AMENDMENT NO.2 DATED APRIL 28, 2008
TO THE PARTICIPATION AGREEMENT DATED JANUARY 1, 2002,
AS PREVIOUSLY AMENDED
Amendment to the Participation Agreement (the "Agreement") by and among
MetLife Insurance Company of Connecticut, previously known as The Travelers Life
Insurance Company, on behalf of itself and certain of its segregated asset
accounts listed in Schedule A hereto, Pioneer Variable Contracts Trust, Pioneer
Investment Management, Inc. and Pioneer Funds Distributor, Inc.
WHEREAS, on May 1, 2006, The Travelers Insurance Company was renamed
MetLife Insurance Company of Connecticut ("MICC") and The Travelers Life and
Annuity Company was renamed MetLife Life and Annuity Company of Connecticut
("MLACC");
WHEREAS, on December 7, 2007, MLACC was merged with and into MICC;
WHEREAS, the parties desire to amend the Agreement by updating the notice
provision and updating the names of the MICC separate accounts listed in
Schedule A.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions set forth herein and for other good and valuable
consideration, each of the parties amends the Agreement as follow:
1. Section 12 of the Agreement entitled "Notices" shall be amended as
follows:
"If to the Company:
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President
Copy to:
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Law Department"
2. Schedule A of the Agreement is hereby deleted in its entirety and
replaced with Schedule A attached hereto.
Except as set forth above, expressly supplemented, amended or consented to
hereby, all of the representations and conditions of the Agreement will remain
unamended and will continue to be in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment No. 2
to be executed in their names and on their behalf by and through their duly
authorized officers signing below.
METLIFE INSURANCE COMPANY OF
CONNECTICUT (on behalf of the Accounts
and itself)
By:
-----------------------------------
Its:
PIONEER VARIABLE CONTRACTS TRUST,
on behalf of the Portfolios
By:
-----------------------------------_
Its:
PIONEER INVESTMENT MANAGEMENT, INC.
By:
-----------------------------------_
Its:
PIONEER FUNDS DISTRIBUTOR, INC.
By:
-----------------------------------_
Its:
SCHEDULE A
ACCOUNTS, CONTRACTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
NAME OF SEPARATE ACCOUNT AND
DATE ESTABLISHED BY BOARD OF CONTRACTS FUNDED BY SEPARATE PORTFOLIOS AND SHARE CLASS
DIRECTORS ACCOUNT APPLICABLE TO CONTRACTS
------------------------------ ------------------------------ ------------------------------
MetLife of CT Fund III for Corporate Owned Variable Pioneer Emerging Markets VCT
Variable Life Insurance Universal Life Insurance Portfolio (Class II)
Policies (COLI, COLI - Series
MetLife of CT Separate Account 2, COLI III, COLI IV, COLI Pioneer Mid Cap Value VCT
CPPVUL 1 2000, Corporate Select) Portfolio (Class II)
MetLife of CT Separate Account Pioneer Equity Income VCT
Nine for Variable Annuities Corporate Owned Private Portfolio (Class II)
Placement Variable Life
MetLife of CT Separate Account Insurance Policies (COLI PPVL) Pioneer Fund VCT Portfolio
Ten for Variable Annuities (Class II)
Pioneer Annuistar Flex
MetLife of CT Separate Account Pioneer High Yield VCT
Eleven for Variable Pioneer Annuistar Plus Portfolio (Class II)
Annuities
Pioneer Annuistar Value Pioneer International Value
MetLife of CT Separate Account VCT Portfolio (Class II)
Twelve for Variable Pioneer Annuistar
Annuities Pioneer Real Estate Shares VCT
PrimElite II(SM) Portfolio (Class II)
MetLife of CT Separate Account
Thirteen for Variable PrimElite(SM) Pioneer Small Cap Value VCT
Annuities Portfolio (Class II)
MetLife Variable Life
MetLife of CT Separate Account Pioneer Bond Fund VCT
Fourteen for Variable MetLife Variable Life Portfolio (Class II)
Annuities Accumulator
Pioneer Cullen Value VCT
MetLife of CT Separate Account MetLife Variable Life Portfolio (Class II)
PF for Variable Annuities Accumulator (Series II)
Pioneer Global High Yield VCT
MetLife Variable Life Portfolio (Class II)
Accumulator (Series III)
MetLife Variable Survivorship
Life II
MetLife of CT Separate Account Pioneer Ibbotson Aggressive
▇▇ ▇▇ for Variable Allocation VCT Portfolio
Annuities (Class II)
MetLife of CT Separate Account Pioneer Ibbotson Growth
UL for Variable Life Allocation VCT Portfolio
Insurance (Class II)
MetLife of CT Separate Account Pioneer Ibbotson Moderate
UL II for Variable Life Allocation VCT Portfolio
Insurance (Class II)
Pioneer Independence VCT
Portfolio (Class II)
Pioneer Oak Ridge Large Cap
Growth VCT Portfolio (Class
II)
Pioneer Strategic Income VCT
Portfolio (Class II)
AMENDMENT NO.2 DATED APRIL 28, 2009
TO THE PARTICIPATION AGREEMENT DATED JANUARY 1, 2002,
AS PREVIOUSLY AMENDED
Amendment to the Participation Agreement (the "Agreement") by and among
MetLife Insurance Company of Connecticut, previously known as The Travelers Life
Insurance Company, on behalf of itself and certain of its segregated asset
accounts listed in Schedule A hereto, Pioneer Variable Contracts Trust, Pioneer
Investment Management, Inc. and Pioneer Funds Distributor, Inc.
WHEREAS, on May 1, 2006, The Travelers Insurance Company was renamed
MetLife Insurance Company of Connecticut ("MICC") and The Travelers Life and
Annuity Company was renamed MetLife Life and Annuity Company of Connecticut
("MLACC");
WHEREAS, on December 7, 2007, MLACC was merged with and into MICC;
WHEREAS, the parties desire to amend the Agreement by updating the notice
provision and updating the names of the MICC separate accounts listed in
Schedule A.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions set forth herein and for other good and valuable
consideration, each of the parties amends the Agreement as follow:
1. Section 12 of the Agreement entitled "Notices" shall be amended as
follows:
"If to the Company:
MetLife - Specialized Benefit Resources
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Copy to:
Metropolitan life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Law Department"
2. Schedule A of the Agreement is hereby deleted in its entirety and
replaced with Schedule A attached hereto.
Except as set forth above, expressly supplemented, amended or consented to
hereby, all of the representations and conditions of the Agreement will remain
unamended and will continue to be in full force and effect
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment No. 2
to be executed in their names and on their behalf by and through their duly
authorized officers signing below.
METLIFE INSURANCE COMPANY OF
CONNECTICUT (on behalf of the Accounts
and itself)
By:
---------------------------------
Name:
Its:
Date:
-------------------------------
PIONEER VARIABLE CONTRACTS TRUST,
on behalf of the Portfolios
By:
---------------------------------
Name:
Its:
Date:
-------------------------------
PIONEER INVESTMENT MANAGEMENT,
INC.
By:
---------------------------------
Name:
Its:
Date:
-------------------------------
PIONEER FUNDS DISTRIBUTOR, INC.
