Exhibit 24(b)(8)(16)
Information Sharing Agreements pursuant to Rule 22c-2
AIM FUNDS INTERMEDIARY AGREEMENT REGARDING COMPLIANCE WITH SEC RULE 22C-2
This Agreement is made and entered into by and between AIM Investment Service,
Inc. (the "Transfer Agent"), a Delaware corporation and the TRANSFER AGENT for
certain management investment companies (each, a "MUTUAL FUND") registered with
the U.S. Securities and Exchange Commission (the "SEC") and regulated under the
Investment Company Act of 1940, as amended (the "1940 ACT"), and the
Intermediary identified below.
RECITALS
WHEREAS, effective May 23, 2005, the SEC adopted Rule 22c-2 under the 1940 Act
which requires every mutual fund (or on the fund's behalf, the principal
underwriter or transfer agent) to enter into a written agreement with each
financial intermediary who sells shares or otherwise maintains accounts which
hold shares of the fund for the benefit of a shareholder, as defined below,
pursuant to which the intermediary agrees to: (i) provide, promptly upon request
by the fund, the Taxpayer Identification Number of all shareholders that
purchased, redeemed, transferred, or exchanged shares held through an account
with the financial intermediary, from the fund to restrict or prohibit further
purchases or exchanges of fund shares by a shareholder who as been identified by
the fund as having engaged in transactions of fund shares (directly or
indirectly through the intermediary's account) that violate policies established
by the fund for the purpose of eliminating or reducing any dilution of the value
of the outstanding securities issued by the fund; and (iii) use best efforts to
determine, promptly upon the request of the fund, whether any other person that
holds fund shares through the financial intermediary is itself a financial
intermediary (an ""INDIRECT INTERMEDIARY") and, upon further request by the
fund, (A) provide (or arrange to have provided) the identification and
transaction information described above with respect to shareholders who hold an
account with an indirect intermediary, or (B) restrict or prohibit the indirect
intermediary from purchasing securities issued by the fund; and
WHEREAS, the Intermediary currently sells shares or otherwise maintains accounts
which hold shares for the benefit of a shareholder or shareholders of certain
mutual funds for which the Transfer Agent is the transfer agent (each, an "AIM
FUND"); and
WHEREAS, the Transfer Agent has agreed to administer the AIM Funds' compliance
program related to Rule22c-2;
NOW,THEREFORE, the premises considered the Transfer Agent and the Intermediary
agree as follows:
1. SHAREHOLDERS DEFINED. For purposes of this Agreement, the term SHAREHOLDER
means an individual or non-natural entity who or which owns legal title or
a vested beneficial interest in shares of an AIM Fund, including, but not
limited to, participants in retirement and education savings plans and
owners of variable insurance contracts which are funded with or otherwise
invested in shares of an AIM Fund.
2. COMPLIANCE OBLIGATIONS OF INTERMEDIARY. Beginning no later than October 16,
2006, or such other date as the SEC may designate as the date by which
mutual funds must be in compliance with Rule22c-2, the Intermediary agrees
to provide the Transfer Agent, upon written request, the taxpayer
identification number ("TIN"), if known, of any or all shareholders and the
amount, date, name or other identifier of any investment professional(s)
associated with the shareholder(s) (if known), and transaction type
(purchase, redemption, transfer, exchange) of every purchase, redemption,
transfer, or exchange of shares held through an account maintained by the
Intermediary during the period covered by the request. ("Transaction
Information")
(a) PERIOD AND FREQUENCY COVERED BY REQUEST. Requests may be made no more
than quarterly, except as an AIM Fund deems necessary to investigate
compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
shares issued by the Fund. Requests made pursuant to this Section must
set forth a specific time period, not to exceed ninety (90) days r
from the date of the request, for which transaction information is
sought. The Transfer Agent may request transaction information older
than ninety (90) days r from the date of the request as it deems
necessary to investigate compliance with policies established by the
Fund for the purpose of eliminating or reducing any dilution of the
value of the outstanding shares issued by the Fund.
(
(b) FORM AND TIMING OF RESPONSE. The Intermediary agrees to transmit the
requested information that is on its books and records to the Transfer
Agent or its designee promptly, but in any event not later than ten
(10) business days, after receipt of a request. If the requested
information is not on the Intermediary's books and records, the
Intermediary agrees to: (i) provide or arrange to provide to the
Transfer Agent the requested information from shareholders who hold an
account with an indirect intermediary or; (ii) if directed by the
Transfer Agent, block further purchases of Fund shares from such
indirect intermediary. In such instance, the Intermediary agrees to
inform the Transfer Agent whether it plans to perform (i) or (ii).
Responses required by this Paragraph must be communicated in writing
and in a format mutually agreed upon by the Intermediary and the
Transfer Agent. To the extent practicable, the format for any
transaction information provided to the Transfer Agent should be
consistent with the NSCC Standardized Data Reporting Format. For
purposes of this provision, the term indirect intermediary has the same
meaning as in Rule 22c-2.
(c) AGREEMENT TO PROHIBITT TRADING. The Intermediary agrees to execute
written instructions from the Transfer Agent to prohibit further
purchases or exchanges of Fund shares by a shareholder that has been
identified by the Transfer Agents having engaged in transactions of the
Fund's shares (directly or indirectly through an account) that violate
policies established by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding share issued by
the Fund.
(d) FORM OF INSTRUCTIONS. Instructions submitted pursuant to this Section
must include the TIN, if known, and the specific prohibition(s) to be
executed. If the TIN is not known, the instructions must include an
equivalent identifying number of the shareholder(s) or account(s) or
other agreed upon information to which the instruction relates.
(e) TIMING OF RESPONSE. The Intermediary agrees to execute instructions as
soon as reasonably practicable, but not later than ten (10) business
days after receipt of the instructions by the Intermediary.
(f) CONFIRMATION BY THE INTERMEDIARY. The Intermediary agrees to provide
written confirmation to the Transfer Agent that instructions have been
executed. The Intermediary agrees to provide confirmation as soon as
reasonably practicable, but not later than ten (10) business days after
the instructions have been executed.
(g) LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The AIM Funds agrees to
only use Transaction Information for the purposes of identifying
Shareholders who may be violating the Funds policies and procedures
with respect to dilution of the Fund's value as contemplated by Rule
22C-2 or to fulfill other regulatory or legal requirements subject to
the privacy provisions of Title V of the Xxxxx-Xxxxx Bliely Act
(Public Law 106-102) and comparable state laws. The AIM Funds agrees
that the Transaction Information is confidential and that the AIM
Funds will not share the Transaction Information externally, unless
the Intermediary provides the AIM Funds with prior written consent to
share such Transaction Information. The AIM Funds agrees not to share
the Transaction Information internally, except on a "need to know
basis." The AIM Fund further agrees to notify the Intermediary
immediately in the event of a breach.
(h) REDEMPTION FEES. Should AIM Funds decide to impose a redemption fee
that requires the Intermediary to implement changes to its systems to
administer, AIM Funds agrees to negotiate with the Intermediary, in
good faith, an interim solution that the Intermediary can effectively
administer until such time as it is able to implement such systems
changes. Nevertheless, nothing herein shall be construed to limit AIM
Funds or AIM Funds' Trustees' ability to institute redemption fees
pursuant to Rule 22C-2.
3. CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or
among them for the purchase and redemption of shares of the Funds by the
Accounts in connection with the Contracts. The Fund Participation
Agreements are hereby incorporated by reference into this Agreement, as
this Agreement is intended to be a supplement to the Fund Participation
Agreements. To the extent the terms of this Agreement conflict with the
terms of a Fund Participation Agreement, the terms of this Agreement shall
control.
4. AIM FUNDS AS THIRD-PARTY BENEFICIARIES. As required by Rule22c-2, the
Transfer Agent is entering into this Agreement as agent and on behalf of
the AIM Funds. The AIM Funds shall have the right to enforce all terms and
provisions of this Agreement against any and all parties here to and
otherwise involved in the activities contemplated herein.
5. ASSIGNMENT. Neither party to this Agreement shall not have the right to
assign this Agreement without the prior written consent of the other.,.
Provided, however, that either party t may assign its duties under this
Agreement to any of its affiliated entities which undertake the role of
transfer agent, with respect to AIM Funds, and the role of administrator
with respect to the Intermediary.
6. TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
7. CHOICE OF LAW. This Agreement shall be construed in accordance with the
laws of the State of New York, without respect of conflict of laws
principles, and the 1940 Act.
AGREED AND EXECUTED:
AIM INVESTMENT SERVICES, INC. PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE
COMPANY, PHOENIX LIFE AND ANNUITY COMPANY
By: /s/ Xxxxxxx X. Xxxxxx, Xx. By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
------------------------------------------------- -----------------------------------------------
Name: Xxxxxxx X. Xxxxxx, ]r. Name: Xxxx X'Xxxxxxx
----------------------------------------------- ---------------
Title: President Title: SVP Inforce Management and Planning
---------------------------------------------- -------------------------------------
Date: March 20, 2007
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Address for delivery of notices hereunder: Address for delivery of notices hereunder:
11Greenway Xxxxx,Xxxxx000 00 Xxxx Xxxxxx
----------------------------------------------------- Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel Attention: Xxxxxxx Xxxxxxxx
----------------------------------------------------- -----------------------
XXX-XXX-0-X 00/00
XXX XXXXX AMERICAN FUND
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between The Xxxxx American Fund, ("Fund") and Phoenix Life Insurance Company,
PHL Variable Insurance Company, and Phoenix Life and Annuity Company
("Intermediary").
WHEREAS, the Intermediary is a manufacturer of variable life and variable
annuity insurance products;
WHEREAS, the Intermediary and the Fund previously entered into Participation
Agreements allowing the Intermediary to offer certain Xxxxx insurance dedicated
mutual funds through its Separate Accounts by way of the Intermediary's variable
life and variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Fund and the Intermediary enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 - INTERMEDIARY: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds ("Separate
Account") and/or the insurance company acting as the depositor for the Separate
Account.
1.2 - FUND: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the Act.
The term "Fund" includes (i) an investment adviser to or administrator for the
Fund; (ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund. The term not does include any "excepted funds" as
defined in Rule 22c-2(b) under the Act.
1
1.3 - SHARES: The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund under
the Act that are held by the Intermediary.
1.4-SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5-SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6-SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7-SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8-WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2.1 INFORMATION SHARING - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN");
(ii) the Contract owner number or participant account
number associated with the Shareholder;
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(iii) the amount, date and transaction type of every
purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the
Intermediary during the period covered by the
request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed ninety (90) days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older than
ninety (90) days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.3 TIMING OF REQUESTS- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to
the Fund promptly upon request If the Fund requests, the
Intermediary agrees to use its best efforts to promptly
determine whether any specific person about whom it has
received Shareholder Information is itself a financial
intermediary ("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests,
the Intermediary will, with notice to the Fund, promptly
either:
(i) provide Shareholder Information for those shareholders who
hold an account with an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued
by the Fund.
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and according to the IRS' website, the ITIN refers
to the Individual Taxpayer Identification number, which is a
nine-digit number that always begins with the number 9 and has a 7 or
8 in the fourth digit, example 9XX-7X-XXXX. The IRS issues ITINs to
individuals who are required to have a U.S. taxpayer identification
number but who do not have, and are not eligible to obtain a Social
Security Number (SSN) from the Social Security Administration (SSA).
SEC Rule 22c-2 inadvertently refers to the ITIN as the International
Taxpayer Identification Number.
(c) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
3
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws. The Fund further
agrees that the Shareholder Information is confidential and that the Fund will
not share the Shareholder Information externally, unless the Intermediary
provides the Fund with prior written consent to share such Shareholder
Information. The Fund further agrees not to share the Shareholder Information
internally, except on a "need to know basis."
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of Shares
by a Shareholder that has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions must be received by Intermediary
at the following address, or such other address that Intermediary may
communicate to you in writing from time to time, including, if applicable, an
e-mail and/or facsimile telephone number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
-
Should the Fund decide to implement a restriction, such as a holding requirement
or a dollar threshold, the Fund agrees to give the Intermediary at least six (6)
months to program its systems to administer such a restriction. If such notice
is not practicable, the Fund agrees to negotiate with the Intermediary, in good
faith, a restriction that the Intermediary can effectively administer.
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed, including how long the prohibition(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific individual Contract owner number or
participant account number associated with the Shareholder is not known, the
instructions must include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, Fund agrees to provide to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Shareholder, information regarding those trades of the contract
holder that violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
4
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
3.5 REDEMPTION FEES. The Fund agrees to rely on the Intermediary's market timing
procedures to control market timing activity in lieu of imposing a redemption
fee. If the Fund ultimately decides to impose a redemption fee on variable
contracts, the Fund agrees to notify the Intermediary at least six (6) months in
advance so that the Intermediary can program its systems to administer the fee.
If such notice is not practicable, the Fund agrees to reimburse the Intermediary
for its costs in completing the systems work.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. The Fund Participation Agreements are hereby
incorporated by reference into this Agreement, as this Agreement is intended to
be a supplement to the Fund Participation Agreements. To the extent the terms of
this Agreement conflict with the terms of a Fund Participation Agreement, the
terms of this Agreement shall control.
4.2 INDEMNIFICATION. The Fund agrees to indemnify and hold harmless Intermediary
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable attorney's fees) arising in connection with third party
claim or action brought against Intermediary as a result of any unauthorized
disclosure of a shareholder's taxpayer identification number provided to the
Fund in response to a request for Shareholder Information pursuant to the terms
of this Agreement.
4.3 FORCE MAJEURE. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in part,
caused by the occurrence of any event or contingency beyond the control of the
parties including, but not limited to, work stoppages, fires, civil
disobedience, riots, rebellions, natural disasters, acts of God, and acts of war
or terrorism. The party who has been so affected shall promptly give written
notice to the other Party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
4.4 DISPUTE RESOLUTION. The parties hereby mutually agree to use their best
efforts to seek an amicable solution to any controversy or dispute regarding the
subject matter hereof. Any unresolved controversy, claim or dispute shall be
submitted to binding arbitration in accordance with the Commercial Rules of the
American Arbitration
5
Association and judgment upon any such award may be entered
in any court having jurisdiction thereof. Arbitration shall be conducted by a
single arbitrator who shall have the authority to grant any and all appropriate
relief, including, but not limited to, granting injunctive relief or demanding
specific performance. The arbitrator may make an initial determination of the
location of the arbitration or whether proceedings may ensue based entirely upon
documentary evidence. Unless otherwise mutually agreed in writing by the
parties, said determination by the arbitrator shall become final and binding 3
days after the arbitrator's ruling. Arbitration costs and expenses shall be
borne equally by the parties. Each party hereby agrees to waive and suspend
enforcement of any and all rights pursuant to this and all related agreements
during the pendency of such arbitration proceedings
4.5 TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
THE XXXXX AMERICAN FUND
By: /s/ Xxxx Xxxx
----------------------------------------
(signature)
Name: Xxxx Xxxx
---------------------------------------
(print)
Title: Vice President
---------------------------------------
Date: 3/12/07
---------------------------------------
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------------
(signature)
Name: Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------------
(print)
Title: SVP L&A Fin & Inf Mgmt
---------------------------------------
Date: 3/20/07
---------------------------------------
6
THE XXXXX AMERICAN FUND
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between The Xxxxx American Fund, ("Fund") and Phoenix Life Insurance Company
("Agent").
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent for the Intermediary in
terms of the administration of the variable life and variable annuity insurance
products;
WHEREAS, the Intermediary and the Fund previously entered into Participation
Agreements allowing the Intermediary to offer certain Xxxxx insurance dedicated
mutual funds through its Separate Accounts by way of the Intermediary's variable
life and variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22C-2 allows the agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Fund and the Agent enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 - INTERMEDIARY: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds ("Separate
Account") and/or the insurance company acting as the depositor for the Separate
Account as well as the Agent administering the functions of the Separate Account
with respect to the Intermediary's variable life and annuity business.
1
1.2 - FUND: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the Act.
The term "Fund" includes (i) an investment adviser to or administrator for the
Fund; (ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund. The term not does include any "excepted funds" as
defined in Rule 22c-2(b) under the Act.
1.3 - SHARES: The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund under
the Act that are held by the Intermediary.
1.4-SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5-SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6-SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7-SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8-WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2
2.1 INFORMATION SHARING - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN");
(ii) the Contract owner number or participant account
number associated with the Shareholder;
(iii) the amount, date and transaction type of every
purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the
Intermediary during the period covered by the
request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed ninety (90) days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older than
ninety (90) days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.3 TIMING OF REQUESTS- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to the Fund
promptly upon request If the Fund requests, the Intermediary agrees to
use its best efforts to promptly determine whether any specific person
about whom it has received Shareholder Information is itself a
financial intermediary ("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests, the
Intermediary will, with notice to the Fund, promptly either:
(i) provide Shareholder Information for those shareholders who
hold an account with an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued
by the Fund.
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and according to the IRS' website, the ITIN refers
to the Individual Taxpayer Identification number, which is a
nine-digit number that always begins with the number 9 and has a 7 or
8 in the fourth digit, example 9XX-7X-XXXX. The IRS issues ITINs to
individuals who are required to have a U.S. taxpayer identification
number but who do not have, and are not eligible to obtain a Social
Security Number (SSN) from the Social Security Administration (SSA).
SEC Rule 22c-2
3
inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
(c) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws. The Fund further
agrees that the Shareholder Information is confidential and that the Fund will
not share the Shareholder Information externally, unless the Intermediary
provides the Fund with prior written consent to share such Shareholder
Information. The Fund further agrees not to share the Shareholder Information
internally, except on a "need to know basis."
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of Shares
by a Shareholder that has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions must be received by Intermediary
at the following address, or such other address that Intermediary may
communicate to you in writing from time to time, including, if applicable, an
e-mail and/or facsimile telephone number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
-
Should the Fund decide to implement a restriction, such as a holding requirement
or a dollar threshold, the Fund agrees to give the Intermediary at least six (6)
months to program its systems to administer such a restriction. If such notice
is not practicable, the Fund agrees to negotiate with the Intermediary, in good
faith, a restriction that the Intermediary can effectively administer.
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed, including how long the prohibition(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific
4
individual Contract owner number or participant account number associated with
the Shareholder is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates. Upon request of the Intermediary,
Fund agrees to provide to the Intermediary, along with any written instructions
to prohibit further purchases or exchanges of Shares by Shareholder, information
regarding those trades of the contract holder that violated the Fund's policies
relating to eliminating or reducing any dilution of the value of the Fund's
outstanding Shares.
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
3.5 REDEMPTION FEES. The Fund agrees to rely on the Intermediary's market timing
procedures to control market timing activity in lieu of imposing a redemption
fee. If the Fund ultimately decides to impose a redemption fee on variable
contracts, the Fund agrees to notify the Intermediary at least six (6) months in
advance so that the Intermediary can program its systems to administer the fee.
If such notice is not practicable, the Fund agrees to reimburse the Intermediary
for its costs in completing the systems work.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. The Fund Participation Agreements are hereby
incorporated by reference into this Agreement, as this Agreement is intended to
be a supplement to the Fund Participation Agreements. To the extent the terms of
this Agreement conflict with the terms of a Fund Participation Agreement, the
terms of this Agreement shall control.
4.2 INDEMNIFICATION. The Fund agrees to indemnify and hold harmless Intermediary
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable attorney's fees) arising in connection with third party
claim or action brought against Intermediary as a result of any unauthorized
disclosure of a shareholder's taxpayer identification number provided to the
Fund in response to a request for Shareholder Information pursuant to the terms
of this Agreement.
4.3 FORCE MAJEURE. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in part,
caused by the occurrence of any event or contingency beyond the control of the
parties including, but not limited to, work stoppages, fires, civil
disobedience, riots, rebellions, natural disasters, acts of God, and acts of war
or terrorism. The party who has been so affected
5
shall promptly give written notice to the other Party and shall use its best
efforts to resume performance. Upon receipt of such notice, all obligations
under this Agreement shall be immediately suspended for the duration of such
Force Majeure Event.
4.4 DISPUTE RESOLUTION. The parties hereby mutually agree to use their best
efforts to seek an amicable solution to any controversy or dispute regarding the
subject matter hereof. Any unresolved controversy, claim or dispute shall be
submitted to binding arbitration in accordance with the Commercial Rules of the
American Arbitration Association and judgment upon any such award may be entered
in any court having jurisdiction thereof. Arbitration shall be conducted by a
single arbitrator who shall have the authority to grant any and all appropriate
relief, including, but not limited to, granting injunctive relief or demanding
specific performance. The arbitrator may make an initial determination of the
location of the arbitration or whether proceedings may ensue based entirely upon
documentary evidence. Unless otherwise mutually agreed in writing by the
parties, said determination by the arbitrator shall become final and binding 3
days after the arbitrator's ruling. Arbitration costs and expenses shall be
borne equally by the parties. Each party hereby agrees to waive and suspend
enforcement of any and all rights pursuant to this and all related agreements
during the pendency of such arbitration proceedings
4.5 TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
THE XXXXX AMERICAN FUND
By: /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
-------------------------------
Title: Assistant Secretary
------------------------------
Date: 3/15/07
-------------------------------
PHOENIX LIFE INSURANCE COMPANY, AS AGENT FOR VALLEY FORGE LIFE INSURANCE COMPANY
By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
-------------------------------
Title: SVP L&A Fin. & Inf. Mgmt
------------------------------
Date: 3/20/07
------------------------------
6
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between AllianceBernstein Investor Services, Inc. on behalf of AllianceBernstein
Variable Products Series, Inc. (collectively, "Fund") and Phoenix Life Insurance
Company ("Agent").
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent for the Intermediary in
terms of the administration of the variable life and variable annuity insurance
products;
WHEREAS, the Intermediary and the Fund previously entered into Participation
Agreements allowing the Intermediary to offer certain Portfolios of the Fund
through its Separate Accounts by way of the Intermediary's variable life and
variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment Company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22C-2 allows the agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Fund and the Agent enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 INTERMEDIARY: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds ("Separate
Account") and/or the insurance company acting as the depositor for the Separate
Account as well as the Agent administering the functions of the Separate Account
with respect to the Intermediary's variable life and annuity business.
1
1.2 FUND: The term "Fund" shall mean an open-ended management investment company
that is registered or required to register under Section 8 of the Act. The term
"Fund" includes the transfer agent for the Fund. The term not does include any
"excepted funds" as defined in Rule 22c-2(b) under the Act.
1.3 SHARES: The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by the Fund under the Act that are
held by the Intermediary.
1.4 SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5 SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6 SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7 SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8 WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2.1 INFORMATION SHARING - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
2
(i) the taxpayer identification number ("TIN");
(ii) the Contract owner number or participant account number
associated with the Shareholder;
(iii) the amount, date and transaction type of every purchase,
redemption, transfer, or exchange of Shares held through an
account maintained by the Intermediary during the period
covered by the request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed ninety (90) days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older than
ninety (90) days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.3 TIMING OF REQUESTS- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to the Fund
promptly upon request. If the Fund requests, the Intermediary agrees to
use its best efforts to promptly determine whether any specific person
about whom it has received Shareholder Information is itself a
financial intermediary ("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests, the
Intermediary will, with notice to the Fund, promptly either:
(i) provide Shareholder Information for those shareholders who
hold an account with an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued
by the Fund.
(c) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and according to the IRS' website, the ITIN refers to
the Individual Taxpayer Identification number, which is a nine-digit
number that always begins with the number 9 and has a 7 or 8 in the
fourth digit, example 9XX-7X-XXXX. The IRS issues ITINs to individuals
who are required to have a U.S. taxpayer identification number but who
do not have, and are not eligible to obtain a Social Security Number
(SSN) from the Social Security Administration (SSA). SEC Rule 22c-2
inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
(d) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized
Data Reporting Format.
3
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws. The Fund further
agrees that the Shareholder Information is confidential and that the Fund will
not share the Shareholder Information externally, unless the Intermediary
provides the Fund with prior written consent to share such Shareholder
Information. The Fund further agrees not to share the Shareholder Information
internally, except on a "need to know basis." The Fund will promptly notify
Intermediary in the event of a known breach of the privacy of the Shareholder
Information.
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of Shares
by a Shareholder that has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions must be received by Intermediary
at the following address, or such other address that Intermediary may
communicate to you in writing from time to time, including, if applicable, an
e-mail and/or facsimile telephone number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Should the Fund decide to implement a restriction, such as a holding requirement
or a dollar threshold, the Fund agrees to give the Intermediary at least six (6)
months to program its systems to administer such a restriction. If such notice
is not practicable, the Fund agrees to negotiate with the Intermediary, in good
faith, a restriction that the Intermediary can effectively administer.
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed, including how long the prohibition(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific individual Contract owner number or
participant account number associated with the Shareholder is not known, the
instructions must include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, Fund agrees to provide to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Shareholder, information regarding those trades of the contract
4
holder that violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
3.5 REDEMPTION FEES. If the Fund implements a redemption fee in the future that
the Intermediary cannot implement within the requested time frame despite the
Intermediary's best efforts, the Fund agrees to negotiate, in good faith, an
interim solution until such time that the redemption fee can be successfully
administered.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. The Fund Participation Agreements are hereby
incorporated by reference into this Agreement, as this Agreement is intended to
be a supplement to the Fund Participation Agreements. To the extent the terms of
this Agreement conflict with the terms of a Fund Participation Agreement, the
terms of this Agreement shall control.
4.2 INDEMNIFICATION. The Fund agrees to indemnify and hold harmless Intermediary
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable attorney's fees) arising in connection with third party
claim or action brought against Intermediary as a result of any unauthorized
disclosure of a shareholder's taxpayer identification number provided to the
Fund in response to a request for Shareholder Information pursuant to the terms
of this Agreement.
4.3 FORCE MAJEURE. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in part,
caused by the occurrence of any event or contingency beyond the control of the
parties including, but not limited to, work stoppages, fires, civil
disobedience, riots, rebellions, natural disasters, acts of God, and acts of war
or terrorism. The party who has been so affected shall promptly give written
notice to the other Party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
4.4 DISPUTE RESOLUTION. The parties hereby mutually agree to use their best
efforts to seek an amicable solution to any controversy or dispute regarding the
subject matter hereof. Any unresolved controversy, claim or dispute shall be
submitted to binding arbitration in accordance with the Commercial Rules of the
American Arbitration Association and judgment upon any such award may be entered
in any court having jurisdiction thereof. Arbitration shall be conducted by a
single arbitrator who shall have
5
the authority to grant any and all appropriate relief, including, but not
limited to, granting injunctive relief or demanding specific performance. The
arbitrator may make an initial determination of the location of the arbitration
or whether proceedings may ensue based entirely upon documentary evidence.
Unless otherwise mutually agreed in writing by the parties, said determination
by the arbitrator shall become final and binding 3 days after the arbitrator's
ruling. Arbitration costs and expenses shall be borne equally by the parties.
Each party hereby agrees to waive and suspend enforcement of any and all rights
pursuant to this and all related agreements during the pendency of such
arbitration proceedings
4.5 TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
ALLIANCEBERNSTEIN INVESTOR SERVICES, INC.
By:/s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
Date: 4/12/07
-------------------------------
PHOENIX LIFE INSURANCE COMPANY, AS AGENT FOR VALLEY FORGE LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: Sr. Vice President
Date: March 28, 2007
6
AMERICAN CENTURY INVESTMENTS
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between American Century Investment Services, Inc. ("Distributor"), the
distributor of the American Century family of mutual funds, (collectively, the
"Fund") and Phoenix Life Insurance Company ("Agent").
