M FUND, INC. ------------ PARTICIPATION AGREEMENT With PACIFIC LIFE INSURANCE COMPANY AND PACIFIC LIFE & ANNUITY COMPANY
EXHIBIT 8(d) M FUND, INC. ------------ PARTICIPATION AGREEMENT With PACIFIC LIFE INSURANCE COMPANY AND PACIFIC LIFE & ANNUITY COMPANY THIS AGREEMENT, made and entered into this 8th day of January 2003, by and among M Fund, Inc., a corporation organized and existing under the laws of the State of Maryland (the "Fund"), M Financial Investment Advisers, Inc., a corporation organized and existing under the laws of the State of Colorado (the "Adviser"), M Holdings Securities, Inc., a corporation organized and existing under the laws of the State of Oregon (the "Distributor"), M Life Insurance Company, a life insurance company organized and existing under the laws of the State of California, Pacific Life Insurance Company, a life insurance company organized and existing under the laws of the State of California ("Pacific Life"); on its own behalf and on behalf of each separate account of Pacific Life identified herein, and Pacific Life & Annuity Company, a life insurance company organized and existing under the laws of the State of Arizona ("PL&A" and together with Pacific Life, "Companies" or each separately as "Company"), on its own behalf and on behalf of each separate account of PL&A identified herein. WHEREAS, the Fund is a series-type mutual fund offering shares of beneficial interest (the "Fund shares") consisting of one or more series ("Series") of shares ("Series shares"), each such Series share representing an interest in a particular managed portfolio of securities and other assets; and WHEREAS, Pacific Life, the Fund, the Advisor and the Distributor are currently parties to a Fund Participation Agreement dated February 7, 2000, as amended on August 7, 2000, and amended on December 11, 2001, and as amended January 2, 2002 (the "Current Agreement"), pursuant to which Fund shares are offered and sold to certain segregated asset accounts to Pacific Life; and WHEREAS, the Fund was established for the purpose of serving as an investment vehicle for insurance company separate accounts supporting variable annuity contracts and variable life insurance policies to be offered by insurance companies; and WHEREAS, each Company desires that the Fund serve as an investment vehicle for certain separate account(s) of each Company; WHEREAS, the Adviser is duly registered as an investment adviser pursuant to the Investment Advisers Act of 1940; WHEREAS, the Distributor is registered as a broker-dealer with the SEC under the Securities Exchange Act of 1934, and is a member in good standing of the National Association of Securities Dealers, Inc. ("NASD").
(d) Any purchase or redemption requests for Fund shares that do not
result directly from transactions relating to the Contracts or the Account
shall be effected at the net asset value per share next determined after
the Fund's receipt of such request, provided that, in the case of a
purchase request, payment for Fund shares so requested is received by the
Fund in federal funds prior to close of business for determination of such
value, as defined from time to time in the Fund Prospectus.
2.5. The Fund shall use its best efforts to calculate and make the net
asset value per share for each Series available to each Company, or its agent,
by 6:00 p.m. Eastern Time each Business Day, and in any event, as soon as
reasonably practicable after the net asset value per share for such Series is
calculated, and shall calculate such net asset value in accordance with the Fund
Prospectus. Neither the Fund, any Series, the Adviser, the Distributor, nor any
of their affiliates shall be liable for any information provided to the
Companies pursuant to this Agreement to the extent such information is based on
incorrect information supplied by the Companies or any other Participating
Insurance Company or Qualified Person (as defined in Section 2.9 of this
Agreement) to the Fund, the Distributor or the Adviser.
2.6. The Fund shall furnish notice to each Company, or its agent, (by fax,
or telephone followed by written confirmation) as soon as reasonably
practicable, and no later than the same day, of any income dividends or capital
gain distributions payable on any Series shares. Each Company, on its behalf and
on behalf of its Account, hereby elects to receive all such dividends and
distributions as are payable on any Series shares in the form of additional
shares of that Series. Each Company reserves the right, on its behalf and on
behalf of its Account, to revoke this election and to receive all such dividends
and distributions in cash. The Fund shall notify the Companies promptly of the
number of Series shares so issued as payment of such dividends and
distributions.
