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PIONEER STANDARD PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT
AMONG
PIONEER VARIABLE CONTRACTS TRUST,
[INSURANCE COMPANY NAME]
PIONEER INVESTMENT MANAGEMENT, INC.
AND
PIONEER FUNDS DISTRIBUTOR, INC.
THIS AGREEMENT, made and entered into this [date], by and among PIONEER
VARIABLE CONTRACTS TRUST, a Delaware business trust (the "Trust"), [NAME OF
INSURANCE COMPANY] , a [state] life insurance company (the "Company") on its own
behalf and on behalf of each of the segregated asset accounts of the Company set
forth in Schedule A hereto, as may be amended from time to time (the
"Accounts"), PIONEER INVESTMENT MANAGEMENT, INC., a Delaware corporation ("PIM")
and Pioneer Funds Distributor, Inc. ("PFD"), a corporation organized under the
laws of The Commonwealth of Massachusetts.
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and its shares are registered or will be registered under the Securities Act of
1933, as amended (the "1933 Act");
WHEREAS, shares of beneficial interest of the Trust are divided into
several series and classes of shares, each series being designated a "Portfolio"
and representing an interest in a particular managed pool of securities and
other assets;
WHEREAS, the Trust is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and/or
variable annuity contracts to be offered by insurance companies, including [Name
of insurance company] , which have entered into participation agreements similar
to this Agreement (the "Participating Insurance Companies");
WHEREAS, the Trust has obtained an order form the Securities and
Exchange Commission (the "SEC"), dated July 9, 1997 (File No. 812-10494) (the
"Mixed and Shared Funding Exemptive Order") granting Participating Insurance
Companies and variable annuity and variable life insurance separate accounts
exemptions form the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the
1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent
necessary to permit shares of the Trust to be sold to and held by variable
annuity and variable life insurance companies that may or may not be affiliated
with one another and qualified pension and retirement plans ("Qualified Plans");
WHEREAS, PIM is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and any applicable state securities
law, and is the Trust's investment adviser;
WHEREAS, the Company will issue certain variable annuity and/or
variable life insurance contracts (individually, the "Contract" or,
collectively, the "Contracts") which, if required by applicable law, will be
registered under the 1933 Act;
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PIONEER STANDARD PARTICIPATION AGREEMENT
WHEREAS, the Accounts are duly organized, validly existing segregated
asset accounts, established by resolution of the Board of Directors of the
Company, to set aside and invest assets attributable to the aforesaid variable
annuity and/or variable life insurance contracts that are allocated to the
Accounts (the Contracts and the Accounts covered by this Agreement, and each
corresponding Portfolio covered by this Agreement in which the Accounts invest,
is specified in Schedule A attached hereto as may be modified from time to
time);
WHEREAS, the Company has registered or will register the Accounts as
unit investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, the Portfolios offered by the Trust to the Company and the
Accounts are set forth on Schedule A attached hereto;
WHEREAS, Pioneer Funds Distributors, Inc. (the "Underwriter") is
registered as a broker-dealer with the Securities and Exchange Commission (the
"SEC") under the Securities Exchange Act of 1934, as amended (hereinafter the
"1934 Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD") and is authorized to sell shares of the
Portfolios to unit investment trusts such as the Accounts;
WHEREAS, [underwriter name], the underwriter for the individual
variable annuity and the variable life policies, is registered as a
broker-dealer with the SEC under the 1934 Act and is a member in good standing
of the NASD; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in one or more of the
Portfolios specified in Schedule A attached hereto (the "Shares") on behalf of
the Accounts to fund the Contracts, and PFD intends to sell such Shares to the
Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Trust,
PIM, PFD and the Company agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. PFD agrees to sell to the Company those Shares which the Accounts
order (based on orders placed by Contract owners on that Business Day,
as defined below) and which are available for purchase by such
Accounts, executing such orders on a daily basis at the net asset value
next computed after receipt by the Trust or its designee of the order
for the Shares. For purposes of this Section 1.1, the Company shall be
the designee of the Trust for receipt of such orders from Contract
owners and receipt by such designee shall constitute receipt by the
Trust; PROVIDED that the Trust receives notice of such orders by the
time the Trust ordinarily calculates its net asset value as described
from time to time in the Trust's prospectus (which as of the date of
this Agreement is 4:00 p.m. New York time on such Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange,
Inc. (the "NYSE") is open for trading and on which the Trust calculates
its net asset value pursuant to the rules of the SEC.
1.2. PFD agrees to make the Shares available for purchase at the
applicable net asset value per share by the Company and the Accounts on
those days on which the Trust calculates its net asset value pursuant
to rules of the SEC and the Trust shall calculate such net asset value
on each day
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PIONEER STANDARD PARTICIPATION AGREEMENT
which the NYSE is open for trading. Notwithstanding the foregoing,
the Board of Trustees of the Trust (the "Board") may refuse to
sell any Shares to the Company and the Accounts, or suspend or
terminate the offering of the Shares if such action is required by law
or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Board acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, necessary
in the best interest of the Shareholders of such Portfolio.
1.3. The Trust and PFD will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles III and VII of this Agreement is in
effect to govern such sales. The Company will not resell the Shares
except to the Trust or its agents.
1.4. The Trust agrees to redeem for cash, on the Company's request, any
full or fractional Shares held by the Accounts (based on orders placed
by Contract owners on that Business Day), executing such requests on a
daily basis at the net asset value next computed after receipt by the
Trust or its designee of the request for redemption. For purposes of
this Section 1.4, the Company shall be the designee of the Trust for
receipt of requests for redemption from Contract owners and receipt by
such designee shall constitute receipt by the Trust; provided that the
Trust receives notice of such request for redemption by the time the
Trust ordinarily calculates its net asset value as described from time
to time in the Trust's prospectus (which as of the date of this
Agreement is 4:00 p.m. New York time on such Business Day.
1.5. Each purchase, redemption and exchange order placed by the Company
shall be placed separately for each Portfolio and shall not be netted
with respect to any Portfolio. However, with respect to payment of the
purchase price by the Company and of redemption proceeds by the Trust,
the Company and the Trust shall net purchase and redemption orders with
respect to each Portfolio and shall transmit one net payment for all of
the Portfolios in accordance with Section 1.6 hereof.
