DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
SERVICE SHARES OF JANUS ASPEN SERIES
(for Insurance Companies)
This Agreement is made as of April 30, 2003, by and between Janus
Distributors LLC (the "Distributor"), a Delaware limited liability company, and
New York Life Insurance and Annuity Corporation (the "Company"), a Delaware
corporation.
RECITALS
A. The Company has entered into a participation agreement dated
April 30, 2003 with Janus Aspen Series (the "Trust"), an open-end investment
company registered under the Investment Company Act of 1940 (the "1940 Act")
with respect to the purchase of a class of shares designated "Service Shares" of
one or more series of the Trust (each a "Portfolio") by certain separate
accounts of the Company ("Accounts").
B. The Distributor serves as the distributor to Service Shares.
C. The Company desires to provide certain distribution and
shareholder services to owners ("Contract Owners") of variable life insurance
policies or variable annuity contracts ("Contracts") in connection with their
allocation of contract values in the Service Shares of the Portfolios and
Distributor desires Company to provide such services, subject to the conditions
of this Agreement.
D. Pursuant to Rule 12b-1 under the 1940 Act, the Service Shares
of each Portfolio have adopted a Distribution and Shareholder Servicing Plan
(the "12b-1 Plan") which, among other things, authorizes the Distributor to
enter into this Agreement with organizations such as Company and to compensate
such organizations out of each Portfolio's average daily net assets attributable
to the Service Shares.
AGREEMENT
1. Services of Company
(a) The Company shall provide any combination of the
following support services, as agreed upon by the parties from time to time, to
Contract Owners who allocate contract values to the Service Shares of the
Portfolios: delivering prospectuses, statements of additional information,
shareholder reports, proxy statements and marketing materials to prospective and
existing Contract Owners; providing educational materials regarding the Service
Shares; providing
- 1 -
facilities to answer questions from prospective and existing Contract Owners
about the Portfolios; receiving and answering correspondence; complying with
federal and state securities laws pertaining to the sale of Service Shares;
assisting Contract Owners in completing application forms and selecting account
options; and providing Contract Owner record-keeping and similar administrative
services.
(b) The Company will provide such office space and
equipment, telephone facilities, and personnel as may be reasonably necessary or
beneficial in order to provide such services to Contract Owners.
(c) The Company will furnish to the Distributor, the
Trust or their designees such information as the Distributor may reasonably
request, and will otherwise cooperate with the Distributor in the preparation of
reports to the Trust's Board of Trustees concerning this Agreement, as well as
any other reports or filings that may be required by law.
2. Indemnification.
(a) Indemnification By the Company. The Company shall
indemnify Distributor, the Trust, and their
affiliates, directors, trustees, employees and
shareholders for any loss (including without
limitation, litigation costs and expenses and
attorneys' and experts' fees) directly resulting from
Company's negligent or willful act, omission or
error, or Company's breach of this Agreement. Such
indemnification shall survive termination of the
Agreement.
(b) Indemnification By the Distributor. The Distributor
shall indemnify the Company and their directors,
officers, employees and agents for any loss
(including without limitation, litigation costs and
expenses and attorneys' and experts' fees) directly
resulting from the Distributor's negligent or willful
act, omission or error, or the Distributor's breach
of this Agreement. Such indemnification shall survive
termination of the Agreement.
3. Maintenance of Records. The Company shall maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the services herein. Upon the reasonable request of
Distributor or the Trust, Company shall provide Distributor, the Trust or the
representative of either, copies of all such records.
4. Fees. In consideration of Company's performance of the
services described in this Agreement, Distributor shall pay to the Company a
monthly fee ("Distribution Fee") calculated as follows: the average aggregate
amount invested in each month in the Service Shares of each
- 2 -
Portfolio by the Accounts is multiplied by a pro-rata fee factor. The pro-rata
fee factor is calculated by: (a) dividing the per annum factor set forth on
Exhibit A for the Service Shares of each Portfolio by the number of days in the
applicable year, and (b) multiplying the result by the actual number of days in
the applicable month. The average aggregate amount invested over a one-month
period shall be computed by totaling the aggregate investment by the Accounts
(share net asset value multiplied by total number of shares held) on each
calendar day during the month and dividing by the total number of calendar days
during such month.