2.7. Issuance and transfer of Fund shares shall be by book entry only.
Stock certificates will not be issued to the Companies or their Accounts
Purchase and redemption orders for Fund shares shall be recorded in an
appropriate ledger for the Account or the appropriate subaccount of the Account.
2.8. (a) Each Company may withdraw its Account's investment in the Fund or
a Series of the Fund only: (i) as necessary to facilitate Contract Owner
requests; (ii) upon a determination by a majority of the Fund Board, or a
majority of disinterested Fund Board members, that an irreconcilable material
conflict exists among (x) the interests of all Product Owners or (y) the
interests of the Participating Insurance Companies investing in the Fund;
(iii) upon requisite vote of the Contract Owners having an interest in the
affected Series; (iv) as required by state and/or federal laws or regulations
or judicial or other legal precedent of general implication; (v) upon sixty
(60) days advance written notice; (vi) from a Series, upon a change in the
Portfolio Manager for that Series; or (vii) as permitted by an order of the
SEC pursuant to Section 26(b) of the 1940 Act.
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(b) The Companies shall not, without the prior written consent of the Adviser (unless otherwise required by applicable law), solicit, induce or encourage Contract Owners to change or modify the Fund or change the Fund's investment adviser. 2.9. The Fund and the Distributor shall sell Fund shares only to Participating Insurance Companies and their separate accounts and to persons or plans ("Qualified Persons") that qualify to purchase and hold shares of the Fund under Section 817(h) of the Code. The Fund and the Distributor shall not sell Fund shares to any insurance company, separate account or Qualified Person unless an agreement containing provisions substantially similar to Articles II, V, and VII of this Agreement is in effect to govern such sales (to the extent required in order to comply with the "Exemptive Order" referred to in Section 7.1 below). ARTICLE III. Representations and Warranties 3.1. Pacific Life represents and warrants that: (i) it is an insurance company duly organized, validly existing and in good standing under California insurance law; (ii) the Account is (or will be prior to the purchase by the Company of Fund shares for the Account) a validly existing separate account, duly established and maintained in accordance with applicable law; (iii) the Contracts will be issued in compliance in all material respects with all applicable federal and state laws; (iv) the Contracts currently are and at the time of issuance will be treated as annuity contracts or life insurance policies (including modified endowment contracts), whichever is appropriate, under applicable provisions of the Code; and (v) the Company and its Account qualify (or will qualify prior to the purchase by the Company of Fund shares for the Account) to purchase and hold shares of the Fund under Section 817(h) of the Code. 3.2. PL&A represents and warrants that: (i) it is an insurance company duly organized, validly existing and in good standing under Arizona insurance law; (ii) the Account is (or will be prior to the purchase by the Company of Fund shares for the Account) a validly existing separate account, duly established and maintained in accordance with applicable law; (iii) the Contracts will be issued in compliance in all material respects with all applicable federal and state laws; (iv) the Contracts currently are and at the time of issuance will be treated as annuity contracts or life insurance policies (including modified endowment contracts), whichever is appropriate, under applicable provisions of the Code; and (v) the Company and its Account qualify (or will qualify prior to the purchase by the Company of Fund shares for the Account) to purchase and hold shares of the Fund under Section 817(h) of the Code. 3.3. The Fund represents and warrants that: (i) the Fund is a corporation duly organized, validly existing and in good standing under Maryland law; (ii) the Fund's 1940 Act Registration Statement has been filed with the SEC in accordance with the provisions of the 1940 Act and the Fund is and shall remain duly registered as an open-end management investment company thereunder; (iii) the Fund Registration Statement has been declared effective by the SEC (or will be declared effective before the sale by the Fund of its shares pursuant to this Agreement); (iv) Fund shares sold pursuant to this Agreement have been duly authorized for issuance in -6-
4.2. Unless other arrangements are made, the Fund shall provide the
Companies with: (i) a copy, in camera-ready form or otherwise suitable for
printing or duplication, of each Fund Prospectus and any supplement thereto and
each Fund Statement of Additional Information and any supplement thereto; and
(ii) copies of the Fund's proxy materials, reports to shareholders, and other
communications to shareholders in such quantity as the Companies shall
reasonably require for distributing to Contract Owners.