1.6. In the event of net purchases, the Company shall pay for the
Shares by 11:00 a.m. New York time on the next Business Day after an
order to purchase the Shares is made in accordance with the provisions
of Section 1.1. hereof. In the event of net redemptions, the Trust
shall pay the redemption proceeds by 11:00 a.m. New York time on the
next Business Day after an order to redeem the shares is made in
accordance with the provisions of Section 1.4. hereof. All such
payments shall be in federal funds transmitted by wire. If payment in
federal funds for any purchase is not received or is received by the
Trust after 11:00 a.m. on such Business Day, the Company shall
promptly, upon the Trust's request, reimburse the Trust for any
charges, costs, fees, interest or other expenses incurred by the Trust
in connection with any advances to, or borrowings or overdrafts by, the
Trust, or any similar expenses incurred by the Trust solely as a reuslt
of portfolio transactions effected by the Trust based upon such
purchase request. In the event of net redemptions, the Trust ordinarily
shall pay and transmit the proceeds of redemptions of Shares by 11:00
a.m. New York time on the next Business Day after a redemtpion order is
received in accordance with Section 1.4. hereof, although the Trust
reserves the to postpone the date of payment or satisfaction upon
redemption consistent with Section 22(e) of the 1940 Act and any rules
pomulgated thereunder. Payment shall be in federal funds transmitted by
wire.
1.7. Issuance and transfer of the Shares will be by book entry only.
Stock certificates will not be issued to the Company or the Accounts.
The Shares ordered from the Trust will be recorded in an appropriate
title for the Accounts or the appropriate subaccounts of the Accounts.
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PIONEER STANDARD PARTICIPATION AGREEMENT
1.8. The Trust shall furnish notice (by wire or telephone, followed by
written confirmation) no later than 7:00 p.m. New York time on the
ex-dividend date to the Company of any dividends or capital gain
distributions payable on the Shares. The Company hereby elects to
receive all such dividends and distributions as are payable on a
Portfolio's Shares in additional Shares of that Portfolio. The Trust
shall notify the Company by the end of the next following Business Day
of the number of Shares so issued as payment of such dividends and
distributions.
1.9. The Trust or its custodian shall make the net asset value per
share for each Portfolio available to the Company on each Business Day
as soon as reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset value
per share available by 6:00 p.m. New York time. In the event of an
error in the computation of a Portfolio's net asset value per share
("NAV") or any dividend or capital gain distribution (each, a "pricing
error"), PIM or the Trust shall notify the Company as soon as possible
after the discovery of the error. Such notification may be verbal, but
shall be confirmed promptly in writing in accordance with Article XII
of this Agreement. A pricing error shall be corrected in accordance
with the Trust's internal policies and procedures, copies of which have
been provided to the Company. The Trust will provide the Company with
an updated copy of such policies and procedures in the event of any
material changes thereto. If an adjustment is necessary to correct a
material error through no fault of the Company which has caused
Contract owners to receive less than the amount to which they are
entitled, the number of shares of the applicable Account will be
adjusted and the amount of any underpayments will be credited by the
Trust or PIM to the Company for crediting of such amounts to the
Contract owners' accounts. Upon notification by PIM of any overpayment
due to a material error, the Company shall promptly remit to the Trust
or PIM, as appropriate, any overpayment that has not been paid to
Contract owner; however, PIM acknowledges that the Company does not
intend to seek additional payments form any Contract owner who, because
of a pricing error, may have underpaid for units of interest credited
to his/her account. In no event shall the Company be liable to Contract
owners for any such adjustments or underpayment amounts for which the
Company is not at fault. The costs of correcting such adjustments shall
be borne by the Trust or PIM unless the Company is at fault in which
case such costs shall be borne by the Company.
ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. The Company represents and warrants that the Contracts are or will
be registered under the 1933 Act or are exempt from or not subject to
registration thereunder, and that the Contracts will be issued, sold,
and distributed in compliance in all material respects with all
applicable state and federal laws, including without limitation the
1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the 1940 Act. The Company further represents and warrants
that it is an insurance company duly organized and in good standing
under applicable law and that it has legally and validly established
the Account as a segregated asset account under applicable law and has
registered or, prior to any issuance or sale of the Contracts, will
register the Accounts as unit investment trusts in accordance with the
provisions of the 1940 Act (unless exempt therefrom) to serve as
segregated investment accounts for the Contracts, and that it will
maintain such registration for so long as any Contracts are
outstanding. The Company shall amend the registration statements under
the 1933 Act for the Contracts and the registration statements under
the 1940 Act for the Accounts from time to time as required in order to
effect the continuous offering of the Contracts or as may otherwise be
required by applicable law. The Company shall
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PIONEER STANDARD PARTICIPATION AGREEMENT
register and qualify the Contracts for sales in accordance with the
securities laws of the various states only if and to the extent deemed
necessary by the Company.
2.2. The Company represents and warrants that the Contracts are
currently and at the time of issuance will be treated as life
insurance, endowment or annuity contract under applicable provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), that it
will maintain such treatment and that it will notify the Trust or PIM
immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not be so
treated in the future.
2.3. The Company represents and warrants that [underwriter name], the
underwriter for the individual variable annuity contracts and the
variable life policies, is a member in good standing of the NASD and is
a registered broker-dealer with the SEC. The Company represents and
warrants that the Company and [underwriter name] will sell and
distribute such contracts and policies in accordance in all material
respects with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 1940
Act.
2.4. The Trust represents and warrants that the Shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized
for issuance and sold in compliance with the laws of Delaware and all
applicable federal and state securities laws and that the Trust is and
shall remain registered under the 1940 Act. The Trust shall amend the
registration statement for its Shares under the 1933 Act and the 1940
Act from time to time as required in order to effect the continuous
offering of its Shares. The Trust shall register and qualify the Shares
for sale in accordance with the laws of the various states only if and
to the extent deemed necessary by the Trust.
2.5. PFD represents and warrants that it is a member in good standing
of the NASD and is registered as a broker-dealer with the SEC. The
Trust and PFD represent that the Trust and PFD will sell and distribute
the Shares in accordance in all material respects with all applicable
state and federal securities laws, including without limitation the
1933 Act, the 1934 Act, and the 1940 Act.
2.6. The Trust represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and
will comply in all material respects with the 1940 Act and any
applicable regulations thereunder. The Trust further represents that it
has adopted a pursuant to Rule 12b-1 under the 1940 Act and imposes an
asset-based charge to finance its distribution expenses with respect to
the Class II shares of certain of the Trust's Portfolios as permitted
by applicable law and regulation.
