EXHIBIT 26(h)(11)
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
AMONG
PESF, PLIC, PHL VARIABLE AND PLAC
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
BY AND AMONG
THE PHOENIX EDGE SERIES FUND
AND
PHOENIX LIFE INSURANCE COMPANY
AND
PHL VARIABLE INSURANCE COMPANY
AND
PHOENIX LIFE AND ANNUITY COMPANY
DATED: JANUARY 1, 2007
TABLE OF CONTENTS
DESCRIPTION PAGE
RECITALS 1
ARTICLE I. Purchase and Sale of Fund Shares 2
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ARTICLE II. Representations and Warranties 5
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ARTICLE III. Prospectuses and Proxy Statements; Voting 7
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ARTICLE IV. Sales Material and Information 8
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ARTICLE V. Fees and Expenses 8
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ARTICLE VI. Diversification 9
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ARTICLE VII. Potential Conflicts 9
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ARTICLE VIII. Indemnification 11
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ARTICLE IX. Applicable Law 14
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ARTICLE X. Termination 14
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ARTICLE XI. Notices 15
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ARTICLE XII. Miscellaneous 15
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Schedule A Separate Accounts and Associated Variable Insurance
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Products 18
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AMENDED AND RESTATED
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of January,
2007 by and between Phoenix Life Insurance Company, a New York insurance company
(hereinafter, the "Company"), PHL Variable Insurance Company ("PHLVIC") and
Phoenix Life and Annuity Company ("PLAC"), on its and their own behalf and on
behalf of each segregated asset account set forth on Schedule A attached hereto
(each such account of the Company, PHLVIC and PLAC shall hereinafter be
collectively referred to as the "Accounts"); and The Phoenix Edge Series Fund, a
Massachusetts business trust (hereinafter, the "Fund").
RECITALS
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WHEREAS, the Fund is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (hereinafter the
"1940 Act") whose shares are registered under the Securities Act of 1933, as
amended (hereinafter the "1933 Act") and serves as the investment vehicle for
separate accounts established for variable life insurance policies and variable
annuity contracts (collectively, the "Variable Insurance Products") that have
historically been, and shall continue to be, offered by the Company, PHLVIC and
PLAC (which entities shall hereinafter be collectively referred to as the
"Phoenix Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares of beneficial interest, each representing the interest in a
particular managed portfolio of securities and other assets, any one or more of
which may be made available under this Agreement, as may be amended from time to
time by mutual agreement of the parties hereto (each such series hereinafter
referred to as a "Portfolio");
WHEREAS, each of the Portfolios are managed by Phoenix Investment
Counsel, Inc., Phoenix Variable Advisors, Inc. or Duff & Xxxxxx Investment
Management Co. (collectively, the "Adviser") who are each duly registered as
investment advisers under the federal Investment Advisers Act of 1940 and any
applicable state securities laws;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission, dated August 20, 2002 (Investment Company Act of 1940
Release No. 25703) (hereinafter, the "Shared Funding Exemptive Order") granting
participating insurance companies and variable annuity and variable life
insurance separate accounts exemptions from the provisions of sections 9(a),
13(a), 15(a), and 15(b) of the 1940 Act, and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund
to be sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated life insurance companies,
including, but not limited to the Accounts;
WHEREAS, the Variable Insurance Products identified on Schedule A
hereto (hereinafter, the "Contracts") have been, or will continue to be,
registered by the Phoenix Insurance Companies under the 1933 Act, unless such
Contracts are exempt from registration thereunder;
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Boards of Directors of the
Phoenix Insurance Companies, on the date shown for such Account on Schedule A
hereto, to set aside and invest assets attributable to the aforesaid Contracts;
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WHEREAS, the Company is the servicing agent for the Variable Insurance
Products;
WHEREAS, the owners of Contracts are the indirect beneficial owners of
the assets of the Accounts by virtue of their ownership of such contracts (or
"Variable Insurance Products") offered by the Phoenix Insurance Companies and
distributed through Phoenix Equity Planning Corporation, a registered
broker-dealer under the Securities Exchange Act of 1934, as amended (hereinafter
the "1934 Act") and a member in good standing of the National Association of
Securities Dealers (hereinafter, the "NASD"); who serves as principal
underwriter for the Contracts;
WHEREAS, the Company has registered, or will register, each Account as
a unit investment trust under the 1940 Act, unless such Account is exempt from
registration thereunder;
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Phoenix Insurance Companies intend to memorialize their
continuing arrangements to purchase shares in the Portfolios on behalf of each
Account to fund certain of the aforesaid Contracts; and,
WHEREAS, the parties mutually desire to set forth their mutual
agreements and understandings with respect to their respective duties and
obligations hereunder.