4.3. The Companies shall amend each Contract's Registration Statement (if
any) and the Account's 1940 Act Registration Statement (if any) 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 Companies shall file,
register, qualify and obtain approval of their respective Contracts for sale to
the extent required by applicable insurance and securities laws of the various
states.
4.4. The Companies shall inform the Fund of any investment restrictions
imposed by state insurance law that may become applicable to the Fund from time
to time as a result of the Account's investment therein (including, but not
limited to, restrictions with respect to fees and expenses and investment
policies), other than those set forth on Schedule 4 to this Agreement. Upon
receipt of such information from the Companies, the Fund shall determine whether
it is in the best interests of shareholders to comply with any such
restrictions. If the Fund determines that it is not in the best interests of
shareholders (it being understood that "shareholders" for this purpose shall
mean Product Owners), the Fund shall so inform the Company, and the Fund and the
Company shall discuss alternative accommodations in the circumstances. If the
Fund determines that it is in the best interests of shareholders to comply with
such restrictions, the Fund and the Companies shall amend Schedule 4 to this
Agreement to reflect such restrictions.
4.5. The Companies shall provide Contracts, Contracts and Fund
Prospectuses, Contracts and Fund Statements of Additional Information, reports,
solicitations for voting instructions including any related Fund proxy
solicitation materials, and all amendments or supplements to any of the
foregoing, to Contract Owners and prospective Contract Owners, all in accordance
with the federal and any applicable state securities laws.
4.6. The Distributor shall sell and distribute the shares of the Series of
the Fund in accordance with the applicable provisions of the 1933 Act, the 1934
Act, the 1940 Act, the NASD Rule of Fair Practice, and state law.
4.7. All expenses incident to each party's performance under this Agreement
(including expenses expressly assumed by such party pursuant to this Agreement)
shall be paid by such party to the extent permitted by law.
(a) Expenses assumed by the Fund include, but are not limited to, the
costs of: (i) registration and qualification of the Fund shares under the
federal securities laws; (ii) preparation and filing with the SEC of the
Fund Prospectus, Fund Statement of Additional Information ("SAI"), Fund
Registration Statement, Fund proxy materials and
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shareholder reports, and supplements thereto, and preparation of a
camera-ready copy thereof; (iii) preparation of all statements and notices
required for the Fund by any federal or state securities law; (iv) printing
and mailing to Contract Owners of all Prospectuses, SAI's, proxy materials
and reports, and supplements thereto, required to be provided by the Fund
to its shareholders; (v) all taxes on the issuance or transfer of Fund
shares; and (vi) any expenses permitted to be paid or assumed by the Fund
pursuant to a plan, if any, under Rule 12b-1 under the 1940 Act. The Fund
otherwise shall pay no fee or other compensation to the Companies under
this Agreement, unless the parties otherwise agree, except that if the Fund
or any Series adopts and implements a plan pursuant to Rule 12b-1 under the
1940 Act to finance distribution expenses, then payments may be made to the
Companies in accordance with such plan. The Fund currently does not intend
to make any payments to finance distribution expenses pursuant to Rule
12b-1 under the 1940 Act or in contravention of such rule, although it may
make payments pursuant to Rule 12b-1 in the future. To the extent that it
decides to finance distribution expenses pursuant to Rule 12b-1, the Fund
undertakes to have a Board of Directors, a majority of whom are not
interested persons of the Fund, formulate and approve any plan under Rule
12b-1 to finance distribution expenses.
(b) Expenses assumed by each Company include, but are not limited to,
the costs of: (i) registration and qualification of the Contracts under the
federal and any applicable state securities laws; (ii) preparation and
filing with the SEC of the Contracts Prospectus and Contracts Registration
Statement; and (iii) preparation and dissemination of all statements and
notices to Contract Owners required by any federal or state insurance law
other than those paid for by the Fund.