2.7. PIM represents and warrants that it is and shall remain duly
registered under all applicable federal securities laws and that it
shall perform its obligations for the Trust in compliance in all
material respects with any applicable federal securities laws and with
the securities laws of The Commonwealth of Massachusetts. PIM
represents and warrants that it is not subject to state securities laws
other than the securities laws of The Commonwealth of Massachusetts and
that it is exempt from registration as an investment adviser under the
securities laws of The Commonwealth of Massachusetts.
2.8. No less frequently than annually, the Company shall submit to the
Board such reports, material or data as the Board may reasonably
request so that it may carry out fully the obligations imposed upon it
by the conditions contained in the Mixed and Shared Funding Exemptive
Order pursuant to which the SEC has granted exemptive relief to permit
mixed and shared funding.
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PIONEER STANDARD PARTICIPATION AGREEMENT
2.9. The Trust and PIM represent and warrant that all of their
respective officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of the
Trust are, and shall continue to be at all times, covered by one or
more blanket fidelity bonds or similar coverage for the benefit of the
Trust in an amount not less than the minimal coverage required by Rule
17g-1 under the 1940 Act or related provisions as may be promulgated
form time to time. The aforesaid bonds shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding
company. The Company represents and warrants that all of its respective
officers, employees, and other individuals or entities employed or
controlled b the Company dealing with the money and/or securities of
the Trust are, and shall continue to be at all times, covered by a
blanket fidelity bond or similar coverage in an deemed appropriate by
the Company. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company. The
Company agrees that any amounts received under such bond relating to a
claim arising under this Agreement will be held by the Company for the
benefit of the Trust. The company agrees to make all reasonable efforts
to maintain such bond and agrees to notify the Trust and PIM in writing
in the event such coverage terminates.
2.10. The Company represents and warrants, for purposes other than
diversification under Section 817 of the Internal Revenue Code of 1986
as amended ("the code"), that the Contracts are currently at the time
of issuance and, assuming the Trust meets the requirements of Article
VI, will be treated as annuity contracts under applicable provisions of
the Code, and that it will make every effort to maintain such treatment
and that it will notify the Trust, PFD and PIM immediately upon having
a reasonable basis for believing that the Contracts have ceased to be
so treated or that they might not be so treated in the future. In
addition, the Company represents and warrants that the Account is a
"segregated asset account" and that interests in the Account are
offered exclusively through the purchase of or transfer into a
"variable contract" within the meaning of such terms under Section 817
of the Code and the regulations thereunder. The Company will use every
effort to continue to meet such definitional requirements, and it will
notify the Trust, PFD and PIM immediately upon having a reasonable
basis for believing that such requirements have ceased to be met or
that they might not be met in the future. The Company represents and
warrants that it will not purchase Trust shares with assets derived
from tax-qualified retirement plans except, indirectly, through
Contracts purchased in connection with such plans.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. At least annually, the Trust or its designee shall provide the
Company, free of charge, with as many copies of the current prospectus
(describing only the Portfolios listed in Schedule A hereto) for the
Shares as the Company may reasonably request for distribution to
existing Contract owners whose Contracts are funded by such Shares. The
Trust or its designee shall provide the Company, at the Company's
expense, with as many copies of the current prospectus for the Shares
as the Company may reasonably request for distribution to prospective
purchasers of Contracts. If requested by the Company in lieu thereof,
the Trust or its designee shall provide such documentation (including a
"camera ready" copy of the new prospectus as set in type or, at the
request of the Company, as a diskette in the form sent to the financial
printer) and other assistance as is reasonably necessary in order for
the parties hereto once each year (or more frequently if the prospectus
for the Shares is supplemented or amended) to have the prospectus for
the Contracts and the prospectus for the Shares printed together in one
document; the expenses of such printing to be apportioned between (a)
the Company and (b) the Trust or its designee in proportion to the
number of pages of the Contract and Shares' prospectuses, taking
account of other relevant factors
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PIONEER STANDARD PARTICIPATION AGREEMENT
affecting the expense of printing, such as covers, columns, graphs
and charts; the Trust or its designee to bear the cost of printing
the Shares' prospectus portion of such document for distribution to
owners of existing Contracts funded by the Shares and the Company to
bear the expenses of printing the portion of such document relating
to the Accounts; PROVIDED, however, that the Company shall bear all
printing expenses of such combined documents where used for
distribution to prospective purchasers or to owners of existing
Contracts not funded by the Shares. In the event that the Company
requests that the Trust or its designee provides the Trust's
prospectus in a "camera ready," diskette format or other mutually
agreed upon format, the Trust shall be responsible for providing the
prospectus in the format in which it or PIM is accustomed to formatting
prospectuses and shall bear the expense of providing the prospectus in
such format (E.G., typesetting expenses), and the Company shall bear
the expense of adjusting or changing the format to conform with any of
its prospectuses, subject to PIM's approval which shall not be
unreasonably withheld.
3.2. The prospectus for the Shares shall state that the statement of
additional information for the Shares is available from the Trust or
its designee. The Trust or its designee, at its expense, shall print
and provide such statement of additional information to the Company (or
a master of such statement suitable for duplication by the Company) for
distribution to any owner of a Contract funded by the Shares. The Trust
or its designee, at the Company's expense, shall print and provide such
statement to the Company (or a master of such statement suitable for
duplication by the Company) for distribution to a prospective purchaser
who requests such statement or to an owner of a Contract not funded by
the Shares.
3.3. The Trust or its designee shall provide the Company free of charge
copies, if and to the extent applicable to the Shares, of the Trust's
proxy materials, reports to Shareholders and other communications to
Shareholders in such quantity as the Company shall reasonably require
for distribution to Contract owners.
3.4. Notwithstanding the provisions of Sections 3.1, 3.2, and 3.3
above, or of Article V below, the Company shall pay the expense of
printing or providing documents to the extent such cost is considered a
distribution expense. Distribution expenses would include by way of
illustration, but are not limited to, the printing of the Shares'
prospectus or prospectuses for distribution to prospective purchasers
or to owners of existing Contracts not funded by such Shares.
3.5. The Trust hereby notifies the Company that it may be appropriate
to include in the prospectus pursuant to which a Contract is offered
disclosure regarding the potential risks of mixed and shared funding.
