As filed with the Securities and Exchange Commission on April 11, 2012
File No. 333-87218
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
Post-Effective Amendment No. 10
to
FORM S-1
on
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PHL VARIABLE INSURANCE COMPANY
(Exact name of registrant as specified in its charter)
Connecticut | 06-1045829 | |
(State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification Number) |
One American Row
Hartford, CT 06103
(800) 447-4312
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
John H. Beers, Esq.
PHL Variable Insurance Company
One American Row
Hartford, CT 06103
(860) 403-5050
(Name, address, including zip code, and telephone number, including area code, of agent for service)
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
Non-accelerated filer | x (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus herein relates to Registration Statement Numbers 333-20277 and 333-55240.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), SHALL DETERMINE.
EXPLANATORY NOTE
This Post-Effective Amendment No. 10 to Form S-1 on Form S-3 is being filed to convert a Registration Statement on Form S-1 (No. 333-87218), as previously amended and supplemented, into a registration on Form S-3, to incorporate updated financial information and to make non-material changes.
The Registration Statement on Form S-1 was declared effective by the U.S. Securities and Exchange Commission on May 2, 2007. The Registrant most recently undertook to file a post-effective amendment to the Registration Statement on April 11, 2011 (effective April 29, 2011) for certain items.
At the time of the filing of the Registration Statement on Form S-1 and the post-effective amendment filed prior hereto, the Registrant did not meet the requirements for use of Form S-3. However, at the time of filing of this Post-Effective Amendment No. 10, the Registrant meets the requirement for use of the Form S-3 and is filing this Post-Effective Amendment No. 10 on Form S-3 in reliance on Rules 401(c) and 401(e) promulgated under the Securities Act of 1933, as amended, for the purpose of converting the Registration Statement on Form S-1 to a Registration Statement on Form S-3.
All filing fees payable in connection with the registration of the securities that are subject to this Registration Statement were previously paid in connection with the filing of the Registration Statement on Form S-1 on January 23, 1997 and February 8, 2001.
PROSPECTUS | April 30, 2012 |
• | a bank deposit or obligation; or |
• | guaranteed by any bank or by the Federal Insurance Deposit Corporation or any other government agency. |
|
PHL Variable
Insurance Company PO Box 22012 Albany, NY 12201-2012 |
|
Tel. 800/866-0753 |
❖ | Investment Risk—Principal and interest when credited are guaranteed by the company unless you make a withdrawal from or surrender the Contract, which may be subject to a surrender charge and Market Value Adjustment. |
❖ | Loss of Principal Risk—Withdrawals and surrenders from the Contract in excess of the free withdrawal amount, prior to the end of the surrender charge period, are subject to a surrender charge and Market Value Adjustment. A negative Market Value Adjustment is limited to the contract’s interest, therefore, the application of a negative Market Value Adjustment alone will not result in loss of principal. However, the combination of the surrender charge and Market Value Adjustment may result in loss of principal. |
❖ | Reduced Required Minimum Distributions (“RMD”) Risk— Any withdrawal from the MVA, including those taken to meet RMD requirements under the provisions of the Internal Revenue Code of 1986 (the “Code”), will be subject to a Market Value Adjustment unless the effective date of the withdrawal is within the guarantee period. If a negative Market Value Adjustment, although limited to the Contract’s interest, is applied to an RMD, the amount you receive will be reduced. |
❖ | The MVA currently provides four choices of interest rate Guarantee Periods: |
• | 3 years |
• | 5 years |
• | 7 years |
• | 10 years |
❖ | Purchase payments can be allocated to one or more of the available MVA guarantee period options. Allocations may be made at the time you make a payment or you may transfer amounts held in the subaccounts of the Separate Account, the GIA or other available MVA guarantee periods. Generally, amounts allocated to MVA options must be for at least $1,000. We reserve the right to limit cumulative amounts allocated to the MVA during any one-week period to not more than $250,000. |