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent for the Intermediary in
terms of the administration of the variable life and variable annuity insurance
products;
WHEREAS, the Intermediary and the Distributor, or one of its affiliates,
previously entered into Participation Agreements allowing the Intermediary to
offer certain American Century Investments insurance dedicated mutual funds
through its Separate Accounts by way of the Intermediary's variable life and
variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22C-2 allows the agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Distributor and the Agent enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 - INTERMEDIARY: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds
("Separate Account") and/or the insurance company acting as the depositor
for the Separate
1
Account as well as the Agent administering the functions of the Separate
Account with respect to the Intermediary's variable life and annuity
business.
1.2 - FUND: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the Act.
The term "Fund" includes (i) an investment adviser to or administrator for the
Fund; (ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund. The term not does include any "excepted funds" as
defined in Rule 22c-2(b) under the Act.
1.3 - SHARES: The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund under
the Act that are held by the Intermediary.
1.4-SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5-SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6-SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7-SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
2
1.8-WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2.1 INFORMATION SHARING - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN"), the
Individual/International Taxpayer Identification
Number ("ITIN")*, or other government-issued
identifier ("GII");
* According to the IRS' website, the ITIN refers to the
Individual Taxpayer Identification number, which is a
nine-digit number that always begins with the number
9 and has a 7 or 8 in the fourth digit, example
9XX-7X-XXXX. The IRS issues ITINs to individuals who
are required to have a U.S. taxpayer identification
number but who do not have, and are not eligible to
obtain a Social Security Number (SSN) from the Social
Security Administration (SSA). SEC Rule 22c-2
inadvertently refers to the ITIN as the International
Taxpayer Identification Number.
(ii) the Contract owner number or participant account
number associated with the Shareholder;
(iii) the amount, date and transaction type of every
purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the
Intermediary during the period covered by the
request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed 90 days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older than
90 days from the date of the request as it deems necessary to investigate
compliance with policies established by the Fund for the purpose of eliminating
or reducing any dilution of the value of the outstanding shares issued by the
Fund.
2.3 TIMING OF REQUESTS- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to the Fund
promptly, but in any event not later than five (5) business days
following a request. If the Fund requests, the Intermediary agrees to
use its best efforts to promptly determine
3
whether any specific person about whom it has received Shareholder
Information is itself a financial intermediary ("indirect
intermediary").
(b) The Intermediary further agrees that if the Fund requests, the
Intermediary will, with notice to the Fund, promptly either:
(i) provide Shareholder Information for those shareholders who
hold an account with an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued
by the Fund.
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary.
(c) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws. The Fund agrees that
the Shareholder Information is confidential and that the Fund will not share the
Shareholder Information externally, unless the Intermediary provides the Fund
with prior written consent to share such Shareholder Information. The Fund
agrees not to share the Shareholder Information internally, except to those
individuals the Fund reasonably determines need access to such Shareholder
Information. The Fund further agrees to notify the Intermediary in the event
that the confidentiality of the Shareholder Information is breached.
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of Shares
by aShareholder that has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions must be received by us at the
following address, or such other address that Intermediary may communicate to
you in writing from time to time, including, if applicable, an e-mail and/or
facsimile telephone number:
4
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Email: xxxx.xxxxxxxx@xxxxxxxxx.xxx
Fax: 000-000-0000
Should the Fund decide to impose a restriction or redemption fee that requires
the Intermediary to implement changes to its systems to administer such a
restriction or redemption fee, the Fund agrees to negotiate with the
Intermediary, in good faith, an interim solution that the Intermediary can
effectively administer until such time as it is able to implement such systems
changes.
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed. If the TIN, ITIN, GII or the specific individual Contract owner number
or participant account number associated with the Shareholder is not known, the
instructions must include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, Fund agrees to provide to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Shareholder, information regarding those trades of the contract
holder that violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt of
the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten business
days after the instructions have been executed.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. This Agreement is intended to be a supplement to
the Fund Participation Agreements. To the extent the terms of this Agreement
conflict with the terms of a Fund Participation Agreement, the terms of this
Agreement shall control.
5
4.2 INDEMNIFICATION. The Distributor agrees to indemnify and hold harmless
Intermediary from any and all liability, claim, loss, demand, damages, costs and
expenses (including reasonable attorney's fees) arising in connection with third
party claim or action brought against Intermediary as a result of any
unauthorized disclosure of a shareholder's taxpayer identification number
provided to the Fund in response to a request for Shareholder Information
pursuant to the terms of this Agreement.
4.3 FORCE MAJEURE. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in part,
caused by the occurrence of any event or contingency beyond the control of the
parties including, but not limited to, work stoppages, fires, civil
disobedience, riots, rebellions, natural disasters, acts of God, and acts of war
or terrorism. The party who has been so affected shall promptly give written
notice to the other Party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
4.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties
hereto and their permitted transferees, successors and assigns. The benefits of
and the right to enforce this Agreement shall accrue to the parties and their
permitted transferees, successors and assigns.
4.5 ASSIGNMENT. Neither this Agreement nor any of the rights, obligations or
liabilities of either party hereto shall be transferred or assigned without the
written consent of the other party.
4.6 INTENDED BENEFICIARIES. Nothing in this Agreement shall be construed to give
any person or entity other than the parties hereto any legal or equitable claim,
right or remedy. Rather, this Agreement is intended to be for the sole and
exclusive benefit of the parties hereto.
4.7 SEVERABILITY. If any portion of this Agreement shall be found to be invalid
or unenforceable by a court or tribunal or regulatory agency of competent
jurisdiction, the remainder shall not be affected thereby, but shall have the
same force and effect as if the invalid or unenforceable portion had not been
inserted.
4.8 TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
6
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
AMERICAN CENTURY INVESTMENT SERVICES, INC.
By: Xxxxx X. Xxxxxx
---------------------------------
Name:Xxxxx X. Xxxxxx
-------------------------------
Title:Vice President
------------------------------
Date: 3/28/07
-------------------------------
PHOENIX LIFE INSURANCE COMPANY, AS AGENT FOR VALLEY FORGE LIFE INSURANCE COMPANY
By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
-------------------------------
Title: Sr. Vice President
--------------------------------
Date: March 22, 2007
---------------------------------
7
INFORMATION SHARING AND
RESTRICTED TRADING AGREEMENT
THIS AGREEMENT is effective as of April 16, 2007, or such other
compliance date mandated by Rule 22c-2 of the Investment Company Act of 1940, as
amended (the "1940 Act"), whichever shall last occur, by and between ANCHOR
SERIES TRUST (the "Fund") and PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE
INSURANCE COMPANY, and PHOENIX LIFE AND ANNUITY COMPANY ("Intermediary"), on
behalf of certain of its separate accounts (each an "Account").
WHEREAS, the Intermediary offers or otherwise makes
available the Funds to or for Contract owners of the
Intermediary;
WHEREAS, pursuant to Rule 22c-2 under the 1940 Act,
the Fund is required to enter into a shareholder information
agreement with every intermediary who holds shares of the
Funds in omnibus accounts and submits orders directly to the
Fund or the Fund's transfer agent or to a registered clearing
agency;
WHEREAS, this Agreement sets forth the terms and
conditions for information sharing for the Fund and
Intermediary in accordance with Rule 22c-2; and
WHEREAS, this Agreement shall inure to the benefit of
and shall be binding upon the undersigned and each such entity
shall be either a Fund or Intermediary for purposes of this
Agreement (the Fund and the Intermediary shall be collectively
referred to herein as the "Parties" and individually as a
"Party");
NOW, THEREFORE, in consideration of the mutual
covenants herein contained, which consideration is full and
complete, the Fund and the Intermediary hereby agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings, unless a different meaning is clearly required
by the contexts:
"Contracts" shall include any variable annuity contract or variable
life insurance policy issued by the Intermediary.
"Intermediary" shall mean (i) any broker, dealer, bank, or other entity
that holds securities of record issued by the Fund in nominee name; and
(ii) an insurance company separate account.
"Fund Agent" is either (i) an investment adviser to or administrator
for the Funds, (ii) the principal underwriter or distributor for the
Funds or (iii) the transfer agent for the Funds.
"Fund" includes the fund's principal underwriter and transfer agent.
The term not does include any "excepted funds" as defined in Rule
22c-2(b) under the 1940 Act.
"Good Cause" means an instance where (i) a Fund has experienced unusual
levels or patterns of purchase or redemption activity and the Fund
reasonably believes such activity is an indication that trading
activity in an Account is inconsistent with Fund Policies, (ii) upon
review of the Shareholder Transaction Information the Fund reasonably
believes it needs additional
1
Shareholder Transaction Information to investigate compliance with the
Policies; or (iii) the Fund reasonably believes it needs additional
Shareholder Information for the purpose of a periodic compliance
review or audit.
"Policies" shall mean policies and procedures adopted by the board of
directors/trustees of the Fund (which may be amended from time-to-time)
for the purpose of eliminating or reducing any dilution of the value of
the outstanding Shares issued by the Fund.
"Shares" shall mean the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the 1940 Act
that are held by the Intermediary.
"Shareholder" shall mean Contract owners of the Intermediary who
maintains an interest in an account with the Fund(s).
The term "written" includes electronic writings and facsimile
transmissions.
2. SHAREHOLDER INFORMATION.
2.1. AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to use
reasonable efforts to provide the Fund or Fund Agent, promptly upon request, the
taxpayer identification number ("TIN"), if known, or an equivalent identifying
number, of any or all Shareholder(s) of the account, and the amount, date and
transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an account
maintained by the Intermediary during the period covered by the request.
Intermediary shall only be required to provide the information in regard to
transactions that are initiated or directed by the Shareholder, and shall not be
required to provide information in regard to transactions that are executed
automatically by the Intermediary pursuant to contractual or systematic programs
or enrollments, such transactions resulting from dollar cost averaging programs,
asset allocation programs, automatic rebalancing programs, periodic deduction of
charges or fees, redemptions pursuant to a systematic withdrawal plan, or the
payment of a death benefit from a Contract ("Transaction Information").
All Shareholder Transaction Information requests must be directed to
the Intermediary's representatives identified in Appendix A to this Agreement,
and shall be sent via overnight mail. The timing with which the Intermediary
must provide the requested Shareholder Transaction Information shall commence
upon receipt of the written request.
2.1.1. PERIOD COVERED BY REQUEST. Requests must set forth a
specific period to be examined, which shall not exceed 180 days from
the date of the request and which shall cover a period no earlier than
10 business days preceding the date of the request. The Fund or Fund
Agent may request Transaction Information older than 180 days from the
date of the request as it deems necessary to investigate compliance
with the Policies. Any such Transaction Information request must be
reasonable as to the period covered, and Fund or Fund Agent will not
initiate any such request without a basis for concern.
2.1.1(a) TIMING OF REQUESTS. Requests for Shareholder
Transaction Information shall be made no more frequently than
semi-annually, unless Good Cause justification is demonstrated
by the Fund or Fund Agent that a more frequent request is
necessary to enforce its restrictions on market timing and
similar abusive transactions. If Good Cause is not
demonstrated by the Fund or Fund Agent, it shall pay the
expenses incurred by the Intermediary in complying with the
request.
2
2.1.2. FORM AND TIMING OF RESPONSE. Intermediary agrees to
make a reasonable effort to transmit the requested Transaction
Information that is on its books and records to the Fund or its
designee promptly, but in any event not later than 10 business days,
after receipt of a request. If the requested Transaction Information is
not on the Intermediary's books and records, Intermediary agrees to use
reasonable efforts to:
(i) promptly obtain and transmit the requested
Transaction Information from Shareholders
who hold an account with an indirect
intermediary;
(ii) arrange for the indirect intermediary to
provide the requested Transaction
Information to the Fund promptly; or
(iii) if the indirect intermediary refuses to
provide the requested Transaction
Information and the Fund or Fund Agent so
directs in writing, use reasonable efforts
to block further purchases of Shares from
such indirect intermediary accountholder.
In such instance, Intermediary agrees to inform the Fund or Fund Agent
whether it plans to perform (i), (ii) or (iii). Responses required by
this paragraph must be communicated in writing and in a format mutually
agreed upon by the Parties. For purposes of this provision, an
"indirect intermediary" is an intermediary that trades through the
first-tier Intermediary.
Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Parties.
2.1.3. LIMITATIONS ON USE OF TRANSACTION INFORMATION. The Fund
agrees not to use the Transaction Information received pursuant to this
Agreement for any purpose other than as necessary to comply with the
provisions of Rule 22c-2, or for any purpose not permitted under the
privacy provisions of Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law
106-102) and comparable state laws, including but not limited to
marketing or any other similar purpose without the prior written
consent of the Intermediary. If there is a breach of the
confidentiality of this Transaction Information, the Fund agrees to
notify the Intermediary immediately.
2.1.4. INDEMNIFICATION. The Fund agrees to indemnify and hold
harmless Intermediary from any and all liability, claim, loss, demand,
damages, costs and expenses (including reasonable attorney's fees)
arising in connection with third party claim or action brought against
Intermediary as a result of any unauthorized disclosure of a
Shareholder's TIN provided to the Fund in response to a Shareholder
Transaction Information request.
2.2. AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute
written instructions from the Fund or Fund Agent to prohibit further purchases
or exchanges of Shares by a Shareholder that has been identified by the Fund as
having engaged in transactions of the Shares (directly or indirectly through the
Intermediary's account) that violate the Policies. Any such prohibitions shall
only apply to transactions initiated or directed by the Shareholder and shall
not apply to non-initiated or directed transactions as set forth in Section 2.1.
All instructions to restrict trading must be directed to the Intermediary's
representatives identified in Appendix A.
The Fund will request a prohibition on a Shareholder's ability to trade
in Shares only after the Fund has determined that the Shareholder has engaged in
transactions (directly or indirectly through the Intermediary's account) that
violate the Policies. Intermediary agrees to execute such instructions with
3
respect to the Shareholder, but only for the Contract(s) through which such
transactions in the Shares occurred.
2.2.1. FORM OF INSTRUCTIONS. Instructions must include the
TIN, if known, and the specific prohibition (s) to be executed,
including how long the prohibition(s) is(are) to remain in place. If
the TIN is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or other agreed
upon information to which the instruction relates.
2.2.2. TIMING OF RESPONSE. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not later than ten
(10) business days after receipt of the instructions by the
Intermediary.
2.2.3. CONFIRMATION BY INTERMEDIARY. Intermediary must provide
written confirmation to the Fund that instructions have been executed.
Intermediary agrees to provide confirmation as soon as reasonably
practicable, but not later than fifteen (15) business days after the
instructions have been executed.
2.2.4. FORCE MAJEURE. Either Party is excused from performance
and shall not be liable for any delay in performance or
non-performance, in whole or in part, caused by the occurrence of any
event or contingency beyond the control of the Parties including, but
not limited to, work stoppages, fires, civil disobedience, riots,
rebellions, natural disasters, acts of God, acts of war or terrorism,
actions or decrees of governmental bodies, and similar occurrences. The
Party who has been so affected shall promptly give written notice to
the other Party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall
be immediately suspended for the duration of such Force Majeure Event.
3. BEST EFFORTS. Both Parties mutually agree to act in good faith
utilizing their best efforts to timely and effectively execution the Shareholder
Transaction Information sharing provisions of Rule 22c-2. Good faith and best
efforts means attempting to process all relevant requests in a timely manner, or
in the event such requests cannot be met within the time provisions of this
Agreement, to make best efforts to fulfill such requests as soon as reasonably
practicable. Also, if Intermediary is aware of a possible delay in the
fulfillment of a request, Intermediary will provide notice of the impending
delay as soon as possible after the impending delay is discovered.
Additionally, in the event the Fund implements a redemption fee in the future,
both Parties mutually agree to act in good faith to negotiate an interim
solution until Intermediary can program its systems to administer such
redemption fee.
4. CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The
Parties have entered into one or more Fund Participation Agreements between or
among them for the purchase and redemption of Shares of the Funds by the
Intermediary. This Agreement is an addendum to those Fund Participation
Agreements and is hereby incorporated by reference into the Fund Participation
Agreements. To the extent the terms of this Agreement conflict with the terms of
a Fund Participation Agreement, the terms of this Agreement shall control.
5. TERMINATION. This Agreement will terminate upon the termination of the
Fund Participation Agreement(s).
6. EXHIBITS. Attached as Exhibit B to this Agreement is a copy of the
Policies. Attached as Exhibit C to this Agreement is a copy of the market timing
policies of the Intermediary.
4
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date first above written.
THE FUND: INTERMEDIARY:
ANCHOR SERIES TRUST PHOENIX LIFE INSURANCE COMPANY,
PHL VARIABLE INSURANCE COMPANY,
PHOENIX LIFE AND ANNUITY COMPANY
ON BEHALF OF CERTAIN OF ITS
SEPARATE ACCOUNTS
By:/s/ Xxxx X. Xxxxxx By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
------------------------------------ --------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------- -----------------------
Title: Vice President Title: Sr. Vice President
--------------------------------- ---------------------
Date: March 30, 2007 Date: March 22, 2007
---------------------------------- ---------------
5
APPENDIX A
----------
REPRESENTATIVES OF THE INTERMEDIARIES
-------------------------------------
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
6
EXHIBIT B
---------
MARKET TIMING POLICIES OF THE FUND
----------------------------------
ANCHOR SERIES TRUST
SEASONS SERIES TRUST
SUNAMERICA SERIES TRUST
(COLLECTIVELY, THE "TRUSTS")
MARKET TIMING TRADING POLICIES AND PROCEDURES
Introduction
These policies and procedures are designed to ensure compliance with
the Trusts' disclosed policies regarding "market timing," i.e., the excessive or
short-term trading of Trust shares that may be harmful to the Trust.
POLICIES AND PROCEDURES
The Trusts are not intended for "market timing" or other forms of
short-term or excessive trading that may be detrimental to the Trusts. Trust
shares are generally held through insurance company separate accounts. The
insurance company separate accounts do not transmit to the Trusts purchase and
sales transactions in a Trust's shares on an individual basis but in the
aggregate, thus the Trusts have limited access to the information they would
need to identify possible market timing activity in these accounts. As such, the
Trusts are dependent on the cooperation and policies of the participating
insurance companies or retirement plans to identify and address such issues.
There is no guarantee that the Trusts will be able to detect market timing
activity or the participants engaged in such activity, or, if it is detected, to
prevent its recurrence. In situations in which the Trusts become aware of
possible market timing activity, the Trusts will notify the insurance company or
retirement plan in order to help facilitate the enforcement of such company's or
plan's market timing policies and procedures. The Trusts reserve the right, in
their sole discretion and without prior notice, to reject, restrict or refuse
purchase orders received from insurance company separate accounts or plan
sponsors, whether directly or by transfer, including orders that have been
accepted by a financial intermediary, that the Trusts determine not to be in the
best interests of the Trust or the Trusts' participants, which right shall be
exercised uniformly without exception to the insurance company separate accounts
or plan sponsor transmitting the transaction.
B-1
EXHIBIT C
---------
CURRENT MARKET TIMING POLICIES OF THE INTERMEDIARY*
---------------------------------------------------
MARKET TIMING AND OTHER DISRUPTIVE TRADING
We discourage market timing activity, frequent transfers of contract value among
subaccounts and other activity determined to be "Disruptive Trading", as
described below. Your ability to make transfers among subaccounts under the
contract is subject to modification if we determine, in our sole opinion, that
your exercise of the transfer privilege constitutes "Disruptive Trading" that
may disadvantage or potentially harm the rights or interests of other contract
owners.
"Disruptive Trading" includes, but is not limited to: frequent purchases,
redemptions and transfers; transfers into and then out of a subaccount in a
short period of time; and transfers of large amounts at one time. The risks and
harmful effects of Disruptive Trading include:
[diamond] dilution of the interests of long-term investors in a subaccount,
if market timers or others transfer into or out of the subaccount
rapidly in order to take advantage of market price fluctuations;
[diamond] an adverse affect on portfolio management, as determined by
portfolio management in its sole discretion, such as causing the
underlying fund to maintain a higher level of cash than would
otherwise be the case, or causing the underlying fund to liquidate
investments prematurely; and
[diamond] increased brokerage and administrative expenses.
To protect our contract owners and the underlying funds from Disruptive Trading,
we have adopted certain policies and procedures.
Under our Disruptive Trading policy, we can modify your transfer privileges for
some or all of the subaccounts. Modifications include, but are not limited to,
not accepting a transfer request from you or from any person, asset allocation
service, and/or market timing service made on your behalf. We may also limit the
amount that may be transferred into or out of any subaccount at any one time.
Unless prohibited by the terms of your contract, we may (but are not obligated
to):
[diamond] limit the dollar amount and frequency of transfers (e.g., prohibit
more than one transfer a week, or more than two a month, etc.),
[diamond] restrict the method of making a transfer (e.g., require that all
transfers into a particular subaccount be sent to our Service
Center by first class U.S. mail and/or rescind telephone,
internet, IVR or fax transfer privileges),
[diamond] require a holding period for some subaccounts (e.g., prohibit
transfers into a particular subaccount within a specified period
of time after a transfer out of that subaccount),
[diamond] impose redemption fees on short-term trading (or implement and
administer redemption fees imposed by one or more of the
underlying funds), or
[diamond] impose other limitations or restrictions.
Currently we attempt to detect Disruptive Trading by monitoring both the dollar
amount of individual transfers and the frequency of a contract owner's
transfers. With respect to both dollar amount and frequency, we may consider an
individual transfer alone or when combined with transfers from other
C-1
policies owned by or under the control or influence of the same individual or
entity. We currently review transfer activity on a regular basis. We also
consider any concerns brought to our attention by the managers of the underlying
funds. We may change our monitoring procedures at any time without notice.
Because we reserve discretion in applying these policies, they may not be
applied uniformly. However, we will to the best of our ability apply these
policies uniformly. Consequently, there is a risk that some contract owners
could engage in Disruptive Trading while others will bear the effects of their
activity. Currently we attempt to detect Disruptive Trading by monitoring
activity for all policies. Possible Disruptive Trading activity may result in
our sending a warning letter advising the owner of our concern. Regardless of
whether a warning letter is sent, once we determine that Disruptive Trading
activity has occurred, we may revoke the owner's right to make Internet and
Interactive Voice Response (IVR) transfers. We will notify contract owners in
writing (by mail to their address of record on file with us) if we limit their
trading.
We have adopted these policies and procedures as a preventative measure to
protect all contract owners from the potential affects of Disruptive Trading,
while recognizing the need for contract holders to have available reasonable and
convenient methods of making transfers that do not have the potential to harm
other contract owners.
We currently do not make any exceptions to the policies and procedures discussed
above to detect and deter Disruptive Trading. We may reinstate Internet, IVR,
telephone and fax transfer privileges after they are revoked, but we will not
reinstate these privileges if we have reason to believe that they might be used
thereafter for Disruptive Trading.
We cannot guarantee that our monitoring will be 100% successful in detecting and
restricting all transfer activity that constitutes Disruptive Trading. Moreover,
we cannot guarantee that revoking or limiting a contract owner's Internet, IVR,
telephone and fax transfer privileges will successfully deter all Disruptive
Trading. In addition, some of the underlying funds are available to insurance
companies other than Phoenix and we do not know whether those other insurance
companies have adopted any policies and procedures to detect and deter
Disruptive Trading, or if so what those policies and procedures might be.
Because we may not be able to detect or deter all Disruptive Trading and because
some of these funds are available through other insurance companies, some
contract owners may be treated differently than others, resulting in the risk
that some contract owners could engage in Disruptive Trading while others will
bear the effects of their activity.
We may, without prior notice, take whatever action we deem appropriate to comply
with or take advantage of any state or federal regulatory requirement. In
addition, orders for the purchase of underlying fund shares are subject to
acceptance by the relevant fund. We reserve the right to reject, without prior
notice, any transfer request into any subaccount if the purchase of shares in
the corresponding underlying fund is not accepted for any reason.
We do not include transfers made pursuant to the Dollar Cost Averaging,
Automatic Asset Rebalancing or other similar programs when applying our
Disruptive Trading policy.
* These procedures are intended to be a sample of our current market timing
procedures. These procedures may be amended from time to time. The Intermediary
agrees to provide updated information on these procedures, located in its
prospectuses, upon request of the Fund.
C-2
[DWS Xxxxxxx logo]
Deutsche Bank Group
DWS Xxxxxxx Distributors, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
(000) 000-0000
Dear Financial Services Firm ("you" or "Intermediary"),
As principal underwriter of the DWS Funds, we (or a predecessor firm) or our
affiliate have entered into a selling group or other agreement or agreements
(the "Agreement") with you to permit you, as applicable, to sell, service, or
facilitate trading in shares of the DWS Funds (collectively, the "Shares").
This amendment to the Agreement is entered into as of the date indicated in the
signature block below, with an effective date of October 16, 2007, or such
earlier date as of which you begin providing the Shareholder information
described below, and includes the following provisions:
1. AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide the
Fund, upon written request, the taxpayer identification number ("TIN"),
the Individual Taxpayer Identification Number ("ITIN"), or other
government-issued identifier ("GII"), if known, of any or all
Shareholder(s) of the account and the amount, date, name or other
identifier of any investment professional(s) associated with the
Shareholder(s) or account (if known), and transaction type (Purchase,
Redemption, transfer, or exchange) of every Purchase, Redemption,
transfer, or exchange of Shares held through each account maintained by
the Intermediary during the period covered by the request.
("Information")
2. PERIOD COVERED BY REQUEST. Requests may be made no more than
quarterly, except if the Fund has reason to believe a Shareholder's
transfer activity is disruptive to the Fund. Requests must set forth a
specific period, not to exceed ninety (90) days from the date of the
request, for which transaction Information is sought. The Fund may
request transaction Information older than ninety (90) days from the
date of the request as it deems necessary to investigate compliance
with policies established by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding shares issued by
the Fund.
3. FORM AND TIMING OF RESPONSE.
(a) Intermediary agrees to provide, promptly upon request of
the Fund or its designee, the requested Information specified
in paragraph 1 above. If requested by the Fund or its
designee, Intermediary agrees to use best efforts to determine
promptly whether any specific person about whom it has
received the identification and transaction Information
specified in paragraph 1 is itself a financial intermediary
("indirect intermediary") and, upon further request of the
Fund or its designee, promptly either (i) provide (or arrange
to have provided) the Information set forth in paragraph 1 for
those shareholders who hold an account with an indirect
intermediary or (ii) restrict or prohibit the indirect
intermediary from purchasing, in nominee name on behalf of
other persons, securities issued by the Fund.
(b) Responses required by this paragraph must be communicated
in writing and in a format mutually agreed upon by the
parties.
(c) To the extent practicable, the format for any transaction
Information provided to the Fund should be consistent with
the NSCC Standardized Data Reporting Format
4. LIMITATIONS ON USE OF INFORMATION.
The Fund agrees to only use the Information for the purposes of
identifying Shareholders who may be violating the Funds policies and
procedures with respect to dilution of the Fund's value as contemplated
by the Rule or to fulfill other regulatory or legal requirements
subject to the privacy provisions of Title V of the Xxxxx-Xxxxx Bliely
Act (Public Law 106-102) and comparable state laws. The Fund agrees
that the Information is confidential and will be treated as such by the
Fund in accordance with applicable legal and regulatory requirements.
The Fund further agrees that in the event of a breach of
confidentiality, the Fund will notify the Intermediary immediately.
5. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute
written instructions from the Fund prohibit further Purchases or
exchanges of Shares by a Shareholder that has been identified by the
Fund as having engaged in transactions of the Fund's Shares (directly
or indirectly through the Intermediary's account) that violate
policies established or utilized by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund.
Should the Fund decide to impose a restriction or redemption fee that
requires the Intermediary to implement changes to its systems to
administer such a restriction or redemption fee, the Fund agrees to
negotiate with the Intermediary, in good faith, an interim solution
that the Intermediary can effectively administer until such time as it
is able to implement such systems changes.
6. FORM OF INSTRUCTIONS. Instructions to restrict or prohibit trading
must include the TIN, ITIN, or GII, if known, and the specific
restriction(s) to be executed. If the TIN, ITIN, or GII is not known,
the instructions must include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon Information to which
the instruction relates.
7. TIMING OF RESPONSE. Intermediary agrees to execute instructions from
the Fund to restrict or prohibit trading as soon as reasonably
practicable, but not later than ten (10) business days after receipt of
the instructions by the Intermediary.
8. CONFIRMATION BY INTERMEDIARY. Intermediary must provide written
confirmation to the Fund that instructions from the Fund to restrict or
prohibit trading have been executed. Intermediary agrees to provide
confirmation as soon as reasonably
practicable, but not later than ten (10) business days after the
instructions have been executed.
9. DEFINITIONS. For purposes of this amendment:
9.1 The term "Fund" includes the fund's principal underwriter
and transfer agent. The term does not include any "excepted funds"
as defined in SEC Rule 22c-2(b) under the Investment Company Act
of 1940.*
9.2 The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual
funds ("Separate Account") and/or the insurance company acting as
the depositor for the Separate Account.
9.3 The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the
Fund under the Investment Company Act of 1940 that are held by the
Intermediary.
9.4 Except as otherwise provided in this paragraph 9.4, the term
"Shareholder" means the beneficial owner of Shares, whether the
Shares are held directly or by the Intermediary in nominee name.
If you are an insurance company separate account, the term
"Shareholder" means the holder of interests in a variable annuity
or variable life insurance contract issued by the Intermediary.
9.5 The term "written" includes electronic writings and facsimile
transmissions.
9.6 The term "Purchase" means a transaction that is initiated or
directed by a Shareholder that results in a transfer of assets
within a Contract to a Fund, but does not include transactions
that are executed: (i) automatically pursuant to a contractual or
systematic program or enrollment such as transfer of assets within
a Contract to a Fund as a result of "dollar cost averaging"
programs, insurance company approved asset allocation programs, or
automatic rebalancing programs; (ii) pursuant to a Contract death
benefit; (iii) one-time step-up in Contract value pursuant to a
Contract death benefit; (iv) allocation of assets to a Fund
through a Contract as a result of payments such as loan
repayments, scheduled contributions, retirement plan salary
reduction contributions, or planned premium payments to the
Contract; or (v) prearranged transfers at the conclusion of a
required free look period.
9.7 The term "promptly" as used in paragraph 3(a) shall mean as
soon as practicable but in no event later than ten business days
from the Intermediary's receipt of the request for Information
from the Fund or its designee.
9.8 The term "Redemption" means a transaction that is initiated or
directed by a Shareholder that results in a transfer of assets
within a Contract out of a Fund, but does not include transactions
that are executed: (i) automatically pursuant to a contractual or
systematic program or enrollments such as transfers of assets
within a Contract out of a Fund as a result of annuity payouts,
loans, systematic withdrawal programs, insurance company approved
asset allocation programs and automatic rebalancing programs; (ii)
as a result
of any deduction of charges or fees under a Contract; (iii)
within a Contract out of a Fund as a result of scheduled
withdrawals or surrenders from a Contract; or (iv) as a result of
payment of a death benefit from a Contract.
10. GENERAL PROVISIONS.
10.1 CONSTRUCTION OF THE AGREEMENT. The parties have entered into one
or more Fund Participation Agreements between or among them for the
purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. The Fund Participation Agreements are
hereby incorporated by reference into this Agreement, as this Agreement
is intended to be a supplement to the Fund Participation Agreements. To
the extent the terms of this Agreement conflict with the terms of a
Fund Participation Agreement, the terms of this Agreement shall
control.
10.2 FORCE MAJEURE. Either party is excused from performance and shall
not be liable for any delay in performance or non-performance, in whole
or in part, caused by the occurrence of any event or contingency beyond
the control of the parties including, but not limited to, work
stoppages, fires, civil disobedience, riots, rebellions, natural
disasters, acts of God, and acts of war or terrorism. The party who has
been so affected shall promptly give written notice to the other Party
and shall use its best efforts to resume performance. Upon receipt of
such notice, all obligations under this Agreement shall be immediately
suspended for the duration of such Force Majeure Event.
10.3 TERMINATION. This Agreement will terminate upon the termination of
the applicable Fund Participation Agreements.
DWS XXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
-------------------------------
Title: SVP L&A Fin & Inv Mgmt
------------------------------
Date: 03-20-07
-------------------------------
* As defined in SEC Rule 22c-2(b), the term "excepted fund" means any: (1) money
market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly
and prominently discloses that the fund permits short-term trading of its
securities and that such trading may result in additional costs for the fund.
SHAREHOLDER INFORMATION AGREEMENT
THIS SHAREHOLDER INFORMATION AGREEMENT entered into as of April 16, 2007 by and
between Federated Securities Corp., ("FSC"), a Pennsylvania corporation, and
Phoenix Life Insurance Company, a New York corporation, PHL Variable Insurance
Company, a Connecticut corporation, and Phoenix Life and Annuity Company, a
Connecticut Corporation ("Intermediary").
WHEREAS, Intermediary has entered into fund participation agreement(s) with FSC
to make certain mutual funds available to retirement benefit plans and variable
life and variable annuity policies issued by Intermediary;
WHEREAS, the Funds have adopted policies and procedures to protect the Funds and
their respective shareholders from potentially harmful frequent trading;
WHEREAS, such policies and procedures include reserving the right to reject
certain transactions initiated by plan participants and individual annuity
owners;
WHEREAS, this Agreement is being entered into to assist the Funds in meeting
their goal of restricting potential harmful frequent trading within the Funds;
NOW THEREFORE, in consideration of the terms covenants and conditions contained
herein and other valuable considerations, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
The term "INTERMEDIARY" means an insurance company separate account offering any
of the Fund's insurance dedicated mutual funds ("Separate Account") and/or the
insurance company acting as the depositor for the Separate Account.
The term "FUND" shall mean an open-ended management investment company that is
registered or required to register under section 8 of the Investment Company Act
of 1940 and includes (i) an investment adviser to or administrator for the Fund;
(ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund. The term does not include any "excepted funds" as
defined in SEC Rule 22c-2(b) under the Investment Company Act of 1940.(1)
The term "PROMPTLY" shall mean no later than 10 business days.
The term "SHARES" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the Investment Company
Act of 1940 that are held by the Intermediary.
----------------------
(1) As defined in SEC Rule 22c-2(b), term "excepted fund" means any: (1) money
market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly and prominently discloses that the
fund permits short-term trading of its securities and that such trading may
result in additional costs for the fund.
-1-
The term "SHAREHOLDEr" means the holder of interests in a variable annuity or
variable life insurance contract issued by the Intermediary ("Contract"), or a
participant in an employee benefit plan with a beneficial interest in a
contract.
The term "SHAREHOLDER-INITIATED TRANSFER PURCHASE" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract to a Fund, but does not include transactions that are
executed: (i) pursuant to a Contract death benefit; (ii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iii) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (iv) prearranged transfers at the
conclusion of a required free look period.
The term "SHAREHOLDER-INITIATED TRANSFER REDEMPTION" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract out of a Fund, but does not include transactions that are
executed: (i) automatically pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Contract out of a Fund as a
result of annuity payouts, loans, systematic withdrawal programs (ii) as a
result of any deduction of charges or fees under a Contract; (iii) within a
Contract out of a Fund as a result of scheduled withdrawals or surrenders from a
Contract; or (iv) as a result of payment of a death benefit from a Contract.
The term "WRITTEN" includes electronic writings and facsimile transmissions.
2. AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide the Fund
or its designee, upon written request, the taxpayer identification number
("TIN"), the Individual/International Taxpayer Identification Number
("ITIN")*, or other government issued identifier ("GII") and the Contract
owner number or participant account number associated with the Shareholder,
if known, of any or all Shareholder(s) of the account, and the amount, date
and transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an
account maintained by the Intermediary during the period covered by the
request ("Transaction Information"). Unless otherwise specifically
requested by the Fund, the Intermediary shall only be required to provide
Transaction Information relating to Shareholder-Initiated Transfer
Purchases or Shareholder-Initiated Transfer Redemptions.
3. PERIOD COVERED BY REQUEST. Requests must set forth a specific period, not
to exceed 90 days from the date of the request, for which Transaction
Information is sought. The Fund may request Transaction Information older
then 90 days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
----------------------
* According to the IRS' website, the ITIN refers to the Individual Taxpayer
Identification number, which is a nine-digit number that always begins with
the number 9 and has a 7 or 8 in the fourth digit, example 9XX-7X-XXXX. The
IRS issues ITINs to individuals who are required to have a U.S. taxpayer
identification number but who do not have, and are not eligible to obtain a
Social Security Number (SSN) from the Social Security Administration (SSA).
SEC Rule 22c-2 inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
-2-
4. TIMING OF REQUESTS. Fund requests for Shareholder Transaction Information
shall be made no more frequently than quarterly except as the Fund deems
necessary to investigate compliance with policies established by the Fund
for the purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
5. FORM AND TIMING OF RESPONSE. (a) Intermediary agrees to provide, promptly
upon request of the Fund or its designee, the requested Transaction
Information specified in paragraph 2 hereof. If requested by the Fund or
its designee, Intermediary agrees to use best efforts to determine promptly
whether any specific person about whom it has received the identification
and Transaction Information specified in paragraph 2 hereof is itself a
financial intermediary ("indirect intermediary") and, upon further request
of the Fund or its designee, promptly either (i) provide (or arrange to
have provided) Transaction Information set forth in paragraph 2 hereof for
those shareholders who hold an account with an indirect intermediary or
(ii) restrict or prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued by the Fund.
Intermediary additionally agrees to inform the Fund whether it plans to
perform (i) or (ii); (b) Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the Fund or
its designee and the Intermediary; and (c) To the extent practicable, the
format for any Transaction Information provided to the Fund should be
consistent with the NSCC Standardized Data Reporting Format.
6. LIMITATIONS ON USE OF TRANSACTION INFORMATION. The Fund agrees to only use
Transaction Information for the purposes of identifying Shareholders who
may be violating the Funds policies and procedures with respect to dilution
of the Fund's value as contemplated by Rule 22C-2 or to fulfill other
regulatory or legal requirements subject to the privacy provisions of Title
V of the Xxxxx-Xxxxx Xxxxxx Act (Public Law 106-102) and comparable state
laws. The Fund agrees that the Transaction Information is confidential and
that the Fund will not share the Transaction Information externally, unless
the Intermediary provides the Fund with prior written consent to share such
Transaction Information. The Fund agrees not to share the Transaction
Information internally, except on a "need to know basis. The Fund further
agrees to notify the Intermediary immediately in the event that the
confidentiality of the Transaction Information is breached.
7. (A). AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of
Shares by a Shareholder that has been identified by the Fund as having
engaged in transactions of the Fund's Shares (directly or indirectly
through the Intermediary's account) that violate policies established by
the Fund for the purpose of eliminating or reducing any dilution of the
value of the outstanding Shares issued by the Fund. Unless otherwise
directed by the Fund, any such prohibitions shall only apply to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions that are effected directly or indirectly through
Intermediaries. Instructions must be received to you in writing at the
following address, or such other address that Intermediary may communicate
to you in writing from time to time, including, if applicable, an e-mail
and/or facsimile telephone number:
-3-
Phoenix Life Insurance Companies
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
(B.) REDEMPTION FEES. If the Fund implements a redemption fee in the future that
the Intermediary cannot implement within the requested timeframe despite
the Intermediary's best efforts, the Fund agrees to negotiate, in good
faith, an interim solution until such time that the redemption fee can be
successfully administered.
8. FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific prohibition(s)
to be executed, including how long the prohibition(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual Contract owner
number or participant account number associated with the Shareholder is not
known, the instructions must include an equivalent identifying number of
the Shareholder(s) or account(s) or other agreed upon information to which
the instruction relates. Upon request of the Intermediary, Fund agrees to
provide to the Intermediary, along with any written instructions to
prohibit further purchases or exchanges of Shares by Shareholder,
Transaction Information regarding those trades of the contract holder that
violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
9. TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt
of the instructions by the Intermediary.
10. CONFIRMATION BY INTERMEDIARY. Intermediary must provide written
confirmation to the Fund that instructions have been executed. Intermediary
agrees to provide confirmation as soon as reasonably practicable, but not
later than ten business days after the instructions have been executed.
11. CONSTRUCTION OF THE AGREEMENT - FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or
among them for the purchase and redemption of shares of the Funds by the
Accounts in connection with the Contracts. The Fund Participation
Agreements are hereby incorporated by reference into this Agreement, as
this Agreement is intended to supplement those Fund Participation
Agreements. To the extent the terms of this Agreement conflict with the
terms of a Fund Participation Agreement, the terms of this Agreement shall
control.
12. INDEMNIFICATION:
(a) In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of FSC
and the Funds and their respective officers, directors, or employees (each
a "FUND INDEMNIFIED PARTY"), Agent agrees to indemnify each Fund
Indemnified Party against any and all claims, demands, liabilities
(including the amount of any resulting dilution in a Fund's net asset
value) and reasonable expenses (including attorneys'
-4-
fees) which any Fund Indemnified Party may incur arising from, related to,
or otherwise connected with any breach by Agent of any provision of this
Agreement. In no event shall Agent be liable to FSC for special, indirect
or consequential damages, or lost profits or loss of business, arising
under or in connection with any such breach.
(b) In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of Agent
and its officers, directors, or employees (each a "AGENT INDEMNIFIED
PARTY"), FSC agrees to indemnify each Agent Indemnified Party against any
and all claims, demands, liabilities and reasonable expenses (including
attorneys' fees) which any Agent Indemnified Party may incur arising from,
related to, or otherwise connected with, any breach by FSC of any provision
of this Agreement. In no event shall FSC be liable to Agent for special,
indirect or consequential damages, or lost profits or loss of business,
arising under or in connection with any such breach.
(c) The parties' agreement in this Paragraph to indemnify each other is
conditioned upon the party entitled to indemnification ("CLAIMANT") giving
notice to the party required to provide indemnification ("INDEMNIFIER")
promptly after the summons or other first legal process for any claim as to
which indemnity may be sought is served on the Claimant. The Claimant shall
permit the Indemnifier to assume the defense of any such claim or any
litigation resulting from it, provided that Indemnifier's counsel that is
conducting the defense of such claim or litigation shall be approved by the
Claimant (which approval shall not unreasonably be withheld), and that the
Claimant may participate in such defense at its expense. The failure of the
Claimant to give notice as provided in this subparagraph (c) shall not
relieve the Indemnifier from any liability other than its indemnity
obligation under this Paragraph. No Indemnifier, in the defense of any such
claim or litigation, shall, without the consent of the Claimant, consent to
entry of any judgment or enter into any settlement that does not include as
an unconditional term the giving by the alleging party or plaintiff to the
Claimant of a release from all liability in respect to such claim or
litigation.
(d) The provisions of this Section shall survive the termination of this
Agreement.
13. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreement(s).
-5-
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
FEDERATED SECURITIES CORP.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
---------------------------
Title: Senior Vice President
---------------------------
Date: 4/13/07
---------------------------
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
---------------------------
Title: Senior Vice President
---------------------------
Date: April 12, 2007
---------------------------
-6-
SHAREHOLDER INFORMATION AGREEMENT
THIS SHAREHOLDER INFORMATION AGREEMENT entered into as of April 16, 2007 by and
between Federated Securities Corp., ("FSC"), a Pennsylvania corporation, and
Phoenix Life Insurance Company, a New York corporation, and agent for Valley
Forge Life Insurance Company ("Intermediary").
WHEREAS, Intermediary has entered into fund participation agreement(s) with FSC
to make certain mutual funds available to retirement benefit plans and variable
life and variable annuity policies issued by Intermediary;
WHEREAS, the Funds have adopted policies and procedures to protect the Funds and
their respective shareholders from potentially harmful frequent trading;
WHEREAS, such policies and procedures include reserving the right to reject
certain transactions initiated by plan participants and individual annuity
owners;
WHEREAS, this Agreement is being entered into to assist the Funds in meeting
their goal of restricting potential harmful frequent trading within the Funds;
NOW THEREFORE, in consideration of the terms covenants and conditions contained
herein and other valuable considerations, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
The term "INTERMEDIARY" means an insurance company separate account offering any
of the Fund's insurance dedicated mutual funds ("Separate Account") and/or the
insurance company acting as the depositor for the Separate Account.
The term "FUND" shall mean an open-ended management investment company that is
registered or required to register under section 8 of the Investment Company Act
of 1940 and includes (i) an investment adviser to or administrator for the Fund;
(ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund. The term does not include any "excepted funds" as
defined in SEC Rule 22c-2(b) under the Investment Company Act of 1940.(1)
The term "PROMPTLY" shall mean no later than 10 business days.
The term "SHARES" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the Investment Company
Act of 1940 that are held by the Intermediary.
----------------------------
(1) As defined in SEC Rule 22c-2(b), term "excepted fund" means any: (1) money
market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly and prominently discloses that the
fund permits short-term trading of its securities and that such trading may
result in additional costs for the fund.
-1-
The term "SHAREHOLDEr" means the holder of interests in a variable annuity or
variable life insurance contract issued by the Intermediary ("Contract"), or a
participant in an employee benefit plan with a beneficial interest in a
contract.
The term "SHAREHOLDER-INITIATED TRANSFER PURCHASE" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract to a Fund, but does not include transactions that are
executed: (i) pursuant to a Contract death benefit; (ii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iii) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (iv) prearranged transfers at the
conclusion of a required free look period.
The term "SHAREHOLDER-INITIATED TRANSFER REDEMPTION" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract out of a Fund, but does not include transactions that are
executed: (i) automatically pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Contract out of a Fund as a
result of annuity payouts, loans, systematic withdrawal programs (ii) as a
result of any deduction of charges or fees under a Contract; (iii) within a
Contract out of a Fund as a result of scheduled withdrawals or surrenders from a
Contract; or (iv) as a result of payment of a death benefit from a Contract.
The term "WRITTEN" includes electronic writings and facsimile transmissions.
2. AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide the Fund
or its designee, upon written request, the taxpayer identification number
("TIN"), the Individual/International Taxpayer Identification Number
("ITIN")*, or other government issued identifier ("GII") and the Contract
owner number or participant account number associated with the Shareholder,
if known, of any or all Shareholder(s) of the account, and the amount, date
and transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an
account maintained by the Intermediary during the period covered by the
request ("Transaction Information"). Unless otherwise specifically
requested by the Fund, the Intermediary shall only be required to provide
Transaction Information relating to Shareholder-Initiated Transfer
Purchases or Shareholder-Initiated Transfer Redemptions.
3. PERIOD COVERED BY REQUEST. Requests must set forth a specific period, not
to exceed 90 days from the date of the request, for which Transaction
Information is sought. The Fund may request Transaction Information older
then 90 days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
-------------------------
* According to the IRS' website, the ITIN refers to the Individual Taxpayer
Identification number, which is a nine-digit number that always begins with
the number 9 and has a 7 or 8 in the fourth digit, example 9XX-7X-XXXX. The
IRS issues ITINs to individuals who are required to have a U.S. taxpayer
identification number but who do not have, and are not eligible to obtain a
Social Security Number (SSN) from the Social Security Administration (SSA).
SEC Rule 22c-2 inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
-2-
4. TIMING OF REQUESTS. Fund requests for Shareholder Transaction Information
shall be made no more frequently than quarterly except as the Fund deems
necessary to investigate compliance with policies established by the Fund
for the purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
5. FORM AND TIMING OF RESPONSE. (a) Intermediary agrees to provide, promptly
upon request of the Fund or its designee, the requested Transaction
Information specified in paragraph 2 hereof. If requested by the Fund or
its designee, Intermediary agrees to use best efforts to determine promptly
whether any specific person about whom it has received the identification
and Transaction Information specified in paragraph 2 hereof is itself a
financial intermediary ("indirect intermediary") and, upon further request
of the Fund or its designee, promptly either (i) provide (or arrange to
have provided) Transaction Information set forth in paragraph 2 hereof for
those shareholders who hold an account with an indirect intermediary or
(ii) restrict or prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued by the Fund.
Intermediary additionally agrees to inform the Fund whether it plans to
perform (i) or (ii); (b) Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the Fund or
its designee and the Intermediary; and (c) To the extent practicable, the
format for any Transaction Information provided to the Fund should be
consistent with the NSCC Standardized Data Reporting Format.
6. LIMITATIONS ON USE OF TRANSACTION INFORMATION. The Fund agrees to only use
Transaction Information for the purposes of identifying Shareholders who
may be violating the Funds policies and procedures with respect to dilution
of the Fund's value as contemplated by Rule 22C-2 or to fulfill other
regulatory or legal requirements subject to the privacy provisions of Title
V of the Xxxxx-Xxxxx Xxxxxx Act (Public Law 106-102) and comparable state
laws. The Fund agrees that the Transaction Information is confidential and
that the Fund will not share the Transaction Information externally, unless
the Intermediary provides the Fund with prior written consent to share such
Transaction Information. The Fund agrees not to share the Transaction
Information internally, except on a "need to know basis. The Fund further
agrees to notify the Intermediary immediately in the event that the
confidentiality of the Transaction Information is breached.
7. (A). AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of
Shares by a Shareholder that has been identified by the Fund as having
engaged in transactions of the Fund's Shares (directly or indirectly
through the Intermediary's account) that violate policies established by
the Fund for the purpose of eliminating or reducing any dilution of the
value of the outstanding Shares issued by the Fund. Unless otherwise
directed by the Fund, any such prohibitions shall only apply to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions that are effected directly or indirectly through
Intermediaries. Instructions must be received to you in writing at the
following address, or such other address that Intermediary may communicate
to you in writing from time to time, including, if applicable, an e-mail
and/or facsimile telephone number:
-3-
Phoenix Life Insurance Companies
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
(B.) REDEMPTION FEES. If the Fund implements a redemption fee in the future that
the Intermediary cannot implement within the requested timeframe despite
the Intermediary's best efforts, the Fund agrees to negotiate, in good
faith, an interim solution until such time that the redemption fee can be
successfully administered.
8. FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific prohibition(s)
to be executed, including how long the prohibition(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual Contract owner
number or participant account number associated with the Shareholder is not
known, the instructions must include an equivalent identifying number of
the Shareholder(s) or account(s) or other agreed upon information to which
the instruction relates. Upon request of the Intermediary, Fund agrees to
provide to the Intermediary, along with any written instructions to
prohibit further purchases or exchanges of Shares by Shareholder,
Transaction Information regarding those trades of the contract holder that
violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
9. TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt
of the instructions by the Intermediary.
10. CONFIRMATION BY INTERMEDIARY. Intermediary must provide written
confirmation to the Fund that instructions have been executed. Intermediary
agrees to provide confirmation as soon as reasonably practicable, but not
later than ten business days after the instructions have been executed.
11. CONSTRUCTION OF THE AGREEMENT - FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or
among them for the purchase and redemption of shares of the Funds by the
Accounts in connection with the Contracts. The Fund Participation
Agreements are hereby incorporated by reference into this Agreement, as
this Agreement is intended to supplement those Fund Participation
Agreements. To the extent the terms of this Agreement conflict with the
terms of a Fund Participation Agreement, the terms of this Agreement shall
control.
12. INDEMNIFICATION:
(a) In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of FSC and the
Funds and their respective officers, directors, or employees (each a "FUND
INDEMNIFIED PARTY"), Agent agrees to indemnify each Fund Indemnified Party
against any and all claims, demands, liabilities (including the amount of any
resulting dilution in a Fund's net asset value) and reasonable expenses
(including attorneys'
-4-
fees) which any Fund Indemnified Party may incur arising from, related to, or
otherwise connected with any breach by Agent of any provision of this Agreement.
In no event shall Agent be liable to FSC for special, indirect or consequential
damages, or lost profits or loss of business, arising under or in connection
with any such breach.
(b) In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of Agent and
its officers, directors, or employees (each a "AGENT INDEMNIFIED PARTY"), FSC
agrees to indemnify each Agent Indemnified Party against any and all claims,
demands, liabilities and reasonable expenses (including attorneys' fees) which
any Agent Indemnified Party may incur arising from, related to, or otherwise
connected with, any breach by FSC of any provision of this Agreement. In no
event shall FSC be liable to Agent for special, indirect or consequential
damages, or lost profits or loss of business, arising under or in connection
with any such breach.
(c) The parties' agreement in this Paragraph to indemnify each other is
conditioned upon the party entitled to indemnification ("CLAIMANT") giving
notice to the party required to provide indemnification ("INDEMNIFIER") promptly
after the summons or other first legal process for any claim as to which
indemnity may be sought is served on the Claimant. The Claimant shall permit the
Indemnifier to assume the defense of any such claim or any litigation resulting
from it, provided that Indemnifier's counsel that is conducting the defense of
such claim or litigation shall be approved by the Claimant (which approval shall
not unreasonably be withheld), and that the Claimant may participate in such
defense at its expense. The failure of the Claimant to give notice as provided
in this subparagraph (c) shall not relieve the Indemnifier from any liability
other than its indemnity obligation under this Paragraph. No Indemnifier, in the
defense of any such claim or litigation, shall, without the consent of the
Claimant, consent to entry of any judgment or enter into any settlement that
does not include as an unconditional term the giving by the alleging party or
plaintiff to the Claimant of a release from all liability in respect to such
claim or litigation.
(d) The provisions of this Section shall survive the termination of this
Agreement.
13. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreement(s).
-5-
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
FEDERATED SECURITIES CORP.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
-----------------------------------
Title: Senior Vice President
-----------------------------------
Date: 4/13/07
-----------------------------------
PHOENIX LIFE INSURANCE COMPANY, AS AGENT FOR VALLEY FORGE LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
Date: April 12, 2007
-----------------------------------
-6-
FIRST EAGLE VARIABLE FUNDS
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between First Eagle Variable Funds ("Fund") and Phoenix Life Insurance Company
("Agent").
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent for the Intermediary in
terms of the administration of the variable life and variable annuity insurance
products;
WHEREAS, the Intermediary and the Fund previously entered into Participation
Agreements allowing the Intermediary to offer certain First Eagle insurance
dedicated mutual funds through its Separate Accounts by way of the
Intermediary's variable life and variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22C-2 allows the agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Fund and the Agent enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 INTERMEDIARY: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds
("Separate Account") and/or the insurance company acting as the depositor
for the Separate Account as well as the Agent administering the functions
of the Separate Account with respect to the Intermediary's variable life
and annuity business.
1
1.2 FUND: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the
Act. The term "Fund" includes (i) an investment adviser to or administrator
for the Fund; (ii) the principal underwriter or distributor for the Fund;
or (iii) the transfer agent for the Fund. The term not does include any
"excepted funds" as defined in Rule 22c-2(b) under the Act.
1.3 SHARES: The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by the Fund under the Act
that are held by the Intermediary.
1.4 SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan
with a beneficial interest in a contract.