3.6. If and to the extent required by law, the Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Shares in accordance with instructions
received from Contract owners; and
(c) vote the Shares for which no instructions have been
received in the same proportion as the Shares of such
Portfolio for which instructions have been received
from Contract owners;
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so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
contract owners. The Company will in no way recommend action in
connection with or oppose or interfere with the solicitation of proxies
for the Shares held for such Contract owners. The Company reserves the
right to vote shares held in any segregated asset account in its own
right, to the extent permitted by law. Participating Insurance
Companies shall be responsible for assuring that each of their separate
accounts holding Shares calculates voting privileges in the manner
required by the Mixed and Shared Funding Exemptive Order. The Trust and
PIM will notify the Company of any changes of interpretations or
amendments to the Mixed and Shared Funding Exemptive Order.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Trust or its designee, each piece of sales literature or other
promotional material in which the Trust, PIM, any other investment
adviser to the Trust, or any affiliate of PIM are named, at least ten
(10) Business Days prior to its use. No such material shall be used if
the Trust, PIM, or their respective designees reasonably objects to
such use within five (5) Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statement on behalf of the Trust, PIM, any other
investment adviser to the Trust, or any affiliate of PIM or concerning
the Trust or any other such entity in connection with the sale of the
Contracts other than the information or representations contained in
the registration statement, prospectus or statement of additional
information for the Shares, as such registration statement, prospectus
and statement of additional information may be amended or supplemented
from time to time, or in reports or proxy statements for the Trust, or
in sales literature or other promotional material approved by the
Trust, PIM or their respective designees, except with the permission of
the Trust, PIM or their respective designees. The Trust, PIM or their
respective designees each agrees to respond to any request for approval
on a prompt and timely basis. The Company shall adopt and implement
procedures reasonably designed to ensure that information concerning
the Trust, PIM or any of their affiliates which is intended for use
only by brokers or agents selling the Contracts (I.E., information that
is not intended for distribution to Contract owners or prospective
Contract owners) is so used, and neither the Trust, PIM nor any of
their affiliates shall be liable for any losses, damages or expenses
relating to the improper use of such broker only materials.
4.3. PFD shall furnish, or shall cause to be furnished, to the Company
or its designee, each piece of sales literature or other promotional
material in which the Company and/or the Accounts is named, at least
ten (10) Business Days prior to its use. No such material shall be used
if the Company or its designee reasonably objects to such use within
five (5) Business Days after receipt of such material.
4.4. The Trust, PIM and PFD shall not give any information or make any
representations on behalf of the Company or concerning the Company, the
Accounts, or the Contracts in connection with the sale of the Contracts
other than the information or representations contained in a
registration statement, prospectus, or statement of additional
information for the Contracts, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in reports for the Accounts, or in
sales literature or other promotional material approved by the Company
or its designee, except with the permission of the Company. The Company
or its designee agrees to respond to any request for approval on a
prompt
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PIONEER STANDARD PARTICIPATION AGREEMENT
and timely basis. The parties hereto agree that this Section 4.4.
is neither intended to designate nor otherwise imply that PIM is
an underwriter or distributor of the Contracts.
4.5. The Company and the Trust (or its designee in lieu of the Company
or the Trust, as appropriate) will each provide to the other at least
one complete copy of all registration statements, prospectuses,
statements of additional information, reports, proxy statements, sales
literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Contracts, or to the Trust or its
Shares, prior to or contemporaneously with the filing of such document
with the SEC or other regulatory authorities. The Company and the Trust
shall also each promptly inform the other of the results of any
examination by the SEC (or other regulatory authorities) that relates
to the Contracts, the Trust or its Shares, and the party that was the
subject of the examination shall provide the other party with a copy of
relevant portions of any "deficiency letter" or other correspondence or
written report regarding any such examination.
4.6. The Trust or PIM will provide the Company with as much notice as
is reasonably practicable of any proxy solicitation for any Portfolio,
and of any material change in the Trust's registration statement,
particularly any change resulting in change to the registration
statement or prospectus or statement of additional information for any
Account. The Trust and PIM will cooperate with the Company so as to
enable the Company to solicit proxies from Contract owners or to make
changes to its prospectus, statement of additional information or
registration statement, in an orderly manner. The Trust and PIM will
make reasonable efforts to attempt to have changes affecting Contract
prospectuses become effective simultaneously with the annual updates
for such prospectuses.
4.7. For purpose of this Article IV and Article VIII, the phrase "sales
literature or other promotional material" includes but is not limited
to advertisements (such as material published, or designed for use in,
a newspaper, magazine, or other periodical, radio, television,
telephone, electronic messages or tape recording, videotape display,
signs or billboards, motion pictures, or other public media, including,
for example, on-line networks such as the Internet or other electronic
media), and sales literature (such as brochures, electronic messages,
circulars, reprints or excerpts or any other advertisement, sales
literature, or published articles), distributed or made generally
available to customers or the public, educational or training materials
or communications distributed or made generally available to some or
all agents or employees, and shareholder reports, proxy materials
(including solicitations for voting instructions) and any other
material constituting sales literature or advertising under the NASDR
Conduct Rules, the 1933 Act or the 194 Act.
4.8. At the request of any party to this Agreement, each other party
will make available to the other party's independent auditors and/or
representative of the appropriate regulatory agencies, all records,
data, access to operating procedures that may be reasonably requesting
in connection with compliance and regulatory requirements related to
the Agreement or any party's obligations under this Agreement.
ARTICLE V. FEES AND EXPENSES
5.1. Neither the Trust, PIM nor PFD shall pay any fee or other
compensation to the Company under this Agreement, other than pursuant
to Schedule B attached hereto, and the Company shall pay no fee or
other compensation to the Trust, PIM or PFD under this Agreement,
although the parties hereto will bear certain expenses under the
provisions of this Agreement. The Trust may
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PIONEER STANDARD PARTICIPATION AGREEMENT
make payments to the Company or to the underwriter for the Contracts
if and in amounts agreed to by the Trust in writing. Each party,
however, shall, in accordance with the allocation of expenses
specified in Articles III and V hereof, reimburse other parties for
expenses initially paid by one party but allocated to another party.
In addition, nothing herein shall prevent the parties hereto from
otherwise agreeing to perform, and arranging for appropriate
compensation for, other services relating to the Trust and/or to
the Accounts.
5.2. The Trust or its designee shall bear the expenses for the cost of
registration and qualification of the Shares under all applicable
federal and state laws, including preparation and filing of the Trust's
registration statement, and payment of filing fees and registration
fees; preparation and filing of the Trust's proxy materials and reports
to Shareholders; setting in type and printing its prospectus and
statement of additional information (to the extent provided by and as
determined in accordance with Article III above); setting in type and
printing the proxy materials and reports to Shareholders (to the extent
provided by and as determined in accordance with Article III above);
the preparation of all statements and notices required of the Trust by
any federal or state law with respect to its Shares; all taxes on the
issuance or transfer of the Shares; and the costs of distributing the
Trust's prospectuses and proxy materials to owners of Contracts funded
by the Shares and any expenses permitted to be paid or assumed by the
Trust pursuant to a plan, if any, under Rule 12b-1 under the 1940 Act.