❖ | Amounts may be transferred to or from the MVA according to the transfer rules under the Contract. You may make up to six transfers per year from the MVA. (See “The Accumulation Period—Transfers” of the Contract prospectus.) |
❖ | Allocations that remain in the MVA until the applicable expiration date will be equal to the amount originally allocated, multiplied by its guaranteed rate, which is compounded on an annual basis. |
❖ | A Market Value Adjustment will be made if amounts are withdrawn, transferred or applied to an annuity option from the MVA before the expiration date. (See “The MVA.”) |
❖ | The Contract provides for the accumulation of values before maturity and for the payment of annuity benefits thereafter. Since MVA values are part of the Contract Value, your earnings on allocations to the MVA will affect the values available at surrender or maturity. No Market Value Adjustment will be applied to withdrawals to pay Death Benefit proceeds. |
❖ | We may offer additional guarantee periods to certain individuals or groups of individuals who meet certain minimum premium criteria. |
We reserve the right to elaborate upon, supplement or alter the terms or arrangements associated with, or relating to, this prospectus in connection with the offering of flexible premium accumulation deferred annuity contracts utilizing market value adjusted guaranteed interest account contracts to certain institutional investors, provided that such arrangements do not materially and adversely affect the rights or interests of other investors hereunder. |
1. | The accumulated amount prior to application of Market Value Adjustment is: |
$10,000 x (1.055)2 = $11,130.25 | |
2. | The current rate that would be applied on January 1, 1999 to amounts credited to a 3-year MVA segment is 6.50%. |
3. | The number of months remaining in the guarantee period (rounded up to next whole number) is 36. |
4. | The Market Value Adjustment equals $–386.43, and is calculated as follows: |
1. | The accumulated amount prior to application of Market Value Adjustment is: |
$10,000 x (1.055)2 = $11,130.25 | |
2. | The current rate being applied on January 1, 1999 to amounts credited to a 3-year MVA segment is 4.50%. |
3. | The number of months remaining in the guarantee period (rounded up to next whole number) is 36. |
4. | The Market Value Adjustment equals $240.79, and is calculated as follows: |
❖ | Securities issued by the United States government or its agencies or instrumentalities. |
❖ | Debt securities which have a rating, at the time of purchase, within the six highest rating grades assigned by Moody’s Investors Services, Inc. (Aaa, Aa, A, Baa, Ba, or B), Standard & Poor’s Corporation (AAA, AA, A, BBB, BB, or B) or any other nationally recognized rating service. |
❖ | Other debt instruments, although not rated by Moody’s or Standard & Poor’s, are deemed by the Company’s management to have an investment quality comparable to securities described above. |
PART II
INFORMATION NOT REQUIRED IN A PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution |
Not applicable.
Item 15. | Indemnification of Directors and Officers |
Section 33-779 of the Connecticut General Statutes states that: a corporation may provide indemnification of or advance expenses to a director, officer, employee or agent only as permitted by sections 33-770 to 33-778, inclusive.
Article VI. Section 6.01. of the Bylaws of the Registrant (as amended and restated effective May 16, 2002) provide that: Each director, officer or employee of the company, and his heirs, executors or administrators, shall be indemnified or reimbursed by the company for all expenses necessarily incurred by him in connection with the defense or reasonable settlement of any action, suit or proceeding in which he is made a party by reason of his being or having been a director, officer or employee of the company, or of any other company in which he was serving as a director or officer at the request of the company, except in relation to matters as to which such director, officer or employee is finally adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of his duties as such director, officer or employee. The foregoing right of indemnification or reimbursement shall not be exclusive of any other rights to which he may be entitled under any statute, bylaw, agreement, vote of shareholders or otherwise.