1.5 SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a
Fund, but does not include transactions that are executed: (i)
automatically pursuant to a contractual or systematic program or enrollment
such as transfer of assets within a Contract to a Fund as a result of
"dollar cost averaging" programs, insurance company approved asset
allocation programs, or automatic rebalancing programs; (ii) pursuant to a
Contract death benefit; (iii) one-time step-up in Contract value pursuant
to a Contract death benefit; (iv) allocation of assets to a Fund through a
Contract as a result of payments such as loan repayments, scheduled
contributions, retirement plan salary reduction contributions, or planned
premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6 SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i)
automatically pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Contract out of a Fund as
a result of annuity payouts, loans, systematic withdrawal programs,
insurance company approved asset allocation programs and automatic
rebalancing programs; (ii) as a result of any deduction of charges or fees
under a Contract; (iii) within a Contract out of a Fund as a result of
scheduled withdrawals or surrenders from a Contract; or (iv) as a result of
payment of a death benefit from a Contract.
1.7 SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8 WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
2
II. INFORMATION SHARING
2.1 INFORMATION SHARING - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN");
(ii) the Contract owner number or participant account number associated
with the Shareholder;
(iii) the amount, date and transaction type of every purchase,
redemption, transfer, or exchange of Shares held through an
account maintained by the Intermediary during the period covered
by the request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed 90 days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older
than 90 days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
2.3 TIMING OF REQUESTS- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to the Fund
promptly upon request If the Fund requests, the Intermediary
agrees to use its best efforts to promptly determine whether any
specific person about whom it has received Shareholder Information
is itself a financial intermediary ("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests, the
Intermediary will, with notice to the Fund, promptly either:
(i) provide Shareholder Information for those shareholders who
hold an account with an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in nominee
name on behalf of other persons, securities issued by the Fund.
(c) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and according to the IRS' website, the ITIN refers to
the Individual Taxpayer Identification number, which is a nine-digit
number that always begins with the number 9 and has a 7 or 8 in the
fourth digit, example 9XX-7X-XXXX. The IRS issues ITINs to individuals
who are required to have a U.S. taxpayer identification number but who
do not have, and are not eligible to obtain a Social Security Number
(SSN) from the Social Security Administration (SSA). SEC Rule 22c-2
inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
3
(d) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized
Data Reporting Format.
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders
who may be violating the Funds policies and procedures with respect to
dilution of the Fund's value as contemplated by the Rule or to fulfill
other regulatory or legal requirements subject to the privacy provisions of
Title V of the Xxxxx-Xxxxx Xxxxx Act (Public Law 106-102) and comparable
state laws. The Fund agrees that the Shareholder Information is
confidential and that the Fund will not share the Shareholder Information
externally, unless the Intermediary provides the Fund with prior written
consent to share such Shareholder Information. The Fund agrees not to share
the Shareholder Information internally, except on a "need to know basis."
The Fund further agrees to notify the Intermediary in the event that the
confidentiality of the Shareholder Information is breached.
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of
Shares by a Shareholder that has been identified by the Fund as having
engaged in transactions of the Fund's Shares (directly or indirectly
through the Intermediary's account) that violate policies established by
the Fund for the purpose of eliminating or reducing any dilution of the
value of the outstanding Shares issued by the Fund. Unless otherwise
directed by the Fund, any such prohibitions shall only apply to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions that are effected directly or indirectly through Intermediary.
Instructions must be received by us at the following address, or such other
address that Intermediary may communicate to you in writing from time to
time, including, if applicable, an e-mail and/or facsimile telephone
number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s)
to be executed, including how long the prohibition(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual Contract owner
number or participant account number associated with the Shareholder is not
known, the instructions must include an equivalent identifying number of
the Shareholder(s) or account(s) or other agreed upon information to which
the instruction relates. Upon request of the Intermediary, Fund agrees to
provide to the Intermediary, along with any written instructions to
prohibit further purchases or exchanges of Shares by Shareholder,
information regarding those trades of the contract holder that violated the
Fund's policies relating to eliminating or reducing any dilution of the
value of the Fund's outstanding Shares.
4
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt
of the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written
confirmation to the Fund that instructions have been executed. Intermediary
agrees to provide confirmation as soon as reasonably practicable, but not
later than ten business days after the instructions have been executed.
3.5 REDEMPTION FEES. The Fund agrees to communicate any change in its short
term trading or redemption fee policy to the Intermediary and to work with
the intermediary, in good faith, to set up a mutually agreed upon
implementation date.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or
among them for the purchase and redemption of shares of the Funds by the
Accounts in connection with the Contracts. The Fund Participation
Agreements are hereby incorporated by reference into this Agreement, as
this Agreement is intended to be a supplement to the Fund Participation
Agreements. To the extent the terms of this Agreement conflict with the
terms of a Fund Participation Agreement, the terms of this Agreement shall
control.
4.2 INDEMNIFICATION. The Fund agrees to indemnify and hold harmless
Intermediary from any and all liability, claim, loss, demand, damages,
costs and expenses (including reasonable attorney's fees) arising in
connection with third party claim or action brought against Intermediary as
a result of any unauthorized disclosure of a shareholder's taxpayer
identification number provided to the Fund in response to a request for
Shareholder Information pursuant to the terms of this Agreement.
4.3 FORCE MAJEURE. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in
part, caused by the occurrence of any event or contingency beyond the
control of the parties including, but not limited to, work stoppages,
fires, civil disobedience, riots, rebellions, natural disasters, acts of
God, and acts of war or terrorism. The party who has been so affected shall
promptly give written notice to the other Party and shall use its best
efforts to resume performance. Upon receipt of such notice, all obligations
under this Agreement shall be immediately suspended for the duration of
such Force Majeure Event.
4.4 TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
5
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
FIRST EAGLE VARIABLE FUNDS
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------
Title: Chief Operations & Finance Officer
---------------------------------------
Date: 4/13/07
---------------------------------------
PHOENIX LIFE INSURANCE COMPANY, AS AGENT FOR VALLEY FORGE LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
Date:
---------------------------------------
6
SHAREHOLDER INFORMATION AGREEMENT
---------------------------------
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST
This Shareholder Information Agreement ("Agreement") is entered into as
of April 16, 2007, and is among Franklin/Xxxxxxxxx Distributors, Inc.
("Distributors") on behalf of each Fund, as defined below, and the Intermediary,
as defined below. Unless otherwise specified, capitalized terms have the meaning
set out under "Definitions," below.
WHEREAS, Intermediary is a "financial intermediary" as that term is
defined in Rule 22c-2 under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, Distributors serves as the principal underwriter to the Funds;
and
WHEREAS, Distributors and Intermediary wish to enter into this
Agreement in accordance with Rule 22c-2 under the 1940Act.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, which consideration is full and complete, Distributors and
Intermediary hereby agree as follows:
1. SHAREHOLDER INFORMATION
-----------------------
1.1 AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide
the Fund or its designee, upon written request, the taxpayer identification
number ("TIN"), the Individual/International Taxpayer Identification Number
("ITIN"), or other government -issued identifier ("GII") and the Contract owner
number or participant account number associated with the Shareholder, if known,
of any or all Shareholder(s) of the account, and the amount, date and
transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an account
maintained by Intermediary during the period covered by the request
("Transaction Information"). Unless otherwise specifically requested by the Fund
or its designee, Intermediary shall only be required to provide Transaction
Information relating to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions.
1.1.1 PERIOD COVERED BY REQUEST. Requests must set forth a
specific period, not to exceed ninety (90) days from the date of the
request, for which Transaction -Information is sought. The Fund or its
designee may request Transaction Information older than ninety (90)
days from the date of the request as it deems necessary to investigate
compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
shares issued by the Fund.
53495-1 1
(a) TIMING OF REQUESTS. Requests from the Fund
or its designee for Shareholder Transaction
Information shall be made no more frequently
than quarterly except as the Fund or its
designee deems necessary to investigate
compliance with policies established by the
Fund or its designee for the purpose of
eliminating or reducing any dilution of the
value of the outstanding shares issued by
the Fund.
1.1.2 FORM AND TIMING OF RESPONSE.
(a) Intermediary agrees to provide, promptly
upon request of the Fund or its designee,
the requested Transaction Information
specified in Section 1.1, above. If
requested by the Fund or its designee,
Intermediary agrees to use best efforts to
determine promptly whether any specific
person about whom Intermediary has received
the identification and Transaction
Information specified in Section 1.1 above
is itself a financial intermediary
("indirect intermediary") and, upon further
request of the Fund or its designee,
promptly either: (i) provide (or arrange to
have provided) the Transaction Information
set forth in Section 1.1 for those
shareholders who hold an account with an
indirect intermediary; or (ii) restrict or
prohibit the indirect intermediary from
purchasing, in nominee name on behalf of
other persons, securities issued by the
Fund. Intermediary additionally agrees to
inform the Fund or its designee whether
Intermediary plans to perform (i) or (ii);
and
(b) Responses required by this Section 1.1 must
be communicated in writing and in a format
mutually agreed upon by the Fund or its
designee and Intermediary; and
(c) To the extent practicable and agreed by the
parties, the format for any Transaction
Information provided to the Fund or its
designee should be consistent with the NSCC
Standardized Data Reporting Format.
1.1.3 LIMITATIONS ON USE OF INFORMATION. Unless the
Intermediary provides prior written consent, Fund
agrees not to use the Transaction Information
received pursuant to this Agreement for any purpose
other than as necessary to comply with the provisions
of Rule 22c-2 or to fulfill other regulatory or legal
requirements subject to the privacy provisions of
Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law
106-102) and comparable state laws. The Fund further
agrees to notify the Intermediary promptly if it
becomes aware that there is a breach of
confidentiality caused by the Fund with respect to
the Transaction Information.
53495-1 2
2. RESTRICTION OF TRADING
----------------------
2.1 AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute
written instructions from the Fund or its designee to restrict or prohibit
further purchases or exchanges of Shares by a Shareholder that has been
identified by the Fund or its designee as having engaged in transactions of the
Fund's Shares (directly or indirectly through the Intermediary's account) that
violate policies established by the Fund or its designee for the purpose of
eliminating or reducing any dilution of the value of the outstanding Shares
issued by the Fund. Unless otherwise directed by the Fund or its designee, any
such restrictions or prohibitions shall only apply to Shareholder-Initiated
Transfer Purchases or Shareholder- Initiated Transfer Redemptions that are
effected directly or indirectly through Intermediary.
2.1.1 FORM OF INSTRUCTIONS. Instructions must include the TIN,
ITIN, or 011 and the specific individual Contract owner number or
participant account number associated with the Shareholder, if known,
and the specific restriction(s) to be executed, including how long the
restriction(s) is(are) to remain in place. If the TIN, ITIN, 011 or the
specific individual Contract owner number or participant account number
associated with the Shareholder is not known, the instructions must
include an equivalent identifying number of the Shareholder(s) or
account(s) or other agreed upon information to which the instruction
relates.
2.1.2 TIMING OF RESPONSE. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not later than five
business days after Intermediary receives the instructions or a time
period agreed upon by both parties.
2.1.3 CONFIRMATION BY INTERMEDIARY. Intermediary must
provide written confirmation to the Fund or its designee that
instructions have been executed. INTERMEDIARY agrees to provide
confirmation as soon as reasonably practicable, but not later than ten
business days after the instructions have been executed.
2.1.4 REDEMPTION FEES. If the Fund decides to impose a
redemption fee with respect to its Class 1 or Class 2 shares, the Fund
agrees to make reasonable efforts to notify the Intermediary in
advance.
2.2 CONSTRUCTION OF THE AGREEMENT; PARTICIPATION AGREEMENTS. The
parties have entered into one or more agreements between or among them governing
the purchase and redemption of shares of the Funds in connection with the
Contracts (collectively, "Participation Agreements"). This Agreement supplements
those Participation Agreements. To the extent the terms of this Agreement
conflict with the terms of a Participation Agreement with regard to the
requirements of Rule 22c-2, the terms of this Agreement shall control.
3. MISCELLANEOUS PROVISIONS
------------------------
3.1 REQUESTS PRIOR TO OCTOBER 16, 2007. Intermediary shall be able to
promptly respond to requests for Shareholder Transaction Information by no later
than October 16, 2007. Transaction Information requests prior to October 16,
2007, shall be governed by
53495-1 3
whatever practices, if any, that Fund and Intermediary have previously utilized
to govern such requests.
3.2 TERMINATION. This Agreement will terminate upon the termination of
the Participation Agreements and redemption of all shares in the Fund held by
the Intermediary.
3.3 INDEMNIFICATION. Distributors agrees to indemnify and hold
Intermediary harmless from any and all liability, claim, loss, demand, damages,
costs and expenses (including reasonable attorneys' fees) arising in connection
with a third party claim or action brought against Intermediary as a result of
any unauthorized disclosure of a shareholder's taxpayer identification number
provided to the Fund or its designee in response to a request for Transaction
Information pursuant to the terms of this Agreement ("Losses"). Distributors
shall not be liable for Losses unless the Intermediary has provided adequate
written notice to Distributors promptly after the summons or other first legal
process. In addition, Distributors will be entitled to participate in, at its
own expense, or shall be entitled to assume the defense thereof, consistent with
the terms of the Participation Agreement.
3.4 FORCE MAJEURE. The parties to this Agreement are excused from
performance and shall not be liable for any delay in performance or
non-performance, in whole or in part, caused by the occurrence of any event or
contingency beyond the control of the parties including, but not limited to,
work stoppages, fires, civil disobedience, riots, rebellions, natural disasters,
acts of God, and acts of war or terrorism. Each party so affected shall promptly
give written notice to the other parties and shall use its best efforts to
resume performance. Upon receipt of such notice, all obligations under this
Agreement shall be immediately suspended for the duration of such force majeure
event.
3.5 NOTICES. All requests for Transaction Information or instructions
related to restrictions or prohibitions must be sent to the following address:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
4. DEFINITIONS
-----------
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the context:
The term "Intermediary" means: (i) the insurance company separate
accounts listed on Attachment A of this Agreement (which is a part of
this Agreement) as well as those identified in Schedule B of the
Participation Agreement(s) to which Distributors and Intermediary are
parties, as such Participation Agreement(s) may be amended from time to
time; and (ii) the life insurance company depositor of such separate
accounts.
53495-1 4
The term "Fund" shall mean each series of Franklin Xxxxxxxxx Variable
Insurance Products Trust in which Intermediary invests and includes:
(i) an administrator for the Fund; (ii) the principal underwriter or
distributor for the Fund; and (iii) the transfer agent for the Fund.
The term does not include any "excepted funds" as defined in Rule
22c-2(b) under the 0000 Xxx.
The term "Shares" means the interests of Shareholders corresponding to
the redeemable securities of record issued by a Fund under the 1940 Act
that are held by Intermediary.
The term "SHAREHOLDER" means the holder of interests in a variable
annuity or variable life insurance contract issued by Intermediary
("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a Contract.
The term "SHAREHOLDER-INITIATED TRANSFER PURCHASE" means a transaction
that is initiated or directed by a Shareholder that results in a
transfer of assets within a Contract to a Fund, but does not include
transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollment such as transfer of
assets within a Contract to a Fund as a result of "dollar cost
averaging" programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (ii) pursuant to a
Contract death benefit; (iii) as part of a one- time step-up in
Contract value pursuant to a Contract death benefit; (iv) as part of an
allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, retirement
plan salary reduction contributions, or planned premium payments to the
Contract; or (v) as pre-arranged transfers at the conclusion of a
required free look period.
The term "SHAREHOLDER-INITIATED TRANSFER REDEMPTION" means a
transaction that is initiated or directed by a Shareholder that results
in a transfer of assets within a Contract out of a Fund, but does not
include transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollments such as transfers of
assets within a Contract out of a Fund as a result of annuity payouts,
loans, systematic withdrawal programs, insurance company approved asset
allocation programs and automatic rebalancing programs; (ii) as a
result of any deduction of charges or fees under a Contract; (iii)
within a Contract out of a Fund as a result of scheduled withdrawals or
surrenders from a Contract; or (iv) as a result of payment of a death
benefit from a Contract.
The term "WRITTEN" includes electronic writings.
53495-1 5
IN WITNESS WHEREOF, each party has caused a duly authorized officer or
representative to execute this Agreement.
FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
PHOENIX LIFE INSURANCE COMPANY
ON BEHALF OF ITSELF AND THE SEPARATE ACCOUNTS
REFERENCED IN THIS AGREEMENT AND ITS ATTACHMENT
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
----------------------------------------
Title: Senior Vice President
----------------------------------------
PHL VARIABLE INSURANCE COMPANY
ON BEHALF OF ITSELF AND THE SEPARATE ACCOUNTS
REFERENCED IN THIS AGREEMENT AND ITS ATTACHMENT
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
----------------------------------------
Title: Senior Vice President
----------------------------------------
PHOENIX LIFE AND ANNUITY COMPANY
ON BEHALF OF ITSELF AND THE SEPARATE ACCOUNTS
REFERENCED IN THIS AGREEMENT AND ITS ATTACHMENT
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
----------------------------------------
Title: Senior Vice President
----------------------------------------
3495-1 6
ATTACHMENT A TO SHAREHOLDER INFORMATION AGREEMENT
Name of Insurance Company:
-------------------------
Name of Separate Account(s):
----------------------------
PHOENIX LIFE INSURANCE COMPANY
Phoenix Life Variable Accumulation Account
Phoenix Life Variable Universal Life Account
PHL VARIABLE INSURANCE COMPANY
PHL Variable Accumulation Account
PHL Variable Universal Life Account
PHOENIX LIFE AND ANNUITY COMPANY
Phoenix Life and Annuity Variable Universal Life Account
53495-1 7
SHAREHOLDER INFORMATION AGREEMENT
---------------------------------
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST
This Shareholder Information Agreement ("Agreement") is entered into as
of April 16, 2007, and is among Franklin/Xxxxxxxxx Distributors, Inc.
("Distributors") on behalf of each Fund, as defined below, and the Intermediary,
as defined below. Unless otherwise specified, capitalized terms have the meaning
set out under "Definitions," below.
WHEREAS, Intermediary is a "financial intermediary" as that term is
defined in Rule 22c-2 under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, Rule 22C-2 permits agents of the Intermediary to sign on the
Intermediary's behalf;
WHEREAS, Distributors serves as the principal underwriter to the Funds;
and
WHEREAS, Distributors and Intermediary wish to enter into this
Agreement in accordance with Rule 22c-2 under the 1940Act.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, which consideration is full and complete, Distributors and
Intermediary hereby agree as follows:
1. SHAREHOLDER INFORMATION
-----------------------
1.1 AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide
the Fund or its designee, upon written request, the taxpayer identification
number ("TIN"), the Individual/International Taxpayer Identification Number
("ITIN"), or other government- issued identifier ("GII") and the Contract owner
number or participant account number associated with the Shareholder, if known,
of any or all Shareholder(s) of the account, and the amount, date and
transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an account
maintained by Intermediary during the period covered by the request
("Transaction Information"). Unless otherwise specifically requested by the Fund
or its designee, Intermediary shall only be required to provide Transaction
Information relating to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions.
1.1.1 PERIOD COVERED BY REQUEST. Requests must set forth a
specific period, not to exceed ninety (90) days from the date of the
request, for which Transaction -Information is sought. The Fund or its
designee may request Transaction Information older than ninety (90)
days from the date of the request as it deems necessary to investigate
compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
shares issued by the Fund.
53495-1 1
(a) TIMING OF REQUESTS. Requests from the Fund
or its designee for Shareholder Transaction
Information shall be made no more frequently
than quarterly except as the Fund or its
designee deems necessary to investigate
compliance with policies established by the
Fund or its designee for the purpose of
eliminating or reducing any dilution of the
value of the outstanding shares issued by
the Fund.
1.1.2 FORM AND TIMING OF RESPONSE.
(a) Intermediary agrees to provide, promptly
upon request of the Fund or its designee,
the requested Transaction Information
specified in Section 1.1, above. If
requested by the Fund or its designee,
Intermediary agrees to use best efforts to
determine promptly whether any specific
person about whom Intermediary has received
the identification and Transaction
Information specified in Section 1.1 above
is itself a financial intermediary
("indirect intermediary") and, upon further
request of the Fund or its designee,
promptly either: (i) provide (or arrange to
have provided) the Transaction Information
set forth in Section 1.1 for those
shareholders who hold an account with an
indirect intermediary; or (ii) restrict or
prohibit the indirect intermediary from
purchasing, in nominee name on behalf of
other persons, securities issued by the
Fund. Intermediary additionally agrees to
inform the Fund or its designee whether
Intermediary plans to perform (i) or (ii);
and
(b) Responses required by this Section 1.1 must
be communicated in writing and in a format
mutually agreed upon by the Fund or its
designee and Intermediary; and
(c) To the extent practicable and agreed by the
parties, the format for any Transaction
Information provided to the Fund or its
designee should be consistent with the NSCC
Standardized Data Reporting Format.
1.1.3 LIMITATIONS ON USE OF INFORMATION. Unless the
Intermediary provides prior written consent, Fund
agrees not to use the Transaction Information
received pursuant to this Agreement for any purpose
other than as necessary to comply with the provisions
of Rule 22c-2 or to fulfill other regulatory or legal
requirements subject to the privacy provisions of
Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law
106-102) and comparable state laws. The Fund further
agrees to notify the Intermediary promptly if it
becomes aware that there is a breach of
confidentiality caused by the Fund with respect to
the Transaction Information.
53495-1 2
2. RESTRICTION OF TRADING
----------------------
2.1 AGREEMENT TO RESTRICT TRADING. Intermediary agrees to
execute written instructions from the Fund or its designee to restrict
or prohibit further purchases or exchanges of Shares by a Shareholder
that has been identified by the Fund or its designee as having engaged
in transactions of the Fund's Shares (directly or indirectly through
the Intermediary's account) that violate policies established by the
Fund or its designee for the purpose of eliminating or reducing any
dilution of the value of the outstanding Shares issued by the Fund.
Unless otherwise directed by the Fund or its designee, any such
restrictions or prohibitions shall only apply to Shareholder-Initiated
Transfer Purchases or Shareholder-Initiated Transfer Redemptions that
are effected directly or indirectly through Intermediary.
2.1.1 FORM OF INSTRUCTIONS. Instructions must include the TIN,
ITIN, or 011 and the specific individual Contract owner number or
participant account number associated with the Shareholder, if known,
and the specific restriction(s) to be executed, including how long the
restriction(s) is(are) to remain in place. If the TIN, ITIN, 011 or the
specific individual Contract owner number or participant account number
associated with the Shareholder is not known, the instructions must
include an equivalent identifying number of the Shareholder(s) or
account(s) or other agreed upon information to which the instruction
relates.
2.1.2 TIMING OF RESPONSE. Intermediary Agrees to execute
instructions as soon as reasonably practicable, but not later than five
business days after Intermediary receives the instructions or a time
period agreed upon by both parties.
2.1.3 CONFIRMATION BY INTERMEDIARY. Intermediary must provide
written confirmation to the Fund or its designee that instructions have
been executed. INTERMEDIARY agrees to provide confirmation as soon as
reasonably practicable, but not later than ten business days after the
instructions have been executed.
2.1.4 REDEMPTION FEES. If the Fund decides to impose a
redemption fee with respect to its Class 1 or Class 2 shares, the Fund
agrees to make reasonable efforts to notify the Intermediary in
advance.
2.2 CONSTRUCTION OF THE AGREEMENT; PARTICIPATION AGREEMENTS. The
parties have entered into one or more agreements between or among them governing
the purchase and redemption of shares of the Funds in connection with the
Contracts (collectively, "Participation Agreements"). This Agreement supplements
those Participation Agreements. To the extent the terms of this Agreement
conflict with the terms of a Participation Agreement with regard to the
requirements of Rule 22c-2, the terms of this Agreement shall control.
3. MISCELLANEOUS PROVISIONS
------------------------
3.1 REQUESTS PRIOR TO OCTOBER 16, 2007. Intermediary shall be able to
promptly respond to requests for Shareholder Transaction Information by no later
than October 16,
53495-1 3
2007. Transaction Information requests prior to October 16, 2007, shall be
governed by whatever practices, if any, that Fund and Intermediary have
previously utilized to govern such requests.
3.2 TERMINATION. This Agreement will terminate upon the termination of
the Participation Agreements and redemption of all shares in the Fund held by
the Intermediary.
3.3 INDEMNIFICATION. Distributors agrees to indemnify and hold
Intermediary harmless from any and all liability, claim, loss, demand, damages,
costs and expenses (including reasonable attorneys' fees) arising in connection
with a third party claim or action brought against Intermediary as a result of
any unauthorized disclosure of a shareholder's taxpayer identification number
provided to the Fund or its designee in response to a request for Transaction
Information pursuant to the terms of this Agreement ("Losses"). Distributors
shall not be liable for Losses unless the Intermediary has provided adequate
written notice to Distributors promptly after the summons or other first legal
process. In addition, Distributors will be entitled to participate in, at its
own expense, or shall be entitled to assume the defense thereof, consistent with
the terms of the Participation Agreement.
3.4 FORCE MAJEURE. The parties to this Agreement are excused from
performance and shall not be liable for any delay in performance or
non-performance, in whole or in part, caused by the occurrence of any event or
contingency beyond the control of the parties including, but not limited to,
work stoppages, fires, civil disobedience, riots, rebellions, natural disasters,
acts of God, and acts of war or terrorism. Each party so affected shall promptly
give written notice to the other parties and shall use its best efforts to
resume performance. Upon receipt of such notice, all obligations under this
Agreement shall be immediately suspended for the duration of such force majeure
event.
3.5 NOTICES. All requests for Transaction Information or instructions
related to restrictions or prohibitions must be sent to the following address:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
4. DEFINITIONS
-----------
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the context:
The term "Intermediary" means: (i) the insurance company separate
accounts listed on Attachment A of this Agreement (which is a part of
this Agreement) as well as those identified in Schedule B of the
Participation Agreement(s) to which Distributors and Intermediary are
parties, as such Participation Agreement(s) may be amended from time to
time; and (ii) the life insurance company depositor of such separate
accounts.
53495-1 4
The term "Fund" shall mean each series of Franklin Xxxxxxxxx Variable
Insurance Products Trust in which Intermediary invests and includes:
(i) an administrator for the Fund; (ii) the principal underwriter or
distributor for the Fund; and (iii) the transfer agent for the Fund.
The term does not include any "excepted funds" as defined in Rule
22c-2(b) under the 0000 Xxx.
The term "Shares" means the interests of Shareholders corresponding to
the redeemable securities of record issued by a Fund under the 1940 Act
that are held by Intermediary.
The term "SHAREHOLDER" means the holder of interests in a variable
annuity or variable life insurance contract issued by Intermediary
("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a Contract.
The term "SHAREHOLDER-INITIATED TRANSFER PURCHASE" means a transaction
that is initiated or directed by a Shareholder that results in a
transfer of assets within a Contract to a Fund, but does not include
transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollment such as transfer of
assets within a Contract to a Fund as a result of "dollar cost
averaging" programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (ii) pursuant to a
Contract death benefit; (iii) as part of a one- time step-up in
Contract value pursuant to a Contract death benefit; (iv) as part of an
allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, retirement
plan salary reduction contributions, or planned premium payments to the
Contract; or (v) as pre-arranged transfers at the conclusion of a
required free look period.