The Trust shall not bear any expenses of marketing the Contracts.
5.3. The Company shall bear the expenses of distributing the Shares'
prospectus or prospectuses in connection with new sales of the
Contracts and of distributing the Trust's Shareholder reports to
Contract owners. The Company shall bear all expenses associated with
the registration, qualification, and filing of the Contracts under
applicable federal securities and state insurance laws; the cost of
preparing, printing and distributing the Contract prospectus and
statement of additional information; and the cost of preparing,
printing and distributing annual individual account statements for
Contract owners as required by state insurance laws.
5.4. The Company agrees to provide certain administrative services,
specified in Schedule B attached hereto, in connection with the
arrangements contemplated by this Agreement. The parties acknowledge
and agree that the services referred to in the Section 5.4 are
recordkeeping, shareholder communication, and other transaction
facilitation and processing, and related administrative serves and are
not the services of an underwriter or principal underwriter of the
Trust and the Company is not an underwriter for Shares within the
meaning of the 1933 Act.
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1. The Trust and PIM represent and warrant that each Portfolio of the
Trust will meet the diversification requirements of Section 817(h)(1)
of the Code and Treas. Reg. 1.817-5, relating to the diversification
requirements for variable annuity, endowment, or life insurance
contracts, as they may be amended from time to time (and any revenue
rulings, revenue procedures, notices, and other published announcements
of the Internal Revenue Service interpreting these sections), as if
those requirements applied directly to each such Portfolio.
6.2. The Trust and PIM represent that each Portfolio will elect to be
qualified as a Regulated Investment Company under Subchapter M of the
Code and that they will maintain such qualification (under Subchapter M
or any successor or similar provision).
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PIONEER STANDARD PARTICIPATION AGREEMENT
6.3. No Shares of the Trust will be sold directly to the general
public.
ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1. The Trust agrees that the Board, constituted with a majority of
disinterested trustees, will monitor each Portfolio of the Trust for
the existence of any material irreconcilable conflict between the
interests of the variable annuity contract owners and the variable life
insurance policy owners of the Company and/or affiliated companies
("contract owners") investing in the Trust. A material irreconcilable
conflict may arise for a variety of reasons, including: (a) an action
by any state insurance regulatory authority; (b) a change in applicable
federal or state insurance, tax, or securities laws or regulations, or
a public ruling, private letter ruling, no-action or interpretive
letter, or any similar action by insurance, tax or securities
regulatory authorities; (c) an administrative or judicial decision in
nay relevant proceeding; (d) the manner in which the investments of any
Portfolio are being managed; (e) a difference in voting instructions
given by variable annuity contract and variable life insurance contract
owners or by contract owners of different Participating Insurance
Companies; or (f) a decision by a Participating Insurance Company to
disregard the voting instructions of contract owners. The Board shall
have the sole authority to determine if a material irreconcilable
conflict exists, and such determination shall be binding on the Company
only if approved in the form of a resolution by a majority of the
Board, or a majority of the disinterested trustees of the Board. The
Board will give prompt notice of any such determination to the Company.
7.2. The Company agrees that it will be responsible for assisting the
Board in carrying out its responsibilities under the conditions set
forth in the Trust's exemptive application pursuant to which the SEC
has granted the Mixed and Shared Funding Exemptive Order by providing
the Board, as it may reasonably request, with all information necessary
for the Board to consider any issues raised and agrees that it will be
responsible for promptly reporting any potential or existing conflicts
of which it is aware to the Board including, but not limited to, an
obligation by the Company to inform the Board whenever contract owner
voting instructions are disregarded. The Company also agrees that, if a
material irreconcilable conflict arises, it will at its own cost remedy
such conflict up to and including (a) withdrawing the assets allocable
to some or all of the Accounts from the Trust or any Portfolio and
reinvesting such assets in a different investment medium, including
(but not limited to) another Portfolio of the Trust, or submitting to a
vote of all affected contract owners whether to withdraw assets from
the Trust or any Portfolio and reinvesting such assets in a different
investment medium and, as appropriate, segregating the assets
attributable to any appropriate group of contract owners (E.G., annuity
contract owners, life insurance owners or variable contract owners of
one or more Participating Insurance Companies) that votes in favor of
such segregation, or offering to any of the affected contract owners
the option of segregating the assets attributable to their contracts or
policies, and (b) establishing a new registered management investment
company and segregating the assets underlying the Contracts, unless a
majority of Contract owners materially adversely affected by the
conflict have voted to decline the offer to establish a new registered
management investment company.
7.3. A majority of the disinterested trustees of the Board shall
determine whether any proposed action by the Company adequately
remedies any material irreconcilable conflict. In the event that the
Board determines that any proposed action does not adequately remedy
any material irreconcilable conflict, the Company will withdraw from
investment in the Trust each of the
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PIONEER STANDARD PARTICIPATION AGREEMENT
Accounts designated by the disinterested trustees and terminate this
Agreement within six (6) months after the Board informs the Company in
writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required to
remedy any such material irreconcilable conflict as determined by a
majority of the disinterested trustees of the Board.
7.4 If a material irreconcilable conflict arises because of a decision
by the Company to disregard Contract owner voting instructions and that
decision represents a minority position or would preclude a majority
vote, the Company may be required, at the Trust's election, to withdraw
the Account's investment in the Trust and terminate this Agreement;
provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the Trust's independent
trustees. Any such withdrawal and termination must take place within
six (6) months after the Trust gives written notice that this provision
is being implemented, and until the end of that six-month period PFD
and the Trust shall continue to accept and implement orders by the
Company for the purchase and redemption of shares of the Trust.