Item 16. | (a) Exhibits |
1. (i) | Underwriting Agreement Incorporated by reference to a filing on Form S-1 (File No. 333-55240) filed via Edgar on February 8, 2001. |
(ii) | Amended and Restated Principal Underwriting and Distribution Agreement between PHL Variable Insurance Company and 1851 Securities, Inc. dated January 1, 2012. Filed herewith. |
2. | Not applicable. |
3. (i) | Amended and Restated Certificate of Incorporation of PHL Variable Insurance Company. Incorporated by reference to Registrants Filing on Form S-1 (File No. 333-55240) filed via EDGAR on February 8, 2001. |
(ii) | Bylaws of PHL Variable Insurance Company as amended and restated, effective May 16, 2002. Incorporated by reference to Registrants Filing on Form S-1 (File No. 333-87218) filed via EDGAR on May 1, 2004. |
4. | Form of Variable Annuity contract with MVA Rider Incorporated by reference to Registrants Filing on Form S-1 (File No. 333-20277) filed via EDGAR on January 23, 1997. |
5. | Opinion regarding Legality. Filed herewith as exhibit 23(b). |
6. | Not applicable. |
7. | Not applicable. |
8. | Opinion regarding Tax Matters. Filed herewith. |
9. | Not applicable. |
10. | Not applicable. |
11. | Not applicable. |
12. | Not applicable. |
13. | Not applicable. |
14. | Not applicable. |
15. | Not applicable. |
16. | Not applicable. |
17. | Not applicable. |
18. | Not applicable. |
19. | Not applicable. |
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20. | Not applicable. |
21. | The Registrant has no subsidiaries. |
22. | Not applicable. |
23. | (a) Consent of independent registered public accounting firm. Filed herewith. |
23. | (b) Opinion and Consent of Counsel. Filed herewith. |
24. | Powers of Attorney. Incorporated by reference to Post-effective Amendment No. 2 on Form S-3 to Registrants Filing on Form S-1 (File No. 333-168357), filed via EDGAR on April 11, 2012. |
25. | Not applicable. |
26. | Not applicable. |
(b) | Not applicable. |
Item 17. | Undertakings |
The undersigned registrant hereby undertakes:
(1) | To file, during any period in which offers of sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement. |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
Provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | Not applicable. |
(5) | Not applicable. |
(6) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
i. | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
ii. | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
iii. | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
iv. | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(7) | That each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(8) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-effective Amendment No. 10 on Form S-3 to the registration statement on Form S-1, File No. 333-87218, to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hartford, State of Connecticut, on this 11th day of April, 2012.
PHL VARIABLE INSURANCE COMPANY | ||
By: |
||
* James D. Wehr President |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated and on the date indicated above.
Signature |
Title |
|||
*Peter A. Hofmann |
Chief Financial Officer |
|||
*David R. Pellerin |
Chief Accounting Officer |
|||
*Edward W. Cassidy |
Director |
|||
*Philip K. Polkinghorn |
Director |
|||
*James D. Wehr |
President |
|||
*Christopher M. Wilkos |
Director |
By: | /s/ KATHLEEN A. MCGAH | |
*Kathleen A. McGah, as Attorney-in-Fact pursuant to Powers of Attorney. |
S-1
Exhibit Index
Exhibit 1(ii) | Amended and Restated Principal Underwriting and Distribution Agreement dated January 1, 2012 | |
Exhibit 8 | Opinion regarding Tax Matters | |
Exhibit 23(a) | Consent of Independent Registered Public Accounting Firm | |
Exhibit 23(b) | Opinion and Consent of Counsel - Legality |
AMENDED and RESTATED
PRINCIPAL UNDERWRITING and DISTRIBUTION AGREEMENT
THIS AGREEMENT, by and between PHL Variable Insurance Company (Phoenix), a Connecticut domiciled life insurance company, and 1851 Securities, Inc. (1851), a Delaware corporation, shall be effective as of January 1, 2012.
WITNESSETH:
WHEREAS, Phoenix offers for sale modified guaranteed annuity contracts funded through separate accounts (the Separate Accounts) registered pursuant to registration statements filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (Securities Act) (the Contracts/Policies); and
WHEREAS, 1851 is registered as a broker-dealer with the Securities and Exchange Commission (SEC) under the Securities Exchange Act of 1934, as amended (1934 Act) and is a member of the Financial Industry Regulatory Authority (FINRA); and
WHEREAS, Phoenix desires to engage 1851 to perform certain services with respect to the books and records to be maintained in connection with the sale of Contracts/Policies and certain administrative and other functions as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows.
1.0 | Services of 1851. |
1.01 Appointment. Phoenix hereby appoints 1851, and 1851 hereby accepts the appointment as, Principal Underwriter and Distributor of the Contracts/Policies.
1.02 Duties. 1851 shall perform those administrative, compliance and other services with respect to the Contracts/Policies as described herein.