By:
---------------------------------
Name:
Its:
Date:
-------------------------------
SCHEDULE A
ACCOUNTS, CONTRACTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
AS OF APRIL 28, 2008
NAME OF SEPARATE ACCOUNT AND
DATE ESTABLISHED BY BOARD OF CONTRACTS FUNDED BY SEPARATE PORTFOLIOS AND SHARE CLASS
DIRECTORS ACCOUNT APPLICABLE TO CONTRACTS
------------------------------ ------------------------------ ------------------------------
MetLife of CT Fund III for Corporate Owned Variable Pioneer Emerging Markets VCT
Variable Life Insurance Universal Life Insurance Portfolio (Class II)
Policies ( COLI, COLI-Series
MetLife of CT Separate Account 2, COLI III, COLI IV, COLI Pioneer Mid Cap Value VCT
CPPVUL 1 2000, Corporate Select) Portfolio (Class II)
MetLife of CT Separate Account Corporate Owned Private Pioneer Equity Income VCT
Nine for Variable Annuities Placement Variable Life Portfolio (Class II)
Insurance Policies (COLI PPVL)
MetLife of CT Separate Account Pioneer Fund VCT Portfolio
Ten for Variable Annuities Pioneer Annuistar Flex (Class II)
MetLife of CT Separate Account Pioneer Annuistar Plus Pioneer High Yield VCT
Eleven for Variable Portfolio (Class II)
Annuities Pioneer Annuistar Value
Pioneer International Value
MetLife of CT Separate Account Pioneer Annuistar VCT Portfolio (Class II)
Twelve for Variable
Annuities PrimElite II(SM) Pioneer Real Estate Shares VCT
Portfolio (Class II)
MetLife of CT Separate Account PrimElite(SM)
Thirteen for Variable Pioneer Small Cap Value VCT
Annuities MetLife Variable Life Portfolio (Class II)
MetLife of CT Separate Account MetLife Variable Life Pioneer Bond Fund VCT
Fourteen for Variable Accumulator Portfolio (Class II)
Annuities
Met Life Variable Life Pioneer Cullen Value VCT
MetLife of CT Separate Account Accumulator (Series II) Portfolio (Class II)
PF for Variable Annuities
MetLife Variable Life Pioneer Global High Yield VCT
Accumulator (Series III) Portfolio (Class II)
MetLife Variable Survivorship Pioneer Ibbotson Aggressive
Life II Allocation VCT Portfolio
(Class II)
MetLife of CT Separate Account Pioneer Ibbotson Growth
▇▇ ▇▇ for Variable Allocation VCT Portfolio
Annuities (Class II)
MetLife of CT Separate Account Pioneer Ibbotson Moderate
UL for Variable Life Allocation VCT Portfolio
Insurance (Class II)
MetLife of CT Separate Account Pioneer Independence VCT
UL II for Variable Life Portfolio (Class II)
Insurance
Pioneer Oak Ridge Large Cap
Growth VCT Portfolio (Class
II)
Pioneer Strategic Income VCT
Portfolio (Class II)
AMENDMENT NUMBER ONE TO THE
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement") dated January 1, 2002, as
amended from time to time, by and among Pioneer Variable Contracts Trust, the
Travelers Life and Annuity Company and The Travelers Insurance Company (the
"Company"), Pioneer Investment Management, Inc. ("PIM") and Pioneer Funds
Distributor, Inc. ("PFD"), is hereby amended, with effect from May 2, 2003, as
set forth below. Each of the PIM and PFD is a Member of the UniCredito Italiiano
Banking Group, Register of banking Groups. Unless otherwise indicated in this
Amendment, capitalized terms shall have the same meanings set forth in the
Agreement.
WITNESSETH:
WHEREAS, PFD, the Company and Travelers Distribution LLC, an affiliate of
the company, have entered into a Wholesaling Agreement dated as of May 1, 2003
(the "Wholesaling Agreement"), which provides for certain distribution
arrangements with respect to certain newly-created Contracts;
WHEREAS, the parties to the Agreement desire to amend the Agreement to
provide for the newly-created Contracts and other arrangements relating to the
Wholesaling Agreement and make other changes; and
WHEREAS, the parties acknowledge that the Agreement may only be amended by
written instrument signed by the parties.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and intending to be legally bound, the Agreement shall be amended as
follows.
1. Schedule A to the Agreement is replaced in its entirety with new
Schedule A affixed hereto and incorporated herein by reference.
2. Schedule B to the Agreement is replaced in its entirety with new
Schedule B affixed hereto and incorporated herein by reference.
Except as provided herein, the terms and conditions contained in the
Agreement shall remain in full force and effect. This Amendment may be
executed by the parties hereto in any number of counterparts, and all
of said counterparts taken together shall be deemed to constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date set forth above.
THE TRAVELERS LIFE AND THE TRAVELERS INSURANCE COMPANY
ANNUITY COMPANY
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
PIONEER INVESTMENT MANAGEMENT, INC. PIONEER FUNDS DISTRIBUTOR, INC.
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
PIONEER VARIABLE CONTRACTS TRUST, ON BEHALF OF ITS PORTFOLIOS BY ITS AUTHORIZED
OFFICER AND NOT INDIVIDUALLY
By:
---------------------------------
Name:
Title:
SCHEDULE A
ACCOUNTS, CONTRACTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
As of May 1, 2003
Name of Separate Accounts and
Date Established by Contracts Funded Portfolios and Class of Shares
Board of Directors By Separate Account Available to Contracts
------------------------------ ------------------------------ ------------------------------
Travelers Separate Account PF Pioneer Annuistar Pioneer America Income VCT
II for Variable Annuities Portfolio (Class II)
established on Pioneer Annuistar Plus
Pioneer Balanced VCT Portfolio
TIC Separate Accounts Eleven Portfolio Architect Access (Class II)
for Variable Annuities
Portfolio Architect II Pioneer Emerging Markets VCT
TLAC Separate Account Twelve Portfolio (Class II)
for Variable Annuities Portfolio Architect Plus
Pioneer Equity Income VCT
TIC Separate Account Thirteen Vintage Access Portfolio (Class II)
for Variable Annuities
PrimElite II Pioneer Europe VCT Portfolio
TLAC Separate Account Fourteen (Class II)
For Variable Annuities COLI I
Pioneer Fund VCT Portfolio
TIC Variable Annuity Separate COLI 2000 (Class II)
Account 2002
COLI Mid Size Pioneer Growth Shares VCT
TLAC Variable Annuity Separate Portfolio (Class II)
Account 2002 COLI III
Pioneer High Yield VCT
Travelers Separate Account PF COLI PP Portfolio (Class II)
for Variable Annuities
Individual PP Pioneer International Value
Travelers Fund UL for Variable VCT Portfolio (Class II)
Life Insurance Travelers Variable Life
Pioneer Real Estate Shares VCT
Travelers Fund UL II for Travelers Accumulator Portfolio (Class II)
Variable Life Insurance
Survivorship Life Pioneer Small Cap value VCT
Travelers Fund UL III for Portfolio (Class II)
Variable Life Insurance
Pioneer Small Company VCT
The Travelers Separate Account Portfolio (Class II)
PP
Pioneer Strategic Income VCT
The Travelers Separate Account Portfolio (Class II)
PP2
Pioneer Value VCT Portfolio
The Travelers Separate Account (Class II)
CPPVUL1
Pioneer Mid Cap Value VCT
Portfolio (Class II)
SCHEDULE B
As of May 1, 2003
FEES TO THE COMPANY
1. Administrative Services
Administrative services to Contract owners and participants shall be the
responsibility of the Company and shall not be the responsibility of the Trust
or PFD. The Company will provide properly registered and licensed personnel and
any systems needed for all Contract owners servicing and support - for both fund
and annuity and life insurance information and questions, including:
- Communicate all purchase, withdrawal, and exchange orders it receives
form its customers to PFD;
- Respond to Contract owner and participant inquiries;
- Delivery of both Trust and Contract prospectuses as required under
applicable law;
- Entry of initial and subsequent orders;
- Transfer of cash to Portfolios;
- Explanation of Portfolio objectives and characteristics;
- Entry of transfers between Portfolios;
- Portfolio balance and allocation inquiries; and
- Mail Trust proxies.
2. Administrative Service Fees
For the administrative services set forth above, PIM or any of its
affiliates shall pay a servicing fee based on the annual rate of 0.25% of the
average aggregate net daily assets invested in the Class I Shares of the
Portfolios and 0.25% of the average aggregate net daily assets invested in the
Class II Shares of the Portfolios through the Accounts at the end of each
calendar quarter; provided, however, that such annual rate shall be 0.05% with
respect to assets attributable to those Contracts offered pursuant to the
Wholesaling Agreement dated as of May , 2003 among PFD, the Company and
Travelers Distribution LLC, and as further described therein. Such payments will
be made to the Company within thirty (3) days after the end of each calendar
quarter. Such fees shall be paid quarterly in arrears. Each payment will be
accompanied by a statement showing the calculation of the fee payable to the
Company for the quarter and such other supporting data as may be reasonably
requested by the Company. The Company will calculate the asset balance on each
day on which the fee is to be paid pursuant to this Agreement with respect to
each Portfolio for the purpose of reconciling its calculation of average
aggregate net daily assets with PIM's calculation. Annually (as of December 31)
or upon reasonable request of PIM, Company will provide PIM a statement showing
the number of subaccounts in each Class of Shares of each Portfolio as of the
most recent calendar quarter end.
3. 12b-1 Distribution Related Fees (Class II Shares Only)
In accordance with the Portfolio's plans pursuant to Rule 12b-1 under the
Investment Company Act of 1940, PFD will make payments to the Company at an
annual rate of 0.25% of the average daily net assets invested in the Class II
shares of the Portfolios through the Accounts in each calendar quarter. PFD will
make such payments to the Company within thirty (30) days after the end of each
calendar quarter. Each payment will be accompanied by a statement showing the
calculation of the fee payable to the Company for the quarter and such other
supporting date as may be reasonably requested by the Company. The Rule 12b-1
distribution related fees will be paid to the company for as long as the
Accounts own any Shares of a Portfolio and (i) distribution related services are
being provided pursuant to this Agreement and (ii) a Rule 12b-1 plan is in
effect with respect to such Portfolio.