The term "SHAREHOLDER-INITIATED TRANSFER REDEMPTION" means a
transaction that is initiated or directed by a Shareholder that results
in a transfer of assets within a Contract out of a Fund, but does not
include transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollments such as transfers of
assets within a Contract out of a Fund as a result of annuity payouts,
loans, systematic withdrawal programs, insurance company approved asset
allocation programs and automatic rebalancing programs; (ii) as a
result of any deduction of charges or fees under a Contract; (iii)
within a Contract out of a Fund as a result of scheduled withdrawals or
surrenders from a Contract; or (iv) as a result of payment of a death
benefit from a Contract.
The term "WRITTEN" includes electronic writings.
53495-1 5
IN WITNESS WHEREOF, each party has caused a duly authorized officer or
representative to execute this Agreement.
FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
PHOENIX LIFE INSURANCE COMPANY, AS
AGENT SIGNING ON BEHALF OF VALLEY FORGE
LIFE INSURANCE COMPANY AND THE
SEPARATE ACCOUNTS REFERENCED IN THIS
AGREEMENT AND ITS ATTACHMENT
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
53495-1 6
ATTACHMENT A TO SHAREHOLDER INFORMATION AGREEMENT
Name of Insurance Company:
-------------------------
Valley Forge Life Insurance Company
Name of Separate Account(s):
---------------------------
Valley Forge Life Insurance Company Variable Annuity Separate Account
Valley Forge Life Insurance Company Variable Life Separate Account
Valley Forge Life "unregistered" Separate Account
53495-1 7
LAZARD RETIREMENT SERIES, INC.
AGREEMENT PURSUANT TO RULE 22C-2
This Agreement is entered into as of the date indicated below, by and between
Lazard Asset Management Securities LLC ("Fund Agent") and the counterparty
signing below ("Intermediary"), acting on behalf of its separate accounts that
use a portfolio of Lazard Retirement Series, Inc. (the "Fund") as an underlying
investment medium, pursuant to Rule 22c-2 (the "Rule") under the Investment
Company Act of 1940, as amended. Capitalized terms not otherwise defined are
defined in Section 3 of this Agreement.
The terms and conditions of this Agreement are as follows:
1. Shareholder Information.
(a) Agreement to Provide Information. Intermediary agrees to provide
the Fund, upon written request (which may include electronic writings and
facsimile transmissions, a "Request"), the taxpayer identification number (the
"TIN"), if known, of any or all Shareholder(s) who have purchased, redeemed,
transferred or exchanged Fund shares ("Shares") held through an account with
Intermediary (an "Account") during the period covered by the Request and the
amount, date, name or other identifier of any investment professional(s)
associated with the Shareholder(s) or Account (if known), and transaction type
(purchase, redemption, transfer, or exchange) of every purchase, redemption,
transfer, or exchange of Shares. ("Transaction Information")
(i) Period and Frequency Covered by Request.
---------------------------------------
Fund requests for Shareholder Information shall be
made no more frequently than quarterly except as the
Fund deems necessary to investigate compliance with
policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of
the outstanding shares issued by the Fund. Requests
must set forth a specific period, not to exceed 90
days from the date of the Request for which
Transaction Information is sought. The Fund may
request Transaction Information older than 90 days
from the date of the Request as it deems necessary
to investigate compliance with policies established
by the Fund for the purpose of eliminating or
reducing any dilution of the value of its Shares.
(ii) Form and Timing of Response. Intermediary agrees to
transmit the requested Transaction Information that is on
its books and records to the Fund or its designee promptly,
but in any event not later than 10 business days after
receipt of a Request. To the extent practicable, the format
for any Transaction Information provided to the Fund should
be consistent with the NSCC Standardized Data Report
Format, or any other format acceptable to the Fund.
(iii) Limitations on Use of Transaction Information..
---------------------------------------------
The Fund agrees to only use the Transaction Information for
the purposes of identifying Shareholders who may be
violating the Funds policies and procedures with respect to
dilution of the Fund's value as contemplated by the Rule or
to fulfill other regulatory or legal requirements subject
to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws.
The Fund agrees that the Transaction Information is
confidential and that the Fund will not share the
Shareholder Information externally, unless the Intermediary
provides the Fund with prior written consent to share such
Transaction Information. The Fund further agrees not to
share the Transaction Information internally, except on a
"need to know basis." The Fund further agrees that in the
event of a breach of confidentiality with respect to
Transaction Information, the Fund will notify the
Intermediary immediately.
(b) Agreement to Restrict Trading. Intermediary agrees to execute
written instructions from the Fund (which may include electronic writings and
facsimile transmissions) to prohibit further purchases or exchanges of Shares by
a Shareholder that has been identified by the Fund as having engaged in
transactions in Shares (directly or indirectly through an Account) that violate
policies established by the Fund for the purpose of eliminating or reducing any
dilution of the value of its Shares.
(i) Form of Instructions. Instructions must include the TIN, if
known, and the specific prohibition(s) to be executed. If
the TIN is not known, the instructions must include an
equivalent identifying number of the Shareholder(s) or
account(s) or other agreed upon information to which the
instruction relates.
(ii) Timing of Response. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not
later than ten business days after receipt of the
instructions by Intermediary.
(iv) Confirmation by Intermediary. Intermediary agrees to
provide written confirmation to the Fund as soon as
reasonably practicable that instructions have been
executed, but not later than 10 business days after the
instructions have been executed.
(v) Redemption Fees. The Fund is currently not subject to a
redemption fee. If the Fund ultimately decides to impose a
redemption fee on variable contracts, the Fund agrees to
notify the Intermediary at least six (6) months in advance
so that the Intermediary can program its systems to
administer the fee.
2. Share Holdings Through Indirect Intermediaries. Intermediary will use best
efforts to determine, promptly upon the request of the Fund, but not later than
five business days after receipt of the Request by Intermediary, whether any
other person that holds Shares through Intermediary is an "indirect
intermediary" as defined in the Rule ("Indirect Intermediary") and, upon further
request from the Fund:
(a) provide (or arrange to have provided) the identification
and Transaction Information set forth in Section l(a) of
this Agreement regarding a Shareholder who hold Shares
through the Indirect Intermediary; or
(b) prohibit the indirect intermediary from purchasing Shares
on behalf of itself or other persons.
3. Definitions. For purposes of this paragraph:
-----------
(a) The term "Fund" includes not only Lazard Retirement Series,
Inc., but also Fund Agent, as distributor of its Shares,
and the transfer agent of Shares, each acting on behalf of
Lazard Retirement Series, Inc.
(b) The term "Shareholder" means any person that is a party to
a variable annuity or variable life insurance contract with
the Insurance Company that uses a portfolio of the Fund as
an underlying investment medium.
(c) The term "Purchase" means a transaction that is initiated
or directed by a Shareholder that results in a transfer of
assets within a Contract to a Fund, but does not include
transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such
as transfer of assets within a Contract to a Fund as a
result of "dollar cost averaging" programs, insurance
company approved asset allocation programs, or automatic
rebalancing programs; (ii) pursuant to a Contract death
benefit; (iii) one-time step-up in Contract value pursuant
to a Contract death benefit; (iv) allocation of assets to a
Fund through a Contract as a result of payments such as
loan repayments, scheduled contributions, retirement plan
salary reduction contributions, or planned premium payments
to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
(d) The term "Redemption" means a transaction that is initiated
or directed by a Shareholder that results in a transfer of
assets within a Contract out of a Fund, but does not
include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Contract
out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved
asset allocation programs and automatic rebalancing
programs; (ii) as a result of any deduction of charges or
fees under a Contract; (iii) within a Contract out of a
Fund as a result of scheduled withdrawals or surrenders
from a Contract; or (iv) as a result of payment of a death
benefit from a Contract.
4. Term. This Agreement will remain in effect so long as Intermediary is
deemed to be a "financial intermediary" (as defined in the Rule) with
respect to Lazard Retirement Series, Inc. This Agreement will terminate
upon the termination of the applicable Fund Participation Agreements
5. Other Agreements; Amendments.
----------------------------
(a) CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The
parties have entered into one or more Fund Participation Agreements
between or among them for the purchase and redemption of shares of the
Funds by the Accounts in connection with the Contracts. The Fund
Participation Agreements are hereby incorporated by reference into this
Agreement, as this Agreement is intended to be a supplement to the Fund
Participation Agreements. To the extent the terms of this Agreement
conflict with the terms of a Fund Participation Agreement, the terms of
this Agreement shall control.
(b) No modification or waiver of any provisions of this Agreement
will be binding unless in writing and executed by the party to be bound thereby.
6. No Agency. Nothing in this Agreement shall be construed to establish a
joint venture between Fund Agent and Intermediary or establish either as an
agent, partner or employee of the other.
7. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of New York, without giving effect to conflict of
laws principles.
8. Notices. Requests for Transaction Information must be sent in writing
to the following address:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY ON BEHALF OF ITS SEPARATE ACCOUNTS THAT USE A PORTFOLIO OF THE
FUND AS AN UNDERLYING INVESTMENT MEDIUM.
Date: 03/20/07 By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
------------------------- -----------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: SVP, L&A Fin & Inf Mgmt
Please return two signed copies of this Agreement to Lazard Asset Management
Securities LLC, and one fully executed copy will be returned.
Accepted:
LAZARD ASSET MANAGEMENT SECURITIES LLC
Date: 3/27/07 By: /s/ Xxxxxxx X. Xxxxxxx
------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Deputy Chairman
LAZARD RETIREMENT SERIES, INC.
AGREEMENT PURSUANT TO RULE 22C-2
This Agreement is entered into as of the date indicated below, by and between
Lazard Asset Management Securities LLC ("Fund Agent") and the counterparty
signing below ("Intermediary"), acting on behalf of Valley Forge Life Insurance
Company and its separate accounts that use a portfolio of Lazard Retirement
Series, Inc. (the "Fund") as an underlying investment medium, pursuant to Rule
22c-2 (the "Rule") under the Investment Company Act of 1940, as amended.
Capitalized terms not otherwise defined are defined in Section 3 of this
Agreement.
The terms and conditions of this Agreement are as follows:
1. Shareholder Information.
-----------------------
(a) Agreement to Provide Information. Intermediary agrees to provide
the Fund, upon written request (which may include electronic writings and
facsimile transmissions, a "Request"), the taxpayer identification number (the
"TIN"), if known, of any or all Shareholder(s) who have purchased, redeemed,
transferred or exchanged Fund shares ("Shares") held through an account with
Intermediary (an "Account") during the period covered by the Request and the
amount, date, name or other identifier of any investment professional(s)
associated with the Shareholder(s) or Account (if known), and transaction type
(purchase, redemption, transfer, or exchange) of every purchase, redemption,
transfer, or exchange of Shares. ("Transaction Information")
(i) Period and Frequency Covered by Request.
---------------------------------------
Fund requests for Shareholder Information shall be
made no more frequently than quarterly except as the
Fund deems necessary to investigate compliance with
policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of
the outstanding shares issued by the Fund. Requests
must set forth a specific period, not to exceed 90
days from the date of the Request for which
Transaction Information is sought. The Fund may
request Transaction Information older than 90 days
from the date of the Request as it deems necessary
to investigate compliance with policies established
by the Fund for the purpose of eliminating or
reducing any dilution of the value of its Shares.
(ii) Form and Timing of Response. Intermediary agrees to
transmit the requested Transaction Information that
is on its books and records to the Fund or its
designee promptly, but in any event not later than
10 business days after receipt of a Request. To the
extent practicable, the format for any Transaction
Information provided to the Fund should be
consistent with the NSCC Standardized Data Report
Format, or any other format acceptable to the Fund.
(iii) Limitations on Use of Transaction Information..
---------------------------------------------
The Fund agrees to only use the Transaction
Information for the purposes of identifying
Shareholders who may be violating the Funds policies
and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to
fulfill other regulatory or legal requirements
subject to the privacy provisions of Title V of the
Xxxxx-Xxxxx Bliely Act (Public Law 106-102) and
comparable state laws. The Fund agrees that the
Transaction Information is confidential and that the
Fund will not share the Shareholder Information
externally, unless the Intermediary provides the
Fund with prior written consent to share such
Transaction Information. The Fund further agrees not
to share the Transaction Information internally,
except on a "need to know basis." The Fund further
agrees that in the event of a breach of
confidentiality with respect to Transaction
Information, the Fund will notify the Intermediary
immediately.
(b) Agreement to Restrict Trading. Intermediary agrees to execute
written instructions from the Fund (which may include electronic writings and
facsimile transmissions) to prohibit further purchases or exchanges of Shares by
a Shareholder that has been identified by the Fund as having engaged in
transactions in Shares (directly or indirectly through an Account) that violate
policies established by the Fund for the purpose of eliminating or reducing any
dilution of the value of its Shares.
(i) Form of Instructions. Instructions must include the
TIN, if known, and the specific prohibition(s) to be
executed. If the TIN is not known, the instructions
must include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates.
(ii) Timing of Response. Intermediary agrees to execute
instructions as soon as reasonably practicable, but
not later than ten business days after receipt of
the instructions by Intermediary.
(iv) Confirmation by Intermediary. Intermediary agrees to
provide written confirmation to the Fund as soon as
reasonably practicable that instructions have been
executed, but not later than 10 business days after
the instructions have been executed.
(v) Redemption Fees. The Fund is currently not subject
to a redemption fee. If the Fund ultimately decides
to impose a redemption fee on variable contracts,
the Fund agrees to notify the Intermediary at least
six (6) months in advance so that the Intermediary
can program its systems to administer the fee.
2. Share Holdings Through Indirect Intermediaries. Intermediary will use best
efforts to determine, promptly upon the request of the Fund, but not later than
five business days after receipt of the Request by Intermediary, whether any
other person that holds Shares through Intermediary is an "indirect
intermediary" as defined in the Rule ("Indirect Intermediary") and, upon further
request from the Fund:
(a) provide (or arrange to have provided) the identification and
Transaction Information set forth in Section l(a) of this
Agreement regarding a Shareholder who hold Shares through the
Indirect Intermediary; or
(b) prohibit the indirect intermediary from purchasing Shares on
behalf of itself or other persons.
3. Definitions. For purposes of this paragraph:
-----------
(a) The term "Fund" includes not only Lazard Retirement Series, Inc.,
but also Fund Agent, as distributor of its Shares, and the
transfer agent of Shares, each acting on behalf of Lazard
Retirement Series, Inc.
(b) The term "Shareholder" means any person that is a party to a
variable annuity or variable life insurance contract with the
Insurance Company that uses a portfolio of the Fund as an
underlying investment medium.
(c) The term "Purchase" means a transaction that is initiated or
directed by a Shareholder that results in a transfer of assets
within a Contract to a Fund, but does not include transactions
that are executed: (i) automatically pursuant to a contractual or
systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost
averaging" programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (ii) pursuant to a
Contract death benefit; (iii) one-time step-up in Contract value
pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan
repayments, scheduled contributions, retirement plan salary
reduction contributions, or planned premium payments to the
Contract; or (v) prearranged transfers at the conclusion of a
required free look period.
(d) The term "Redemption" means a transaction that is initiated or
directed by a Shareholder that results in a transfer of assets
within a Contract out of a Fund, but does not include
transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollments such as
transfers of assets within a Contract out of a Fund as a result
of annuity payouts, loans, systematic withdrawal programs,
insurance company approved asset allocation programs and
automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out
of a Fund as a result of scheduled withdrawals or surrenders from
a Contract; or (iv) as a result of payment of a death benefit
from a Contract.
4. Term. This Agreement will remain in effect so long as Intermediary is
deemed to be a "financial intermediary" (as defined in the Rule) with
respect to Lazard Retirement Series, Inc. This Agreement will terminate
upon the termination of the applicable Fund Participation Agreements
5. Other Agreements; Amendments.
----------------------------
(a) CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The
parties have entered into one or more Fund Participation Agreements
between or among them for the purchase and redemption of shares of the
Funds by the Accounts in connection with the Contracts. The Fund
Participation Agreements are hereby incorporated by reference into this
Agreement, as this Agreement is intended to be a supplement to the Fund
Participation Agreements. To the extent the terms of this Agreement
conflict with the terms of a Fund Participation Agreement, the terms of
this Agreement shall control.
(b) No modification or waiver of any provisions of this Agreement
will be binding unless in writing and executed by the party to be bound thereby.
6. No Agency. Nothing in this Agreement shall be construed to establish a
joint venture between Fund Agent and Intermediary or establish either as an
agent, partner or employee of the other.
7. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of New York, without giving effect to conflict of
laws principles.
8. Notices. Requests for Transaction Information must be sent in writing
to the following address:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
PHOENIX LIFE INSURANCE COMPANY ON BEHALF OF VALLEY FORGE LIFE INSURANCE COMPANY
AND ITS SEPARATE ACCOUNTS THAT USE A PORTFOLIO OF THE FUND AS AN UNDERLYING
INVESTMENT MEDIUM.
Date: 03/20/07 By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------- -----------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: SVP, L&A Fin & Inf Mgmt
Please return two signed copies of this Agreement to Lazard Asset Management
Securities LLC, and one fully executed copy will be returned.
Accepted:
LAZARD ASSET MANAGEMENT SECURITIES LLC
Date: 3/27/07 By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Deputy Chairman
LORD XXXXXX
RULE 22C-2 AGREEMENT
This Rule 22c-2 Agreement ("Agreement") is entered into by and between
Lord Xxxxxx Distributor LLC (the "Distributor"), on its own behalf and/or on
behalf of one or more of the Lord Xxxxxx Family of Funds, as defined below (the
"Funds") and PHL VARIABLE INSURANCE COMPANY (the "Service Provider"), effective
as of the date of execution by the Service Provider, as set forth below. If
relevant, this Agreement constitutes an amendment to each and/or any existing
agreement between the Distributor and/or the Funds and the Service Provider
pursuant to or in connection with which the Service Provider directly or
indirectly transmits orders for Fund shares.
WHEREAS, Service Provider maintains one or more nominee or omnibus
accounts (each an "Account") relating to the Funds, or separate series thereof,
and, pursuant to Rule 22c-2 under the Investment Company Act of 1940, the Funds
or an appropriate designee on their behalf are required to enter into an
agreement with the Service Provider under which the Service Provider is required
to provide the Funds, upon request, with certain shareholder and account
information and to implement the Funds' instructions related to their frequent
trading policies.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained and the Funds' forbearance from terminating further
purchases of Fund shares ("Shares") by or through Service Provider, the parties
hereby agree as follows:
1. The Service Provider agrees to provide to the Funds or their designee [upon
request] the taxpayer identification number ("TIN"), if known, of any or
all shareholders underlying an Account and the amount, date, name or other
identifier of any investment professional(s) associated with such
shareholders (if known), and transaction type (purchase, redemption,
transfer, or exchange) of every purchase, redemption, transfer, or exchange
of shares held through an Account (the "Information"). In addition:
(a) The Service Provider agrees to provide the Information for the periods
or at the intervals the Distributor or the Funds, or their designee,
reasonably requests, including potentially Information for each
trading day;
(b) In accordance with the preceding paragraph, the Service Provider
agrees to transmit the Information that is on its books and records to
the Funds or their designee promptly, but in any event not later than
five (5) business days, after receipt of a request for Information or
after the last day of a period for which the Information has been
requested, unless mutually agreed upon otherwise by the parties. If
the Information is not on the Service Provider's books and records,
Service Provider agrees to: (i) provide or arrange to provide to the
Funds or their designee the Information relating to accounts that hold
Fund shares through an indirect intermediary; and (ii) if directed by
the Funds, block further purchases of Shares from such indirect
intermediary. For purposes of this paragraph, an "indirect
intermediary" has the same meaning as in Rule 22c-2; and
(c) To the extent practicable, the format for any transaction information
provided to the Funds should be consistent with the National
Securities Clearing Corporation's Standardized Data Reporting Format,
or if not practicable, in an alternative format mutually agreed upon
by the parties.
2. The Service Provider agrees to implement instructions from the Funds or
their designee ("Instructions") to restrict or prohibit further purchases
of Shares in specific accounts or by specific shareholders identified by
the Funds or an affiliate as having engaged in transactions
1
that may violate the Funds' policies regarding short term or excessive
trading activity. The Funds or their designee will include in the
Instructions the TIN, if know, and the specific restriction(s) to be
implemented. If the TIN is not known, the Instructions must include an
equivalent identifying number of the shareholders or other agreed upon
information to which the Instructions relate. In addition, the Service
Provider agrees:
(a) To implement Instructions as soon as reasonably practicable, but not
later than five (5) business days after receipt of the Instructions by
the Service Provider; and
(b) To provide confirmation to the Funds in a mutually agreed upon format
that Instructions have been implemented. Service Provider agrees to
provide confirmation as soon as is reasonably practicable, but not
later than ten (10) business days after the Instructions have been
implemented.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
LORD XXXXXX DISTRIBUTOR LLC,
By: Lord, Xxxxxx & Co. LLC, its
Managing Member
/s/ Xxxxxxxx X. Xxxxxx
----------------------
Xxxxxxxx X. Xxxxxx
Member and General Counsel
Dated: 3/15/07
PHL VARIABLE INSURANCE COMPANY
Name: /s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------
Xxxx Xxxxxxx X'Xxxxxxx
Senior Vice President
Dated: 11/20/06
--------
2
LORD XXXXXX
RULE 22C-2 AGREEMENT
This Rule 22c-2 Agreement ("Agreement") is entered into by and between
Lord Xxxxxx Distributor LLC (the "Distributor"), on its own behalf and/or on
behalf of one or more of the Lord Xxxxxx Family of Funds, as defined below (the
"Funds") and PHOENIX LIFE AND ANNUITY COMPANY (the "Service Provider"),
effective as of the date of execution by the Service Provider, as set forth
below. If relevant, this Agreement constitutes an amendment to each and/or any
existing agreement between the Distributor and/or the Funds and the Service
Provider pursuant to or in connection with which the Service Provider directly
or indirectly transmits orders for Fund shares.
WHEREAS, Service Provider maintains one or more nominee or omnibus
accounts (each an "Account") relating to the Funds, or separate series thereof,
and, pursuant to Rule 22c-2 under the Investment Company Act of 1940, the Funds
or an appropriate designee on their behalf are required to enter into an
agreement with the Service Provider under which the Service Provider is required
to provide the Funds, upon request, with certain shareholder and account
information and to implement the Funds' instructions related to their frequent
trading policies.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained and the Funds' forbearance from terminating further
purchases of Fund shares ("Shares") by or through Service Provider, the parties
hereby agree as follows:
1. The Service Provider agrees to provide to the Funds or their designee [upon
request] the taxpayer identification number ("TIN"), if known, of any or
all shareholders underlying an Account and the amount, date, name or other
identifier of any investment professional(s) associated with such
shareholders (if known), and transaction type (purchase, redemption,
transfer, or exchange) of every purchase, redemption, transfer, or exchange
of shares held through an Account (the "Information"). In addition:
(a) The Service Provider agrees to provide the Information for the periods
or at the intervals the Distributor or the Funds, or their designee,
reasonably requests, including potentially Information for each
trading day;
(b) In accordance with the preceding paragraph, the Service Provider
agrees to transmit the Information that is on its books and records to
the Funds or their designee promptly, but in any event not later than
five (5) business days, after receipt of a request for Information or
after the last day of a period for which the Information has been
requested, unless mutually agreed upon otherwise by the parties. If
the Information is not on the Service Provider's books and records,
Service Provider agrees to: (i) provide or arrange to provide to the
Funds or their designee the Information relating to accounts that hold
Fund shares through an indirect intermediary; and (ii) if directed by
the Funds, block further purchases of Shares from such indirect
intermediary. For purposes of this paragraph, an "indirect
intermediary" has the same meaning as in Rule 22c-2; and
(c) To the extent practicable, the format for any transaction information
provided to the Funds should be consistent with the National
Securities Clearing Corporation's Standardized Data Reporting Format,
or if not practicable, in an alternative format mutually agreed upon
by the parties.
2. The Service Provider agrees to implement instructions from the Funds or
their designee ("Instructions") to restrict or prohibit further purchases
of Shares in specific accounts or by specific shareholders identified by
the Funds or an affiliate as having engaged in transactions
1
that may violate the Funds' policies regarding short term or excessive
trading activity. The Funds or their designee will include in the
Instructions the TIN, if know, and the specific restriction(s) to be
implemented. If the TIN is not known, the Instructions must include an
equivalent identifying number of the shareholders or other agreed upon
information to which the Instructions relate. In addition, the Service
Provider agrees:
(a) To implement Instructions as soon as reasonably practicable, but not
later than five (5) business days after receipt of the Instructions by
the Service Provider; and
(b) To provide confirmation to the Funds in a mutually agreed upon format
that Instructions have been implemented. Service Provider agrees to
provide confirmation as soon as is reasonably practicable, but not
later than ten (10) business days after the Instructions have been
implemented.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
LORD XXXXXX DISTRIBUTOR LLC,
By: Lord, Xxxxxx & Co. LLC, its
Managing Member
/s/ Xxxxxxxx X. Xxxxxx
----------------------
Xxxxxxxx X. Xxxxxx
Member and General Counsel
Dated: 3/15/07
-------
PHOENIX LIFE AND ANNUITY COMPANY
Name: /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------
Xxxx Xxxxxxx X'Xxxxxxx
Senior Vice President
Dated: 11/20/06
--------
2
LORD XXXXXX
RULE 22C-2 AGREEMENT
This Rule 22c-2 Agreement ("Agreement") is entered into by and between
Lord Xxxxxx Distributor LLC (the "Distributor"), on its own behalf and/or on
behalf of one or more of the Lord Xxxxxx Family of Funds, as defined below (the
"Funds") and PHOENIX LIFE INSURANCE COMPANY (the "Service Provider"), effective
as of the date of execution by the Service Provider, as set forth below. If
relevant, this Agreement constitutes an amendment to each and/or any existing
agreement between the Distributor and/or the Funds and the Service Provider
pursuant to or in connection with which the Service Provider directly or
indirectly transmits orders for Fund shares.
WHEREAS, Service Provider maintains one or more nominee or omnibus
accounts (each an "Account") relating to the Funds, or separate series thereof,
and, pursuant to Rule 22c-2 under the Investment Company Act of 1940, the Funds
or an appropriate designee on their behalf are required to enter into an
agreement with the Service Provider under which the Service Provider is required
to provide the Funds, upon request, with certain shareholder and account
information and to implement the Funds' instructions related to their frequent
trading policies.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained and the Funds' forbearance from terminating further
purchases of Fund shares ("Shares") by or through Service Provider, the parties
hereby agree as follows:
1. The Service Provider agrees to provide to the Funds or their designee [upon
request] the taxpayer identification number ("TIN"), if known, of any or
all shareholders underlying an Account and the amount, date, name or other
identifier of any investment professional(s) associated with such
shareholders (if known), and transaction type (purchase, redemption,
transfer, or exchange) of every purchase, redemption, transfer, or exchange
of shares held through an Account (the "Information"). In addition:
(a) The Service Provider agrees to provide the Information for the periods
or at the intervals the Distributor or the Funds, or their designee,
reasonably requests, including potentially Information for each
trading day;
(b) In accordance with the preceding paragraph, the Service Provider
agrees to transmit the Information that is on its books and records to
the Funds or their designee promptly, but in any event not later than
five (5) business days, after receipt of a request for Information or
after the last day of a period for which the Information has been
requested, unless mutually agreed upon otherwise by the parties. If
the Information is not on the Service Provider's books and records,
Service Provider agrees to: (i) provide or arrange to provide to the
Funds or their designee the Information relating to accounts that hold
Fund shares through an indirect intermediary; and (ii) if directed by
the Funds, block further purchases of Shares from such indirect
intermediary. For purposes of this paragraph, an "indirect
intermediary" has the same meaning as in Rule 22c-2; and
(c) To the extent practicable, the format for any transaction information
provided to the Funds should be consistent with the National
Securities Clearing Corporation's Standardized Data Reporting Format,
or if not practicable, in an alternative format mutually agreed upon
by the parties.