AGREEMENT
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NOW, THEREFORE, in consideration of their mutual promises herein
contained and other good and valuable consideration, the parties agree as
follows:
ARTICLE I. Purchase and Sale of Fund Shares
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1.1. The Fund agrees to sell those shares of each Portfolio which
each Account orders, executing such orders on a daily basis at the Net Asset
Value (as hereafter defined) next computed after receipt by the Fund, or its
designee (hereinafter, the "Processing Agent"), of the order for the shares of
such Portfolio. For purposes of this Section 1.1, the Variable Products
Operations Unit of the Company located in Albany, New York shall be the
Processing Agent for receipt of such orders from each Account and receipt by the
Processing Agent shall constitute receipt by the Fund thereof. No orders for the
purchase and redemption of Fund shares, whether or not in good order (as such
term is defined in Registration Statements (as hereafter defined)), on behalf of
the Accounts will be accepted by the Processing Agent, or its duly appointed
designees, after 4:00 p.m. Eastern time. Stated otherwise, only orders accepted
by the Processing Agent, or its duly appointed designees, before 4:00 p.m.
Eastern Time will be priced using the net asset value (hereinafter, the "NAV")
next computed for that Business Day. The Processing Agent shall provide notice
of such orders by 8:30 p.m. Eastern time on the next following Business Day (as
hereafter defined). The Fund, acting by and through its designated agents and/or
committee(s), shall provide the Processing Agent with the NAV for each
Portfolio. The Fund shall make the NAV per share for each Portfolio available to
the Processing Agent on each Business Day (as hereafter defined) as soon as
reasonably practical after the net asset value per share is ca1culated (normally
by 6:30 p.m. Eastern time) and shall use its best efforts to make such NAV per
share available by 7 p.m. Eastern time. The Company shall then calculate
multiple accumulation unit values ("AUVs") based on each Portfolio's NAV.
Purchase and redemption orders in each Portfolio will be aggregated to arrive at
the net amount of Account units to be either issued or redeemed and
corresponding Portfolio shares to be purchased or sold. Not later than 9:00 a.m.
Eastern time on the next following Business Day
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after receipt of each order, the Processing Agent shall aggregate all purchases
and redemptions into and from each Portfolio, transmit a net purchase or
redemption order to the Fund and (a) in the event that the net sum is a positive
number, wire immediately available funds equal to the net amount of purchases of
such Portfolio to the custodian designated in the Registration Statement or (b)
if the net sum is a negative number, request that the appropriate custodian wire
the appropriate amount of proceeds to the Company. The Processing Agent may
engage the services of such sub-agents from time-to-time, as it may deem
reasonable and appropriate. The Processing Agent shall, on behalf of itself and
any and all such sub-agents, certify in such form as the Fund (or its duly
authorized officers) shall reasonably request as to compliance with the
processing and trading procedures described in this Section 1.1. For the
purposes hereof, a "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its net asset
value pursuant to the rules of the Securities and Exchange Commission
(hereinafter, the "SEC"), as amended from time to time, subject to such terms
and conditions as may be set forth in the registration statement for the Fund as
filed with the SEC, as the same shall be amended from time to time (hereinafter,
the "Registration Statement"). If the Fund provides the Company with materially
incorrect net asset value per share information through no fault of the Company,
the Company, on behalf of the Accounts, shall be entitled to an adjustment to
the number of shares purchased or redeemed to reflect the correct net asset
value per share in accordance with the net asset value correction procedures set
forth by the Board of Trustees of the Fund (hereinafter, the "Fund Board") and
in conformity with SEC interpretations as now in effect or as may be amended.
Any material error in the calculation of net asset value per share, dividend or
capital gain information shall be reported promptly upon discovery to the
Company.
1.2. The Fund agrees to indefinitely make its shares available for
purchase at the applicable net asset value per share by the Phoenix Insurance
Companies and the Accounts on those days on which the Fund calculates its NAV
pursuant to Section 1.1. Shares of the Fund will be sold only to the Phoenix
Insurance Companies and their Accounts. No shares of any Portfolio will be sold
to the general public. Notwithstanding the foregoing, the Fund Board may refuse
to sell shares of any Portfolio to any person, or suspend or terminate the
offering of shares of any Portfolio, if such action is required by law or by
regulatory authorities having jurisdiction with respect to the Fund, or is, in
the reasonable discretion of the Fund Board acting in good faith and in light of
their fiduciary duties under federal and any applicable state laws, necessary in
order to protect the best interests of the Contract owners investing in such
Portfolio. The Phoenix Insurance Companies, in consultation with the Fund, shall
establish and maintain policies and procedures designed to detect, monitor and
deter (including, without limitation, rejecting specific purchase orders)
Contract owners (or their agents) whose purchase and redemption activity follows
a market timing pattern, and to take such other actions as it deems necessary to
discourage or reduce market timing activity. The Phoenix Insurance Companies
shall not modify such policies and procedures, except on providing reasonable
notice to the Fund. For the purposes hereof, "market timing activity" shall mean
and refer to any discernable pattern of excessive trading in and out of a
Portfolio by one or more Contract owners (or their agents), including, without
limitation, any purchase and sale (round trip) in and out of a single Portfolio
within any thirty day period. The Phoenix Insurance Companies shall provide
reasonable reports regarding its implementation and enforcement of such
restrictions on purchase and redemption activity that follows a market-timing
pattern upon request. The Phoenix Insurance Companies each agree that purchases
and redemptions of Portfolio shares offered by the then current prospectus of
the Fund shall be made in accordance with the provisions of such prospectus.