7.5. If material irreconcilable conflict arises because of particular
state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company
will withdraw the Account's investment in the Trust and terminate this
Agreement within six (6) months after the Trust's Board informs the
Company in writing that it has determined that such decision has
created a material irreconcilable conflict; provided, however, that
such withdrawal and termination shall be limited to the extent required
by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested members of the Trust's Board. Until the
end of the foregoing six (6) month period, the Trust and PFD shall
continue to accept and implement orders by the Company for the purchase
and redemption of shares of the Trust.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine
whether any proposed action adequately remedies any material
irreconcilable conflict, but in no event will the Trust be required to
establish a new funding medium for the Contracts. The Company shall not
be required by Section 7.2 to establish a new funding medium for the
contracts if an offer to do so has been declined by vote of a majority
of Contract owners affected by the material irreconcilable conflict. In
the event that the Board determines that nay proposed action does not
adequately remedy any material irreconcilable conflict, then the
Company will withdraw the Account's investment in the Trust and
terminate this Agreement within six (6) months after the Board informs
the Company in writing of the foregoing determination; provided,
however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as
determined by a majority of the independent trustees.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Mixed and Shared Funding
Exemptive Order) on terms and conditions materially different from
those contained in the Mixed and Shared Funding Exemptive Order, then
(a) the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with
Rule 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.5, 3.6, 7.1, 7.2,
7.3 and 7.7 of this Agreement shall continue in effect only to the
extent that terms and
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PIONEER STANDARD PARTICIPATION AGREEMENT
conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless the Trust,
PIM, PFD any affiliates of PIM, and each of their respective directors,
trustees, officers and each person, if any, who controls the Trust or
PIM within the meaning of Section 15 of the 1933 Act, and any agents or
employees of the foregoing (each an "Indemnified Party," or
collectively, the "Indemnified Parties" for purposes of this Section
8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Company) or expenses (including reasonable counsel fees) to which any
Indemnified Party may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Shares or the Contracts
and:
(a) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement, prospectus
or statement of additional information for the
Contracts or contained in the Contracts or sales
literature or other promotional material for the
Contracts (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, provided that this Agreement to indemnify
shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reasonable reliance upon and in
conformity with information furnished to the Company
or its designee by or on behalf of the Trust, PIM or
PFD for use in the registration statement, prospectus
or statement of additional information for the
Contracts or in the Contracts or sales literature or
other promotional material (or any amendment or
supplement) or otherwise for use in connection with
the sale of the Contracts or Shares; or
(b) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus, statement of additional
information or sales literature or other promotional
material of the Trust not supplied by the Company or
its designee, or persons under its control and on
which the Company has reasonably relied) or wrongful
conduct of the Company or persons under its control,
with respect to the sale or distribution of the
Contracts or Shares; or
(c) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the
registration statement, prospectus, statement of
additional information, or sales literature or other
promotional literature of the Trust, or any amendment
thereof or supplement thereto, or the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statement or statements therein not misleading,
if such statement or omission was
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PIONEER STANDARD PARTICIPATION AGREEMENT
made in reliance upon information furnished to the
Trust by or on behalf of the Company; or
(d) arise out of or result from any material breach of
any representation and/or warranty made by the
Company in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Company; or
(e) arise as a result of any failure by the Company to
provide the services and furnish the materials under
the terms of this Agreement;
as limited by and in accordance with the provisions of this Article
VIII.
8.2. INDEMNIFICATION BY THE TRUST, PIM AND PFD
The Trust, PIM and PFD agree to indemnify and hold harmless
the Company and each of its trustees and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act, and any agents or employees of the foregoing (each an
"Indemnified Party," or collectively, the "Indemnified Parties" for
purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Trust) or expenses (including reasonable counsel
fees) to which any Indemnified Party may become subject under any
statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Shares or the
Contracts and:
(a) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement, prospectus,
statement of additional information or sales
literature or other promotional material of the Trust
(or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement therein not
misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reasonable reliance upon and in
conformity with information furnished to the Trust,
PIM, PFD or their respective designees by or on
behalf of the Company for use in the registration
statement, prospectus or statement of additional
information for the Trust or in sales literature or
other promotional material for the Trust (or any
amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Shares;
or
(b) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus, statement of additional
information or sales literature or other promotional
material for the Contracts not supplied by the Trust,
PIM, PFD or any of their respective designees or
persons under their respective control and on which
any such entity has reasonably relied) or wrongful
conduct of the Trust or persons under its control,
with respect to the sale or distribution of the
Contracts or Shares; or
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PIONEER STANDARD PARTICIPATION AGREEMENT
(c) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the
registration statement, prospectus, statement of
additional information, or sales literature or other
promotional literature of the Accounts or relating to
the Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein
or necessary to make the statement or statements
therein not misleading, if such statement or omission
was made in reliance upon information furnished to
the Company by or on behalf of the Trust, PIM or PFD;
or
(d) arise out of or result from any material breach of
any representation and/or warranty made by the Trust
in this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to
comply with the diversification requirements
specified in Article VI of this Agreement) or arise
out of or result from any other material breach of
this Agreement by the Trust; or
(e) arise out of or result from the materially incorrect
or untimely calculation or reporting of the daily net
asset value per share or dividend or capital gain
distribution rate; or
(f) arise as a result of any failure by the Trust to
provide the services and furnish the materials under
the terms of the Agreement;
as limited by and in accordance with the provisions of this Article
VIII.
8.3. In no event shall the Trust, PIM or PFD be liable under the
indemnification provisions contained in this Agreement to any
individual or entity, including without limitation, the Company, or any
Participating Insurance Company or any Contract owner, with respect to
any losses, claims, damages, liabilities or expenses that arise out of
or result from (i) a breach of any representation, warranty, and/or
covenant made by the Company hereunder or by any Participating
Insurance Company under an agreement containing substantially similar
representations, warranties and covenants; (ii) the failure by the
Company or any Participating Insurance Company to maintain its
segregated asset account (which invests in any Portfolio) as a legally
and validly established segregated asset account under applicable state
law and as a duly registered unit investment trust under the provisions
of the 1940 Act (unless exempt therefrom); or (iii) the failure by the
Company or any Participating Insurance Company to maintain its variable
annuity and/or variable life insurance contracts (with respect to which
any Portfolio serves as an underlying funding vehicle) as life
insurance, endowment or annuity contracts under applicable provisions
of the Code.
8.4. Neither the Company, the Trust, PIM nor PFD shall be liable under
the indemnification provisions contained in this Agreement with respect
to any losses, claims, damages, liabilities or expenses to which an
Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, willful misconduct, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations
and duties under this Agreement.
8.5. Promptly after receipt by an Indemnified Party under this Section
8.5. of notice of commencement of any action, such Indemnified Party
will, if a claim in respect thereof is to be made against the
indemnifying party under this section, notify the indemnifying party of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it
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PIONEER STANDARD PARTICIPATION AGREEMENT
from any liability which it may have to any Indemnified Party otherwise
than under this section. In case any such action is brought against any
Indemnified Party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, assume the
defense thereof, with counsel satisfactory to such Indemnified Party.
