DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT Service Shares of Janus Aspen Series (for Insurance Companies)
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Service Shares of Janus Aspen Series
(for Insurance Companies)
Service Shares of Janus Aspen Series
(for Insurance Companies)
This Agreement is made as of March 30, 2007 by and between Janus Distributors LLC (the
“Distributor”), a Delaware limited liability company, and Pacific Life Insurance Company (the
“Company”), a Nebraska corporation.
Recitals
A. The Company has entered into a participation agreement dated March 30, 2007 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 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
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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. Market Timing and Late Trading.
(a) Company acknowledges that Distributor has the right to refuse any purchase order for any
reason, particularly if the Trust determines that a Fund would be unable to invest the money
effectively in accordance with its investment policies or would otherwise be adversely affected due
to the size of the transaction, frequency of trading by the account or other factors.
(b) Company certifies that it is following all relevant rules and regulations, as well as
internal policies and procedures, regarding “forward pricing” and the handling of mutual fund
orders on a timely basis. As evidence of its compliance, Company shall:
(i) permit Distributor or its agent to audit its operations, as well as any books and
records preserved in connection with its provision of services under this Agreement;
(ii) provide Distributor with the results of a Statement on Auditing Standards No. 70
(SAS 70) review or similar report of independent auditors as soon as practicable following
execution of this Agreement; or
(iii) provide annual certification to Distributor that it is following all relevant
rules, regulations, and internal policies and procedures regarding “forward pricing” and the
handling of mutual fund orders on a timely basis.
3. Indemnification. 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.
4. 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.
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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.
5. 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
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.
6. 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.
(d) It is in compliance with all applicable anti-money laundering laws, rules and regulations
including, but not limited to, the U.S.A. PATRIOT Act of 2001, P.L. 107-56.
7. 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
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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.
8. 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.
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IN WITNESS WHEREOF, the parties have caused their duly authorized officers to execute this
Distribution and Shareholders Services Agreement as of the date and year first written.
| JANUS DISTRIBUTORS LLC | ||
| By: | ||
Name:
|
Xxxxxxx Xxxxxxxxxx | |
Title:
|
President | |
| PACIFIC LIFE INSURANCE COMPANY | ||
| By: | ||
Name:
|
Xxxxx X. Xxxx | |
Title:
|
Executive Vice President | |
| and Chief Financial Officer | ||
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Exhibit A to Distribution and Shareholder Services Agreement
| Name of Portfolio | Fee Factor* | |||
All Portfolios of Janus Aspen Series |
0.25 | % | ||
(Service Shares) |
||||
| * | Shall not exceed 0.25% |
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