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1.3. In addition to the Phoenix Insurance Companies'
responsibilities under Section 1.2, they agree to provide the Fund, upon written
request, the taxpayer identification number ("TIN"), the
Individual/International Taxpayer Identification Number ("ITIN"), or other
government-issued identifier ("GII"), if known, of any or all owner(s) of the
Contract and the amount, date, name or other identifier of any investment
professional(s) associated with the owner(s) or Contract (if known), and
transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Fund shares held through an
account maintained by the Phoenix Insurance Companies during the period covered
by the request.
(a) Requests must set forth a specific period, not to
exceed ninety days from the date of the request, for which transaction
information is sought. The Fund may request transaction information
older than ninety days from the date of the request as it deems
necessary to investigate compliance with policies and procedures
established by the Fund for the purpose of discouraging or reducing
market timing of the outstanding shares issued by the Fund.
(b) The Phoenix Insurance Companies agrees to provide
within thirty days upon request of the Fund or its designee, the
requested information. If requested by the Fund or its designee, the
Company agrees to use best efforts to determine promptly whether any
specific person about whom it has received the identification and
transaction information is itself a financial intermediary ("indirect
intermediary") and, upon further request of the Fund or its designee,
within thirty days provide (or arrange to have provided) the
information for those owners who hold an account with an indirect
intermediary.
(c) The Fund agrees not to use the information received
for marketing or any other similar purpose without the prior written
consent of the Phoenix Insurance Companies.
(d) The Phoenix Insurance Companies agree to execute
written instructions from the Fund to restrict or prohibit further
purchases or exchanges of Fund shares by an owner who has been
identified by the Fund as having engaged in transactions of the Fund's
Shares (directly or indirectly through the Contract) that violate
policies and procedures established or utilized by the Fund for the
purpose of discouraging or reducing market timing of the outstanding
Shares issued by the Fund.
(e) The Phoenix Insurance Companies agrees to execute
instructions from the Fund to restrict or prohibit trading as soon as
reasonably practicable, but not later than five business days after
receipt of the instructions by the Company.
(f) The Phoenix Insurance Companies must provide written
confirmation to the Fund that instructions from the Fund to restrict or
prohibit trading have been executed. The Phoenix Insurance Companies
agrees to provide confirmation as soon as reasonably practicable, but
not later than ten business days after the instructions have been
executed.
1.4. Issuance and transfer of the Fund's shares will be by book
entry only. Stock certificates will not be issued to the Phoenix Insurance
Companies or any Account.
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1.5. Shares ordered from the Fund will be recorded in an
appropriate title for each Account or the appropriate subaccount of each
Account. The Phoenix Insurance Companies undertakes and agrees to comply with
all laws, regulations, protocols and other Federal, state or foreign
requirements relating to money laundering that are applicable to the Phoenix
Insurance Companies and/or the Accounts, including, without limitation,
applicable sections of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT)
Act of 2001 (the "USA Patriot Act"), the International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001 (Title III of the USA Patriot
Act) and any and all rules and regulations promulgated thereunder, as well as
official interpretations of any of the foregoing, that are applicable to life
insurance companies and/or separate accounts (policies and procedures adopted by
the Board of Directors of the Phoenix Insurance Companies and/or such other
policies, howsoever memorialized, as may be implemented from time to time by the
Phoenix Insurance Companies in connection therewith, shall be collectively
referred to as the "AML Procedures"). The Fund and the Phoenix Insurance
Companies agree that, if required or permitted by law, rule or regulation, each
would share information with the other party regarding individuals, entities,
organizations, and countries suspected of possible terrorist or money laundering
activities in accordance with Section 314(b) of the USA PATRIOT ACT. The Phoenix
Insurance Companies agrees to provide the Fund, its internal or external
auditors, regulatory authorities, or the duly appointed agents of any of the
foregoing (collectively, the "Interested Parties"), any and all necessary
reports and information requested by the Fund or any of the Interested Parties,
as the case may be, with respect to the Phoenix Insurance Companies performance
of its obligations under the AML Procedures.
1.6. The Fund shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Phoenix Insurance Companies of any
trading activity, including any income, dividends or capital gain distributions
payable on the Fund's shares. The Phoenix Insurance Companies hereby elect to
receive all such income dividends and capital gain distributions as are payable
on the Portfolio shares in additional shares of that Portfolio. The Phoenix
Insurance Companies reserve the right to revoke this election and to receive all
such income dividends and capital gain distributions in cash. The Fund shall
notify the Phoenix Insurance Companies of the number of shares so issued as
payment of such dividends and distributions.
1.7. If the Fund provides the Phoenix Insurance Companies with
materially incorrect NAV per share information through no fault of the Phoenix
Insurance Companies, the Phoenix Insurance Companies on behalf of the Accounts
shall be entitled to an adjustment to the number of shares purchased or redeemed
to reflect the correct NAV per share in accordance with the NAV correction
procedures set forth by the Fund Board and in conformity with SEC
interpretations as now in effect or as may be amended from time to time. Any
material error in the calculation of NAV per share, dividend or capital gain
information shall be reported by the Fund promptly upon discovery to the Phoenix
Insurance Companies.