Distributor will calculate the fee at the end of each month
and will make such reimbursement to the Company. The reimbursement check will be
accompanied by a statement showing the calculation of the monthly amounts
payable by Distributor and such other supporting data as may be reasonably
requested by the Company.
- 3 -
5. Representations, Warranties and Agreements. The Company
represents, warrants, and covenants that:
(a) It and its employees and agents meet the requirements
of applicable law, including but not limited to federal and state securities law
and state insurance law, for the performance of services contemplated herein;
(b) It will not purchase Service Shares with Account
assets derived from tax-qualified retirement plans except indirectly, through
Contracts purchased in connection with such plans and the Distribution Fee does
not include any payment to the Company that is prohibited under the Employee
Retirement Income Securities Act of 1974 ("ERISA") with respect to any assets of
a Contract Owner invested in a Contract using the Portfolios as investment
vehicles;
(c) If required by applicable law, the Company will
disclose to each Contract Owner the existence of the Distribution Fee received
by the Company pursuant to this Agreement in a form consistent with the
requirements of applicable law.
6. Termination.
(a) Unless sooner terminated with respect to any
Portfolio, this Agreement will continue with respect to a Portfolio only if the
continuance of a form of this Agreement is specifically approved at least
annually by the vote of a majority of the members of the Board of Trustees of
the Trust who are not "interested persons" (as such term is defined in the 0000
Xxx) and who have no direct or indirect financial interest in the 12b-1 Plan
relating to such Portfolio or any agreement relating to such 12b-1 Plan,
including this Agreement, cast in person at a meeting called for the purpose of
voting on such approval.
(b) This Agreement will automatically terminate with
respect to a Portfolio in the event of its assignment (as such term is defined
in the 0000 Xxx) with respect to such Portfolio. This Agreement may be
terminated with respect to any Portfolio by the Distributor or by the Company,
without penalty, upon 60 days' prior written notice to the other party. This
Agreement may also be terminated with respect to any Portfolio at any time
without penalty by the vote of a majority of the members of the Board of
Trustees of the Trust who are not "interested persons" (as such term is defined
in the 0000 Xxx) and who have no direct or indirect financial interest in the
12b-1 Plan relating to such Portfolio or any agreement relating to such Plan,
including this Agreement, or by a vote of a majority of the Service Shares of
such Portfolio on 60 days' written notice.
(c) In addition, either party may terminate this
Agreement immediately if at any time it is determined by any federal or state
regulatory authority that compensation to be paid under this Agreement is in
violation of or inconsistent with any federal or state law.
- 4 -
7. Miscellaneous.
(a) No modification of any provision of this Agreement
will be binding unless in writing and executed by the parties. No waiver of any
provision of this Agreement will be binding unless in writing and executed by
the party granting such waiver.
(b) This Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective successors and assigns;
provided, however that neither this Agreement nor any rights, privileges,
duties, or obligations of the parties may be assigned by either party without
the written consent of the other party or as expressly contemplated by this
Agreement.
(c) This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Colorado, exclusive of conflicts of
laws.
(d) This Agreement may be executed in several
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
JANUS DISTRIBUTORS LLC NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By:__________________________ By:_____________________________
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Rock
Title: Vice President Title: Senior Vice President
- 5 -
EXHIBIT A TO DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name of Portfolio Fee Factor(monthly fee at an annual rate as
a percentage of the average daily net asset
value of service shares held on behalf of
policy owners)*
Janus Aspen Series Balanced ____%
(Service Shares)
Janus Aspen Series Worldwide Growth ____%
(Service Shares)
*Shall not exceed 0.25%
- 6 -