2. The Service Provider agrees to implement instructions from the Funds or
their designee ("Instructions") to restrict or prohibit further purchases
of Shares in specific accounts or by specific shareholders identified by
the Funds or an affiliate as having engaged in transactions
1
that may violate the Funds' policies regarding short term or excessive
trading activity. The Funds or their designee will include in the
Instructions the TIN, if know, and the specific restriction(s) to be
implemented. If the TIN is not known, the Instructions must include an
equivalent identifying number of the shareholders or other agreed upon
information to which the Instructions relate. In addition, the Service
Provider agrees:
(a) To implement Instructions as soon as reasonably practicable, but not
later than five (5) business days after receipt of the Instructions by
the Service Provider; and
(b) To provide confirmation to the Funds in a mutually agreed upon format
that Instructions have been implemented. Service Provider agrees to
provide confirmation as soon as is reasonably practicable, but not
later than ten (10) business days after the Instructions have been
implemented.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
LORD XXXXXX DISTRIBUTOR LLC,
By: Lord, Xxxxxx & Co. LLC, its
Managing Member
/s/ Xxxxxxxx X. Xxxxxx
----------------------
Xxxxxxxx X. Xxxxxx
Member and General Counsel
Dated: 3/15/07
PHOENIX LIFE INSURANCE COMPANY
Name: /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------
Xxxx Xxxxxxx X'Xxxxxxx
Senior Vice President
Dated: 11/20/06
2
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT entered into as of April 16, 2007 by and
between MFS Fund Distributors, Inc. ("MFD") and Phoenix Life Insurance Company
("Agent") with an effective date of October 16, 2007.
WHEREAS, MFD is the principal underwriter for the MFS Funds;
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent for the Intermediary in
terms of the administration of the variable life and variable annuity insurance
products;
WHEREAS, the Intermediary and MFD or certain of the MFS funds have entered into
Participation Agreements allowing the Intermediary to offer certain MFS funds
through its Separate Accounts by way of the Intermediary's variable life and
variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22c-2 allows the agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, the MFD and the Agent enter into this Shareholder Information Agreement
("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 - INTERMEDIARY: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds
("Separate Account") and/or the insurance company acting as the depositor
for the Separate Account as well as the Agent administering the functions
of the Separate Account with respect to the Intermediary's variable life
and annuity business.
109400 1
1.2 - FUND: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the Act.
The term "Fund" includes (i) an investment adviser to or administrator for the
Fund; (ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund. The term not does include any "excepted funds" as
defined in Rule 22c-2(b) under the Act.
1.3 - SHARES: The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund under
the Act that are held by the Intermediary.
1.4-SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5-SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6-SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7-SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8-WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
109400 2
II. INFORMATION SHARING
2.1 INFORMATION SHARING - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN");
(ii) the Contract owner number or participant account number
associated with the Shareholder;
(iii) the amount, date and transaction type of every purchase,
redemption, transfer, or exchange of Shares held through an
account maintained by the Intermediary during the period
covered by the request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed 90 days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older than
90 days from the date of the request as it deems necessary to investigate
compliance with policies established by the Fund for the purpose of eliminating
or reducing any dilution of the value of the outstanding shares issued by the
Fund.
2.3 TIMING OF REQUESTS- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to the Fund
promptly upon request If the Fund requests, the Intermediary agrees to
use its best efforts to promptly determine whether any specific person
about whom it has received Shareholder Information is itself a
financial intermediary ("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests, the
Intermediary will, with notice to the Fund, promptly either:
(i) provide (or arrange to have provided) Shareholder
Information for those shareholders who hold an account with
an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued
by the Fund.
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and according to the IRS' website, the ITIN refers
to the Individual Taxpayer Identification number, which is a
nine-digit number that always begins with the number 9 and has a 7 or
8 in the fourth digit, example 9XX-7X-XXXX. The IRS issues ITINs to
individuals
109400 3
who are required to have a U.S. taxpayer identification number but who
do not have, and are not eligible to obtain a Social Security Number
(SSN) from the Social Security Administration (SSA). SEC Rule 22c-2
inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
(c) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws. The Fund agrees that
the Shareholder Information is confidential and that the Fund will not share the
Shareholder Information externally, unless the Intermediary provides the Fund
with prior written consent to share such Shareholder Information. The Fund
agrees not to share the Shareholder Information internally, except on a "need to
know basis." The Fund further agrees to notify the Intermediary in the event
that the confidentiality of the Shareholder Information is breached.
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of Shares
by a Shareholder that has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions must be received by us at the
following address, or such other address that Intermediary may communicate to
you in writing from time to time, including, if applicable, an e-mail and/or
facsimile telephone number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed, including how long the prohibition(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific individual Contract owner number or
participant account number associated with the
109400 4
Shareholder is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates. Upon request of the Intermediary,
Fund agrees to provide to the Intermediary, along with any written instructions
to prohibit further purchases or exchanges of Shares by Shareholder, information
regarding those trades of the contract holder that violated the Fund's policies
relating to eliminating or reducing any dilution of the value of the Fund's
outstanding Shares.
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt of
the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten business
days after the instructions have been executed.
3.5 REDEMPTION FEES. If the Fund implements a redemption fee in the future that
the Intermediary cannot implement within the requested timeframe despite the
Intermediary's best efforts, the Fund agrees to negotiate, in good faith, an
interim solution until such time that the redemption fee can be successfully
administered.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The Fund and
Intermediary have entered into one or more Fund Participation Agreements between
or among them for the purchase and redemption of shares of the Funds by the
Accounts in connection with the Contracts. The Fund Participation Agreements are
hereby incorporated by reference into this Agreement, as this Agreement is
intended to be a supplement to the Fund Participation Agreements. To the extent
the terms of this Agreement conflict with the terms of a Fund Participation
Agreement, the terms of this Agreement shall control.
4.2 INDEMNIFICATION. The Fund agrees to indemnify and hold harmless Intermediary
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable attorney's fees) arising in connection with third party
claim or action brought against Intermediary as a result of any unauthorized
disclosure of a shareholder's taxpayer identification number provided to the
Fund in response to a request for Shareholder Information pursuant to the terms
of this Agreement, provided, however that in no event shall the Fund or Fund's
Designee be liable to Intermediary for lost profits, exemplary, punitive,
special, incidental, indirect or consequential damages.
4.2 FORCE MAJEURE. Provided that each party has implemented and maintains a
business continuity plan that is reasonable designed to enable it to meet its
existing obligations to customers and address its existing relationships with
other broker-dealers and
109400 5
counterparties, such party is excused from performance and shall not be liable
for any delay in performance or non-performance, in whole or in part, caused by
the occurrence of any event or contingency beyond the control of the parties
including, but not limited to, work stoppages, fires, civil disobedience, riots,
rebellions, natural disasters, acts of God, and acts of war or terrorism. The
party who has been so affected shall promptly give written notice to the other
Party and shall use its best efforts to resume performance. Upon receipt of such
notice, all obligations under this Agreement shall be immediately suspended for
the duration of such Force Majeure Event.
4.3 TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
MFS FUND DISTRIBUTORS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------
Title: President
------------------------------
Date: 4/12/07
------------------------------
PHOENIX LIFE INSURANCE COMPANY, AS AGENT FOR VALLEY FORGE LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
Title: Senior Vice President
------------------------------
Date: 4/11/07
------------------------------
109400 6
RULE 22C-2 SHAREHOLDER INFORMATION ACCESS AGREEMENT
(XXXXXXXXX XXXXXX FAMILY OF FUNDS)
This Agreement is entered into as of March 1, 2007 by and between Xxxxxxxxx
Xxxxxx Management Inc. ("NBMI") and the undersigned intermediary
("Intermediary").
WHEREAS, NBMI is the principal underwriter and adviser of registered investment
companies and their separately designated series (each such series or series
hereinafter established referred to herein as the "Fund") - the term does not
include any "excepted funds" as defined in SEC Rule 22c-2(b) under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, Intermediary is (i) a broker, dealer, bank, or other entity that holds
securities of record issued by the Fund ("Fund shares") in nominee name; (ii) in
the case of a participant-directed employee benefit ("Plan") that owns Fund
shares, (a) a retirement plan administrator under the Employee Retirement Income
Security Act of 1974, as amended, or (b) any entity that maintains the Plan's
participant records; or (iii) an insurance company separate account;
WHEREAS, Intermediary provides services to clients who maintain an interest in
Fund sharesheld by the Intermediary in an account with the Fund as (i) the
beneficial owner of Fund shares, whether the shares are held directly or by
Intermediary in nominee name; or (ii) with respect to retirement and other types
of employee benefit plans, the Plan participant notwithstanding that the Plan
may be deemed to be the beneficial owner of Fund shares; or (iii) with respect
to insurance companies, the holder of interests in a variable annuity or
variable life insurance contract issued by Intermediary (a "Variable Contract").
Each type of client identified in clauses (i), (ii), or (iii) herein shall be
referred to herein as a "Shareholder;"
WHEREAS, the term "Shareholder-Initiated Transfer Purchase" means a transaction
that is initiated or directed by a Shareholder that results in a transfer of
assets within a Variable Contract to a Fund, but does not include transactions
that are executed: (i) automatically pursuant to a contractual or systematic
program or enrollment such as transfer of assets within Variable Contract to a
Fund as a result of "dollar cost averaging" programs, insurance company approved
asset allocation programs, or automatic rebalancing programs; (ii) pursuant to a
Variable Contract death benefit; (iii) one-time step-up in Variable Contract
value pursuant to a Variable Contract death benefit; (iv) allocation of assets
to a Fund through a Variable Contract as a result of payments such as loan
repayments, scheduled contributions, retirement plan salary reduction
contributions, or planned premium payments to the Variable Contract; or (v)
prearranged transfers at the conclusion of a required free look period.
WHEREAS, the term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that results in a
transfer of assets within a Variable Contract out of a Fund, but does not
include transactions that are executed: (i) automatically pursuant to a
contractual or1 As defined in SEC Rule 22c-2(b), the term
"excepted Fund" means any: (1) money market Fund; (2) Fund that issues
securities that are listed on a national exchange; and (3) Fund that
affirmatively permits short-term trading of its securities, if its prospectus
clearly and prominently discloses that the Fund permits short-term trading of
its securities and that such trading may result in additional costs for the Fund
systematic program or enrollments such as transfers of assets within a Variable
Contract out of a Fund as a result of annuity payouts, loans, systematic
withdrawal programs, insurance company approved asset allocation programs and
automatic rebalancing programs; (ii) as a result of any deduction of charges or
fees under a Variable Contract; (iii) within a Variable Contract out of a Fund
as a result of scheduled withdrawals or surrenders from a Variable Contract; or
(iv) as a result of payment of a death benefit from a Variable Contract.
WHEREAS, NBMI and Intermediary have entered into a dealer agreement, services
agreement and/or fund participation agreement (the "Dealer/Services Agreement"),
pursuant to which Intermediary has agreed to solicit orders for Fund shares
and/or provide services with respect to the Fund;
WHEREAS, Intermediary is a "financial intermediary" within the meaning of Rule
22c-2 of the 1940 Act, and directly submits orders on behalf of investors in one
or more Funds to purchase or redeem Fund shares;
WHEREAS, pursuant to Rule 22c-2 under the 1940 Act ("Rule 22c-2"), the parties
wish to enter into an agreement under which Intermediary agrees to provide NBMI
and the Fund with Shareholder identification and Transaction Information in
order to help identify and preclude activity that may violate NBMI's or a Fund's
policies ("Trading Policies") established for the purpose of eliminating or
reducing any dilution of the value of Fund shares, including restrictions on
frequent trading of Fund shares that NBMI otherwise may deem disruptive to the
Fund and any policy to ensure appropriate administration of a redemption fee, if
any, established by the Fund;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which
consideration is full and complete, and intending to be legally bound hereby,
NBMI and Intermediary hereby agree as follows:
1. SHAREHOLDER INFORMATION
1.1 AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to cooperate with
the Fund's and NBMI's efforts to identify Shareholder transaction
activity that may violate the Trading Policies. To that end,
Intermediary agrees to respond promptly to NBMI's requests regarding
Shareholder transaction activity in an account held by or through the
Intermediary. In response to such requests, Intermediary shall provide
the taxpayer identification number ("TIN"), the Individual Taxpayer
Identification ("ITIN"), or othergovernment-issued identifier ("GII"),
if known, of any or all Shareholder(s) of the account and the amount,
date, name or other identifier of any investment professional(s)
associated with the Shareholder(s) or account (if known), and the
transaction type (purchase, redemption, transfer, or exchange) of
every purchase, redemption, transfer or
exchange of Fund shares held through an account maintained by the
Intermediary during the period covered by the request ("Transaction
Information"). With respect to information pertaining to Variable
Contracts and unless otherwise specifically requested by the Fund, the
Intermediary shall only be required to provide information relating to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated
Transfer Redemptions.
1.2 PERIOD COVERED BY REQUEST. In each request, NBMI shall set forth a
specific period, not to exceed ninety (90) days from the date of the
request, for which it seeks Transaction Information. NBMI may request
Transaction Information older than ninety (90) days from the date of
the request as it deems necessary to investigate compliance with the
Trading Policies.
1.3 FORM AND TIMING OF RESPONSE/ FREQUENCY OF REQUESTS. Requests may be
made no more than quarterly, except if the Fund has reason to believe a
Shareholder's transfer activity is disruptive to the Fund. Intermediary
agrees to transmit all requestedinformation that is on its books and
records to NBMI and the Fund or their designee promptly, but in any
event not later than ten (10) business days, after receipt of a
request. If the requested information is not on Intermediary's books
and records, Intermediary agrees to: (i) provide or arrange to provide
to NBMI and the Fund the requested information with respect to
Shareholders who hold an account with an indirect intermediary; or (ii)
if directed by NBMI, prohibit further purchases of Fund shares from
such indirect intermediary. In such instance, Intermediary agrees to
inform NBMI whether it plans to perform (i) or (ii). Responses required
by this paragraph must be communicated in writing and in a format
mutually agreed upon by the parties. To the extent practicable, the
format for any Transaction Information provided to NBMI and the Fund
should be consistent with the DTCC Standardized Data Reporting Format.
For purposes of this provision, an "indirect intermediary" has the same
meaning as in Rule 22c-2(c)(5)(iii) under the 1940 Act or as "indirect
intermediary" is subsequently defined in any amendment to Rule 22c-2.
1.4 LIMITATIONS ON USE OF INFORMATION. The Fund agrees to only use the
Information for the purposes of identifying Shareholders who may be violating
the Funds policies and procedures with respect to dilution of the Fund's value
as contemplated by the Rule or to fulfill other regulatory or legal requirements
subject to the privacy provisions of Title V of the Xxxxx-Xxxxx Bliely Act
(Public Law 106-102) and comparable state laws. The Fund agrees that the
Information is confidential and that the Fund will not share the Information
externally, unless the Intermediary provides the Fund with prior written consent
to share such Shareholder Information. The Fund further agrees not to share the
Information internally, except on a "need to know basis." Additionally, if the
NBMI becomes aware of a breach in confidentiality of the Transaction
Information, the Fund will notify the Intermediary.
2. PROHIBITING TRADING.
2.1 Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from NBMI to prohibit further purchases or exchanges of or
into Fund shares by a Shareholder that has been identified by NBMI as
having engaged in transactions of Fund shares (directly or indirectly
through Intermediary's (or indirect intermediary's) account) that
violate the Trading Policies. Unless otherwise directed by the Fund,
any such prohibitions shall only apply to Shareholder Initiated
Transfer Purchases or Shareholder Initiated Transfer Redemptions
(pertaining to Variable Contracts) that are effected directly or
indirectly through the Intermediary.
2.2 FORM OF INSTRUCTIONS. In the instructions, NBMI shall include the
Shareholder's TIN, if known, and the specific prohibition(s) to be
executed. If NBMI does not know the TIN, NBMI shall include an
equivalent identifying number of the Shareholder(s) or account(s) or
other agreed upon information to which the instruction relates.
2.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon
as reasonably practicable, but not later than ten (10) business days
after receipt of the instructions by Intermediary.
2.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written
confirmation to NBMI that instructions have been executed. Intermediary
agrees to provide confirmation as soon as reasonably practicable, but
not later than ten (10) business days after the instructions have been
executed.
3. NOTICES.
3.1 NOTICES. All legal or contractual notices required or permitted under this
Agreement shall be in writing and shall be sent by personal delivery or
registered or certified mail, postage prepaid, or by telecopier confirmed
in writing within three (3) business days, unless otherwise indicated
herein, as follows:
(a) If to NBMI or the Fund:
Xxxxxxxxx Xxxxxx Management Inc.
Xxxxxxxxx Xxxxxx Funds
000 Xxxxx Xxxxxx -0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, President, NBMI
Chairman and Chief Executive Officer,
Xxxxxxxxx Xxxxxx Funds
Xxxxx Xxxxxxxxx
(000) 000-0000
(000) 000-0000
xxxxxxxxxx@xx.xxx
(b) If to Intermediary:
Phoenix Life Insurance Companies
Attention: Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxx
X.X. Xxx 0000 Xxxxxxxx, XX 00000-0000
Requests for Transaction Information or Form of Instructions must be sent to:
Phoenix Life Insurance Companies
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
3.2 ADDRESS CHANGES. Such addresses may be changed from time to time by any
party by providing written notice in the manner set forth above. All notices
shall be effective upon delivery or when deposited in the mail addressed as set
forth above.
4. APPLICABILITY TO AFFILIATES. The Intermediary acknowledges and agrees that
the Intermediary has identified and/or will identify to NBMI all persons
affiliated with the Intermediary and known to the Intermediary who meet the
definition of "Applicable Intermediary" as set forth in Section 4 herein.
The term "Applicable Intermediary" shall mean an affiliate of Intermediary
that is (i) any broker, dealer, bank or other entity that holds securities
of record issued by a Fund in nominee name; and (ii) in the case of a
participant-directed employee benefit plan that owns securities issued by a
Fund, (1) a retirement plan administrator under the Employee Retirement
Income Security Act of 1974, or (2) any entity that maintains the plan's
participant records. In the event that any such person is not so
identified, such person shall be deemed to be subject to the terms and
conditions of this Agreement until such person has entered into a separate
agreement with NBMI.
5. AMENDMENTS. NBMI may unilaterally modify this Agreement at any time by
written notice to Intermediary to comport with the requirements of applicable
law, any amendments to Rule 22c-2 and any interpretation by the Staff of the
Securities and Exchange Commission.
The first order placed by Intermediary subsequent to the receipt of such notice
shall be deemed acceptance by Intermediary of the modification to the Agreement
described in such notice. Except as set forth in this Section 5 and 14, this
Agreement may not be amended without written consent by the parties hereto.
5. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws.
6. ASSIGNMENT. Neither party may assign the Agreement, or any of the rights,
obligations, or liabilities under the Agreement, without the written
consent of the other party. Notwithstanding the foregoing, this Agreement
shall be deemed assigned to the extent the Dealer/Services Agreement is
deemed assigned.
7. DEALER/SERVICES AGREEMENT. To the extent that the provisions of this
Agreement and the provisions of the Dealer/Services Agreement are in
conflict, the provisions of this Agreement shall control with respect to
the subject matter of this Agreement. Termination of this Agreement by
either party shall not automatically result in a termination of the
Dealer/Services Agreement. This Agreement shall terminate upon termination
of the Dealer/Services Agreement.
8. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but both of which shall together
constitute one and the same instrument.
9. THIRD-PARTY BENEFICIARIES. As permitted by Rule 22c-2, NBMI is entering
into this Agreement on the Fund's behalf. Any requests from NBMI for
information or instructions from NBMI to prohibit further purchases or
exchanges of Fund shares are made by NBMI on Fund's behalf. The Fund shall
have the right to enforce all terms and provisions of this Agreement
against any and all parties hereto and or otherwise involved in the
activities contemplated herein.
10. FORCE MAJEURE. Either the Fund or the Intermediary is excused from
performance and shall not be liable for any delay in performance or
non-performance, in whole or in part, caused by the occurrence of any event
or contingency beyond the control of the parties including, but not limited
to, work stoppages, fires, civil disobedience, riots, rebellions, natural
disasters, acts of God, acts of war or terrorism, actions or decrees of
governmental bodies, and similar occurrences. The party who has been so
affected shall, if physically possible, promptly give written notice to the
other party and shall use its best efforts to resume performance. Upon
receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such event or contingency.
12 RIGHT TO SUSPEND TRADING BY INTERMEDIARY. The Fund may, in its discretion,
suspend or cease offering Fund shares for purchase through the
Intermediary if the Intermediary fails to satisfy its obligations under
this Agreement.
11. INDEMNIFICATIONS.
The Intermediary shall indemnify and hold harmless the NBMI and the Fund
and their respective directors, officers, employees, affiliates and agents
("Indemnified Parties") from and against any and all losses, claims,
liabilities and expenses (including reasonable attorney's fees and
expenses) ("Losses") incurred by any of them arising out of (i) any breach
by the Intermediary of any representation, warranty or agreement contained
in this Agreement, (ii) any willful misconduct or negligence
by the Intermediary in the performance of, or failure to perform, its
obligations under this Agreement, including but not limited to, the
Intermediary's failure to timely provide information that is accurate and
in proper form, as required under Section 1 of this Agreement, or to timely
prohibit trading in accordance with Section 2 of this Agreement. This
section shall survive the termination of this Agreement.
The NBMI shall indemnify and hold harmless the Intermediary and its
respective directors, officers, employees, affiliates and agents
("Indemnified Parties") from and against any and all losses, claims,
liabilities and expenses (including reasonable attorney's fees and
expenses) ("Losses") incurred by Intermediary arising out of (i) any breach
by the NBMI of any representation, warranty or agreement contained in this
Agreement, (ii) any willful misconduct or negligence by the NBMI in the
performance of, or failure to perform, its obligations under this
Agreement, including but not limited to, NBMI's failure to keep the
Transaction Information confidential as described in Section 1.4 of this
Agreement. This section shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as
of the date first above written.
XXXXXXXXX XXXXXX MANAGEMENT INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
Date: March 30, 2007
------------------------------
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: Sr. Vice President
------------------------------
Date: March 21, 2007
-------------------------------
THE XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between Xxxxxxxxxxx Funds Services ("OFS"), a division of Xxxxxxxxxxx Funds,
Inc., Xxxxxxxxxxx Funds Distributor, Inc. ("Distributor") referred together with
OFS as ("Xxxxxxxxxxx") and Phoenix Life Insurance Company, PHL Variable
Insurance Company, and Phoenix Life and Annuity Company ("Intermediary").
WHEREAS, the Intermediary is a manufacturer of variable life and variable
annuity insurance products;
WHEREAS, Xxxxxxxxxxx is authorized to act on behalf of Xxxxxxxxxxx Variable
Account Funds ("Fund");
WHEREAS, the Intermediary and the Fund previously entered into Participation
Agreements allowing the Intermediary to offer certain portfolios of the Fund
through its separate accounts by way of the Intermediary's variable life and
variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Fund and the Intermediary enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 - INTERMEDIARY: The term "Intermediary" means the insurance company acting
as the depositor for the separate accounts.
1.2 - FUND: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the Act.
The term "Fund" includes (i) an investment adviser to or administrator for the
Fund; (ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund.
1
The term not does include any "excepted funds" as defined in Rule 22c-2(b) under
the Act.
1.3 - SHARES: The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund under
the Act that are held by the Intermediary.
1.4-SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5-SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6-SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7-SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8-WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2.1 INFORMATION SHARING - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN");
2
(ii) the Contract owner number or participant account
number associated with the Shareholder;
(iii) the amount, date and transaction type of every
purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the
Intermediary during the period covered by the
request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed ninety (90) days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older than
ninety (90) days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.3 TIMING OF REQUESTS- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to the Fund
promptly but not later than ten (10) business days after receipt of a
request. If the Fund requests, the Intermediary agrees to use its best
efforts to promptly determine whether any specific person about whom
it has received Shareholder Information is itself a financial
intermediary ("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests, the
Intermediary will, with notice to the Fund, promptly either:
(i) provide Shareholder Information for those shareholders who
hold an account with an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued
by the Fund.
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and according to the IRS' website, the ITIN refers
to the Individual Taxpayer Identification number, which is a
nine-digit number that always begins with the number 9 and has a 7 or
8 in the fourth digit, example 9XX-7X-XXXX. The IRS issues ITINs to
individuals who are required to have a U.S. taxpayer identification
number but who do not have, and are not eligible to obtain a Social
Security Number (SSN) from the Social Security Administration (SSA).
SEC Rule 22c-2 inadvertently refers to the ITIN as the International
Taxpayer Identification Number.
(c) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
3
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws. The Fund further
agrees that the Shareholder Information is confidential and that the Fund will
not share the Shareholder Information externally, unless the Intermediary
provides the Fund with prior written consent to share such Shareholder
Information. The Fund further agrees not to share the Shareholder Information
internally, except on a "need to know basis." In the event of a known breach of
confidentiality with respect to the Shareholder Transaction Information, the
Fund agrees to notify Intermediary promptly.
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of Shares
by a Shareholder that has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions must be received by Intermediary
in writing, as defined above and in a format mutually agreed upon by the
parties.
-
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed, including how long the prohibition(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific individual Contract owner number or
participant account number associated with the Shareholder is not known, the
instructions must include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, Fund agrees to provide to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Shareholder, information regarding those trades of the contract
holder that violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
4
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. The Fund Participation Agreements are hereby
incorporated by reference into this Agreement, as this Agreement is intended to
be a supplement to the Fund Participation Agreements. To the extent the terms of
this Agreement conflict with the terms of a Fund Participation Agreement, the
terms of this Agreement shall control.
4.2 TERMINATION. This Agreement will terminate upon Intermediary ceasing to be a
financial intermediary with respect to the Funds, under Rule 22c-2.
5
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
XXXXXXXXXXX FUNDS SERVICES
(a division of OppenheimerFunds, Inc.)
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
(signature)
Name: Xxxxx Xxxxxxxx
-------------------------------
(print)
Title: Senior Vice President
------------------------------
Date: 04/13/07
-------------------------------
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------
(signature)
Name: Xxxxxxx Xxxxx
-------------------------------
(print)
Title: President
------------------------------
Date: 04/13/07
------------------------------
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
---------------------------------
(signature)
Name: Xxxx Xxxxxxx X'Xxxxxxx
-------------------------------
(print)
Title: Senior Vice President
------------------------------
Date: April 12, 2007
------------------------------
6
RULE 22C-2 AMENDMENT TO PARTICIPATION AGREEMENT
AMENDMENT entered into as of April 15, 2007, by and between Allianz Global
Investors Distributors LLC ("AGID"), the principal underwriter for Premier VIT
and PIMCO Variable Insurance Trust (each a "Trust" and, collectively, the
"Trusts") and Phoenix Life Insurance Company, PHL Variable Insurance Company,
and Phoenix Life and Annuity Company ("Intermediary").