ARTICLE II. Representations and Warranties
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2.1. The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act or are exempt from registration
thereunder; and that the Contracts will be issued and sold in compliance in all
material respects with all applicable Federal and State laws. The Company
further represents and warrants that it is an insurance company duly organized
and in good standing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale
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thereof as a segregated asset account under applicable law and that each Account
is either registered or exempt from registration as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts.
2.2. The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with all applicable federal and
state securities laws and that the Fund is and shall remain registered under the
0000 Xxx. The Fund shall amend the Registration Statement for its shares under
the 1933 Act and the 1940 Act from time to time as required in order to effect
the continuous offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and to
the extent deemed advisable by the Fund.
2.3. The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Internal Revenue Code of
1986, as amended, (the "Code") and that it will make every effort to maintain
such qualification (under Subchapter M or any successor or similar provision)
and that it will notify the Company immediately upon having a reasonable basis
for believing that it has ceased to so qualify or that it might not so qualify
in the future.
2.4. The Phoenix Insurance Companies each represent that the
Contracts are currently treated as endowment, life insurance or annuity
insurance contracts, under applicable provisions of the Code and that each will
make every effort to maintain such treatment and that each will notify the Fund
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.
2.5. The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act, except
as to the S&P Dynamic Asset Allocation Series.
2.6. The Fund makes no representation as to whether any aspect of
its operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states.
2.7. The Fund represents that it is lawfully organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it does
and will comply in all material respects with the 1940 Act.
2.8. The Fund represents and warrants that all of its directors,
officers, investment advisers, and other individuals/entities dealing with money
and/or securities of the Fund are and sha1l continue to be at all times covered
by a blanket fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than the minimal coverage as required currently by Rule 17g-1 of
the 1940 Act or related provisions as may be promulgated from time to time. The
aforesaid Bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
2.9. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Fund are covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund, and that said bond is
issued by a reputable bonding company, includes coverage for larceny and
embezzlement. The
6
Company agrees to make all reasonable efforts to see that this bond or another
bond containing these provisions is always in effect, and agrees to notify the
Fund in the event that such coverage no longer applies.
2.10. Each of the parties represents and warrants to the other that
it has, or shall to the extent required by applicable law, adopt, implement and
maintain effective "disclosure controls and procedures" and "internal controls"
(as such phrases are defined pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated thereunder (hereinafter collectively the "S-Ox
Act")) and will cooperate with one another in exchanging copies of such policies
and procedures and facilitating the filing by either party and/or their
respective officers and auditors of any and all certifications or attestations
as required by the S-Ox Act, including, without limitation, furnishing such
sub-certifications from relevant officers of each party as such party shall
reasonably request from time to time.
2.11. Each party represents and warrants that it shall promptly
notify the other in the event that either party becomes actually aware of any
material failure by such party to comply with the S-Ox Act with regard to
disclosure controls and procedures, internal controls or if a "material
compliance matter" (as such term is defined pursuant to Rule 38a-1 under the
0000 Xxx) arises with respect the services provided hereunder.
2.12. Upon request, the Company agrees to provide its written
policies and procedures pursuant to Rule 38a-1 under the 1940 Act to the Fund's
chief compliance officer for review and the Fund Board's approval. The Company
further agrees to cooperate with the Fund in its review of such written policies
and procedures, including without limitation furnishing such certifications and
sub-certifications as the Fund shall reasonably request from time to time.
2.13. Each party represents and warrants that it will keep
confidential any information acquired as a result of this Agreement regarding
the business and affairs of the other parties to this Agreement and their
affiliates. The Fund shall not, directly or indirectly, disclose or use any
nonpublic personal information regarding the consumers or customers of the
Phoenix Insurance Companies (as the terms "consumer" and "customer" are defined
in Rule 3(g) and 3(i), respectively, of Regulation S-P of the SEC), other than
to carry out the functions contemplated by this Agreement, and the Fund shall
establish appropriate administrative, technical and physical safeguards to
protect the security, confidentiality and integrity of any such nonpublic
personal information. The foregoing notwithstanding, the following shall not be
considered confidential information (except in the case of any nonpublic
personal information, as defined under Regulation S-P): information that is, or
becomes, generally available to the general public from: (a) federal, State or
local governmental records, (b) widely distributed media, or (c) disclosures to
the general public that are required to be made by federal, State or local law.
ARTICLE III. Prospectuses and Proxy Statements; Voting
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3.1. At least annually, the Fund or its designee shall provide the
Phoenix Insurance Companies, free of charge, with as many copies of the current
prospectus, Statements of Additional Information, and any and all supplements
thereto, for the Fund shares of the Fund as the Phoenix Insurance Companies may
reasonably request for distribution to existing variable Contract owners whose
Contracts are funded by the Fund shares. The Fund or its designee shall provide
the Phoenix Insurance Companies, at the Phoenix Insurance Companies expense,
with as many more copies of the current
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prospectuses, Statements of Additional Information, and any and all supplements
thereto, for the Fund shares as the Company may reasonably request for
distribution to prospective purchasers of the Variable Insurance Products.
3.2. The Fund, at its expense, shall provide the Phoenix Insurance
Companies with copies of its proxy statements, reports to shareholders, and
other communications (except for prospectuses and Statements of Additional
Information, which are covered in Section 3.1) to Contract owners in such
quantity as the Phoenix Insurance Companies shall reasonably require for
distributing to Contract owners.
