, officer or
controlling person shall have received notice of such service on any designated
agent), but failure to notify SS&C of any claim shall not relieve it from any
liability which it may have to the person against whom
7
8
such action is brought otherwise than on account of its indemnity agreement
contained in this Paragraph 7. SS&C will be entitled to participate at its own
expense in the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but if SS&C elects to assume the defense,
such defense shall be conducted by counsel chosen by it and satisfactory to the
Company, its directors, officers or controlling person or persons, defendant or
defendants, in the suit. In the event SS&C elects to assume the defense of any
such suit and retain such counsel, the Company, its directors, officers or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
SS&C does not elect to assume the defense of any such suit, it will reimburse
the Company or such directors, officers or controlling person or persons,
defendant or defendants in the suit, for the reasonable fees and expenses of any
counsel retained by them. SS&C agrees promptly to notify the Company pursuant to
Paragraph 9 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 any
Shares.
8. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
9. Notices.
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party
8
9
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 SS&C:
Xxxxxxx, Xxxxxxx & Xxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn: Xxxxx X. Xxxxx
If to the Company:
Provident Mutual Life Insurance Company of Philadelphia
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn:
and
Providentmutual Life and Annuity Company of America
000 Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn:
10. Miscellaneous.
The captions in the 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. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly
9
10
authorized representative and its seal to be hereunder affixed hereto as of the
21 day of July, 1993.
SEAL XXXXXXX, XXXXXXX & XXXXX, INC.
By /s/ Illegible
---------------------------
Managing Director
SEAL PROVIDENT MUTUAL LIFE INSURANCE
COMPANY OF PHILADELPHIA
By /s/ Illegible
---------------------------
Its Chairman, President & CEO
-------------------------
SEAL PROVIDENTMUTUAL LIFE AND ANNUITY
COMPANY OF AMERICA
By /s/ /Xxxxxx x. Xxxxxxxx
---------------------------
Its President
--------------------------
10