WHEREAS, Intermediary, pursuant to a Participation Agreement (as
defined below), purchases Shares of the Trusts to fund certain variable life
insurance or variable annuity contracts issued by Intermediary ("Contracts");
and
WHEREAS, AGID and Intermediary (each a "Party" and, together, the
"Parties") seek to enter into this Amendment in order for the Trusts, AGID and
Intermediary to comply with the requirements of Rule 22c-2 ("Rule 22c-2") under
the Investment Company Act of 1940, as amended (the "1940 Act"), and to make
other changes to the Participation Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, which consideration is full and complete, AGID and Intermediary
hereby agree as follows:
A. CONTRACTHOLDER INFORMATION
--------------------------
A.1. AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide
Fund Agent, upon written request, the taxpayer identification number
("TIN"), the Individual/International Taxpayer Identification Number
("ITIN"), or other government-issued identifier ("GII") and the
Contract owner number or participant account number, if known, of any
or all Contractholder(s) of the account, the name or other identifier
of any investment professional(s) associated with the
Contractholder(s) or account (if known), and the amount, date and
transaction type (purchase, redemption, transfer, or exchange) of
every purchase, redemption, transfer, or exchange of Shares held
through an account maintained by Intermediary during the period
covered by the request. ("Transaction Information" Unless otherwise
specifically requested by the Fund Agent, the Intermediary shall only
be required to provide Transaction Information relating to
Contractholder-Initiated Transfer Purchases or
Contractholder-Initiated Transfer Redemptions.
A.1.1. PERIOD COVERED BY REQUEST/FREQUENCY OF REQUESTS. Requests
may be made no more than quarterly, except if the Fund has reason
to believe a Shareholder's transfer activity is disruptive to the
Fund Requests must set forth a specific period, not to exceed 90
days from the date of the request, for which Transaction
Information is sought. Fund Agent may request Transaction
Information older than 90 days from the date of the request as it
deems necessary to investigate compliance with policies
established or utilized by a Trust or Fund Agent for the purpose
of eliminating or
reducing any dilution of the value of the outstanding shares
issued by a Fund.
If requested by Fund Agent, Intermediary will provide the
Transaction Iformation specified in Section A.1 above for each
trading day for the period requested.
A.1.2. FORM AND TIMING OF RESPONSE. Intermediary agrees to
provide, promptly upon request of Fund Agent, the requested
Transaction Information specified in Section A.1. Intermediary
agrees to use its best efforts to determine promptly whether any
specific person about whom it has received the identification and
Transaction Information specified in Section A.1 is itself a
"financial intermediary," as that term is defined in Rule 22c-2
(an "Indirect Intermediary") and, upon request of Fund Agent,
promptly either (i) provide (or arrange to have provided) the
Transaction Information set forth in Section A.1 for those
Contractholders who hold an account with an Indirect Intermediary
or (ii) prohibit the Indirect Intermediary from purchasing Shares
in nominee name on behalf of other persons. Intermediary
additionally agrees to inform Fund Agent whether it plans to
perform (i) or (ii) above. Responses required by this paragraph
must be communicated in writing and in a format mutually agreed
upon by the Parties. To the extent practicable, the format for
any Contractholder and Transaction Information provided to Fund
Agent should be consistent with the NSCC Standardized Data
Reporting Format.
A.1.3. LIMITATIONS ON USE OF INFORMATION. The Fund agrees to only
use the Transaction Information for the purposes of identifying
Shareholders who may be violating the Funds policies and
procedures with respect to dilution of the Fund's value as
contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the
Xxxxx-Xxxxx Bliely Act (Public Law 106-102) and comparable state
laws. The Fund agrees that the Transaction Information is
confidential and that the Fund will not share the Transaction
Information externally, unless the Intermediary provides the Fund
with prior written consent to share such Transaction Information.
The Fund agrees not to share the Transaction Information
internally, except on a "need to know basis." The Fund also
agrees to notify the Intermediary in the event that the
confidentiality of the Transaction Information is breached.
B. EXECUTION OF TRADING PROHIBITION INSTRUCTIONS
----------------------------------------------
B.1. AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute
written instructions from Fund Agent to r prohibit further purchases or
exchanges of Shares by a Contractholder that has been identified by
Fund Agent as having engaged in transactions in Shares (directly or
indirectly through Intermediary's account) that violate policies
established or utilized by a Trust or Fund Agent for
the purpose of eliminating or reducing any dilution of the value of
the outstanding Shares issued by a Fund. Unless otherwise directed by
Fund Agent, any such prohibitions shall only apply to
Contractholder-Initiated Transfer Purchases or
Contractholder-Initiated Transfer Redemptions that are effected
directly or indirectly through Intermediary.
Should the Fund decide to impose a redemption fee that requires the
Intermediary to implement changes to its systems to administer, the
Fund agrees to negotiate with the Intermediary, in good faith, an
interim solution that the Intermediary can effectively administer until
such time as it is able to implement the systems changes.
B.1.1. FORM OF INSTRUCTIONS. Instructions must include the TIN,
ITIN or GII and the specific individual Contract owner number or
participant account number associated with the Contractholder, if
known, and the specificprohibition(s) to be executed. If the TIN,
ITIN, GII or the specific individual Contract owner number or
participant account number associated with the Contractholder is
not known, the instructions must include an equivalent
identifying number of the Contractholder(s) or account(s) or
other agreed upon information to which the instruction relates.
B.1.2. TIMING OF RESPONSE. Intermediary agrees to execute
instructions from Fund Agent as soon as reasonably practicable,
but not later than five (5) business days after receipt of the
instructions by Intermediary.
B.1.3. CONFIRMATION BY INTERMEDIARY. Intermediary must provide
written confirmation to Fund Agent that Fund Agent's instructions
to prohibit trading have been executed. Intermediary agrees to
provide confirmation as soon as reasonably practicable, but not
later than ten (10) business days after the instructions have
been executed.
C. DEFINITIONS
-----------
For purposes of this Amendment, certain terms are used as defined in
the preamble or body of this Amendment. The following terms shall have the
following meanings, unless a different meaning is clearly required by the
context:
C.1. The term "Contractholder" means the holder of interests in a
Contract or a participant in an employee benefit plan with a beneficial
interest in a Contract.
C.2. The term "Contractholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Contractholder that
results in a transfer of assets within a Contract to a Fund, but does
not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as a transfer
of assets within a Contract to a Fund as a result of "dollar cost
averaging" programs, insurance company approved asset allocation
programs, or
automatic rebalancing programs; (ii) pursuant to a Contract death
benefit; (iii) as a result of a one-time step-up in Contract value
pursuant to a Contract death benefit; (iv) as a result of an
allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, retirement
plan salary reduction contributions, or planned premium payments to
the Contract; or (v) pre-arranged transfers at the conclusion of a
required "free look" period.
The term "Contractholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Contractholder that
results in a transfer of assets within a Contract out of a Fund, but
does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as
transfers of assets within a Contract out of a Fund as a result of
annuity payouts, loans, systematic withdrawal programs, insurance
company approved asset allocation programs and automatic rebalancing
programs; (ii) as a result of any deduction of charges or fees under a
Contract; (iii) within a Contract out of a Fund as a result of
scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
C.3. The term "Funds" shall mean the constituent series of the Trusts,
but for purposes of Section A of this Amendment shall not include Funds
excepted from the requirements of paragraph (a) of Rule 22c-2 by
paragraph (b) of Rule 22c-2.
C.4. The term "Fund Agent" shall mean AGID or such other persons or
entities as may be designated as such by the Trusts for purposes of
this Amendment from time to time.
C.5. The term "Participation Agreement" shall mean the Participation
Agreement and/or other similar agreement(s) relating to transactions in
Shares to which Intermediary or any of Intermediary's predecessors,
successors or affiliates is a party.
C.6. The term "promptly" shall mean as soon as practicable but in no
event later than ten (10) business days from Intermediary's receipt of
the request for Transaction Information from Fund Agent
C.7. The term "Shares" means the interests of Contractholders
corresponding to the redeemable securities of record issued by a Fund.
C.8. The term "written" includes electronic writings and facsimile
transmissions.
In addition, for purposes of this Amendment, the term "purchase" does not
include the automatic reinvestment of dividends or distributions.
D. ADDITIONAL AMENDMENTS TO PARTICIPATION AGREEMENT
------------------------------------------------
The Participation Agreement is hereby further amended to incorporate
the provisions set forth in Exhibit A hereto.
E. SCOPE OF AMENDMENT
Intermediary acknowledges and agrees that this Amendment shall apply to
the handling of all transactions in Shares, whether authorized under the
Participation Agreement or any other agreement between or among Intermediary and
a Trust, any transfer agent of a Trust, AGID, any other Fund Agent or any of
their affiliates, and further acknowledges and agrees that the Participation
Agreement and any other such agreement is hereby modified to the extent
necessary to reflect the agreements herein.
F. EFFECTIVE DATE
This Amendment shall be effective upon its execution hereof or, if
later, upon the effectiveness of the provisions of Rule 22c-2 relating to
agreements with "financial intermediaries" (as such term is defined in Rule
22c-2). Prior to the effective date of this Amendment, AGID and Intermediary
agree that any request made to Intermediary by AGID for Contractholder
Transaction Information, and Intermediary's response to such request, shall be
governed by whatever practices AGID and Intermediary had utilized in the absence
of a formal agreement, if any, to govern such requests.
G. ADDITIONAL OBLIGATIONS
It shall be Intermediary's obligation to make any required notification(s) to
its Contractholders of the provisions of this Amendment and Intermediary agrees
to do so. Intermediary also agrees to provide point of sale disclosure documents
to its Contractholders consistent with applicable legal requirements as in
effect from time to time.
H. AMENDMENTS TO COMPLY WITH RULE 22C-2
Without limiting any other provisions of this Amendment, including those
provisions set forth in Exhibit A hereto, the Parties agree that AGID may, upon
30 days' written notice to Intermediary, further amend or modify the
Participation Agreement without the affirmative consent of Intermediary in order
to comply with Rule 22c-2, as such rule may be revised or interpreted by the
Securities and Exchange Commission or its staff. Notice for these purposes shall
be deemed to be given when mailed or electronically transmitted to Intermediary.
Intermediary's submission and a Trust's or its designee's acceptance of an order
to purchase, redeem or exchange Shares after the transmission of such notice
shall represent Intermediary's acknowledgement and acceptance of the terms and
conditions of any such amendment. If AGID and Intermediary disagree on the
interpretation of any amendments to Rule 22C-2 or interpreations by the
Securities and Exchange Commission, the amendment will not be effective until
the parties come to an agreement on the terms of the new amendment. Each of the
parties agree to act in good faith and use its best efforts to resolve any
conflicting opinions relating to this paragraph.
I. TERMINATION.
This Agreement will terminate upon the termination of the applicable Fund
Participation Agreements.
J. INFORMATION NOTICES
Notices for Transaction Information requests and instructions for prohibitions
on future trading should be sent to:
Phoenix Life Insurance Companies
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
executed as of the date first above written.
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
-----------------------------
Title: MA
-----------------------------
Date: 4/9/07
------------------------------
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
Title: Sr. Vice President
----------------------------
Date: March 26, 2007
------------------------------
RYDEX VARIABLE TRUST
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated April 16, 2007 ("Effective Date") by and
between Rydex Variable Trust, ("Fund") and Phoenix Life Insurance Company, PHL
Variable Insurance Company, and Phoenix Life and Annuity Company
("Intermediary").
WHEREAS, the Intermediary is a manufacturer of variable life and variable
annuity insurance products;
WHEREAS, the Intermediary and the Fund previously entered into Participation
Agreements allowing the Intermediary to offer certain Fidelity insurance
dedicated mutual funds through its Separate Accounts by way of the
Intermediary's variable life and variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, the Fund is a fund as defined by the Rule;
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, the Fund and the Intermediary enter into this Shareholder Information
Agreement ("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 - INTERMEDIARY: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds ("Separate
Account") and/or the insurance company acting as the depositor for the Separate
Account.
1.2 - FUND: The term "Fund" shall mean an open-ended management investment
company that is registered or required to register under Section 8 of the Act.
The term "Fund" includes (i) an investment adviser to or administrator for the
Fund; (ii) the principal underwriter or distributor for the Fund; or (iii) the
transfer agent for the Fund. The term not does include any "excepted funds" as
defined in Rule 22c-2(b) under the Act.
1
1.3 - SHARES: The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund under
the Act that are held by the Intermediary.
1.4-SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5-SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6-SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7-SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8-WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2.1 INFORMATION SHARING - Intermediary agrees to provide the Fund, upon written
request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN");
(ii) the Contract owner number or participant account
number associated with the Shareholder;
2
(iii) the amount, date and transaction type of every
purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the
Intermediary during the period covered by the
request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed ninety (90) days from the date of the request, for which Shareholder
Information is sought. The Fund may request Shareholder Information older than
ninety (90) days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.3 TIMING OF REQUESTS- Fund requests for Shareholder Information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to the Fund
promptly upon request If the Fund requests, the Intermediary agrees to
use its best efforts to promptly determine whether any specific person
about whom it has received Shareholder Information is itself a
financial intermediary ("indirect intermediary").
(b) The Intermediary further agrees that if the Fund requests,
the Intermediary will, with notice to the Fund, promptly
either:
(i) provide Shareholder Information for those shareholders who
hold an account with an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued
by the Fund.
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and according to the IRS' website, the ITIN refers
to the Individual Taxpayer Identification number, which is a
nine-digit number that always begins with the number 9 and has a 7 or
8 in the fourth digit, example 9XX-7X-XXXX. The IRS issues ITINs to
individuals who are required to have a U.S. taxpayer identification
number but who do not have, and are not eligible to obtain a Social
Security Number (SSN) from the Social Security Administration (SSA).
SEC Rule 22c-2 inadvertently refers to the ITIN as the International
Taxpayer Identification Number.
(c) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
3
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- The Fund agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws. The Fund agrees that
the Shareholder Information is confidential and that the Fund will not share the
Shareholder Information externally, unless the Intermediary provides the Fund
with prior written consent authorized by the Intermediary's Chief Privacy
Officer to share such Shareholder Information. The Fund agrees not to share the
Shareholder Information internally, except on a "need to know basis." The Fund
agrees that when sending confidential Shareholder Information via electronic
means, the Fund will take reasonable steps to protect the confidentiality of
that information such as using encrypted email. The Fund further agrees to
notify the Intermediary immediately in the event that the confidentiality of the
Shareholder Information is breached
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or exchanges of Shares
by a Shareholder that has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions must be received by Intermediary
at the following address, or such other address that Intermediary may
communicate to you in writing from time to time, including, if applicable, an
e-mail and/or facsimile telephone number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Should the Fund decide to implement a restriction, such as a holding requirement
or a dollar threshold, the Fund agrees to give the Intermediary at least six (6)
months to program its systems to administer such a restriction. If such notice
is not practicable, the Fund agrees to negotiate with the Intermediary, in good
faith, a restriction that the Intermediary can effectively administer.
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed, including how long the prohibition(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific individual Contract owner number or
participant account number associated with the Shareholder is not known, the
instructions must include an equivalent identifying number
4
of the Shareholder(s) or account(s) or other agreed upon information to which
the instruction relates. Upon request of the Intermediary, Fund agrees to
provide to the Intermediary, along with any written instructions to prohibit
further purchases or exchanges of Shares by Shareholder, information regarding
those trades of the contract holder that violated the Fund's policies relating
to eliminating or reducing any dilution of the value of the Fund's outstanding
Shares.
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
3.5 REDEMPTION FEES. The Fund agrees to rely on the Intermediary's market timing
procedures to control market timing activity in lieu of imposing a redemption
fee. If the Fund ultimately decides to impose a redemption fee on variable
contracts, the Fund agrees to notify the Intermediary at least six (6) months in
advance so that the Intermediary can program its systems to administer the fee.
If such notice is not practicable, the Fund agrees to reimburse the Intermediary
for its costs in completing the systems work.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. The Fund Participation Agreements are hereby
incorporated by reference into this Agreement, as this Agreement is intended to
be a supplement to the Fund Participation Agreements. To the extent the terms of
this Agreement conflict with the terms of a Fund Participation Agreement, the
terms of this Agreement shall control.
4.2 INDEMNIFICATION. The Fund agrees to indemnify and hold harmless Intermediary
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable attorney's fees) arising in connection with third party
claim or action brought against Intermediary as a result of any unauthorized
disclosure of a Shareholder Information provided to the Fund in response to a
request for Shareholder Information pursuant to the terms of this Agreement.
4.3 FORCE MAJEURE. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in part,
caused by the occurrence of any event or contingency beyond the control of the
parties including, but not limited to, work stoppages, fires, civil
disobedience, riots, rebellions, natural disasters, acts of God, and acts of war
or terrorism. The party who has been so affected shall promptly give written
notice to the other Party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
5
4.4 TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
RYDEX VARIABLE TRUST
By:/s/ Xxxx Xxxxxxxxxxx
--------------------------------
(signature)
Name: Xxxx Xxxxxxxxxxx
------------------------------
(print)
Title: President
-----------------------------
Date: 4/9/07
------------------------------
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------------
(signature)
Name: Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
(print)
Title:Sr. Vice President
-----------------------------
Date: 04/10/07
------------------------------
6
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
SHAREHOLDER INFORMATION AGREEMENT
THIS AGREEMENT, dated as of April 16, 2007, is by and between Xxxxxx Xxxxxxx
Distribution, Inc. ("Fund Agent") and the financial intermediary whose name
appears on the signature page of this Agreement ("Intermediary"). Fund Agent is
entering into this Agreement on behalf of The Universal Institutional Funds,
Inc., including any separate series or portfolios thereof, whether existing at
the date of this Agreement or established subsequent hereto (each, a "Fund,"
and, collectively, the "Funds").
WITNESSETH:
WHEREAS, SEC Rule 22c-2 (the "Rule") under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), requires every mutual fund company or
its principal underwriter to enter into written agreements with financial
intermediaries (as defined by the Rule), obligating each financial intermediary,
to (i) provide the fund company, upon request, with specific shareholder
identification and Transaction Information, and (ii) execute any instructions
from the fund company to block trading of fund shares by shareholders who have
been identified as engaging in transactions of fund shares that violate the fund
company's market-timing and short-term trading policies;
WHEREAS, Fund Agent is the principal underwriter and distributor for the Funds;
and
WHEREAS, Intermediary is either (i) a broker, dealer, bank, or other entity that
holds securities of record issued by a fund in nominee name; (ii) in the case of
a participant-directed employee benefit plan that owns securities issued by a
Fund (1) a retirement plan administrator under ERISA or (2) an entity that
maintains the plan's participant records; or (iii) an insurance company separate
account.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
A. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings, unless a different meaning is clearly
required by the contexts:
1. The term "Fund" shall mean an open-end management investment company
that is registered or required to register under section 8 of the
Investment Company Act of 1940 and includes (i) an investment adviser
to or administrator for the Funds; (ii) the principal underwriter or
distributor for the Funds; or (iii) the transfer agent for the Funds.
The term not does include any "excepted funds" as defined in SEC Rule
22c-2(b) under the Investment Company Act of 1Act.(1)
2. The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by the Fund under the
Investment Company Act that are held by the Intermediary.
----------------------
(1) As defined in SEC Rule 22c-2(b), term "excepted fund" means any: (1) money
market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly and prominently discloses that the fund
permits short-term trading of its securities and that such trading may result in
additional costs for the fund.
3. The term "Shareholder" means the holder of interests in a variable
annuity or variable life insurance contract issued by the
Intermediary ("Contract"), or a participant in an employee benefit
plan with a beneficial interest in a contract.
4. The term "Shareholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Shareholder that
results in a transfer of assets within a Contract to a Fund, but
does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollment such
as transfer of assets within a Contract to a Fund as a result of
"dollar cost averaging" programs, insurance company approved asset
allocation programs, or automatic rebalancing programs; (ii)
pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation
of assets to a Fund through a Contract as a result of payments such
as loan repayments, scheduled contributions, retirement plan salary
reduction contributions, or planned premium payments to the
Contract; or (v) pre-arranged transfers at the conclusion of a
required free look period.
5. The term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that
results in a transfer of assets within a Contract out of a Fund, but
does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such
as transfers of assets within a Contract out of a Fund as a result
of annuity payouts, loans, systematic withdrawal programs, asset
allocation programs and automatic rebalancing programs; (ii) as a
result of any deduction of charges or fees under a Contract; (iii)
within a Contract out of a Fund as a result of scheduled withdrawals
or surrenders from a Contract; or (iv) as a result of payment of a
death benefit from a Contract.
6. The term "written" includes electronic writings and facsimile
transmissions.
B. AGREEMENT TO PROVIDE SHAREHOLDER INFORMATION. Intermediary agrees 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") and the Contract
owner number or participant account number associated with the
Shareholder, if known, of any or all Shareholder(s) of the account, and
the amount, date and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the Intermediary during the period
covered by the request. ("Transaction Information") Unless otherwise
specifically requested by the Fund, this section shall be read to require
Intermediary to provide only that Transaction Information relating to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions.
1. Period Covered by Request. Requests must set forth a specific period,
not to exceed ninety (90) business days from the date of the
request, for which Transaction Information is sought. The Fund may
request Transaction Information older than ninety (90) business days
from the date of the request as it deems necessary to investigate
-------------------
* According to the IRS' website, the ITIN refers to the Individual Taxpayer
Identification number, which is a nine-digit number that always begins with the
number 9 and has a 7 or 8 in the fourth digit, example 9XX-7X-XXXX. The IRS
issues ITINs to individuals who are required to have a U.S. taxpayer
identification number but who do not have, and are not eligible to obtain, a
Social Security Number (SSN) from the Social Security Administration (SSA). SEC
Rule 22c-2 inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
2
compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
shares issued by the Fund.
2. Timing of Requests. Fund requests for Shareholder Transaction
Information shall be made no more frequently than quarterly except as
the Fund deems necessary to investigate compliance with policies
established by the Fund for the purpose of eliminating or reducing
any dilution of the value of the outstanding shares issued by the
Fund.
3. Form and Timing of Response. (a) Intermediary agrees to provide,
promptly upon request of the Fund or its designee, the requested
Transaction Information specified in this Section B. If requested by
the Fund or its designee, Intermediary agrees to use best efforts to
determine promptly whether any specific person about whom it has
received the identification and Transaction Information specified in
this Section B is itself a financial intermediary ("indirect
intermediary") and, upon further request of the Fund or its
designee, promptly either (i) provide (or arrange to have provided)
the Transaction Information set forth in this Section B for those
shareholders who hold an account with an indirect intermediary or
(ii) prohibit the indirect intermediary from purchasing, in nominee
name on behalf of other persons, securities issued by the Fund.
Intermediary additionally agrees to inform the Fund whether it plans
to perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and
(c) To the extent practicable, the format for any Transaction Information
provided to the Fund should be consistent with the NSCC Standardized
Data Reporting Format.
C. LIMITATIONS ON USE OF TRANSACTION INFORMATION. The Fund agrees to only use
the Transaction Information for the purposes of identifying Shareholders
who may be violating the Funds policies and procedures with respect to
dilution of the Fund's value as contemplated by the Rule or to fulfill
other regulatory or legal requirements subject to the privacy provisions
of Title V of the Xxxxx-Xxxxx Bliely Act (Public Law 106-102) and
comparable state laws. The Fund agrees that the Transaction Information is
confidential and that the Fund will not share the Transaction Information
externally, unless the Intermediary provides the Fund with prior written
consent to share such Transaction Information. The Fund agrees not to
share the Transaction Information internally, except on a "need to know
basis." The Fund further agrees that it will notify Intermediary
immediately in the event that the confidentiality of any Transaction
Information is breached.
D. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from the Fund to r prohibit further purchases or exchanges of
Shares by a Shareholder that has been identified by the Fund as having
engaged in transactions of the Fund's Shares (directly or indirectly
through the Intermediary's account) that violate policies established by
the Fund for the purpose of eliminating or reducing any dilution of the
value of the outstanding Shares issued by the Fund. Unless otherwise
directed by the Fund, any such prohibitions shall only apply to
Shareholder-Initiated Transfer Purchases or
3
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary.
1. Form of Instructions. Instructions must include the TIN, ITIN, or GII
and the specific individual Contract owner number or participant
account number associated with the Shareholder, if known, and the
specific prohibition(s)) to be executed, including how long the
prohibition(s) is(are) to remain in place. If the TIN, ITIN, GII or
the specific individual Contract owner number or participant account
number associated with the Shareholder is not known, the instructions
must include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the
instruction relates.
2. Timing of Response. Intermediary agrees to execute instructions as
soon as reasonably practicable, but not later than ten (10) business
days after receipt of the instructions by the Intermediary.
3.Confirmation by Intermediary. Intermediary must provide written
confirmation to the Fund that the instructions have been executed.
Intermediary agrees to provide confirmation as soon as reasonably
practicable, but not later than ten (10) business days after the
instructions have been executed.
4. Redemption Fees. The parties to this Agreement acknowledge that the
Board of Trustees of the Fund (the "Board") has determined that
imposition of a redemption fee is either not necessary or not
appropriate with respect to the Fund. If the Board determines at a
future time to impose a redemption fee, the Fund agrees to provide
as much notice as reasonably practicably to allow Intermediary to
program its systems to administer the redemption fee by a date
mutually agreed upon by the Fund and the Intermediary.
E. CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or
among them for the purchase and redemption of shares of the Fund(s) by the
Accounts in connection with the Contracts. This Agreement supplements
those Fund Participation Agreements and is hereby incorporated into the
Fund Participation Agreements by reference. To the extent the terms of
this Agreement conflict with the terms of a Fund Participation Agreement,
the terms of this Agreement shall control.
F. TERMINATION This Agreement will terminate with respect to a specific Fund
upon the termination of the Fund Participation Agreement relating to that
Fund.
G. NOTICES. The Fund will send information and instruction requests to the
following address:
Phoenix Life Insurance Companies
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
The Fund will send all other notices, amendments, and correspondence to the
following address:
Phoenix Life Insurance Companies
Attention: Xxxxxx Xxxxxx
4
One American Row
P. O. Box 5056
Hartford, CT 06102-5056
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
XXXXXX XXXXXXX DISTRUBUTION, INC.
/s/ Xxxxxxx X. Xxxxx]
--
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
Title: SVP L&A Fin & Inv Mgmt
-----------------------------
Date: 03-19-07
-----------------------------
5
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
SHAREHOLDER INFORMATION AGREEMENT
THIS AGREEMENT, dated as of April 16, 2007, is by and between Xxxxxx Xxxxxxx
Distribution, Inc. ("Fund Agent") and the financial intermediary whose name
appears on the signature page of this Agreement ("Intermediary"). Fund Agent is
entering into this Agreement on behalf of The Universal Institutional Funds,
Inc., including any separate series or portfolios thereof, whether existing at
the date of this Agreement or established subsequent hereto (each, a "Fund,"
and, collectively, the "Funds").
WITNESSETH:
WHEREAS, SEC Rule 22c-2 (the "Rule") under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), requires every mutual fund company or
its principal underwriter to enter into written agreements with financial
intermediaries (as defined by the Rule), obligating each financial intermediary,
to (i) provide the fund company, upon request, with specific shareholder
identification and Transaction Information, and (ii) execute any instructions
from the fund company to block trading of fund shares by shareholders who have
been identified as engaging in transactions of fund shares that violate the fund
company's market-timing and short-term trading policies;
WHEREAS, Fund Agent is the principal underwriter and distributor for the Funds;
and
WHEREAS, Intermediary is either (i) a broker, dealer, bank, or other entity that
holds securities of record issued by a fund in nominee name; (ii) in the case of
a participant-directed employee benefit plan that owns securities issued by a
Fund (1) a retirement plan administrator under ERISA or (2) an entity that
maintains the plan's participant records; or (iii) an insurance company separate
account.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
A. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings, unless a different meaning is clearly required by the
contexts:
1. The term "Fund" shall mean an open-end management investment company
that is registered or required to register under section 8 of the
Investment Company Act of 1940 and includes (i) an investment adviser
to or administrator for the Funds; (ii) the principal underwriter or
distributor for the Funds; or (iii) the transfer agent for the Funds.