PARTICIPATION AGREEMENT
AMONG
PIONEER VARIABLE CONTRACTS TRUST,
THE TRAVELERS LIFE AND ANNUITY COMPANY AND
THE TRAVELERS INSURANCE COMPANY,
PIONEER INVESTMENT MANAGEMENT, INC.
AND
PIONEER FUNDS DISTRIBUTOR, INC.
THIS AGREEMENT, made and entered into this January 1, 2002, by and among
PIONEER VARIABLE CONTRACTS TRUST, a Delaware business trust (the "Trust"), the
Travelers Life and Annuity Company, a Connecticut life insurance company and The
Travelers Insurance Company, a New York life insurance company (the "Company")
on its own behalf and on behalf and on behalf of each of the segregated assets
accounts of the Company set forth in Schedule A hereto, as may be amended from
time to time (the "Accounts"), PIONEER INVESTMENT MANAGEMENT, INC., a Delaware
corporation ("PIM") and PIONEER FUNDS DISTRIBUTOR, INC. ("PFD"), a corporation
organized under the laws of The Commonwealth of Massachusetts.
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (The "1940 Act"),
and its shares are registered or will be registered under the Securities Act of
1933, as amended (the "1933 Act");
WHEREAS, shares of beneficial interest of the Trust are divided into
several series and classes of shares, each series being designated a "Portfolio"
and representing an interest in a particular managed pool of securities and
other assets;
WHEREAS, the Trust is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and/or
variable annuity contracts to be offered by insurance companies, including the
Company, which have entered into participation agreements with the Trust (the
"Participating Insurance Companies");
WHEREAS, the Trust has obtained an order from the Securities and Exchange
Commission (the "SEC"), dated July 9, 1997 (File No. 812-10494) (the "Mixed and
Shared Funding Exemptive Order") granting Participating Insurance Companies and
variable annuity and variable life insurance separate accounts exemptions from
the provisions of Section 9(a), 13(a), 15(a) and 15(b) of 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 Trust to be sold to and held by variable annuity and variable life
insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans");
WHEREAS, PIM is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and any applicable state securities
law, and is the Trust's investment advisor;
WHEREAS, the Company will issue certain variable annuity and/or variable
life insurance contracts (individual, the "Contract" or, collectively, the
"Contracts") which, if required by applicable law, will be registered under the
1933 Act;
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolution of the Board of Directors of the Company, to
set aside and invest assets attributable to the aforesaid variable annuity
and/or variable life insurance contracts that are allocated to the Accounts (the
Contracts and the Accounts covered by this Agreement, and each corresponding
Portfolio covered by this Agreement in which the Accounts may invest, is
specified in Schedule A attached hereto as may be modified from time to time);
WHEREAS, the Company has registered or will register the Accounts as unit
investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, the Portfolios offered by the Trust to the Company and the
Accounts are set forth on Schedule A attached hereto;
WHEREAS, PFD is registered as a broker-dealer with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934, as
amended (hereinafter the "1934 Act"), and is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") and is authorized
to sell shares of the Portfolios to unit investment trusts such as the Accounts;
WHEREAS, Travelers Distribution LLC ("Policy Underwriter"), the underwriter
for the variable annuity and the variable life policies, is registered as a
broker-dealer with the SEC under the 1934 Act and is a member in good standing
of the NASD; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in one or more of the
Portfolios specified in Schedule A attached hereto (the "Shares") on behalf of
the Accounts to fund the Contracts, and PFD intends to sell such Shares to the
Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Trust, PIM,
PFD and the Company agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1 PFD agrees to sell to the Company those Shares which the Accounts
order in accordance with the terms of this Agreement (based on orders
placed by Contract owners or participants on that Business Day, as
defined below) and which are available for purchase by such Accounts.
Each such order will be executed on a
daily basis at the net asset value next computed after receipt by the
Trust or its designee of the order for the Shares. For purposes of
this Section 1.1, the Company shall be designee of the Trust for
receipt of such orders from Contract owners or participants and
receipt by such designee shall constitute receipt by the Trust;
provided that the Trust or its designee receives written (or
facsimile) notice of such orders by 10:00 a.m. on the next following
Business Day by the time the Trust ordinarily calculates its net asset
value as described from time to time in the Trust's prospectus (which
as of the date of this Agreement is 4:00 p.m. New York time on such
Business Day. "Business Day" shall mean any day on which the New York
Stock Exchange, Inc. (the "NYSE") is open for trading and on which the
Trust calculates its net asset value pursuant to the rules of the SEC.
1.2 PFD agrees to make the Shares available for purchase at the applicable
net asset value per share by the Company and the Accounts on those
days on which the Trust calculates its net asset value in accordance
with the rules of the SEC. Notwithstanding the foregoing, the Board of
Trustees of the Trust (the "Board") may refuse to sell any Shares to
the Company and the Accounts, or suspend or terminate the offering of
the Shares to the Company and the Accounts if such action is required
by law or by regulatory authorities having jurisdiction over PIM, PFD
or the Trust or is, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any
applicable state laws, in the best interest of the Shareholders of
such Portfolio.
1.3 The Trust and PFD will sell Trust shares only to Participating
Insurance Companies and Qualified Plans which have agreed to
participate in the Trust to fund their Separate Accounts and/or
Qualified Plans all in accordance with the requirement of Section
817(h) of the Internal Revenue Code, as amended (the "Code") and the
Treasury regulations thereunder. The Company will not resell the
Shares except to the Trust or its agents.
1.4 The Trust agrees, upon the Company's request, to redeem for cash, any
full or fractional Shares held by the Accounts (based on orders placed
by Contract owners on that Business Day). Each such redemption request
shall be executed on a daily basis at the net asset value next
computed after receipt by the Trust or its designee of the request for
redemption. For purposes of this Section 1.4, the Company shall be the
designee of the Trust for receipt of requests for redemption from
Contract owners or participants and receipt by such designee shall
constitute receipt by the Trust; provided that the Trust or its
designee receives written (or facsimile) notice of such request for
redemption on the next following Business Day by the time the Trust
ordinarily calculates its net asset value as described from time to
time in the Trust's prospectus (which as of the date of this Agreement
is 4:00 p.m. New York time on such Business Day).
1.5 The Company shall aggregate the purchase, redemption and exchange
orders for each Portfolio and place with the Trust a netted
transaction order for each Portfolio. With respect to payment of the
purchase price by the Company and of
redemption proceeds by the Trust, the Company and the Trust shall net
purchase and redemption orders with respect to each Portfolio and
shall transmit one net payment for all of the portfolios in accordance
with Section 1.6 hereof.
1.6 In the event of net purchases, the Company shall pay for the Shares by
4:00 p.m. new York time on the next Business Day after an order to
purchase the Shares is made in accordance with the provision of
Section 1.1 hereof. Company shall transmit all such payments in
federal funds by wire. If payment in federal funds for any purchase is
not received or is received by the Trust after 4:00 p.m. on such
Business Day, the Company shall promptly, upon the Trust's request,
reimburse the Trust for any charges, costs, fees, interest or other
expenses incurred by the Trust in connection with any advances to, or
borrowings or overdrafts by, the Trust, or any similar expenses
(including the cost of an any loss incurred by the Trust in unwinding
any purchase of securities by the Trust) incurred by the Trust as a
result of portfolio transactions effected by the Trust based upon such
purchase request. In the event of net redemptions, the Trust
ordinarily shall pay and transmit the proceeds of redemptions of
Shares by 4:00 p.m. New York time on the next Business Day after a
redemption order is received by the Company from the Contract owners
in accordance with Section 1.4 hereof, although the Trust reserves the
right to postpone the date of payment or satisfaction upon redemption
consistent with Section 22(e) of the 1940 Act and any rules
promulgated thereunder. Payments for net redemptions shall be made in
federal funds transmitted by wire.
1.7 Issuance and transfer of the Shares will be by book entry only. Stock
certificates will not be issued to the Company or the Accounts. The
Shares ordered from the Trust will be recorded in an appropriate title
for the Accounts or the appropriate subaccounts of the Accounts.
1.8 The Trust shall furnish notice (by wire or telephone, followed by
written confirmation) no later than 7:00 p.m. New York time on the
ex-dividend date to the Company of any dividends or capital gain
distributions payable on the Shares. The Company hereby elects to
receive all such dividends and distributions as are payable in cash or
Shares on a Portfolio's Shares in additional Shares of the Portfolio.