(c) Expenses assumed by the Distributor include, but are not limited
to the costs of printing the Fund Prospectuses and SAI's for use in
connection with the sale of the Contracts to prospective Contract owners.
4.8. Any piece of advertising or sales literature or other promotional
material prepared by a Company in which the Fund is named and which will be used
by that Company shall be furnished by the Company to the Fund not less than 15
days prior to its use. No such material shall be used without prior written
approval of the Fund. The Fund may delegate its rights and responsibilities
under this provision to the Adviser or Distributor.
4.9. Any piece of advertising or sales literature or other promotional
material in which a Company or the Account is named and which will be used by
the Fund, the Adviser or the Distributor shall be furnished by the Fund, Adviser
or the Distributor, as applicable, to that Company not less than 15 days prior
to its use. No such material shall be used without prior written approval of the
Company.
4.10. The Companies shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund to
the public (including current and
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prospective Contract owners) in connection with the sale of the Contracts other
than the information or representations contained in the Fund Registration
Statement or Fund Prospectus (as such Registration Statement or Prospectus may
be amended or supplemented from time to time) or in reports or proxy statements
for the Fund, or in sales literature or other promotional material approved in
accordance with Section 4.8 of this Agreement, except with the prior written
consent of the Fund.
4.11. The Fund, the Adviser and the Distributor shall not give any
information or make any representations on behalf of the Companies or concerning
the Companies, the Account or the Contracts other than the information or
representations contained in the Contracts Registration Statement or Contracts
Prospectus (as such Registration Statement or Prospectus may be amended or
supplemented from time to time) or in published reports of the Account which are
in the public domain or approved in writing by the Companies for distribution to
Contract Owners, or in sales literature or other promotional material approved
in accordance with Section 4.9 of this Agreement except with the prior written
consent of the Companies.
4.12. The Fund and each Company shall provide to the other upon request at
least one complete copy of all Registration Statements, Prospectuses, Statements
of Additional Information, periodic and other shareholder or Contract Owner
reports, proxy statements, solicitations of voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the
above, that relate to the Fund, the Contracts or the Account, as the case may
be, promptly after the filing by or on behalf of such party of such document
with the SEC or other regulatory authorities.
4.13. Each party shall provide to the other upon request copies of draft
versions of any Registration Statements, Prospectuses, Statements of Additional
Information, periodic and other shareholder or Contract Owner reports, proxy
statements, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments or supplements to any of the above, to the extent
that the other party reasonably needs such information for purposes of preparing
a report or other filing to be filed with or submitted to a regulatory agency.
If a party requests any such information before it has been filed, the other
party will provide the requested information if then available and in the
version then available at the time of such request.
4.14. Each party hereto shall cooperate with the other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit each other and 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. However, such access shall not extend to attorney-client
privileged information.
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7.3. (a) The Companies shall report any potential or existing conflicts
promptly to the Fund Board, and in particular whenever Contract Owner voting
instructions are disregarded, and recognizes that it shall be responsible for
assisting the Fund Board in carrying out its responsibilities in connection with
the Exemptive Order. The Companies agree to carry out such responsibilities with
a view only to the interests of Contract Owners.
(b) The Companies shall at least annually submit to the Fund Board
such reports, materials or data as the Fund Board may reasonably request so
that the Fund Board and the Fund may fully carry out the obligations
imposed upon them by the conditions of the Exemptive Order, and such
reports, material and data shall be submitted more frequently if deemed
appropriate by the Fund Board.