1.03 Written Agreements. 1851 has and shall enter into written agreements with broker-dealer firms whose registered representatives have been or shall be properly licensed under applicable federal and state laws and FINRA rules to sell registered insurance products, including variable annuity contracts and variable life policies, and appointed as life insurance agents of Phoenix. Phoenix shall pay all fees associated with the appointments of such selected representatives as insurance agents of Phoenix. Such agreements with broker-dealers shall provide that such broker-dealer shall cause applications to be solicited for the purchase of the Contracts/Policies. Such agreements shall include such terms and conditions as 1851 may determine not inconsistent with this Agreement, provided, however, that any broker-dealer with whom 1851 has entered into a written agreement must comply with the following terms which shall be included in all such agreements.
The broker-dealer must:
(a) be a registered broker-dealer under the 1934 Act and be a member of FINRA; and
(b) agree that, in connection with the solicitation of applications for the purchase of Contracts/Policies, the broker-dealer will in all respects conform to the requirements of all state and federal laws and the FINRA rules relating to the sale of the Contracts/Policies and will indemnify and hold harmless 1851 and Phoenix from any damage or expense of any nature whatsoever on account of the negligence, misconduct or wrongful act of such broker-dealer and any employee, representative or agent of such broker-dealer.
In obtaining and entering into written agreements with broker-dealers, 1851 will in all respects conform to the requirements of all state and federal law, and the FINRA rules.
1.04 Recordkeeping. 1851 shall maintain and preserve, or cause to be maintained and preserved, such accounts, books and other documents as are required of it with respect to the services provided under this Agreement, the 1934 Act and any other applicable laws and regulations, including, without limitation and to the extent applicable, Rules 17a-3 and 17a-4 under the 1934 Act. The books, accounts and records of 1851 as to services provided hereunder, shall be maintained so as to disclose clearly and accurately the nature and details of the transactions. Phoenix agrees that certain of the books and records required herein, including but not limited to, the advertising files related to the Contracts/Policies, the supervision and education of the wholesaling organization for the Contracts/Policies, travel and gifts log, the customers post sale account, will be created and maintained by Phoenix on behalf of 1851. Phoenix agrees that with respect to this section 1.04 that it is acting as agent for 1851, and that these books and records remain the property of 1851.
1.05 Supervision. 1851 shall, upon request, sponsor the FINRA registrations of Phoenix employees and officers, who are trained and qualified persons, to market Contracts/Policies to broker-dealers and institutions in conformance with applicable state and federal laws. 1851 reserves the right to decline to sponsor the FINRA registration of any such employee or officer who, upon review of various background checks and in the reasonable estimation of 1851 and Phoenix, is inappropriate for such registration. 1851 shall maintain FINRA registrations of employees and officers it sponsors in accordance with FINRA rules until notified of termination of employment by Phoenix. Phoenix shall ensure that its employees and officers are appropriately licensed, contracted and appointed under applicable state insurance laws to market the Contract/Policies. 1851 agrees to supervise the securities activities of those persons whose FINRA registrations it sponsors. 1851 is not responsible for fees in connection with the licensing or appointment of registered representatives as insurance agents of Phoenix.
1.06 Sales Materials and Other Documents.
(a) 1851s Responsibilities. 1851 shall be responsible for the approval of promotional material by the SEC and FINRA, where required.
(b) Phoenixs Responsibilities. Phoenix shall be responsible for: (i) the design, preparation and printing of all promotional material to be used in the distribution of the Contracts/Policies; (ii) the approval of promotional material by state and other local insurance regulatory authorities; and (iii) confirming the issuance of the Contract/Policy to the Contract/Policy owner.
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(c) Right to Approve. Neither party hereto nor any of its agents or affiliates shall print, publish or distribute any advertisement, circular or any document relating to the Contracts/Policies or relating to the other party unless such advertisement, circular or document shall have been approved in writing by the other party. However, nothing herein shall prohibit any party from advertising annuities or life insurance in general or on a generic basis, subject to compliance with all applicable laws, rules and regulations. Each party reserves the right to require modification of any such material to comply with applicable laws, rules and regulations and agrees to provide timely responses regarding material submitted to it by the other party.