The Trust shall notify the Company by the end of the next following
Business Day of the number of Shares so issued as payment of such
dividends and distributions.
1.9 The Trust or its custodian shall make the net asset value per share
for each Portfolio available to the Company on each Business Day as
soon as reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset value
per share available by 6:00 p.m. New York time. In the event of an
error in the computation of a Portfolio's net asset value per share
("NAV") or any dividend or capital gain distribution (each, a "pricing
error"), PIM or the Trust shall notify the Company as soon as possible
after the discovery of the error. Such notification may be verbal, but
shall be confirmed
promptly in writing in accordance with Article XII of this Agreement.
A pricing error shall be corrected in accordance with the Trust's
internal policies and procedures. If an adjustment is necessary to
correct a material error that occurred through no fault of the Company
and such adjustment has caused Contract owners to receive less than
the number of Shares or redemption proceeds to which they are
entitled, the number of Shares of the applicable Account will be
adjusted and the amount of any underpayments will be paid by the Trust
or PIM to the Company for crediting of such amounts to the Contract
owners' accounts. upon notification by PIM of any overpayment due to a
material error, the Company shall promptly remit to the Trust or PIM,
as appropriate, any overpayment that has not been paid to Contract
owner; however, PIM acknowledges that the Company does not intend to
seek additional payments from any Contract owner who, because of a
pricing error, may have underpaid for unites of interest credited to
his/her account. The costs of correcting such adjustments shall be
borne by the Trust or PIM unless the Company is at fault in which case
such costs shall be borne by the Company.
ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act or are exempt from or not subject to
registration thereunder, and that the contracts will be issued, sold,
and distributed in compliance in all material respects with all
applicable state and federal laws, including without limitation the
1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the 1940 Act. The Company further represents and warrants
that it (i) is an insurance company duly organized and in good
standing under applicable law; (ii) has legally and validly
established each Account as a segregated asset account under
applicable law; (iii) has registered or, prior to any issuance or sale
of the Contracts, will register the Accounts as unit investment trusts
in accordance with the provisions of the 1940 Act (unless exempt
therefrom) to serve as segregated investment accounts for the
Contracts, and (iv) will maintain such registration for so long as any
Contracts are outstanding. The Company shall amend the registration
statements under the 1933 Act for the Contracts and the registration
statements under the 1940 Act 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 sales in accordance with the
securities laws of the various states only if and to the extent deemed
necessary by the Company. At the time the Company is required to
deliver the Trust's prospectus or statement of additional information
to a purchaser of Shares in accordance with the requirements of
federal or state securities laws, the Company shall distribute to such
Contract purchasers the then current Trust prospectus, as
supplemented.
2.2 The Company represents that the Contracts are currently and at the
time of issuance will be treated as life insurance, endowment or
annuity contracts under applicable provisions of the Code, that it
will maintain such treatment and that it
will notify the Trust or PIM 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.
2.3 The Company represents and warrants that Policy Underwriter, the
underwriter for the individual variable annuity contracts and the
variable life policies, is a member in good standing of the NASD and
is a registered broker-dealer with the SEC. The Company represents and
warrants that the Company and Policy Underwriter will sell and
distribute such contracts and policies in accordance in all material
respects with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 1940
Act and state insurance law suitability requirements.
2.4 The Trust represents and warrants that the Shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized
for issuance in compliance with the laws of Delaware and that the
Trust is an shall remain registered under the 1940 Act. The Trust
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 Trust shall register and
qualify the Shares for sale in accordance with the laws of the various
states only if and to the extent deemed necessary by the Trust.
2.5 The Trust represents that it is lawfully organized and validly
existing under the laws of the State of Delaware. The Trust further
represents that it has adopted a plan pursuant to Rule 12b-1 under the
1940 Act and imposes an asset-based charge to finance its distribution
expenses with respect to the Class II shares of certain of the Trust's
Portfolios as permitted by applicable law and regulation.
2.6 PFD represents and warrants that it is a member in good standing of
the NASD and is registered as a broker-dealer with the SEC. PFD
represents that it will sell and distribute the Shares in accordance
in all material respects with all applicable state and federal
securities laws, including without limitation the 1933 Act, the 1934
Act, and the ▇▇▇▇ ▇▇▇.
2.7 PIM represents and warrants that it is and shall remain duly
registered as an investment adviser under the Investment Advisers Act
of 1940, as amended.
2.8 No less frequently than annually, the Company shall submit to the
Board such reports, material or data as the Board may reasonably
request so that it may carry out fully the obligations imposed upon it
by the conditions contained in the Mixed and Shared Funding Exemptive
Order pursuant to which the SEC has granted exemptive relief to permit
mixed and shared funding.
2.9 The Trust and PIM represent and warrant that all of their respective
officers, employees, investment advisers, and other individuals or
entities dealing with the money and/or securities of the Trust are,
and shall continue to be at all times,
covered by one or more blanket fidelity bonds or similar coverage for
the benefit of the Trust in an amount not less than the minimal
coverage required by Rule 17g-1 under the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid
bonds shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company. the Company represents and
warrants that all of its respective officers, employees, and other
individuals or entities employed or controlled by the Company dealing
with the money and/or securities of the Trust are, and shall continue
to be at all times, covered by a blanket fidelity bond or similar
coverage in an deemed appropriate by the Company. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company. The Company agrees that any
amounts received under such bond relating to a claim arising under
this Agreement will be held by the Company for the benefit of the
Trust. The Company agrees to make all reasonable efforts to maintain
such bond and agrees to notify the Trust and PIM in writing in the
event such coverage terminates.
2.10 The Company represents and warrants, for purposes other than
diversification under Section 817 of the Code, that the Contracts are
currently at the time of issuance and, assuming the Trust meets the
requirements of Article VI, will be treated as annuity contracts under
applicable provisions of the Code, and that it will make every effort
to maintain such treatment and that it will notify the Trust, PFD and
PIM 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 each Account is a "segregated asset account" and that
interests in the Account 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 thereunder.
The Company will use every effort to continue to meet such
definitional requirements, and it will notify the Trust, PFD and PIM
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 Trust shares with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchase in
connection with such plans.
ARTICLE III. PROSPETUS AND PROXY STATEMETNS; VOTING
3.1 At least annually, the Trust or its designee shall provide the
Company, free of charge, with as many copies of the current prospectus
(describing only the Portfolios listed in Schedule A hereto) for the
Shares as the Company may reasonably request for distribution to
existing Contract owners whose Contracts are funded by such Shares.
The Trust or its designee shall provide the Company, at the Company's
expense, with as many copies of the current prospectus for the Shares
as the Company may reasonably request for distribution to prospective
purchasers of Contracts. If requested by the Company in lieu
therefore, the Trust
or its designee shall provide such documentation (including a "camera
ready" copy of the new prospectus as set in type or, at the request of
the Company, as a diskette in the form sent to the financial printer)
and other assistance as is reasonably necessary in order for the
parties hereto once each year (or more frequently if the prospectus
for the Shares is supplemented or amended) to have the prospectus for
the Contracts and the prospectus for the Shares printed together in
one document; the expenses of such printing to be apportioned between
(a) the Company and (b) the Trust or its designee in proportion to the
number of pages of the Contract and Shares' prospectuses, taking
account of other relevant factors affecting the expense of printing,
such as covers, columns, graphs and charges; the Trust or its designee
to bear the cost of printing the Trust's prospectus portion of such
document for distribution to owners of existing Contracts funded by
the Shares and, in quantities deemed reasonable at the sole discretion
of the Trust or its designee, for owners of existing Contracts not
funded by the Shares and the Company to bear the expenses of printing
the portion of such document relating to the Accounts; provided,
however, that the Company shall bear all printing expenses of such
combined documents where used for distribution to prospective
purchasers. In the event that the Company requests that the Trust or
its designee provides the Trust's prospectus in a "camera ready,"
diskette format or other mutually agreed upon format, the Trust shall
be responsible for providing the prospectus in the format in which it
or PIM is accustomed to formatting prospectuses and shall bear the
expense of providing the prospectus in such format (e.g., typesetting
expenses), and the Company shall bear the expense of adjusting or
changing the format to conform with any of its prospectuses, subject
to PIM's approval which shall not be unreasonably withheld.
Notwithstanding the foregoing, the Trust shall also provide the
Company, at the Trust's expense, no less frequently than annually,
copies of the Portfolios prospectuses in PDF format for use on the
Company's and/or affiliated producer's websites.