3.3. If, and to the extent required by law, the Phoenix Insurance
Companies shall vote the Fund shares in accordance with pass-through voting
privileges for variable Contract owners as more particularly described in
Contract registration statements. The Phoenix Insurance Companies reserve the
right to vote Fund shares held in any segregated asset account in its own right,
to the extent permitted by law. The Fund will comply with all applicable
provisions of the 1940 Act regarding voting by shareholders.
ARTICLE IV. Sales Material and Information
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4.1. The Phoenix Insurance Companies shall not give any information
or make any representations or statements on behalf of the Fund or concerning
the Fund in connection with the sale of the Contracts other than the information
or representations contained in the Registration Statement or prospectus for the
Fund shares, as such Registration Statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Company.
4.2. The Fund will provide to the Phoenix Insurance Companies at
least one complete copy of all registration statements, prospectuses, Statements
of Additional Information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate to the Fund or its
shares, contemporaneously with the filing of such document with the SEC or other
regulatory authorities. For purposes hereof, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodicals, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
Statements of Additional Information, shareholder reports, and proxy materials.
ARTICLE V. Fees and Expenses
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5.1. The Fund shall pay no fee or other compensation to the Company
under this Agreement, except that if the Fund or any Portfolio adopts and
implements a plan pursuant to Rule 12b-l to finance distribution expenses, then
any underwriter engaged by the Fund may make payments to the Company or to the
underwriter for the Contracts if and in amounts agreed to by such underwriter in
writing and such
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payments will be made out of existing fees otherwise payable to the underwriter,
past profits of the underwriter or other resources available to the underwriter.
No such payments shall be made directly by the Fund.
5.2. All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Fund, in
accordance with applicable state laws prior to their sale. The Fund shall bear
the expenses for the cost of registration and qualification of the Fund's
shares, preparation and filing of the Fund's prospectus and registration
statement, proxy materials and reports, setting the prospectus in type, setting
in type and printing the proxy materials and reports to shareholders (including
the costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices required by any federal or state law,
and all taxes on the issuance or transfer of the Fund's shares.
5.3. The Phoenix Insurance Companies shall each bear the expenses
of distributing the Fund's prospectus and reports to owners of Contracts issued
by the Phoenix Insurance Companies. Unless otherwise specified, the Fund shall
bear the costs of soliciting Fund proxies from Contract owners, including the
costs of mailing proxy materials and tabulating proxy voting instructions, not
to exceed the costs charged by any service provider engaged by the Fund for this
purpose. The Fund shall not be responsible for the costs of any proxy
solicitations other than proxies sponsored by the Fund.
ARTICLE VI. Diversification
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6.1. The Fund will at all times invest money from the Contracts in
such a manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without limiting
the scope of the foregoing, the Fund will at all times comply with Section
817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulations. In the event of a breach of this Article VI by the Fund, the Fund
will take all reasonable steps (a) to notify Company of such breach and (b) to
adequately diversify the Fund so as to achieve compliance within the grace
period afforded by Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
-------------------
7.1. The Fund Board will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the Contract owners of
all separate accounts investing in the Fund. To the extent not inconsistent with
the Shared Funding Exemptive Order, an irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Portfolio are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable life insurance contract owners; or (f)
a decision by an insurer to disregard the voting instructions of contract
owners. The Fund Board shall promptly inform the Phoenix Insurance Companies if
it determines that an irreconcilable material conflict exists and the
implications thereof.
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7.2. The Phoenix Insurance Companies will each report any potential
or existing conflicts of which it is aware to the Fund Board. The Phoenix
Insurance Companies will each assist the Fund Board in carrying out its
responsibilities under the Shared Funding Exemptive Order by providing the Fund
Board with all information reasonably necessary for the Fund Board to consider
any issues raised. This includes, but is not limited to, an obligation by the
Phoenix Insurance Companies to inform the Fund Board whenever contract owner
voting instructions are disregarded.
7.3. If it is determined by a majority of the Fund Board, or a
majority of its disinterested trustees, that a material irreconcilable conflict
exists, the Phoenix Insurance Companies shall each, at their expense and to the
extent reasonably practicable (as determined by a majority of the disinterested
trustees), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the separate accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment medium,
including, but not limited to, another Portfolio of the Fund, or submitting the
question whether such segregation should be implemented to a vote of all
affected Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e. annuity contract owners, life insurance contract owners,
or variable contract owners of one or more Phoenix Insurance Companies) that
votes in favor of such segregation, or offering to the affected Contract owners
the option of making such a change; and (2) establishing a new registered
management investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a
decision by the Phoenix Insurance Companies to disregard Contract owner voting
instructions and that decision represents a minority position or would preclude
a majority vote, the Phoenix Insurance Companies may be required, at the Fund's
election, to withdraw the affected Account's investment in the Fund and
terminate this Agreement with respect to such Account; provided, however that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Fund Board. Any such withdrawal and termination
must take place within six (6) months after the Fund gives written notice that
this provision is being implemented and until the end of that six month period
the Fund shall continue to accept and implement orders by the Phoenix Insurance
Companies for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Phoenix
Insurance Companies conflicts with the majority of other state regulators, then
the Phoenix Insurance Companies will withdraw the affected Account's investment
in the Fund and terminate this Agreement with respect to such Account within six
months after the Fund Board informs the Phoenix Insurance Companies in writing
that it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested members of the Fund Board.