1.07 Payments to Broker-Dealers. Phoenix shall be primarily responsible to pay sales commissions to the broker/dealers entitled thereto as set forth in the applicable written agreements with such broker-dealers, subject to all applicable state insurance laws and regulations and all applicable federal and/or state securities laws and FINRA rules. 1851 shall reflect such amounts on its books and records (as created and maintained by Phoenix) as required by Paragraph 1.04 hereto.
1.08 Compliance. 1851 shall, at all times, when performing its functions under this Agreement, be registered as a securities broker-dealer with the SEC and FINRA and be licensed or registered as a securities broker-dealer in any jurisdiction where the performance of the duties contemplated by this Agreement would require such licensing or registration. 1851 represents and warrants that it shall otherwise comply with provisions of federal and state law in performing its duties hereunder.
1.09 Payment of Expenses. Phoenix shall reimburse 1851 for its allocable share of the expenses incurred by 1851 in connection with its provision of services hereunder and the distribution of the Contracts/Policies, as outlined in the Expense Agreement dated August 15, 2010, as amended effective on January 1, 2012.
2.0 | General Provisions. |
2.01 Inspection of Books and Records. 1851 and Phoenix agree that all records relating to services provided hereunder shall be subject to reasonable periodic, special or other audit or examination by the SEC, FINRA or any state insurance commissioner or any other regulatory body having jurisdiction. 1851 and Phoenix agree to cooperate fully in any securities or insurance regulatory or judicial investigation, inspection, inquiry or proceeding arising in connection with the services provided under this Agreement, or with respect to 1851 or Phoenix or their affiliates, to the extent related to the distribution of the Contracts/Policies. 1851 and Phoenix will notify each other promptly of any customer complaint or notice of regulatory or judicial proceeding, and, in the case of a customer complaint, will cooperate in arriving at a mutually satisfactory resolution thereof.
2.02 Indemnification. 1851 will indemnify and hold harmless Phoenix and the Separate Accounts, from any and all expenses, losses, claims, damages or liabilities (including attorney fees) incurred by reason of any misrepresentations, wrongful or unauthorized act or omission, negligence of, or failure of 1851, including any employee of 1851, to comply with the terms of this Agreement, provided, however, 1851 shall not be required to indemnify for any such expenses, losses, claims, damages or liabilities which have resulted from the negligence, misconduct or wrongful act of the party seeking indemnification. 1851 shall also hold harmless and indemnify Phoenix and the Separate Accounts for any and all expenses, losses, claims, damages or liabilities (including attorney fees) arising from any
3
misrepresentation, wrongful or unauthorized act or omission, negligence of, or a failure of a broker-dealer or its employees, agents or registered representatives, to comply with the terms of the written agreement entered into between 1851 and such broker-dealer but only to the extent that 1851 is indemnified by the broker-dealer under the terms of the written agreement. Phoenix will indemnify and hold harmless 1851, for any expenses, losses, claims, damages or liabilities (including attorney fees) incurred by reason of any material misrepresentation or omission in a registration statement or prospectus for the Contracts/Policies, or on account of any other misrepresentation, wrongful or unauthorized act or omission, negligence of or failure by Phoenix, including any employee of Phoenix, to comply with the terms of this Agreement, provided, however, Phoenix shall not be required to indemnify for any expenses, losses, claims, damages or liabilities which have resulted from the negligence, misconduct or wrongful act of the party seeking indemnification.
2.03 Termination. This Agreement shall become effective on the date first above written and shall remain in effect, except that:
(a) any party hereto may terminate this Agreement on any date by giving the other party at least sixty (60) days prior written notice of such termination specifying the date fixed therefore; and
(b) this Agreement may not be assigned by either party without the written consent of the other party.
2.04 Registration. Phoenix agrees to use its best efforts to effect and maintain the registration of the Contracts/Policies under the Securities Act, and to qualify the Contracts/Policies under the state securities and insurance laws, and to qualify the Contracts/Policies as annuities/life insurance under the Internal Revenue Code. Phoenix will pay or cause to be paid expenses (including the fees and disbursements of its own counsel) of the registration and maintenance of the Contracts/Policies under the Securities Act, and to qualify the Contracts/Policies under the state securities and insurance laws.