3.2 The prospectus for the Shares shall state that the statement of
additional information for the Shares is available from the Trust or
its designee. The Trust or its designee, at its expense, shall print
and provide such statement of additional information to the Company
(or a master of such statement suitable for duplication by the
Company) for distribution to any owner of a Contract funded by the
Shares. The Trust shall also provide such statement of additional
information to the Company in a mutually agreed upon electronic
format. The Trust or its designee, at the Company's expense, shall
print and provide such statement to the Company (or a master of such
statement suitable for duplication by the Company)_ for distribution
to a prospective purchaser who requests such statement or to an owner
of a Contract not funded by the Shares.
3.3 The Trust or its designee shall provide the Company free of charge, if
and to the extent applicable to the Shares, copies of the Trust's
proxy materials, reports to Shareholders and other communications to
Shareholders in such quantity as the Company shall reasonably require
for distribution to Contract owners. The cost of distributing such
documents shall be borne by the Trust or its designee.
3.4 The Trust or PIM will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Portfolio,
and of any material change in the Trust's registration statement,
particularly any change resulting in change to the registration
statement or prospectus or statement of additional information for any
Account. The Trust and PIM will cooperate with the Company so as to
enable the Company to solicit proxies from Contract owners or to make
changes to its prospectus, statement of additional information or
registration statement, in an orderly manner. The Trust and PIM will
make reasonable efforts to attempt to have changes affecting Contract
prospectuses become effective simultaneously with the annual updates
for such prospectuses.
3.5 The Trust hereby notifies the Company that it may be appropriate to
include in the prospectus pursuant to which a Contract is offered
disclosure regarding the potential risks of mixed and shared funding.
3.6 If and to the extent required by law, the Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Shares in accordance with instructions received from
Contract owners; and
(c) vote the Shares for which no instructions have been received in
the same proportion as the Shares of such Portfolio for which
instructions have been received from Contract owners;
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. The Company will in no way recommend action in
connection with or oppose or interfere with the solicitation of
proxies for the Shares held for such Contract owners. The Company
reserves the right to vote shares held in any segregated asst account
in its own right, to the extent permitted by law. Participating
Insurance Companies shall be responsible for assuring that each of
their separate accounts holding Shares calculates voting privileges in
the manner required by the Mixed and Shared Funding Exemptive Order.
The Trust and PIM will notify the Company of any changes of
interpretations or amendments to the Mixed and Shared Funding
Exemptive Order.
3.7 The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Trust will either
provide for annual meetings or comply with Section 16(c) of the 1940
Act (although the Trust is not one of the trust described in Section
16(c) of that Act) as well as with 16(a) and, if and when applicable,
16(b). Further, the Trust will act in accordance with the Securities
and Exchange Commission's interpretation of the requirements of
Section 16(a) with
respect to periodic elections of trustees and with whatever rules the
Commission may promulgate with respect thereto.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 The Company shall furnish, or shall cause to be furnished, to PFD or
its designee, each piece of sales literature or other promotional
material in which the Trust, PIM, any other investment adviser to the
Trust, or any affiliate of PIM are named, at least five (5) Business
Days prior to its use. No such material shall be used if PFD or its
designee reasonably objects to such use within five (5) Business Days
after receipts of such material. PFD or its designee shall notify the
Company within five (5) Business Days of receipt of its approval or
disapproval of such materials.
4.2 The Company shall not make any representation on behalf of the Trust,
PIM, any other investment adviser to the Trust or any affiliate of PIM
and shall not give any information on behalf of the Trust, PIM, any
other investment adviser to the Trust, or any affiliate of PIM or
concerning the Trust or any other such entity in connection with the
sale of the Contracts other than the information contained in the
registration statement, prospectus or statement of additional
information for the Shares, as such registration statement, prospectus
and statement of additional information may be amended or supplemented
form time to time, or in reports or proxy statements for the Trust, or
in sales literature or other promotional material approved by the
Trust, PIM, PFD or their respective designees, expect with the
permission of the Trust, PIM or their respective designees. The Trust,
PIM, PFD or their respective designees each agrees to respond to any
request for approval on a prompt and timely basis. The company shall
adopt and implement procedures reasonably designed to ensure that
information concerning the Trust, PIM, PFD or any of their affiliates
which is intended for use only by brokers or agents selling the
Contracts (i.e., information that is not intended for distribution to
Contract owners or prospective Contract owners) is so used, and
neither the Trust, PIM, PFD nor any of their affiliates shall be
liable for any losses, damages or expenses relating to the improper
use of such broker only materials.
4.3 PFD shall furnish, or shall cause to be furnished, to the Company or
its designee, each piece of sales literature or other promotional
material in which the Company and/or the Accounts is named, at least
five (5) Business Days prior to its use. No such material shall be
used if the Company or its designee reasonably objects to such use
within five (5) Business Days after receipt of such material. The
Company shall notify PFD within five (5) Business Days of receipt of
its approval or disapproval of such materials.
4.4 The Trust, PIM and PFD shall not give any information or make any
representations on behalf of the Company or concerning the Company,
the Accounts, or the Contracts in connection with the sale of the
Contracts other than the information or representations contained in a
registration statement,
prospectus, or statement of additional information for the Contracts,
as such registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
reports for the Accounts, or in sales literature or other promotional
material approved by the Company or its designee, except with the
permission of the Company. The Company or its designee agrees to
respond to any request for approval on a prompt and timely basis. The
parties hereto agree that this Section 4.4 is neither intended to
designate nor otherwise imply that PIM is an underwriter or
distributor of Contracts.
4.5 The Company and all the Trust shall provide, or shall cause to be
provided, to the other at least one complete copy of all registration
statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional
materials, and all amendments to any of the above, that relate to the
Contracts, or to the Trust or its Shares, prior to or
contemporaneously with the filing of such document with the SEC or
other regulatory authorities.
4.6 For purposes of this Article IV and Article VIII, the phrase "sales
literature or other promotional material" includes but is not limited
to advertisements (such as material published, or designed for use in,
a newspaper, magazine, or other periodical, radio, television,
telephone, electronic messages or tape recording, videotape display,
signs or billboards, motions pictures, or other public media,
including, for example, on-line networks such as the Internet or other
electronic media), and sales literature (such as brochures, electronic
messages, circulars, reprints or excerpts or any other advertisement,
sales literature, or published articles), distributed or made
generally available to customers or the public, educational or
training materials or communications distributed or made generally
available to some or all agents or employees, and shareholder reports,
proxy materials (including solicitations for voting instructions0 and
any other material constituting sales literature or advertising under
the NASDR Conduct Rules, the 1933 Act or the 1940 Act. However, such
phrase "sales literature or other promotional material" shall not
include any material that simply lists the names of Portfolios of the
Trust in a list of investment options.
4.7 At the request of any party to this Agreement, each other party will
make available to the other party's independent auditors and/or
representative of the appropriate regulatory agencies, all records,
data, access to operating procedures that may be reasonably requesting
in connection with compliance and regulatory requirements related to
the Agreement or any party's obligations under this Agreement.
4.8 Subject to the terms of Section 4.1 and 4.2 of this Agreement, the
Trust (and its Portfolios), PIM and PFD hereby each consents in
connection with the marketing of the Contracts to the Company's use of
their names or other identifying marks, including PIONEER
INVESTMENTS(R) and Pioneer's sail logo, in connection with the
marketing of the Contracts. The Trust, PIM or PFD or their affiliates
may withdraw this authorization as to any particular use of any such
name or identifying ▇▇▇▇ at any time: (i) upon a reasonable
determination that such use would have a material adverse effect on
its reputation or marketing efforts or its affiliates or (ii) if any
of the Portfolios of the Trust cease to be available through the
Company. Except as set forth in the previous sentence, the Company
will not cause or permit, without prior written permission, the use,
description or reference to a Pioneer party's name, or to the
relationship contemplated in this Agreement, in any advertisement, or
promotional materials or activities, including without limitation, any
advertisement or promotional materials published, distributed, or made
available, or any activity conducted through, the Internet or any
other electronic medium.
ARTICLE V. FEES AND EXPENSES
5.1 Neither the Trust, PIM nor PFD shall pay any fee or other compensation
to the Company under this Agreement, other than pursuant to Schedule B
attached hereto, and the Company shall pay no fee or other
compensation to the Trust, PIM or PFD under this Agreement.
Notwithstanding the foregoing, the parties hereto will bear certain
expenses under the provisions of this Agreement and shall reimburse
other parties for expenses initially paid by one party but allocated
to another party. In addition, nothing herein shall prevent the
parties hereto from otherwise agreeing to perform, and arranging for
appropriate compensation for, other services relating to the Trust
and/or to the Accounts pursuant to this Agreement.