Until the end of the foregoing six month period, the Underwriter and Fund shall
continue to accept and implement orders by the Phoenix Insurance Companies for
the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Fund Board shall determine whether
any proposed action adequately remedies any irreconcilable material conflict,
but in no event win the Fund be required to establish a new funding medium for
the Contracts. The Phoenix Insurance Companies shall not be required by Section
7.3 to establish a new funding medium for the Contracts if an offer to do so has
been declined by vote of a
10
majority of Contract owners materially adversely affected by the irreconcilable
material conflict. In the event that the Fund Board determines that any proposed
action does not adequately remedy any irreconcilable material conflict, then the
Phoenix Insurance Companies will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Fund Board informs
the Phoenix Insurance Companies in writing of the foregoing determination,
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the disinterested members of the Fund Board.
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 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Fund and/or the Phoenix Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rules 6e-2
and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
ARTICLE VIII. Indemnification
---------------
8.1. Indemnification By The Company.
-------------------------------
(a) The Company agrees to indemnify and hold harmless the
Fund and each trustee of the Fund Board and officers and each person,
if any, who controls the Fund within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Company) or litigation (including legal and other expenses), to which
the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of, or investment
in, the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any material fact
contained in the Disclosure Documents for the Contracts or
contained in the Contracts or sales literature for the
Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished to the Company by or on behalf of the Fund for use,
in any Disclosure Document relating to the Contracts or in the
Contracts or sales literature (or any amendment or supplement)
or otherwise for use in connection with the sale of the
Contracts or Fund shares; or
11
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the Registration Statement, prospectus or sales
literature of the Fund not supplied by the Phoenix Insurance
Companies, or persons under their control) or wrongful conduct
of the Phoenix Insurance Companies or persons under their
control, with respect to the sale or distribution of the
Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a
Registration Statement, prospectus, or sales literature of the
Fund or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading if such a statement or
omission was made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the
Phoenix Insurance Companies; or
(iv) arise as a result of any failure by the
Phoenix Insurance Companies to provide the services and
furnish the materials under the terms of this Agreement; or
(v) arise out of or result from any material
breach of any representation and/or warranty made by the
Phoenix Insurance Companies in this Agreement or arise out of
or result from any other material breach of this Agreement by
the Phoenix Insurance Companies,
as limited by and in accordance with the provisions of Sections 8.1(b)
and 8.1(c) hereof.
(b) The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations or duties under this Agreement or to
the Fund, whichever is applicable.
(c) The Company shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Company in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified
Party shall have received notice of such service on any designated
agent), but failure to notify the Company of any such claim shall not
relieve the Company from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Company shall be entitled
to participate, at its own expense, in the defense of such action. The
Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice
from the Company to such party of the Company's election to assume the
defense thereof the Indemnified Party shall bear the fees and expenses
of any additional counsel retained by it, and the Company will not be
liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable
12
costs of investigation.
(d) The Indemnified Parties will promptly notify the
Company of the commencement of any litigation or proceedings against
them in connection with the issuance or sale of the Fund Shares or the
Contracts or the operation of the Fund.
8.2. Indemnification By The Fund
---------------------------
(a) The Fund agrees to indemnify and hold harmless the
Company, and each of its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Fund) or litigation (including legal and other expenses to which the
Indemnified Parties may 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 result from the
gross negligence, bad faith or willful misconduct of the Board or any
member thereof are related to the operations of the Fund, and:
(i) arise as a result of any failure by the Fund
to provide the services and furnish the materials under the
terms of this Agreement (including a failure to comply with
the diversification requirements specified in Article VI of
this Agreement); or
(ii) arise out of or result from any material
breach of any representation and/or warranty made by the Fund
in this Agreement or arise out of or result from any other
material breach of this Agreement by the Fund, as limited by
and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
(b) The Fund shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of, such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to
the Company, the Fund, the Underwriter or each Account, whichever is
applicable.
(c) The Fund shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Fund in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified
Party shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim shall not
relieve the Fund from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Fund will be entitled to
participate, at its own expense, in the defense thereof. The Fund also
shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Fund to such party of the Fund's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Fund will not be liable to
such party under this
13
Agreement for any legal or other expenses subsequently incurred by such
party independently in connection with the defense thereof other than
reasonable costs of investigation.
(d) The Company agrees to promptly to notify the Fund of
the commencement of any material litigation or proceedings against it
or any of its respective officers or directors in connection with this
Agreement, the issuance or sale of the Contracts, with respect to the
operation of either Account, or the sale or acquisition of shares of
the Fund.