7.4. If a majority of the Fund Board, or a majority of its directors who
are not "interested persons" as defined in the 1940 Act ("Disinterested
Directors"), determines that a material irreconcilable conflict exists with
regard to Contract Owner investments in the Fund, the Fund Board shall give
prompt notice to all Participating Insurance Companies. If the Fund Board
determines that a Company is responsible in full or in part for causing or
creating said conflict, that Company (and other responsible Participating
Insurance Companies) shall at no cost and expense to the Fund, and to the extent
reasonably practicable (as determined by a majority of the Disinterested
Directors), take such action as is necessary to remedy or eliminate the
irreconcilable material conflict. Such necessary action may include, but shall
not be limited to:
(a) Withdrawing the assets allocable to the Account from the Fund or
any Series thereof and reinvesting such assets in a different investment
medium, or submitting the question of whether such segregation should be
implemented to a vote of all affected Contract Owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity Contract
Owners, life insurance Contract Owners, or other Product Owners) that votes
in favor of such segregation or offering to the affected Contract Owners
the option of making such a change; and
(b) Establishing a new registered management investment company.
7.5. If a material irreconcilable conflict arises as a result of a decision
by a Company to disregard Contract Owner voting instructions and said decision
represents a minority position or would preclude a majority vote by all Contract
Owners having an interest in the Fund, that Company may be required, at the Fund
Board's election, to withdraw the Account's investment in the Fund and terminate
this Agreement with respect to such Account; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
Disinterested Directors. Any such withdrawal and termination must take place
within six (6) months after the Fund gives written notice that this provision is
being implemented, and until the end of that six month period the Adviser and
Fund shall continue to accept and implement orders by that
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Participating Insurance Companies or Qualified Plans) and any officer, trustee,
director, employee or agent of the foregoing, against any and all losses,
claims, damages or liabilities, joint or several (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amounts
paid with the written consent of that Company in settlement of, any action, suit
or proceeding or any claim asserted), to which they or any of them may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities are related to the sale or
acquisition of the Fund's 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 Contracts
Registration Statement, Contracts Prospectus, sales literature or other
promotional material for the Contracts or the Contracts themselves (or any
amendment or supplement to any of the foregoing), or 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 in light
of the circumstances in which they were made; provided that this obligation
to indemnify shall not apply if such statement or omission or such alleged
statement or alleged omission was made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of the
Fund, Distributor or Adviser for use in the Contracts Registration
Statement, Contracts Prospectus or in the Contracts or sales literature or
promotional material for the Contracts (or any amendment or supplement to
any of the foregoing) or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
(b) arise out of any untrue statement or alleged untrue statement of a
material fact contained in the Fund Registration Statement, Fund Prospectus
or sales literature or other promotional material of the Fund (or any
amendment or supplement to any of the foregoing), or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances in which they were made, if such statement or omission
was made in reliance upon and in conformity with information furnished in
writing to the Fund, the Distributor or the Adviser by or on behalf of the
Company; or
(c) arise out of or are based upon any wrongful conduct of the Company
or persons under its control (or subject to its authorization) with respect
to the sale or distribution of the Contracts or Fund shares; or
(d) arise as a result of any failure by the Company to provide the
services and furnish the materials or to make any payments as required
under this Agreement; or
(e) arise out of any material breach by the Company of this Agreement.