5.2 The Trust or its designee shall bear the expenses for the cost of
registration and qualification of the Shares under all applicable
federal and state laws, including preparation and filing of the
Trust's registration statement, and payment of filing fees and
registration fees; preparation and filing of the Trust's proxy
materials and reports to Shareholders; setting in type and printing
its prospectus and statement of additional information (to the extent
provided by and as determined in accordance with Article III above);
setting in type and printing the proxy materials and reports to
Shareholders (to the extent provided by and as determined in
accordance with Article III above); the preparation of all statements
and notice required of the Trust by any federal or state law with
respect to its Shares; all taxes on the issuance or transfer of the
Shares; and the costs of attributing the Trust's prospectuses, reports
to Shareholders and proxy material to owners of contracts and
participants funded by the Shares and any expenses permitted to be
paid or assumed by the Trust pursuant to a plan, if any, under Rule
12b-1 under the 1940 Act. The Trust shall not bear any expenses of
marketing the Contracts.
5.3 The Company shall bear the expenses of distributing the Shares'
prospectus or prospectuses in connection with new sales of the
Contracts and of distributing the Trust's Shareholders reports to
Contract owners. The Company shall bear all expenses associated with
the registration, qualification, and filing of the Contracts under
applicable federal securities and state insurance laws ; the cost of
preparing,
printing and distributing the Contract prospectus and statement of
additional information; and the cost of preparing, printing and
distributing annual individual account statements for Contract owners
as required by state insurance laws.
5.4 The Company agrees to provide certain administrative services,
specified in Schedule B attached hereto, in connection with the
arrangements contemplated by this Agreement. The parties intend that
the services referred to in the Section 5.4 be recordkeeping,
shareholder communication, and other transaction facilitation and
processing, and related administrative serves and are not the services
of an underwriter or principal underwriter of the Trust and the
Company is not an underwriter for Shares within the meaning of the
1933 Act.
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1 The Trust and PIM represent and warrant that each Portfolio of the
Trust in which an Account invests will meet the diversification
requirements of Section 817(h)(1) of the Code and Treas. Reg. 1.817-5,
relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts, as they may be amended from
time to time (and any revenue rulings, revenue procedures, notices,
and other published announcements of the Internal Revenue Service
interpreting these sections), as if those requirements applied
directly to each such Portfolio.
6.2 The Trust and PIM represent that each Portfolio will elect to be
qualified as a Regulated Investment Company under Subchapter M of the
Code and that they will maintain such qualifications (under Subchapter
M or any successor or similar provisions).
6.3 No Shares of the Trust will be sold directly to the general public.
ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1 The Trust agrees that the Board, constituted with a majority of
disinterested trustees, will monitor each Portfolio of the Trust for
the existence of any material irreconcilable conflict between the
interests of the variable annuity contract owners and the variable
life insurance policy owners of the Company and/or affiliated
companies ("contract owners") investing in the Trust. A material
irreconcilable 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 interpretive letter, or any similar action by insurance,
tax or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which
the investments of any Portfolio are being managed; (e) a difference
in voting instructions given by variable annuity contract and variable
life insurance contract owners or by contract owners of different
Participating Insurance Companies; or (f) a decision by a
Participating Insurance Company to disregard the voting instructions
of contract owners. The
Board shall have the sole authority to determine if a material
irreconcilable conflict exists, and such determination shall be
binding on the Company only if approved in the form of a resolution by
a majority of the Board, or a majority of the disinterested trustees
of the Board. The Board will give prompt notice of any such
determination to the Company.
7.2 The Company agrees that it will be responsible for assisting the Board
in carrying out its responsibilities under the conditions set forth in
the Trust's exemptive application pursuant to which the SEC has
granted the mixed and Shared Funding Exemptive Order by providing the
Board, as it ay reasonably request, with all information necessary for
the Board to consider any issues raised and agrees that it will be
responsible for promptly reporting any potential or existing conflicts
of which it is aware to the Board including, but not limited to, an
obligation by the Company to inform the Board whenever contract owner
voting instructions are disregarded. The Company also agrees that, if
a material irreconcilable conflict arises, it will at its own cost
remedy such conflict up to an including (a) withdrawing the assets
allocable to some or all of the Accounts from the Trust or any
Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Trust,
or submitting to a vote of all affected contract owners whether to
withdraw assets from the Trust or any Portfolio and reinvesting such
assets in a different investment medium and, as appropriate,
segregating the assets attributable to any appropriate group of
contract owners (e.g., annuity contract owners, life insurance owners
or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to any
of the affected contract owners the option of segregating the assets
attributable to their contracts or policies, and (b) establishing a
new registered management investment company and segregating the
assets underlying the Contracts, unless a majority of Contract owners
materially adversely affected by the conflict have voted to decline
the offer to establish a new registered management investment company.
7.3 A majority of the disinterested trustees of the Board shall determine
whether any proposed action by the Company adequately remedies any
material irreconcilable conflict. In the event that the Board
determines that any proposed action does not adequately remedy any
material irreconcilable conflict, the Company will withdraw from
investment in the Trust each of the Accounts designated by the
disinterested trustees and terminate this Agreement within six (6)
months after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination
shall be limited to the extent required to remedy any such material
irreconcilable conflict as determined by a majority of the
disinterested trustees of the Board.
7.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instruction sand that
decision represents a minority position or would preclude a majority
vote, the Company may be required, at the Trust's election, to
withdraw the Account's investment in the
Trust and terminate his Agreement; 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 Trust's independent trustees. Any such withdrawal and
termination must take place within six (6) months after the Trust
gives written notice that this provision is being implemented, and
until the end of that six-month period PFD and the Trust shall
continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust.
7.5 If material irreconcilable conflict arises because of particular state
insurance regulator's decision applicable to the Company conflicts
with the majority of other state regulators, then the Company will
withdraw the Account's investment in the Trust and terminate this
Agreement within six (6) months after the Trust's Board informs the
Company in writing that it has determined that such decision has
created a material irreconcilable conflict; provided, however, that
such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested members of the Trust's
Board. Until the end of the foregoing six (6) month period, the Trust
and PFD shall continue to accept and implement orders by the Company
for the purchase and redemption of shares of the Trust.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement, a majority
of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any material irreconcilable
conflict, but in no event will the Trust be required to establish a
new funding medium for the Contracts. The Company shall not be
required by Section 7.2 to establish a new funding medium for the
contracts if an offer to do so has been declined by vote of a majority
of the Contract owners affected by the material irreconcilable
conflict. In the event that the Board determines that any proposed
action does not adequately remedy any material irreconcilable
conflict, then the Company will withdraw the Account's investment in
the Trust and terminate this Agreement within six (6) months after the
Board informs the Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable
conflict as determined by a majority of the independent trustees.
7.7 IF and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Mixed and Shared Funding
Exemptive Order, then (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary
to comply with Rule 6e-2 and 6e-3(t), as amended, and Rule 6e-3, as
adopted, to the extent such rules are applicable; and (b) Sections
3.5, 3.6, 7.1, 7.2, 7.3 and 7.7 of this Agreement shall continue in
effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended
or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless the Trust, PIM, PFD,
any affiliates of PIM, and each of their respective directors,
trustees, officers and each person, if any, who controls the Trust or
PIM within the meaning of Section 15 of the 1933 Act, and any agents
or employees of the foregoing (each an "Indemnified Party," or
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 expenses (including reasonable counsel fees) to which any
Indemnified Party may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages,
acquisition of an investment in the Trust shares or the Contracts and:
(a) 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 statement of additional
information for the Contracts or contained in the Contracts or
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 statement therein not
misleading, provided that this Agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reasonable
reliance upon and in conformity with the information furnished to
the Company or its designee by or on behalf of the Trust, PIM or
PFD for use in the registration statement, prospectus or
statement of additional information for the Contracts or in the
Contracts or sales literature or other promotional material (or
any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Shares; or
(b) arise out of or as a result of statements or representations not
supplied by the Company or its designee, or persons under its
control (other than statements or representations contained in
the Trust's registration statement, prospectus, statement of
additional information or in sales literature or other
promotional material of the Trust and on which the Company has
reasonably relied) or wrongful conduct of the Company or persons
under its control, with respect to the sale or distribution of
the Contracts or Shares; or
(c) arise out of any untrue statement or alleged untrue statement of
material fact contained in the registration statement,
prospectus, statement of
additional information, or sales literature or other promotional
literature of the Trust, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information
furnished to the Trust by or on behalf of the Company; or
(d) arise out of or result from any material breach of any
representation and/or warrant made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company; or
(e) arise as a result of any failure by the Company to perform any of
its obligations under this Agreement;
as limited by and in accordance with the provision of this Article VIII.