After notice from the indemnifying party of its intention to assume the
defense of an action, the Indemnified Party shall bear the expenses of
any additional counsel obtained by it, and the indemnifying party shall
not be liable to such Indemnified Party under this section for any
legal or other expenses subsequently incurred by such Indemnified Party
in connection with the defense thereof other than reasonable costs of
investigation.
8.6. Each of the parties agrees promptly to notify the other parties of
the commencement of any litigation or proceeding against it or any of
its respective officers, directors, trustees, employees or 1933 Act
control persons in connection with the Agreement, the issuance or sale
of the Contracts, the operation of the Accounts, or the sale or
acquisition of Shares.
8.7. A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained in this Article
VIII shall survive any termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth
of Massachusetts.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the
Mixed and Shared Funding Exemptive Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS
The Trust, PIM, PFD and the Company agree that each such party
shall promptly notify the other parties to this Agreement, in writing,
of the institution of any formal proceedings brought against such party
or its designees by the NASD, the SEC, or any insurance department or
any other regulatory body regarding such party's duties under this
Agreement or related to the sale of the Contracts, the operation of the
Accounts, or the purchase of the Shares.
ARTICLE XI. TERMINATION
11.1. This Agreement shall terminate with respect to the
Accounts, or one, some, or all Portfolios:
(a) at the option of any party upon six (6) months'
advance written notice delivered to the other
parties; PROVIDED, however, that such notice shall
not be given earlier than six (6) months following
the date of this Agreement; or
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PIONEER STANDARD PARTICIPATION AGREEMENT
(b) at the option of the Company to the extent that the
Shares of Portfolios are not reasonably available to
meet the requirements of the Contracts or are not
"appropriate funding vehicles" for the Contracts, as
reasonably determined by the Company. Without
limiting the generality of the foregoing, the Shares
of a Portfolio would not be "appropriate funding
vehicles" if, for example, such Shares did not meet
the diversification or other requirements referred to
in Article VI hereof; or if the Company would be
permitted to disregard Contract owner voting
instructions pursuant to Rule 6e-2 or 6e-3(T) under
the 1940 Act. Prompt notice of the election to
terminate for such cause and an explanation of such
cause shall be furnished to the Trust by the Company;
or
(c) at the option of the Trust, PIM or PFD upon
institution of formal proceedings against the Company
by the NASD, the SEC, or any insurance department or
any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of
the Contracts, the operation of the Accounts, or the
purchase of the Shares; provided that the party
terminating this Agreement under this provision shall
give notice of such termination to the other parties
to this Agreement; or
(d) at the option of the Company upon institution of
formal proceedings against the Trust by the NASD, the
SEC, or any state securities or insurance department
or any other regulatory body regarding the duties of
the Trust, PIM or PFD under this Agreement or related
to the sale of the Shares; provided that the party
terminating this Agreement under this provision shall
give notice of such termination to the other parties
to this Agreement; or
(e) at the option of the Company, the Trust, PIM or PFD
upon receipt of any necessary regulatory approvals
and/or the vote of the Contract owners having an
interest in the Accounts (or any subaccounts) to
substitute the shares of another investment company
for the corresponding Portfolio Shares in accordance
with the terms of the Contracts for which those
Portfolio Shares had been selected to serve as the
underlying investment media. The Company will give
thirty (30) days' prior written notice to the Trust
of the Date of any proposed vote or other action
taken to replace the Shares; or
(f) termination by any of the Trust, PIM or PFD by
written notice to the Company, if any one or all of
the Trust, PIM or PFD respectively, shall determine,
in their sole judgment exercised in good faith, that
the Company has suffered a material adverse change in
its business, operations, financial condition, or
prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(g) termination by the Company by written notice to the
Trust, PIM or PFD, if the Company shall determine, in
its sole judgment exercised in good faith, that the
Trust, PIM or PFD has suffered a material adverse
change in this business, operations, financial
condition or prospects since the date of this
Agreement or is the subject of material adverse
publicity; or
(h) at the option of any party to this Agreement, upon
another party's material breach of any provision of
this Agreement; or
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(i) upon assignment of this Agreement, unless made with
the written consent of the parties hereto.
11.2. The notice shall specify the Portfolio or Portfolios, Contracts
and, if applicable, the Accounts as to which the Agreement is to be
terminated.
11.3. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 11.1(a) may be exercised
for cause or for no cause.
11.4. Except as necessary to implement Contract owner initiated
transactions, or as required by state insurance laws or regulations,
the Company shall not redeem the Shares attributable to the Contracts
(as opposed to the Shares attributable to the Company's assets held in
the Accounts), and the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under
the Contracts, until thirty (30) days after the Company shall have
notified the Trust of its intention to do so.
11.5. Notwithstanding any termination of this Agreement, the Trust, PIM
and PFD shall, at the option of the Company, continue to make available
additional shares of the Portfolios pursuant to the terms and
conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (the "Existing
Contracts"), except as otherwise provided under Article VII of this
Agreement. Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to transfer or reallocate investment under
the Contracts, redeem investments in any Portfolio and/or invest in the
Trust upon the making of additional purchase payments under the
Existing Contracts.
11.5 Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify the other parties shall
survive and not be affected by any termination of this Agreement. In
addition, with respect to Existing Contracts, all provisions of this
Agreement shall also survive and not be affected by any termination of
this Agreement
ARTICLE XII. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail, overnight courier or facsimile to the other party at the address
of such party set forth below or at such other address as such party may from
time to time specify in writing to the other party.
If to the Trust:
PIONEER VARIABLE CONTRACTS TRUST
Hale and Dorr
60 State Street
Boston, Massachusetts 02109
Facsimile No.: (617) xxx-xxxx
Attn: Joseph P. Barri, Secretary
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If to the Company:
[NAME OF INSURANCE COMPANY]
[address]
[city, state and zip code]
Facsimile No.: xxx-xxx-xxxx
Attn: [name, title]
If to PIM:
PIONEER INVESTMENT MANAGEMENT, INC.
60 State Street
Boston, Massachusetts 02109
Facsimile No.: (617) xxx-xxxx
Attn: [name], Head of Legal
If to PFD:
PIONEER FUNDS DISTRIBUTOR, INC.