The term not does include any "excepted funds" as defined in SEC Rule
22c-2(b) under the Investment Company Act of 1Act.(1)
2. The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by the Fund under the
Investment Company Act that are held by the Intermediary.
------------------------------
(1) As defined in SEC Rule 22c-2(b), term "excepted fund" means any: (1) money
market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly and prominently discloses that the fund
permits short-term trading of its securities and that such trading may result in
additional costs for the fund.
3. The term "Shareholder" means the holder of interests in a variable
annuity or variable life insurance contract issued by the
Intermediary ("Contract"), or a participant in an employee benefit
plan with a beneficial interest in a contract.
4. The term "Shareholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Shareholder that
results in a transfer of assets within a Contract to a Fund, but
does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollment such
as transfer of assets within a Contract to a Fund as a result of
"dollar cost averaging" programs, insurance company approved asset
allocation programs, or automatic rebalancing programs; (ii)
pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation
of assets to a Fund through a Contract as a result of payments such
as loan repayments, scheduled contributions, retirement plan salary
reduction contributions, or planned premium payments to the
Contract; or (v) pre-arranged transfers at the conclusion of a
required free look period.
5. The term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that
results in a transfer of assets within a Contract out of a Fund, but
does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such
as transfers of assets within a Contract out of a Fund as a result
of annuity payouts, loans, systematic withdrawal programs, asset
allocation programs and automatic rebalancing programs; (ii) as a
result of any deduction of charges or fees under a Contract; (iii)
within a Contract out of a Fund as a result of scheduled withdrawals
or surrenders from a Contract; or (iv) as a result of payment of a
death benefit from a Contract.
6. The term "written" includes electronic writings and facsimile
transmissions.
B. AGREEMENT TO PROVIDE SHAREHOLDER INFORMATION. Intermediary agrees 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") and
the Contract owner number or participant account number associated
with the Shareholder, if known, of any or all Shareholder(s) of the
account, and the amount, date and transaction type (purchase,
redemption, transfer, or exchange) of every purchase, redemption,
transfer, or exchange of Shares held through an account maintained
by the Intermediary during the period covered by the request.
("Transaction Information") Unless otherwise specifically requested
by the Fund, this section shall be read to require Intermediary to
provide only that Transaction Information relating to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated
Transfer Redemptions.
1. Period Covered by Request. Requests must set forth a specific
period, not to exceed ninety (90) business days from the date
of the request, for which Transaction Information is sought.
The Fund may request Transaction Information older than ninety
(90) business days from the date of the request as it deems
necessary to investigate
----------------------------
* According to the IRS' website, the ITIN refers to the Individual Taxpayer
Identification number, which is a nine-digit number that always begins with the
number 9 and has a 7 or 8 in the fourth digit, example 9XX-7X-XXXX. The IRS
issues ITINs to individuals who are required to have a U.S. taxpayer
identification number but who do not have, and are not eligible to obtain, a
Social Security Number (SSN) from the Social Security Administration (SSA). SEC
Rule 22c-2 inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
2
compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value
of the outstanding shares issued by the Fund.
2. Timing of Requests. Fund requests for Shareholder Transaction
Information shall be made no more frequently than quarterly
except as the Fund deems necessary to investigate compliance
with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
3. Form and Timing of Response. (a) Intermediary agrees to provide,
promptly upon request of the Fund or its designee, the
requested Transaction Information specified in this Section B.
If requested by the Fund or its designee, Intermediary agrees
to use best efforts to determine promptly whether any specific
person about whom it has received the identification and
Transaction Information specified in this Section B is itself
a financial intermediary ("indirect intermediary") and, upon
further request of the Fund or its designee, promptly either
(i) provide (or arrange to have provided) the Transaction
Information set forth in this Section B for those shareholders
who hold an account with an indirect intermediary or (ii)
prohibit the indirect intermediary from purchasing, in nominee
name on behalf of other persons, securities issued by the
Fund. Intermediary additionally agrees to inform the Fund
whether it plans to perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and
(c) To the extent practicable, the format for any Transaction Information
provided to the Fund should be consistent with the NSCC Standardized
Data Reporting Format.
C. LIMITATIONS ON USE OF TRANSACTION INFORMATION. The Fund agrees to
only use the Transaction Information for the purposes of identifying
Shareholders who may be violating the Funds policies and procedures
with respect to dilution of the Fund's value as contemplated by the
Rule or to fulfill other regulatory or legal requirements subject to
the privacy provisions of Title V of the Xxxxx-Xxxxx Bliely Act
(Public Law 106-102) and comparable state laws. The Fund agrees that
the Transaction Information is confidential and that the Fund will
not share the Transaction Information externally, unless the
Intermediary provides the Fund with prior written consent to share
such Transaction Information. The Fund agrees not to share the
Transaction Information internally, except on a "need to know
basis." The Fund further agrees that it will notify Intermediary
immediately in the event that the confidentiality of any Transaction
Information is breached.
D. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from the Fund to r prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the
Fund as having engaged in transactions of the Fund's Shares
(directly or indirectly through the Intermediary's account) that
violate policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund,
any such prohibitions shall only apply to Shareholder-Initiated
Transfer Purchases or
3
Shareholder-Initiated Transfer Redemptions that are effected directly
or indirectly through Intermediary.
1. Form of Instructions. Instructions must include the TIN, ITIN,
or GII and the specific individual Contract owner number or
participant account number associated with the Shareholder, if
known, and the specific prohibition(s)) to be executed,
including how long the prohibition(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual
Contract owner number or participant account number associated
with the Shareholder is not known, the instructions must
include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the
instruction relates.
2. Timing of Response. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not later
than ten (10) business days after receipt of the instructions
by the Intermediary.
3.Confirmation by Intermediary. Intermediary must provide written
confirmation to the Fund that the instructions have been
executed. Intermediary agrees to provide confirmation as soon
as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
4. Redemption Fees. The parties to this Agreement
acknowledge that the Board of Trustees of the Fund (the
"Board") has determined that imposition of a redemption fee is
either not necessary or not appropriate with respect to the
Fund. If the Board determines at a future time to impose a
redemption fee, the Fund agrees to provide as much notice as
reasonably practicably to allow Intermediary to program its
systems to administer the redemption fee by a date mutually
agreed upon by the Fund and the Intermediary.
E. CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The
parties have entered into one or more Fund Participation Agreements
between or among them for the purchase and redemption of shares of
the Fund(s) by the Accounts in connection with the Contracts. This
Agreement supplements those Fund Participation Agreements and is
hereby incorporated into the Fund Participation Agreements by
reference. To the extent the terms of this Agreement conflict with
the terms of a Fund Participation Agreement, the terms of this
Agreement shall control.
F. TERMINATION This Agreement will terminate with respect to a specific
Fund upon the termination of the Fund Participation Agreement
relating to that Fund.
G. NOTICES. The Fund will send information and instruction requests
to the following address:
Phoenix Life Insurance Companies
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
The Fund will send all other notices, amendments, and correspondence to the
following address:
Phoenix Life Insurance Companies
Attention: Xxxxxx Xxxxxx
One American Row
P. O. Box 5056
Hartford, CT 06102-5056
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
XXXXXX XXXXXXX DISTRUBUTION, INC.
/s/Xxxxxxx X. Xxxxx
--
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
PHOENIX LIFE INSURANCE COMPANY, AS AGENT, ON BEHALF OF VALLEY FORGE LIFE
INSURANCE COMPANY
By:/s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
Title: Sr.Vice President
-----------------------------
Date: March 21, 2007
-----------------------------
5
THE XXX XXX WORLDWIDE INSURANCE TRUST
SHAREHOLDER INFORMATION AGREEMENT
SHAREHOLDER INFORMATION AGREEMENT dated as of April 16, 2007 ("Effective Date")
by and between Xxx Xxx Securities Corporation, ("Xxx Xxx") and Phoenix Life
Insurance Company ("Agent").
WHEREAS, the Valley Forge Life Insurance Company "Intermediary" is a
manufacturer of variable life and variable annuity insurance products;
WHEREAS, Phoenix Life Insurance Company is the agent for the Intermediary in
terms of the administration of the variable life and variable annuity insurance
products;
WHEREAS, the Intermediary and Xxx Xxx previously entered into Participation
Agreements allowing the Intermediary to offer certain insurance dedicated mutual
funds through its Separate Accounts by way of the Intermediary's variable life
and variable annuity insurance products;
WHEREAS, Rule 22c-2 of the Investment company Act of 1940, as amended, ("Act")
requires every mutual fund company or its principal underwriter to enter into
written agreements with financial intermediaries obligating each financial
intermediary to provide certain shareholder information as defined by Rule 22c-2
("Rule") of the Act. The Rule also obligates the financial intermediary to
execute instructions from the fund company should the fund company determine
that a shareholder's trading activity violates the fund's short-term trading
policies;
WHEREAS, Rule 22C-2 allows the agent to enter into shareholder agreements on the
Intermediary's behalf;
WHEREAS, Xxx Xxx is the principal underwriter of the Xxx Xxx Worldwide Insurance
Trust (the "Fund");
WHEREAS, the Intermediary is an intermediary as defined by the Rule;
WHEREAS, Xxx Xxx and the Agent enter into this Shareholder Information Agreement
("Agreement") to comply with the requirements of the Rule;
NOW, in consideration of the mutual covenants contained in this Agreement, the
parties intend to be legally bound and agree to the following:
I. DEFINITIONS
1.1 - INTERMEDIARY: The term "Intermediary" means an insurance company separate
account offering any of the Fund's insurance dedicated mutual funds ("Separate
Account") and/or the insurance company acting as the depositor for the Separate
Account as well as the Agent administering the functions of the Separate Account
with respect to the Intermediary's variable life and annuity business.
1
1.3 - SHARES: The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund under
the Act that are held by the Intermediary.
1.4-SHAREHOLDER: The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued contract by the
Intermediary ("Contract"), or a participant in an employee benefit plan with a
beneficial interest in a contract.
1.5-SHAREHOLDER -INITIATED TRANSFER PURCHASE: The term "Shareholder-Initiated
Transfer Purchase" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract to a Fund,
but does not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as transfer of assets
within a Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic rebalancing
programs; (ii) pursuant to a Contract death benefit; (iii) one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) allocation of assets
to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
1.6-SHAREHOLDER INITIATED TRANSFER REDEMPTION: The term "Shareholder-Initiated
Transfer Redemption" means a transaction that is initiated or directed by a
Shareholder that results in a transfer of assets within a Contract out of a
Fund, but does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Contract; (iii) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
1.7-SHAREHOLDER INFORMATION: The term "Shareholder Information" shall have the
meaning set forth in Section 2.1(i), 2.1(ii), and 2.1(iii) below.
1.8-WRITTEN OR IN WRITING: The term "written", "in writing" or similar term
includes electronic writings and facsimile transmissions unless otherwise
specified.
II. INFORMATION SHARING
2.1 INFORMATION SHARING - Intermediary agrees to provide Xxx Xxx or its
designees, upon written request, the following Shareholder Information:
(i) the taxpayer identification number ("TIN");
(ii) the Contract owner number or participant account
number associated with the Shareholder;
2
(iii) the amount, date and transaction type of every
purchase, redemption, transfer, or exchange of Shares
held through an account maintained by the
Intermediary during the period covered by the
request.
2.2 PERIOD COVERED BY REQUEST - Requests must set forth a specific period, not
to exceed ninety (90) days from the date of the request, for which Shareholder
Information is sought. Xxx Xxx or its designee may request Shareholder
Information older than ninety (90) days from the date of the request as it deems
necessary to investigate compliance with policies established by the Fund for
the purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
2.3 TIMING OF REQUESTS- Requests for Shareholder Information shall be made no
more frequently than quarterly except as Xxx Xxx or its designee deems necessary
to investigate compliance with policies established by the Fund for the purpose
of eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.4 FORM AND TIMING OF RESPONSE-
(a) Intermediary agrees to provide Shareholder Information to
Xxx Xxx or its designee promptly upon request. If Xxx Xxx
or its designee requests, the Intermediary agrees to use
its best efforts to promptly determine whether any
specific person about whom it has received Shareholder
Information is itself a financial intermediary ("indirect
intermediary").
(b) The Intermediary further agrees that if Xxx Xxx or its
designee requests, the Intermediary will, with notice to
Xxx Xxx or its designee, promptly either:
(i) provide Shareholder Information for those shareholders who
hold an account with an indirect intermediary; or
(ii) prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued
by the Fund.
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
the Intermediary; and according to the IRS' website, the ITIN refers
to the Individual Taxpayer Identification number, which is a
nine-digit number that always begins with the number 9 and has a 7 or
8 in the fourth digit, example 9XX-7X-XXXX. The IRS issues ITINs to
individuals who are required to have a U.S. taxpayer identification
number but who do not have, and are not eligible to obtain a Social
Security Number (SSN) from the Social Security Administration (SSA).
SEC Rule 22c-2 inadvertently refers to the ITIN as the International
Taxpayer Identification Number.
(c) To the extent practicable, the format for any Shareholder Information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
3
2.5 LIMITATIONS ON USE OF SHAREHOLDER INFORMATION- Xxx Xxx agrees to only use
the Shareholder Information for the purposes of identifying Shareholders who may
be violating the Fund's policies and procedures with respect to dilution of the
Fund's value as contemplated by the Rule or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx
Bliely Act (Public Law 106-102) and comparable state laws. Xxx Xxx further
agrees that the Shareholder Information is confidential and that Xxx Xxx will
not share the Shareholder Information externally, unless the Intermediary
provides Xxx Xxx with prior written consent to share such Shareholder
Information. Xxx Xxx agrees not to share the Shareholder Information internally,
except on a "need to know basis." The Fund further agrees to promptly notify the
Intermediary if the confidentiality of the Shareholder Transaction Information
is breached.
III. PROHIBITIONS ON TRADING
3.1 AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from Xxx Xxx or its designee to prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the Fund as
having engaged in transactions of the Fund's Shares (directly or indirectly
through the Intermediary's account) that violate policies established by the
Fund for the purpose of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Fund. Unless otherwise directed by Xxx Xxx or
its designee, any such prohibitions shall only apply to Shareholder-Initiated
Transfer Purchases or Shareholder-Initiated Transfer Redemptions that are
effected directly or indirectly through Intermediary. Instructions must be
received by Intermediary at the following address, or such other address that
Intermediary may communicate to you in writing from time to time, including, if
applicable, an e-mail and/or facsimile telephone number:
Phoenix Life Insurance Company
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
-
Should Xxx Xxx or its designee decide to implement a restriction, such as a
holding requirement or a dollar threshold, Xxx Xxx agrees to give the
Intermediary at least six (6) months to program its systems to administer such a
restriction. If such notice is not practicable, the Fund agrees to negotiate
with the Intermediary, in good faith, a restriction that the Intermediary can
effectively administer.
3.2 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with the Shareholder, if known, and the specific instruction(s) to be
executed, including how long the prohibition(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific individual Contract owner number or
participant account number associated with the Shareholder is not known, the
instructions must include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, Xxx Xxx agrees to provide to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Shareholder, information regarding those trades of the contract
4
holder that violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
3.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary.
3.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to Xxx Xxx or its designee that instructions have been executed. Intermediary
agrees to provide confirmation as soon as reasonably practicable, but not later
than ten (10) business days after the instructions have been executed.
3.5 REDEMPTION FEES. Xxx Xxx agrees to rely on the Intermediary's market timing
procedures to control market timing activity in lieu of imposing a redemption
fee. If the Fund ultimately decides to impose a redemption fee on variable
contracts, Xxx Xxx agrees to notify the Intermediary at least six (6) months in
advance so that the Intermediary can program its systems to administer the fee.
If such notice is not practicable, Xxx Xxx agrees to reimburse the Intermediary
for its costs in completing the systems work.
IV. GENERAL PROVISIONS
4.1 CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. The Fund Participation Agreements are hereby
incorporated by reference into this Agreement, as this Agreement is intended to
be a supplement to the Fund Participation Agreements. To the extent the terms of
this Agreement conflict with the terms of a Fund Participation Agreement, the
terms of this Agreement shall control.
4.2 INDEMNIFICATION. Xxx Xxx agrees to indemnify and hold harmless Intermediary
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable attorney's fees) arising in connection with third party
claim or action brought against Intermediary as a result of any unauthorized
disclosure of a shareholder's taxpayer identification number provided to Xxx Xxx
or its designee in response to a request for Shareholder Information pursuant to
the terms of this Agreement.
4.3 FORCE MAJEURE. Either party is excused from performance and shall not be
liable for any delay in performance or non-performance, in whole or in part,
caused by the occurrence of any event or contingency beyond the control of the
parties including, but not limited to, work stoppages, fires, civil
disobedience, riots, rebellions, natural disasters, acts of God, and acts of war
or terrorism. The party who has been so affected shall promptly give written
notice to the other Party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
4.4 DISPUTE RESOLUTION. The parties hereby mutually agree to use their best
efforts to seek an amicable solution to any controversy or dispute regarding the
subject matter
5
hereof. Any unresolved controversy, claim or dispute shall be submitted to
binding arbitration in accordance with the Commercial Rules of the American
Arbitration Association and judgment upon any such award may be entered in any
court having jurisdiction thereof. Arbitration shall be conducted by a single
arbitrator who shall have the authority to grant any and all appropriate relief,
including, but not limited to, granting injunctive relief or demanding specific
performance. The arbitrator may make an initial determination of the location of
the arbitration or whether proceedings may ensue based entirely upon documentary
evidence. Unless otherwise mutually agreed in writing by the parties, said
determination by the arbitrator shall become final and binding 3 days after the
arbitrator's ruling. Arbitration costs and expenses shall be borne equally by
the parties. Each party hereby agrees to waive and suspend enforcement of any
and all rights pursuant to this and all related agreements during the pendency
of such arbitration proceedings
4.5 TERMINATION. This Agreement will terminate upon the termination of the
applicable Fund Participation Agreements.
IN WITNESS WHEREOF, the below persons, as duly authorized officers, have caused
this Agreement to be executed on behalf of the parties as of the Effective Date.
XXX XXX SECURITIES CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Vice President, Sales
-----------------------------
Date:
------------------------------
PHOENIX LIFE INSURANCE COMPANY, AS AGENT FOR VALLEY FORGE LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
Title: Senior Vice President
----------------------------
Date: 4/11/07
------------------------------
6
RULE 22C-2 AGREEMENT
--------------------
THIS AGREEMENT shall be effective as of April 16, 2007, or such other
compliance date mandated by Rule 22c-2 under the Investment Company Act of 1940,
as amended (the "1940 Act").
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the contexts:
The term "Intermediary" shall mean (i) any broker, dealer, bank, or
other entity that holds securities of record issued by the Fund in nominee name;
(ii) in the case of a participant-directed employee benefit plan that owns
securities issued by the Fund (1) a retirement plan administrator under ERISA or
(2) any entity that maintains the plan's participant records; and (iii) an
insurance company separate account.
The term "Fund" shall mean an open-ended management investment company that is
registered or required to register under section 8 of the 1940 Act and includes
(i) an investment adviser to or administrator for the Fund; (ii) the principal
underwriter or distributor for the Fund; or (iii) the transfer agent for the
Fund. The term not does include any "excepted funds" as defined in SEC Rule
22c-2(b) under the 1940 Act.
WHEREAS, this Agreement shall inure to the benefit of and shall be
binding upon the undersigned and each such entity shall be either a Fund or
Intermediary for purposes of this Agreement (the Fund and the Intermediary shall
be collectively referred to herein as the "Parties" and individually as a
"Party");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, which consideration is full and complete, the Fund and the
Intermediary hereby agree as follows:
SHAREHOLDER INFORMATION
-----------------------
a. AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide a Fund
or its affiliates or designee promptly upon written request, the
taxpayer identification number ("TIN"), if known, the
Individual/International Taxpayer Identification Number ("ITIN"), or
other government-issued identifier ("GII") and the Contract owner
number or participant account number associated with the Shareholder,
if known, of any or all Shareholder(s) of the account and the amount,
date, name or other identifier of any investment professional(s)
associated with the Shareholder(s) or account (if known), and
transaction type (purchase, redemption, transfer, or exchange) of
every purchase, redemption, transfer, or exchange of Shares held
through an account maintained by Intermediary during the period
covered by the request ("Transaction Information"). Unless otherwise
specifically requested by the Fund, the Intermediary shall only be
required to provide I Transaction Information relating to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated
Transfer Redemptions.
1
i. Period and Frequency Covered by Request. Requests may be made
quarterly and must set forth a specific period, not to exceed
ninety (90) days from the date of the request, for which
Transaction Information is sought. The Fund may request
Transaction Information older than ninety (90) days from the
date of the request or more frequently than quarterly as it
deems necessary to investigate compliance with policies
established by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares
issued by the Fund.
ii. Form and Timing of Response.
1. Intermediary agrees to transmit the requested Transaction
Information that is on its books and records to the Fund
or its designee promptly, but in any event not later
than ten (10) business days, after receipt of a request.
If the requested Transaction Information is not on
Intermediary's books and records, Intermediary agrees
to: (i) provide or arrange to provide to the Fund the
requested Transaction Information from shareholders who
hold an account with an indirect intermediary; or (ii)
if directed by the Fund, block further purchases of Fund
shares from such indirect intermediary. In such
instance, Intermediary agrees to inform the Fund whether
it plans to perform (i) or (ii).
2. Responses required by this paragraph must be communicated
in writing and in a format mutually agreed upon by the
parties. To the extent practicable, the format for any
Transaction Information provided to the Fund should be
consistent with the NSCC Standardized Data Reporting
Format. For purposes of this provision, an "indirect
intermediary" has the same meaning as in SEC Rule 22c-2
under the 1940 Act.
iii.Limitations on Use of Transaction Information. (a) The
Fund agrees to only use Transaction Information for the
purposes of identifying Shareholders who may be violating the
Funds policies and procedures with respect to dilution of the
Fund's value as contemplated by Rule 22C-2 or to fulfill other
regulatory or legal requirements subject to the privacy
provisions of Title V of the Xxxxx-Xxxxx Bliely Act (Public
Law 106-102) and comparable state laws. (b) The Fund agrees
that the Transaction Information is confidential and that the
Fund will not share the Transaction Information externally,
except as contemplated in (a) above, unless the Intermediary
provides the Fund with prior written consent to share such
Transaction Information. The Fund agrees not to share the
Transaction Information internally, except on a "need to know
basis" and as contemplated in (a) above. The Fund further
agrees to notify the Intermediary promptly in the event that
the confidentiality of the Transaction Information is
breached.
2
b. AGREEMENT TO PROHIBIT TRADING. Intermediary agrees to execute written
instructions from the Fund to prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the
Fund as having engaged in transactions of the Fund's Shares
(directly or indirectly through the Intermediary's account) that
violate policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund,
any such prohibitions shall only apply to Shareholder-Initiated
Transfer Purchases or Shareholder-Initiated Transfer Redemptions
that are effected directly or indirectly through Intermediary.
i. Form of Instructions. Instructions must include the TIN, ITIN
or GII and the specific individual Contract owner number or
participant account number associated with the Shareholder, if
known, and the specific prohibition(s) to be executed,
including how long the prohibition(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual
Contract owner number or participant account number associated
with the Shareholder is not known, the instructions must
include an equivalent identifying number of the Shareholder(s)
or account(s) or other agreed upon information to which the
instruction relates.
ii. Timing of Response. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not later
than five (5) business days after receipt of the instructions
by the Intermediary.
iii. Confirmation by Intermediary. Intermediary must provide
written confirmation to the Fund that instructions have been
executed. Intermediary agrees to provide confirmation as soon
as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
iv. Redemption Fees. Should the Fund decide to impose a
restriction or redemption fee that requires the Intermediary
to implement changes to its systems to administer such a
restriction or redemption fee, the Fund agrees to negotiate
with the Intermediary, in good faith, an interim solution that
the Intermediary can effectively administer until such time as
Intermediary is able to implement such systems changes.
c. CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The
parties have entered into one or more Fund Participation Agreements
between or among them for the purchase and redemption of shares of the
Funds by the Accounts in connection with the Contracts. The Fund
Participation Agreements are hereby incorporated by reference into this
Agreement, as this Agreement is intended to supplement the Fund
Participation Agreements. To the extent the terms of this Agreement
conflict with the terms of a Fund Participation Agreement, the terms of
this Agreement shall control.
3
d. TERMINATION. This Agreement will terminate upon the termination of the
Fund Participation Agreements.
e. NOTICES. All requests for Transaction Information or instructions
pertaining to prohibiting future trading must be sent to the following
address:
Phoenix Life Insurance Companies
Attention: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
All other notices, including amendments to this Agreements, should be
sent to:
Phoenix Life Insurance Companies
Attention: Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxx
X.X. Xxx 0000
Xxxxxxxx, XX 0000-0000
f. DEFINITIONS. For purposes of this Agreement:
i. The term "IN WRITING" includes electronic mails and facsimile
transmissions.
ii. The term "SHARES" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the
Fund under the 1940 Act that are held by the Intermediary.
iii. The term "SHAREHOLDER" means the holder of interests in a variable
annuity or variable life insurance contract issued by the
Intermediary ("Contract"), or a participant in an employee benefit
plan with a beneficial interest in a contract.
iv. The term "SHAREHOLDER-INITIATED TRANSFER PURCHASE" means a
transaction that is initiated or directed by a Shareholder
that results in a transfer of assets within a Contract to a
Fund, but does not include transactions that are executed: (i)
automatically pursuant to a contractual or systematic program
or enrollment such as transfer of assets within a Contract to
a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or
automatic rebalancing programs; (ii) pursuant to a Contract
death benefit; (iii) one-time step-up in Contract value
pursuant to a Contract death benefit; (iv) allocation of
assets to a Fund through a Contract as a result of payments
such as loan repayments, scheduled contributions, retirement
plan salary reduction contributions, or planned premium
payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
4
v. The term "SHAREHOLDER-INITIATED TRANSFER REDEMPTION" means a
transaction that is initiated or directed by a Shareholder
that results in a transfer of assets within a Contract out of
a Fund, but does not include transactions that are executed:
(i) automatically pursuant to a contractual or systematic
program or enrollments such as transfers of assets within a
Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved
asset allocation programs and automatic rebalancing programs;
(ii) as a result of any deduction of charges or fees under a
Contract; (iii) within a Contract out of a Fund as a result of
scheduled withdrawals or surrenders from a Contract; or (iv)
as a result of payment of a death benefit from a Contract.
5
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
COLUMBIA MANAGEMENT SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------
Title: Senior Vice President
----------------------------
Date: 3/27/07
-----------------------------
PHOENIX LIFE INSURANCE COMPANY, PHL VARIABLE INSURANCE COMPANY, PHOENIX LIFE AND
ANNUITY COMPANY
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------------
(signature)
Name: Xxxx Xxxxxxx X'Xxxxxxx
------------------------------
(print)
Title: SVP L&A Fin & Inf. Mgmt
----------------------------
Date: 3/20/07
------------------------------
6