8.2 INDEMNIFICATION BY PIM AND PFD
PIM and PFD agree to indemnify and hold harmless the Company and
Policy Underwriter and each of their trustees and officers and each
person, if any, who controls the Company or Policy Underwriter within
the meaning of Section 15 of the 1933 Act, and any agents or employees
of the foregoing (each an "Indemnified Party," or collectively, the
"Indemnified Parties" for purposes of this Section 8.2) against any
and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Trust) or expenses
(including reasonable counsel fees) to which any Indemnified party may
become subject under any statute, 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 Shares or the Contracts and:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus, statement of additional
information or sales literature or other promotional material of
the Trust (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 statement therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reasonable
reliance upon and in conformity with information furnished to the
Trust, PIM, PFD or their respective designees by or on behalf of
the Company for use in the registration statement, prospectus or
statement of additional information for the Trust or in sales
literature or other promotional material for the Trust (or any
amendment
or supplement) or otherwise for use in connection with the sale
of the Contracts or Shares; or
(b) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contract's registration statement, prospectus, statement of
additional information or in sales literature or other
promotional material for the Contracts not supplied by the Trust,
PIM, PFD or any of their respective designees or persons under
their respective control and on which any such entity has
reasonably relied) or wrongful conduct of the Trust, PIM, PFD or
persons under their control, with respect to the sale or
distribution of the Contracts or Shares; or
(c) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the registration statement,
prospectus, statement of additional information, or sales
literature or other promotional literature of the Accounts or
relating to the Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Trust, PIM or
PFD; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this
Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification
requirements specified in Article VI of this Agreement) or arise
out of or result from any other material breach of this Agreement
by the Trust; or
(e) arise out of or result from the materially incorrect or untimely
calculation or reporting of the daily net asset value per share
or dividend or capital gain distribution rate; or
(f) arise as a result of any failure by PIM or PFD to perform any of
their respective obligations under this Agreement;
as limited by and in accordance with the provisions of this Article VIII.
8.3 In no event shall the Trust, PIM or PFD be liable under the
indemnification provisions contained in this Agreement to any
individual or entity, including without limitation, the Company, or
any Participating Insurance Company or any Contract owner, with
respect to any losses, claims, damages, liabilities or expenses that
arise out of or result from (i) a breach of any representation,
warranty, and/or covenant made by the Company hereunder or by any
Participating Insurance Company under an agreement containing
substantially
similar representations, warranties and covenants; (ii) the failure by
the Company or any participating Insurance Company to maintain its
segregated asset account (which invests in any Portfolio as a legally
and validly established segregated asset account under applicable
state law and as a duly registered unit investment trust under the
provisions of the 1940 Act (unless exempt therefrom); or (iii) the
failure by the Company or any Participating Insurance Company to
maintain its variable annuity and/or variable life insurance contracts
(with respect to which any Portfolio serves as an underlying funding
vehicle) as life insurance, endowment or annuity contracts under
applicable provisions of the Code.
8.4 Neither the Company, the Trust, PIM nor PFD shall be liable under the
indemnification provisions contained in this Agreement with respect to
any losses, claims, damages, liabilities or expenses to which an
Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, willful misconduct, 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.
8.5 Promptly after receipt by an Indemnified Party under this Section 8.5
of notice of commencement of any action, such Indemnified Party will,
if a claim in respect thereof is to be made against the indemnifying
party under this section, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
Indemnified Party otherwise than under this section. In case any such
action is brought against any Indemnified Party, and it notified the
indemnifying party to the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, assume the defense thereof, with counsel satisfactory to such
Indemnified Party. After notice form the indemnifying party of its
intention to assume the defense of an action, the Indemnified Party
shall bear the expenses of any additional counsel obtained by it, and
the indemnifying party shall not be liable to such Indemnified Party
under this section for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation.
8.6 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 provision contained in this Article VIII shall
survive any termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth
of Massachusetts.
9.2 This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations
as the SEC may grant (including, but not limited to, the Mixed and
Shared Funding Exemptive Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS OR LITIGATION
The Trust, PIM, PFD and the Company agree that each such party shall
promptly notify the other parties to this Agreement, in writing, of the
institution of any formal proceedings brought against such party or its
designees by the NASD, the SEC, or any insurance department or any other
regulatory body regarding such party's duties under this Agreement or
related to the sale of the Contracts, the operation of the Accounts, or the
purchase of the Shares. Each of the parties further agrees promptly to
notify the other parties of the commencement of any litigation or
proceeding against it or any of its respective officers, directors,
trustees, employees or 1933 Act control persons in connection with this
Agreement, the issuance or sale of the Contracts, the operation of the
Accounts, or the sale or acquisition of Shares. The indemnification
provision contained in this Article X shall survive any termination of this
Agreement.
ARTICLE XI. TERMINATION
11.1 This Agreement shall terminate with respect to the Accounts, or one,
some, or all Portfolios:
(a) at the option of any party upon six (6) month's advance written
notice delivered to the other parties; provided, however, that
such notice shall not be given earlier than six (6) months
following the date of this Agreement; or
(b) at the option of the Company to the extent that the Shares or
Portfolios are not reasonably available to meet the requirements
of the Contracts or are not "appropriate funding vehicles" for
the Contracts, as a reasonably determined by the Company. Without
limiting the generality of the foregoing, the Shares of a
Portfolio would not be "appropriate funding vehicles" if, for
example, such Shares did not meet the diversification or other
requirements referred to in Article VI hereof; or if the Company
would be permitted to disregard Contract owner voting
instructions pursuant to Rule 6e-2 or 6e-3(T) under the 1940 Act.
Prompt notice of the election to terminate for such cause and an
explanation of such cause shall be furnished to the Trust by the
Company; or
(c) at the option of the Trust, PIM or PFD upon institution of formal
proceedings against the Company by the NADSD, the SEC, or any
insurance department or any other regulatory body regarding the
Company's duties under this Agreement or related to the sale of
the Contracts, the operation of the Accounts, or the purchase of
the Shares; provided that the party terminating
this Agreement under this provision shall give notice of such
termination to the other parties to this Agreement; or
(d) at the option of the Company upon institution of formal
proceedings against the Trust by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body
regarding the duties of the Trust, PIM or PFD under this
Agreement or related to the sale of the Shares; provided that the
party terminating this Agreement under this provision shall give
notice of such termination to the other parties to this
Agreement; or
(e) at the option of the Company, the Trust, PIM or PFD upon receipt
of any necessary regulatory approvals and/or the vote of the
Contract owners having an interest in the Accounts (or any
subaccounts) to substitute the shares of another investment
company for the corresponding Portfolio Shares in accordance with
the terms of the Contracts for which those Portfolio Shares had
been selected to serve as the underlying investment media. The
Company will give thirty (3) days' prior written notice to the
Trust of the Date of any proposed vote or other action taken to
replace the Shares; or
(f) at the option of the Trust, PIM or PFD by written notice to the
Company, if any one or all of the Trust, PIM or PFD respectively,
shall determine, in their sole judgment exercised in good faith,
that the Company has suffered a material adverse change in its
business, operations, financial conditions, or prospects since
the date of this Agreement or is the subject of material adverse
publicity; or
(g) at the option of the Company by written notice to the Trust, PIM
or PFD, if the Company shall determine, in its sole judgment
exercised in good faith, that the Trust, PIM or PFD has suffered
a material adverse change in this business, operations, financial
condition or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(h) at the option of any party to his Agreement, upon another
unaffiliated party's material breach of any provision of or
representation contained in this Agreement; or
(i) at the option of the Trust, PIM, PFD or Company, upon a party's
material breach of any provision of or representation contained
in this Agreement.
11.2 The notice shall specify the Portfolio or Portfolios, Contracts and,
if applicable, the Accounts as to which the Agreement is to be
terminated.
11.3 It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 11.1(a) may be exercised
for a cause or for no cause.
11.4 Except as necessary to implement Contract owner initiated
transactions, or as required by state insurance laws or regulations,
the Company shall not redeem the Shares attributable to the Contracts
(as opposed to the Shares attributable to the Company's assets held in
the Accounts) , and the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under
the Contracts, until thirty (3) days after the Company shall have
notified the Trust of its intention to do so.
11.5 Notwithstanding any termination of this Agreement, the Trust and PFD
shall, at the option of the Company, continue for a period not
exceeding six (6) months to make available additional shares of the
Portfolios pursuant to the terms and conditions of this Agreement, for
all Contracts in effect on the effective date of termination of this
Agreement (the "existing Contracts"), except as otherwise provided
under Article VII of this Agreement; provided, however, that in the
event of a termination pursuant to Section 11.1 (c), (f), or (h), the
Trust, PIM and PFD shall at their option have the right to terminate
immediately all sales of Shares to the Company. Specifically, without
limitation, the owners of the Existing Contracts shall be permitted to
transfer or reallocate investment under the Contracts, redeem
investments in any Portfolio and/or invest in the Trust upon the
making of additional purchase payments under the Existing Contracts.