2.05 Authority. 1851 shall have authority hereunder only as expressly granted in this Agreement.
2.06 Miscellaneous. Phoenix agrees to advise 1851 immediately in the case of an issuance by the SEC of any stop order suspending the effectiveness of any prospectus for the Contracts/Policies, of all actions of the SEC with respect to any amendments to the registration statement(s) which may from time to time be filed with the SEC and of any material event which makes untrue any statement made in the registration statements for the Contracts/Policies, or which requires the making of a change in the registration statements in order to make the statement therein not misleading. Phoenix agrees to advise 1851 in the event that formal administrative proceedings are instituted against Phoenix by the SEC, or any state securities or insurance department or any other regulatory body regarding Phoenixs duties under this Agreement, unless Phoenix determines in its sole judgment, exercised in good faith, that any such administrative proceeding will not have a material adverse effect upon its ability to perform its obligations under this Agreement. 1851 agrees to advise Phoenix in the event that formal administrative proceedings are instituted against 1851 by the SEC, FINRA or any state securities or insurance department or any other regulatory body regarding 1851s duties under this Agreement, unless 1851 determines in its sole judgment, exercised in good faith, that any such administrative proceedings will not have a material adverse effect upon its ability to perform its obligations under this Agreement.
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2.07 Independent Contractor. 1851 shall undertake and discharge its obligations hereunder as an independent contractor and nothing herein shall be construed as establishing: (i) an employer-employee relation between the parties hereto; or (ii) a joint venture.
2.08 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut.
2.09 Sole Agreement. This Agreement supersedes all prior agreements relating to the subject matter hereof.
2.10 Notice. Any notice shall be sufficiently given when sent by registered or certified mail to the other party at the address of such party set forth below or at such other address as such party may from time to time specify in writing to the other party.
If to Phoenix:
One American Row
Hartford, Connecticut 06102
Attention: General Counsel
If to 1851:
One American Row
Hartford, Connecticut 06102
Attention: General Counsel
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first above written.
PHL Variable Insurance Company | ||
By: | /s/ Kathleen A. McGah | |
Its: | Kathleen A. McGah | |
Date: | January 1, 2012 | |
1851 Securities, Inc. | ||
By: | /s/ John H. Beers | |
Its: | John H. Beers | |
Date: | January 1, 2012 |
5
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
PHL Variable Insurance Company
One American Row
Hartford, CT 06102-5056
Re: PHL Variable Insurance Company
Post-effective Amendment No. 10 on Form S-3 to Registration Statement No. 333-87218 on Form S-1
Ladies and Gentlemen:
This opinion is furnished in connection with the filing of this Post-effective Amendment No. 10 on Form S-3 to Registration Statement No. 333-87218 (PEA No. 10) filed on Form S-1 under the Securities Act of 1933 for PHLVICs Market Value Adjusted Guaranteed Interest Account Annuity (MVA), only available for use under certain PHLVICs variable accumulation deferred annuity contracts (Contract).
In connection with this opinion, I have reviewed the Registration Statement and the provisions of federal income tax laws relevant to the issuance of these contracts with the MVA investment options. Based upon this review, I am of the opinion that each of the contracts, when issued with the MVA investment options will have been validly and legally issued.
I hereby consent to the use of this opinion as an exhibit to PEA No. 10 and to the use of my name in the Legal Matters section of the prospectus in PEA No. 10.
Yours truly, | ||
By: | /s/ Laurie D. Lewis | |
Laurie D. Lewis Tax Counsel PHL Variable Insurance Company |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Post-effective Amendment No. 10 on Form S-3 to the Registrant Statement on Form S-1 (File No. 333-87218) of our report dated March 23, 2012 relating to the financial statements, which appears in PHL Variable Insurance Companys Annual Report on Form 10-K for the year ended December 31, 2011. We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ PricewaterhouseCoopers, LLP
Boston, Massachusetts
April 11, 2012
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
PHL Variable Insurance Company
One American Row
Hartford, CT 06102-5056
Re: PHL Variable Insurance Company (PHLVIC)
Post-effective Amendment No. 10 on Form S-3 to Registration Statement No. 333-87218 on Form S-1
Ladies and Gentlemen:
This opinion is furnished in connection with the filing of this Post-effective Amendment No. 10 on Form S-3 to Registration Statement No. 333-87218 (PEA No. 10) filed on Form S-1 under the Securities Act of 1933 for PHLVICs Market Value Adjusted Guaranteed Interest Account Annuity (MVA), only available for use under certain PHLVICs variable accumulation deferred annuity contracts (Contract).