This indemnification will be in addition to any liability that the Company may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or
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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 State of Maryland, without giving effect to the principles of conflicts of law. 9.2. This Agreement shall be subject to the provisions of the 1933 Act, 1940 Act and Securities Exchange Act of 1934, as amended, and the rules and regulations and rulings thereunder, including such exemptions from those statutes, rules and regulations as the SEC may grant, and the terms hereof shall be limited, interpreted and construed in accordance therewith. ARTICLE X. Termination 10.1 This Agreement shall not terminate until the Fund is dissolved, liquidated, or merged into another entity, or, as to any Series of the Fund, the Account no longer invests in that Series. However, certain obligations of, or restrictions on, the parties to this Agreement may terminate as provided in Sections 10.2 and 10.3, and each Company may be required to redeem shares pursuant to Section 10.4 or in the circumstances contemplated by Article VII. 10.2. Termination of the Fund's Obligation to Sell. The obligation of the Fund and the Distributor to sell shares to a Company pursuant to Article II of this Agreement shall terminate at the option of the Fund or the Distributor upon notice to the Company as provided below: (a) the Fund Board has terminated the offering of Fund shares or Series shares pursuant to Section 2.1 of this Agreement; or (b) upon institution of formal proceedings against the Company by the NASD, the SEC, the insurance commission of any state 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 Account, the administration of the Contracts or the purchase of Fund shares, or an expected or anticipated ruling, judgment or outcome which would, in the Fund's reasonable judgment, materially impair the Company's ability to meet and perform the Company's obligations and duties hereunder; or -20-
(c) in the event any of the Contracts or interests in the Contracts or
Account, as applicable, are not registered, issued or sold in accordance
with applicable federal and/or state law; or
(d) if the Fund, the Adviser, or the Distributor respectively, shall
determine, in their sole judgment exercised in good faith, that either (1)
the Company shall have suffered a material adverse change in its business
or financial condition since the date of this Agreement or (2) the Company
shall have been the subject of material adverse publicity which is likely
to have a material adverse impact upon the business and operations of
either the Fund, the Adviser or the Distributor; or
(e) upon the Company's assignment of this Agreement (including,
without limitation, any transfer of any Contract or the Account to another
insurance company pursuant to an assumption reinsurance agreement) unless
the Fund consents thereto; or
(f) upon termination pursuant to Section 10.1 or notice from the
Company pursuant to Section 10.3.
Termination of the Fund's and Distributor's obligation shall take effect
immediately upon the giving of such notice upon the occurrence of an event
described in clauses (b) or (c) above, and 10 (ten) days after the giving of
such notice in all other cases. In exercising its option to terminate its
obligation to sell shares to the Company, the Fund and Distributor will continue
to make Fund shares available to the extent necessary to permit owners of
Contracts in effect on the effective date of such termination (hereinafter
referred to as "Existing Contracts") to reallocate investments in the Fund,
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts, unless the Existing
Contracts are the basis for the termination. In that case, the Fund may
nonetheless elect to continue to make Fund shares available for Existing
Contracts and if it so elects, shall promptly notify the Company whether the
Fund is electing to make Fund shares available after termination.
10.3. As to each Company. The restrictions on a Company under Section
2.8(a) of this Agreement shall terminate at the option of the Company upon 10
days' notice to the Fund:
(a) if shares of any Series are not reasonably available to meet the
requirements of the Contracts as determined by the Company, and the
Distributor or the Fund, after receiving written notice from the Company of
such non-availability, fails to make available a sufficient number of Fund
shares to meet the requirements of the Contracts within 10 days after
receipt thereof; or
(b) upon institution of formal proceedings against the Fund or the
Distributor by the NASD, the SEC or any state securities or insurance
commission or any other regulatory body; or
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and behalf by its duly authorized officer on the date
specified below.
PACIFIC LIFE INSURANCE COMPANY
(Company)
By: _____________________________________
Name: Xxxxx X. Xxxxxxx
Title: President
By: _____________________________________
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
PACIFIC LIFE & ANNUITY COMPANY
By: _____________________________________
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
By: _____________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
M FUND, INC.
(Fund)
By: _____________________________________
Name: Xxxxxx X. Xxxxx
Title: President
M FINANCIAL INVESTMENT ADVISERS, INC.
(Adviser)
By: _____________________________________
Name: Xxxxxx X. Xxxxx
Title: President
M HOLDINGS SECURITIES, INC.