ARTICLE IX. Applicable Law
--------------
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
-----------
10.1. This Agreement shall continue in full force and effect until
the first to occur of:
(a) termination by any party for any reason, by sixty
(60) days advance written notice delivered to the other parties; or
(b) termination by the Phoenix Insurance Companies by
written notice to the Fund with respect to any Portfolio based upon the
Phoenix Insurance Companies' determination that shares of such
Portfolio are not reasonably available to meet the requirements of the
Contract; or
(c) termination by the Phoenix Insurance Companies by
written notice to the Fund with respect to any Portfolio in the event
any of the Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment media of
the Contracts issued or to be issued by the Phoenix Insurance
Companies; or
(d) termination by the Phoenix Insurance Companies by
written notice to the Fund with respect to any Portfolio in the event
that such Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M of the Code or under any successor or similar
provision, or if the Company reasonably believes that the Fund may fail
to so qualify, or
(e) termination by the Company by written notice to the
Fund with respect to any Portfolio in the event that such Portfolio
fails to meet the diversification requirements specified in Article VI
hereof; or
14
(f) termination by the Fund by written notice to the
Company, if the Company gives the Fund the written notice specified
herein and at the time such notice was given there was no notice of
termination outstanding under any of the provision of this Agreement;
provided, however any termination under this Section 10.1(f) shall be
effective forty-five (45) days after the notice specified in Section
6(b) was given.
10.2. Notwithstanding any termination of this Agreement, the Fund
shall at the option to continue to make available additional shares of the Fund
pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, without limitation, the
owners of the Existing Contracts shall be permitted to reallocate investments in
the Fund, redeem investments in the Fund and/or invest in the Fund upon the
making of additional purchase payments under the Existing Contracts. The parties
agree that this Section 10.2 shall not apply to any terminations under Article
VII and the effect of such Article VII of this Agreement.
10.3. The provisions of Artic1es II (Representations and
Warranties), VIII (Indemnification), IX (Applicable Law) and XII (Miscellaneous)
shall survive termination of this Agreement. In addition, all other applicable
provisions of this Agreement shall survive termination as long as shares of the
Fund are held on behalf of Contract owners in accordance with section 10.2,
except that the Fund shall have no further obligation to make Fund shares
available in Contracts issued after termination.
10.4. The Phoenix Insurance Companies shall not redeem Fund shares
attributable to the Contracts (as opposed to Fund shares attributable to the
Company's assets held in the Account) except (i) as necessary to implement
Contract owner initialed or approved transactions, or (ii) as required by state
and/or federal laws or regulations or judicial or other legal precedent of
general application (hereinafter referred to as a "Legally Required Redemption")
or (iii) as permitted by an order of the SEC pursuant to Section 26(b) of the
1940 Act. Upon request, the Company will promptly furnish to the Fund the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund) to the effect that any redemption pursuant to clause
(ii) above is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terms of the Contracts, the Company shall not prevent
Contract owners from allocating payments to a Portfolio that was otherwise
available under the Contracts without first giving the Fund ninety (90) days
notice of its intention to do so.
ARTICLE XI. Notices
-------
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Fund: 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Treasurer
If to the Phoenix
Insurance Companies: Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
15
ARTICLE XII. Miscellaneous
-------------
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and an information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information until such time as it may come into
the public domain without the express written consent of the affected party.
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise the remainder of the
Agreement shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and
all appropriate governmental authorities (including without limitation the SEC,
the NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the New York Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the insurance operations
of the Company are being conducted in a manner consistent with New York
Insurance Regulations and any other applicable law or regulations.
12.7. 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.
12.8. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto.
16
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.
PHOENIX LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Its: Vice President and Secretary
THE PHOENIX EDGE SERIES FUND
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Its: Assistant Secretary
PHL VARIABLE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Its: Vice President and Secretary
PHOENIX LIFE AND ANNUITY COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Its: Vice President and Secretary
17
Schedule A
----------
Separate Accounts and Associated Variable Insurance Products
------------------------------------------------------------
PHOENIX LIFE INSURANCE COMPANY
------------------------------
PHOENIX LIFE VARIABLE ACCUMULATION ACCOUNT ('40 ACT REG. # 811-03488)
(Separate account established: 6/21/82)
VARIABLE ACCUMULATION ANNUITY CONTRACTS FUNDED BY THIS SEPARATE ACCOUNT:
-------------------------------------------------------------------------------------------------------------------------
'33 ACT REG. # VARIABLE INSURANCE PRODUCT CONTRACT #
-------------------------------------------------------------------------------------------------------------------------
002-78020 Big Edge 2545
Group Strategic Edge(R) GD601, GD603
Phoenix Spectrum Edge(R) (Maine & New York) D612
Xxxxxxxxx Investment Plus 2647
The Big Edge Choice(R) for NY D601 NY
The Big Edge Plus(R) 2646
The Phoenix Edge(R) - VA for NY D602 NY