As an attorney for PHLVIC, I provide legal advice to PHLVIC in connection with the operation of its SEC registered and variable products. In this role, I am familiar with PEA No. 10. I have made an examination of the law and the documents as in my judgment are necessary or appropriate to enable me to render the opinion expressed below.
I am of the following opinion:
1. | PHLVIC is a valid corporation, organized and operated under the laws of the State of Connecticut and is subject to regulation by the Connecticut Commissioner of Insurance. |
2. | The MVA, when properly issued under the Contracts, is a legal and binding obligation to PHLVIC, enforceable in accordance with its terms and applicable state and federal law. |
I hereby consent to the use of this opinion as an exhibit to PEA No. 10 and to the use of my name in the Legal Matters section of the prospectus in PEA No. 10.
Yours truly, | ||
By: | /s/ Kathleen A. McGah | |
Kathleen A. McGah Vice President and Assistant Secretary PHL Variable Insurance Company |
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April 11, 2012
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
RE: | PHL Variable Insurance Company |
Post-Effective Amendment No. 10 to Form S-1 on Form S-3 |
File No. 333-87218 |
To the Commission Staff:
On behalf of PHL Variable Insurance Company (PHLVIC), transmitted herewith is post-effective amendment number 10 on Form S-3 (Post-Effective Amendment) to the registration statement on Form S-1 (File No. 333-87218) (Registration Statement) under the Securities Act of 1933, as amended (Securities Act). PHLVIC is filing this Post-Effective Amendment to the Registration Statement to update certain information requiring periodic update such as financial information, exhibits and consents, and make certain typographical corrections and other non-material changes to the prospectus.
We request that the effectiveness of this Post-Effective Amendment to the Registration Statement be accelerated to April 30, 2012 and have included acceleration requests pursuant to Rule 461 under the Securities Act.
The Registrant acknowledges that:
1. | should the Commission or the Staff, acting pursuant to delegated authority, declare the filing effective, it does not foreclose the Commission from taking any action with respect to the filing; |
2. | the action of the Commission or the Staff, acting pursuant to delegated authority, in declaring the filing effective, does not relieve the Company of its full responsibility for the adequacy and accuracy of the disclosure in the filing; and |
3. | the Registrant will not assert this action as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. |
Please direct any questions or comments concerning this Post-Effective Amendment to Lois McGuire at (860) 403-5878 or Kate Johnson at (860) 403-6486.
Sincerely, |
/s/ Kathleen A. McGah |
Kathleen A. McGah |
Vice President and Assistant Secretary |
PHL Variable Insurance Company |
PHL Variable Insurance Company One American Row Hartford, CT 06102 |
April 11, 2012
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
RE: | PHL Variable Insurance Company |
Post-Effective Amendment No. 10 to Form S-1 on Form S-3 |
File No. 333-87218 |
To the Commission Staff:
Pursuant to Rule 461 under the Securities Act of 1933, the undersigned Registrant requests acceleration of the effectiveness of the above captioned registration statement to April 30, 2012.
Thank you for your kind consideration in this matter.
Sincerely, |
/s/ Kathleen A. McGah |
Kathleen A. McGah Vice President and Assistant Secretary PHL Variable Insurance Company |
1851 Securities, Inc. One American Row Hartford, CT 06102 |
April 11, 2012
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
RE: | PHL Variable Insurance Company |
Post-Effective Amendment No. 10 to Form S-1 on Form S-3 |
File No. 333-87218 |
To the Commission Staff:
Pursuant to Rule 461 under the Securities Act of 1933, the undersigned Principal Underwriter requests acceleration of the effectiveness of the above captioned registration statement to April 30, 2012.
Thank you for your kind consideration in this matter.
Sincerely, |
/s/ John H. Beers |
John H. Beers Vice President and Secretary 1851 Securities, Inc. |