By: _____________________________________
Name: Xxxxx X'Xxxxxx
Title: President
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M LIFE INSURANCE COMPANY
By: _____________________________________
Name: Xxxxx X'Xxxxxx
Title: Senior VP
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Schedule 1
Accounts of Pacific Life
Investing in the Fund
Effective as of the date the Agreement was executed, the following separate
accounts of the Company are subject to the Agreement:
==============================================================================================================
Name of Account Date Established by SEC 1940 Act Type of Product
and Subaccounts Board of Directors of Registration Number Supported by Account
the Company (if applicable)
--------------------------------------------------------------------------------------------------------------
Pacific Select Exec May 12, 1988 811-05563 Variable Life Policies
--------------------------------------------------------------------------------------------------------------
Xxxxxxx International Equity
Variable Account
--------------------------------------------------------------------------------------------------------------
Xxxxxx Core Growth Variable
Account
--------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
--------------------------------------------------------------------------------------------------------------
Xxxxxxx Enhanced U.S. Equity
Variable Account
--------------------------------------------------------------------------------------------------------------
Business Opportunity Value
Variable Account
--------------------------------------------------------------------------------------------------------------
Pacific COLI July 17, 1992 811- Variable Life Policies
--------------------------------------------------------------------------------------------------------------
Xxxxxxx International Equity
Variable Account
--------------------------------------------------------------------------------------------------------------
Xxxxxx Core Growth Variable
Account
--------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
--------------------------------------------------------------------------------------------------------------
Xxxxxxx Enhanced U.S. Equity
Variable Account
--------------------------------------------------------------------------------------------------------------
Business Opportunity Value
Variable Account
--------------------------------------------------------------------------------------------------------------
Pacific COLI II October 12, 1998 811- Variable Life Policies
--------------------------------------------------------------------------------------------------------------
Xxxxxxx International Equity
Variable Account
--------------------------------------------------------------------------------------------------------------
Xxxxxx Core Growth Variable
Account
--------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
--------------------------------------------------------------------------------------------------------------
Xxxxxxx Enhanced U.S. Equity
Variable Account
--------------------------------------------------------------------------------------------------------------
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==============================================================================================================
Name of Account Date Established by SEC 1940 Act Type of Product
and Subaccounts Board of Directors of Registration Number Supported by Account
the Company (if applicable)
--------------------------------------------------------------------------------------------------------------
Business Opportunity Value
Variable Account
--------------------------------------------------------------------------------------------------------------
Pacific COLI III October 12, 1998
--------------------------------------------------------------------------------------------------------------
Xxxxxxx International Equity
Variable Account
--------------------------------------------------------------------------------------------------------------
Xxxxxx Core Growth Variable
Account
--------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
--------------------------------------------------------------------------------------------------------------
Xxxxxxx Enhanced U.S. Equity
Variable Account
--------------------------------------------------------------------------------------------------------------
Business Opportunity Value
Variable Account
==============================================================================================================
Accounts of Pacific Life & Annuity Company
Investing in the Fund
Effective as of the date the Agreement was executed, the following separate
accounts of the Company are subject to the Agreement:
=================================================================================================================
Name of Account Date Established by SEC 1940 Act Type of Product
and Subaccounts Board of Directors of Registration Number Supported by Account
the Company (if applicable)
-----------------------------------------------------------------------------------------------------------------
PL&A Separate Account II June 8, 2002 811- Variable Life Policies
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx International Equity
Variable Account
-----------------------------------------------------------------------------------------------------------------
Xxxxxx Core Growth Variable
Account
-----------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx Enhanced U.S. Equity
Variable Account
-----------------------------------------------------------------------------------------------------------------
Business Opportunity Value
Variable Account
=================================================================================================================
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Schedule 2
----------
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Effective as of the date the Agreement was executed, the following classes of