-------------------------------------------------------------------------------------------------------------------------
333-31320 Freedom Edge(R) (Maine & New York) D615
Retirement Planner's Edge (Maine & New York) D603 NY
-------------------------------------------------------------------------------------------------------------------------
333-47862 Phoenix Income Choice(R) (Maine & New York) I602
-------------------------------------------------------------------------------------------------------------------------
333-68872 Phoenix Investor's Edge(R) (Maine & New York) D610
-------------------------------------------------------------------------------------------------------------------------
333-82916 Phoenix Asset Manager D614
-------------------------------------------------------------------------------------------------------------------------
333-123035 Phoenix Dimensions(SM) (Maine & New York) D618
-------------------------------------------------------------------------------------------------------------------------
PHOENIX LIFE VARIABLE UNIVERSAL LIFE ACCOUNT ('40 ACT REG. # 811-04721)
(Separate account established: 6/17/85)
VARIABLE UNIVERSAL LIFE INSURANCE POLICIES FUNDED BY THIS SEPARATE ACCOUNT:
-------------------------------------------------------------------------------------------------------------------------
'33 ACT REG. # VARIABLE INSURANCE PRODUCT POLICY FORM #
-------------------------------------------------------------------------------------------------------------------------
033-06793 The Phoenix Edge(R) 5000
The Phoenix Edge(R) - SPVL V610, V610 NY
-------------------------------------------------------------------------------------------------------------------------
033-23251 Flex Edge 2667
Flex Edge Success(R) V603
Joint Edge(R) V601
Individual Edge(R) V603(PIE)
-------------------------------------------------------------------------------------------------------------------------
333-23171 Estate Edge(R) V602
Estate Strategies - Developed exclusively for NFP Securities, Inc. V611
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
333-86921 Corporate Edge V608
Executive Benefit VUL - Developed for Xxxxx Xxxxxx V607
Phoenix Executive VUL(SM) V614
-------------------------------------------------------------------------------------------------------------------------
333-119919 Phoenix Express VUL(SM) (Maine & New York) V616
Phoenix Express VUL(SM) (Maine & New York) 06PEXVUL
-------------------------------------------------------------------------------------------------------------------------
18
The following separate accounts are closed to new business. '33 ACT REG. # '40 ACT REG. #
-------------- --------------
These accounts invest in the Phoenix Capital Growth Series.
PHOENIX LIFE SEPARATE ACCOUNT B 002-33165 N/A
PHOENIX LIFE SEPARATE ACCOUNT C 033-49564 811-02268
PHOENIX LIFE SEPARATE ACCOUNT D 033-49562 811-02269
PHL VARIABLE INSURANCE COMPANY
------------------------------
PHL VARIABLE ACCUMULATION ACCOUNT ('40 ACT REG. NO. 811-08914)
(Separate account established: 12/7/94)
VARIABLE ACCUMULATION ANNUITY CONTRACTS FUNDED BY THIS SEPARATE ACCOUNT:
-------------------------------------------------------------------------------------------------------------------------
'33 ACT REG. # VARIABLE INSURANCE PRODUCT CONTRACT #
-------------------------------------------------------------------------------------------------------------------------
033-87376 Phoenix Spectrum Edge(SM) D611
The Big Edge Choice(R) D601
The Phoenix Edge(R) - VA D602, D602 NY
-------------------------------------------------------------------------------------------------------------------------
333-48140 Phoenix Income Choice(R) I601
-------------------------------------------------------------------------------------------------------------------------
333-68164 Phoenix Investor's Edge(R) D609
-------------------------------------------------------------------------------------------------------------------------
333-78761 Freedom Edge(R) D615
Retirement Planner's Edge D603
-------------------------------------------------------------------------------------------------------------------------
333-82912 Phoenix Asset Manager D613
-------------------------------------------------------------------------------------------------------------------------
333-95611 Phoenix Premium Edge(R) D604
-------------------------------------------------------------------------------------------------------------------------
333-123040 Phoenix Dimensions(SM) D617
-------------------------------------------------------------------------------------------------------------------------
PHLVIC VARIABLE UNIVERSAL LIFE ACCOUNT ('40 ACT REG. NO. 811-09065)
(Separate account established: 9/10/98)
VARIABLE UNIVERSAL LIFE INSURANCE POLICIES FUNDED BY THIS SEPARATE ACCOUNT:
-------------------------------------------------------------------------------------------------------------------------
`33 ACT REG. # VARIABLE INSURANCE PRODUCT POLICY FORM #
-------------------------------------------------------------------------------------------------------------------------
333-65823 Flex Edge Success(R) V605
-------------------------------------------------------------------------------------------------------------------------
333-76778 The Phoenix Edge(R) - SVUL V612
-------------------------------------------------------------------------------------------------------------------------
333-81458 The Phoenix Edge(R) - VUL V613
-------------------------------------------------------------------------------------------------------------------------
333-119916 Phoenix Express VUL(SM) V615
Phoenix Express VUL(SM) 06PEXVUL
-------------------------------------------------------------------------------------------------------------------------
PHOENIX LIFE AND ANNUITY COMPANY
PHOENIX LIFE AND ANNUITY VARIABLE UNIVERSAL LIFE ACCOUNT ('40 ACT REG. NO. 811-07835)
(Separate account established: 7/1/96)
VARIABLE UNIVERSAL LIFE INSURANCE POLICIES FUNDED BY THIS SEPARATE ACCOUNT:
-------------------------------------------------------------------------------------------------------------------------
'33 ACT REG. # VARIABLE INSURANCE PRODUCT POLICY FORM #
-------------------------------------------------------------------------------------------------------------------------
333-12989 Corporate Edge V609
Executive Benefit VUL - Developed for Xxxxx Xxxxxx V606
Flex Edge Success(R) V604
-------------------------------------------------------------------------------------------------------------------------
19