60 State Street
Boston, Massachusetts 02109
Facsimile No.: (617) xxx-xxxx
Attn: [Marcy Supovitz], [title]
ARTICLE XIII. MISCELLANEOUS
13.1. Subject to the requirement of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and,
except as permitted by this Agreement or as otherwise required by
applicable law or regulation, shall not disclose, disseminate or
utilize such names and addresses and other confidential information
without the express written consent of the affected party until such
time as it may come into the public domain. Without limiting the
foregoing, no party hereto shall disclose any information that another
party has designated as proprietary.
13.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
13.3. This Agreement may be executed simultaneously in one or more
counterparts, each of which taken together shall constitute one and the
same instrument.
13.4. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
13.5. The Schedule attached hereto, as modified from time to time, is
incorporated herein by reference and is part of this Agreement.
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PIONEER STANDARD PARTICIPATION AGREEMENT
13.6. Each party hereto shall cooperate with each other party in
connection with inquiries by appropriate governmental authorities
(including without limitation the SEC, the NASD, and state insurance
regulators) and shall permit such authorities reasonable access to its
books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
13.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled
to under state and federal laws.
13.8. A copy of the Trust's Declaration of Trust is on file with the
Secretary of State of Delaware. The Company acknowledges that the
obligations of or arising out of this instrument are not binding upon
any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and
property of the Trust in accordance with its proportionate interest
hereunder. The Company further acknowledges that the assets and
liabilities of each Portfolio are separate and distinct and that the
obligations of or arising out of this instrument are binding solely
upon the assets or property of the Portfolio on whose behalf the Trust
has executed this instrument. The Company also agrees that the
obligations of each Portfolio hereunder shall be several and not joint,
in accordance with its proportionate interest hereunder, and the
Company agrees not to proceed against any Portfolio for the obligations
of another Portfolio.
13.9. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a
forum jointly selected by the relevant parties (but if applicable law
requires some other forum, then, such other forum) in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
13.10. This Agreement of any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of
all parties hereto.
13.11. The Company is hereby put on notice of the limitation of
liability as set forth in the Declaration of Trust of the Trust and
agrees that the obligations assumed by the Trust, PIM and PFD pursuant
to this Agreement shall be limited in any case to the Portfolio(s) of
the Trust, PIM and PFD and their respective assets and the Company
shall not seek satisfaction of any such obligation from the
Shareholders of the Trust, PIM, PFD, the Trustees, officers, employees
or agents of the Trust, PIM or PFD, or any of them.
13.12. The Trust, PIM and PFD agree that the obligations assumed by the
Company shall be limited in any case to the Company and its assets and
neither the Trust, PIM nor PFD shall seek satisfaction of any such
obligation from the shareholders of Company, the directors, officers,
employees or agents of the Company, or any of them.
13.13. No provision of the Agreement may be deemed or construed to
modify or supersede any contractual rights, duties, or
indemnifications, as between PIM and the Trust and PFD and the Trust.
-20-
DRAFT - AS OF 9/8/00
PIONEER STANDARD PARTICIPATION AGREEMENT
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified above.
[NAME OF INSURANCE COMPANY]
By its authorized officer,
By: ___________
[name]
[title]
Date:
PIONEER VARIABLE CONTRACTS TRUST,
ON BEHALF OF THE PORTFOLIOS
By its authorized officer and not individually,
By:______________
Joseph P. Barri
Secretary
Date:
PIONEER INVESTMENT MANAGEMENT, INC.
By its authorized officer,
By: [SIGNATURE]
David D. Tripple
Chief Executive Officer
Date:
-21-
DRAFT - AS OF 9/8/00
PIONEER STANDARD PARTICIPATION AGREEMENT
SCHEDULE A
ACCOUNTS, CONTRACTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
As of [date], 2001
============================================= =========================================== =======================================
NAME OF SEPARATE PORTFOLIOS AND
ACCOUNT AND DATE CONTRACTS FUNDED CLASS OF SHARES
ESTABLISHED BY BOARD OF DIRECTORS BY SEPARATE ACCOUNT APPLICABLE TO CONTRACTS
============================================= =========================================== =======================================
VARIABLE ANNUITY PIONEER FUND VCT CLASS II PORTFOLIO
PIONEER SMALL COMPANY VCT CLASS II
VARIABLE LIFE PORTFOLIO
--------------------------------------------- ------------------------------------------- ---------------------------------------
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DRAFT - AS OF 9/8/00
PIONEER STANDARD PARTICIPATION AGREEMENT
SCHEDULE B
FEES TO THE COMPANY
1. ADMINISTRATIVE SERVICES
Administrative services to Contract owners and participants shall be
the responsibility of the Company and shall not be the responsibility of the
Trust or PFD. The Company will provide properly registered and licensed
personnel and any systems needed for all Contract owners servicing and support -
for both fund and annuity information and questions, including:
- Communicate all purchase, withdrawal, and exchange orders it receives
from its customers to PFD;
- Respond to Contract owner inquires;
- Delivery of both Trust and Contract prospectuses;
- Entry of initial and subsequent orders;
- Transfer of cash to insurance company and/or Portfolios;
- Explanations of Portfolio objectives and characteristics;
- Entry of transfers between Portfolios;
- Portfolio balance and allocation inquires; and
- Mail Trust proxys.
2. ADMINISTRATIVE SERVICE FEES
For the administrative services set forth above, PFD shall pay a
servicing fee based on the annual rate of 0.20% of the average aggregate net
daily assets invested in the Portfolios through the Accounts at the end of each
calendar quarter. PFD will make such payments to the Company within thirty (30)
days after the end of each calendar quarter. Such fees shall be paid quarterly
in arrears. Each payment will be accompanied by a statement showing the
calculation of the fee payable to the Company for the quarter and such other
supporting data as may be reasonably requested by the Company. The Company will
verify the asset balance of each day on which the fee is to be paid pursuant to
this Agreement with respect to each Portfolio.
3. 12b-1 DISTRIBUTION RELATED FEES (CLASS II SHARES ONLY)
------------------------------------------------------
In accordance with the Portfolios' plans pursuant to Rule 12b-1 under
the Investment Company Act of 1940, PFD will make payments to the Company at an
annual rate of 0.25% of the average net assets invested in the Class II shares
of the Portfolios through the Accounts in each calendar quarter. PFD will make
such payments to the Company within thirty (30) days after the end of each
calendar quarter. Each payment will be accompanied by a statement showing the
calculation of the fee payable to the Company for the quarter and such other
supporting data as may be reasonably requested by the Company.