Contracts are subject to the Agreement:
=============================================================================================================
Policy Marketing Name SEC 1933 Act Name of Supporting Account Annuity or Life
Registration Number
(if applicable)
=============================================================================================================
Pacific Select Exec 33-21754 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
Pacific Select Choice 33-57908 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
Pacific Select Estate Preserver 333-01717 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
Pacific Select Estate Preserver II 333-20355 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
Pacific Select Estate Maximizer 333-14005 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
M's Versatile Product 333-61135 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
Custom COLI Pacific COLI Life
-------------------------------------------------------------------------------------------------------------
Custom COLI Rider Pacific COLI Life
-------------------------------------------------------------------------------------------------------------
Custom COLI II Pacific COLI II Life
-------------------------------------------------------------------------------------------------------------
Custom COLI III Pacific COLI III Life
-------------------------------------------------------------------------------------------------------------
Pacific Select Estate Preserver III 333-01713 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
Pacific Select Estate Preserver IV 333-20355 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
Pacific Select Estate Preserver V 333-65458 Pacific Select Exec Life
-------------------------------------------------------------------------------------------------------------
Magnastar PL&A Separate Account II Life
=============================================================================================================
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Schedule 3
----------
Fund Series and Other Funding
Vehicles Available Under
Each Class of Contracts
Effective as of the date the Agreement was executed, the following Fund Series
and other Funding Vehicles are available under the Contracts:
===============================================================================================
Contract Marketing Name Fund Series Other Funding Vehicles
-----------------------------------------------------------------------------------------------
M Fund Xxxxxxx International Equity Fund Pacific Select Fund
-----------------------------------------------------------------------------------------------
M Fund Xxxxxx Core Growth Fund Pacific Select Fund
-----------------------------------------------------------------------------------------------
M Fund Frontier Capital Appreciation Fund Pacific Select Fund
-----------------------------------------------------------------------------------------------
M Fund Enhanced U.S. Equity Fund Pacific Select Fund
-----------------------------------------------------------------------------------------------
M Fund Business Opportunity Value Fund Pacific Select Fund
===============================================================================================
-32-
Schedule 4
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Investment Restrictions
Applicable to the Fund
Effective as of the date the Agreement was executed, the following investment
restrictions are applicable to the Fund:
Foreign Country Diversification Guidelines to be followed by each portfolio of a
Separate Account are as follows:
An International or Global Portfolio will invest in the securities of issuers
domiciled or primarily traded in at least three different foreign countries at
all times, and may not invest more than 50% of the Portfolio's assets in any one
second tier country or more than 25% of the Portfolio's assets in any one third
tier country. First tier countries are: Australia, Canada, France, Germany,
Japan, the United Kingdom, and the United States. Second tier countries are all
countries not in the first or third tier. Third tier countries are countries
identified as "emerging" or "developing" by the International Bank for
Reconstruction and Development ("World Bank") or International Finance
Corporation. The Portfolio is not subject to any limit upon investment in
issuers domiciled or primarily traded in the United States.
Borrowed Guidelines to be followed by each portfolio of a Separate Account are
as follows:
A Portfolio may leverage its assets by borrowing amounts equivalent to no more
than 33?% of its total assets. For purposes of this limitation, entering into a
reverse repurchase agreement shall be considered a "borrowing".
-34-
Effective as of September 22, 2003, the following classes of Contracts are hereby added to this Schedule 2 and made subject to the Agreement:
| Policy Marketing Name | SEC 1933 Act Registration Number (if applicable) |
Name of Supporting Account | Annuity or Life | |||
| M’s Versatile Product—Survivorship | 333-106969 | Pacific Select Exec | Life | |||
| 33- | ||||||
| 33- | ||||||
IN WITNESS WHEREOF, the Fund, the Adviser, the Distributor and the Company hereby amend this Schedule 2 in accordance with Article XI of the Agreement.
| M FUND, INC. |
PACIFIC LIFE INSURANCE COMPANY | |||||||
| By: | /s/XXXXXX X. XXXXX |
By: | /s/XXXXX X. XXXXXXX | |||||
| Name: Xxxxxx X. Xxxxx Title: President |
Name: Xxxxx X. Xxxxxxx Title: President | |||||||
| M FINANCIAL INVESTMENT ADVISERS, INC. |
PACIFIC LIFE & ANNUITY COMPANY | |||||||
| By: | /s/XXXXXX X. XXXXX |
By: | /s/XXXXX X. XXXXXX | |||||
| Name: Xxxxxx X. Xxxxx Title: President |
Name: Xxxxx X. Xxxxxx Title: Executive Vice President | |||||||
| M HOLDINGS SECURITIES, INC. |
M LIFE INSURANCE COMPANY | |||||||
| By: | /s/XXXXX X’XXXXXX |
By: | /s/XXXXX X’XXXXXX | |||||
| Name: Xxxxx X’Xxxxxx Title: President |
Name: Xxxxx X’Xxxxxx Title: Senior Vice President | |||||||