11.6 Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify the other parties shall
survive and not be affected by any termination of this Agreement. In
addition, with respect to Existing Contracts, all provisions of this
Agreement shall also survive and not be affected by any termination of
this Agreement.
ARTICLE XII. NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail, overnight courier or facsimile to the other party at the address of such
party set forth below or at such other address as such party may from time to
time specify in writing to the other party.
If to the Trust:
PIONEER VARIABLE CONTRACTS TRUST
▇/▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
If to the Company:
THE TRAVELERS LIFE AND ANNUITY COMPANY
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Deputy General Counsel
If to PIM:
PIONEER INVESTMENT MANAGEMENT, INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Counsel
If to PFD:
PIONEER FUNDS DISTRIBUTOR, INC.
▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
ARTICLE XIII. MISCELLANEOUS
13.1 Subject to the requirement of legal process and regulatory authority,
each party hereto shall treat as confidential all information
reasonably identified as confidential in writing by any party hereto
and, except as permitted by this Agreement or as otherwise required by
applicable law or regulation, shall not disclose, disseminate or
utilize such other confidential information without the express
written consent of the affected party until such time as it may come
into the public domain. Notwithstanding anything to the contrary in
this Agreement, in addition to and not in lieu of other provisions in
this Agreement:
(a) "Confidential Information" includes without limitation all
information regarding the customers of the Company, the Trust,
PIM, PFD or any of their subsidiaries, affiliates or licensees;
or the accounts, account numbers, names, addresses, social
security numbers or any other personal identifier of such
customers; or any information derived therefrom.
(b) Neither the Company, the Trust, PIM or PFD may disclose
Confidential Information for any purpose other than to carry out
the purpose for which Confidential Information was provided to
the Company, the Trust, PIM or PFD as set forth in this
Agreement; and the Company, the Trust, PIM and PFD agree to cause
their employees, agents and representatives, or any other party
to whom the Company, the Trust, PIM or PFD may provide access to
or disclose Confidential Information to limit the use and
disclosure of Confidential Information to that purpose.
(c) The Company, the Trust, PIM and PFD agree to implement
appropriate measures designed to ensure the security and
confidentiality of Confidential Information, to protect such
information against any anticipated threats or hazards to the
security and integrity of such
information, and to protect against unauthorized access to, or
use of, confidential Information that could result in substantial
harm or inconvenience to any of the customers of the Company or
any of its subsidiaries, affiliates or licenses; the Company, the
Trust, PIM and PFD further agree to cause all their respective
agents, representatives or subcontractors, or any other party to
whom they provide access to or disclose Confidential Information,
to implement appropriate measures to meet the objectives set
forth in this Section 13.1
13.2 The captions in this Agreement are included for convenience of
reference only and in no away define or delineate any of the
provisions hereof or otherwise affect their construction or
effect.
13.3 This Agreement may be executed simultaneously in one or more
counterparts, each of which taken together shall constitute one
and the same instrument.
13.4 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.
13.5 The Schedule attached hereto, as modified from time to time, is
incorporated herein by reference and is part of this Agreement.
13.6 Each party hereto shall cooperate with each other party in
connection with inquiries by appropriate governmental authorities
(including without limitation the SEC, the NASD, and state
insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
13.7 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.
13.8 A copy of the Trust's Certificate of Trust is on file with the
Secretary of State of Delaware. The Company acknowledges that the
obligations of or arising out of this instrument are not binding
upon any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets
and property of the Trust in accordance with its proportionate
interest hereunder. The Company further acknowledges that the
assts and liabilities of each Portfolio are separate and distinct
and that the obligations of or arising out of this instrument are
binding solely upon the assets or property of the Portfolio on
whose behalf the Trust has executed this instrument. The Company
also agrees that the obligations of each portfolio hereunder
shall be several and not joint, in accordance with its
proportionate interest hereunder, and the company agrees not to
proceed against any Portfolio for the obligations of another
Portfolio.
13.9 Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in
a forum jointly selected by the relevant parties (but if
applicable law requires some other forum, then, such other
forum) in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, and judgment upon the
award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
13.10 This Agreement of any of the rights and obligations hereunder
may not be assigned by any party without the prior written
consent of all parties hereto.
13.11 The Trust, PIM and PFD agree that the obligations assumed by the
Company shall be limited in any case to the Company and its
assets and neither the Trust, PIM nor PFD shall seek
satisfaction of any such obligation from the shareholders of the
Company, the directors, officers, employees or agents of the
Company, or any of them.
13.12 No provisions of the Agreement may be deemed or construed to
modify or supersede any contractual rights, duties, or
indemnifications, as between PIM and the Trust and PFD and the
Trust.
13.13 This Agreement, including any Schedules hereto, may be amended
only by a written instrument executed by each party hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified above.
THE TRAVELERS LIFE AND THE TRAVELERS INSURANCE COMPANY
ANNUITY COMPANY
By its authorized officer, By its authorized officer,
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
Date: Date:
PIONEER VARIABLE CONTRACTS TRUST,
ON BEHALF OF THE PORTFOLIOS
By Its authorized officer and not
individually,
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary
Date:
PIONEER INVESTMENT MANAGEMENT, INC.
By its authorized officer,
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive
Officer
Date:
PIONEER FUNDS DISTRIBUTOR, INC.
By its authorized officer,
By:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
Date:
SCHEDULE A
ACCOUNTS, CONTRACTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
As of January 2, 2002
Name of Separate Portfolios and
Account and Date Contracts Funded Class of shares
Established by Board of Directors By Separate Account Available to Contracts
---------------------------------- ------------------- --------------------------
Travelers Separate Account PFII Variable Annuity Pioneer Fund VCT Portfolio
for Variable Annuities established (Class II)
on
Pioneer Mid Cap Value VCT
Portfolio (Class II)
SCHEDULE B
FEES TO THE COMPANY
1. Administrative Services
Administrative services to Contract owners and participants shall be the
responsibility of the Company and shall not be the responsibility of the Trust
or PFD. The Company will provide properly registered and licensed personnel and
any systems needed for all Contract owners servicing and support for both fund
and annuity and life insurance information and questions, including:
- Communicate all purchase, withdrawal, and exchange orders it receives
from its customers to PFD;
- Respond to Contract owner and participant inquiries;
- Delivery of both Trust and Contract prospectuses as required under
applicable law;
- Entry of initial and subsequent orders;
- Transfer of cash to Portfolios;
- Explanations of Portfolio objectives and characteristics;
- Entry of transfer between Portfolios;
- Portfolio balance and allocation inquiries; and
- Mail Trust proxies.
2. Administrative Service Fees
For the administrative services set forth above, PIM or any of its
affiliates shall pay a servicing fee based on the annual rate of 0.25% of the
average aggregate net daily assets invested in the Class I Shares of the
Portfolios and 0.25% of the average aggregate net daily assets invested in the
Class II Shares of the Portfolios through the Accounts at the end of each
calendar quarter. Such payments will be made to the Company within thirty (3)
days after the end of each calendar quarter. Such fees shall be paid quarterly
in arrears. Each payment will be accompanied by a statement showing the
calculation of the fee payable to the Company for the quarter and such other
supporting data as may be reasonably requested by the Company. The Company will
calculate the asset balance on each day on which the fee is to be paid pursuant
to this Agreement with respect to each Portfolio for the purpose of reconciling
its calculation of average aggregate net daily assets with PIM's calculation.
Annually (as of December 31) or upon reasonable request of PIM, Company will
provide PIM a statement showing the number of subaccounts in each Class of
Shares of each Portfolio as of the most recent calendar quarter end.
3. 12b-1 Distribution Related Fees (Class II Shares Only)
In accordance wit the Portfolio's plans pursuant to Rule 12b-1 under the
Investment company Act of 1940, PFD will make payments to the Company at an
annual rate of 0.25% of the average daily net assets invested in the Class II
shares of the Portfolios through the Accounts in each calendar quarter. PFD will
make such payments to the Company within thirty (30) days after the end of each
calendar quarter. Each payment will be accompanied by a statement
showing the calculation of the fee payable to the Company for the quarter and
such other supporting data as may be reasonably requested by the Company. The
Rule 12b-1 distribution related fees will be paid to the Company for as long as
the Accounts own any Shares of a Portfolio and (i) distribution related services
are being provided pursuant to this Agreement and (ii) a Rule 12b-1 plan is in
effect with respect to such Portfolio.
