FUND PARTICIPATION AGREEMENT
Among
JANUS ASPEN SERIES
and
AETNA INSURANCE COMPANY OF AMERICA
and
JANUS CAPITAL CORPORATION
Aetna Insurance Company of America (the "Company") Janus Aspen Series
(the "Fund") and Janus Capital Corporation (the "Adviser") hereby agree to an
arrangement whereby the Fund shall be made available to serve as underlying
investment media for Variable Annuity or Variable Life Contracts ("Contracts")
to be issued by the Company.
1. Establishment of Accounts; Availability of Fund.
(a) The Company represents that it has established Variable Annuity
Accounts I and II may establish such other accounts as may be set
forth in Schedule A attached hereto and as may be amended from
time to time with the mutual consent of the parties hereto (the
"Accounts"), each of which is a separate account under Connecticut
Insurance law, and has registered or will register each of the
Accounts (except for such Accounts for which no such registration
is required) as a unit investment trust under the Investment
Company Act of 1940 (the "1940 Act"), to serve as an investment
vehicle for the Contracts. Each Contract provides for the
allocation of net amounts received by the Company to an Account
for investment in the shares of one of more specified open-end
management investment companies available through that Account as
underlying investment media. Selection of a particular investment
management company and changes therein from time to time are made
by the participant or Contract owner (hereinafter "Participant" or
"Contract Owner"), as applicable under a particular Contract.
The Company represents and warrants that it is an insurance
company duly organized and in good standing under the laws of the
State of Connecticut and that it has legally and validly
established each Account as a segregated asset account under such
law.
The Company represents and warrants that the Contracts or
interests in the Accounts (1) are or, prior to issuance, will be
registered as securities under the
1933 Act or, alternatively (2) are not registered because they
are properly exempt from registration under the 1933 Act or will
be offered exclusively in transactions that are properly exempt
from registration under the 1933 Act. The Company further
represents and warrants that the Contracts will be issued in
compliance in all material respects with all applicable federal
and state laws;
(b) The Fund and the Adviser represent and warrant that the
investments of the series of the Fund (each designated a
"Portfolio") specified in Schedule B attached hereto (as may be
amended from time to time with the mutual consent of the parties
hereto) will at all times be adequately diversified within the
meaning of Section 817(h) of the Internal Revenue Service Code of
1986, as amended (the "Code"), and the Regulations thereunder, and
that at all times while this agreement is in effect, all
beneficial interests will be owned by one or more insurance
companies, qualified plans, or by any other party permitted under
Section 1.817-5(f)(3) of the Regulations promulgated under the
Code or by the successor thereto, or by any other party permitted
under a Revenue Ruling or private letter ruling granted by the
Internal Revenue Service.
2. Pricing Information; Orders; Settlement.
(a) The Fund will make Fund shares available to be purchased by the
Company, and will accept redemption orders from the Company, on
behalf of each Account at the net asset value applicable to each
order on those days on which the New York Stock Exchange (the
"Exchange") is open and the Fund is obligated to calculate its net
asset value (a "Business Day"). Fund shares shall be purchased and
redeemed in such quantity and at such time determined by the
Company to be necessary to meet the requirements of those
Contracts for which the Fund serve as underlying investment media,
provided, however, that the Board of Trustees of the Fund
(hereinafter the "Trustees") may upon reasonable notice to the
Company, refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of shares of any Portfolio if
such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Trustees, acting
in good faith and in the best interests of the shareholders of any
Portfolio and in compliance with their fiduciary obligations under
federal and/or any applicable state laws, necessary in the best
interests of the shareholders of any Portfolio.
(b) The Fund will provide to the Company closing net asset value,
dividend and capital gain information as soon as reasonably
practical after the close of trading each Business Day but in no
event later than 7:00 p.m. Eastern Standard Time on such Business
Day. The Fund shall be liable to the Company for systems and out
of pocket costs (as well as the cost to make the Accounts whole)
incurred by the Company in making a Contract Owner's or
Participant's Account whole if such costs or expenses are a result
of the
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Fund's failure to provide timely or correct (as determined by the
Fund) net asset values, dividend and capital gains information or
if the Fund changes such information after the Company receives
it. The Company will send via facsimile or electronic transmission
to the Fund or its specified agent orders to purchase and/or
redeem Fund shares by 10:00 a.m. Eastern Standard Time the
following Business Day. Payment for net purchases will be wired by
the Company to an account designated by the Fund to coincide with
the order for shares of the Fund. The Company hereby elects to
receive all such income dividends and capital gain distributions
as are payable on a Portfolio's shares in additional shares of
that Portfolio.
(c) The Fund hereby appoints the Company as its agent for the limited
purpose of accepting purchase and redemption orders for Fund
shares relating to the Contracts from Contract Owners or
Participants. Orders from Contract Owners or Participants received
from any distributor of the Contracts (including affiliates of the
Company) by the Company, acting as agent for the Fund, prior to
the close of the Exchange on any given Business Day will be
executed by the Fund at the net asset value determined as of the
close of the Exchange on such Business Day, provided that the Fund
receives written (or facsimile) notice of such order by 10 a.m.
Eastern Standard Time on the next following Business Day. Any
orders received by the Company acting as agent on such day but
after the close of the Exchange will be executed by the Fund at
the net asset value determined as of the close of the Exchange on
the next Business Day following the day of receipt of such order,
provided that the Fund receives written (or facsimile) notice of
such order by 10 a.m. Eastern Standard Time within two Business
Days following the day of receipt of such order.
(d) Payments for net redemption's of shares of the Fund will be wired
by the Fund to an account designated by the Company. Payments for
net purchases of the Fund will be wired by the Company to an
account designated by the Fund on the same Business Day the
Company places an order to purchase Fund shares. Payments shall be
in federal funds transmitted by wire.
(e) Each party has the right to rely on information or confirmations
provided by the other party (or by any affiliate of the other
party), and shall not be liable in the event that an error is a
result of any misinformation supplied by the other party.
(f) The Company agrees to purchase and redeem the shares of the
Portfolios named in Schedule B offered by the then current
prospectus and statement of additional information of the Fund in
accordance with the provisions of such prospectus and statement of
additional information. The Company shall not permit any person
other than a Contract owner or Participant to give instructions to
the Company which would require the Company to redeem or
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exchange shares of the Fund. This provision shall not be construed
to prohibit the Company from substituting shares of another fund,
as permitted by law.
(g) Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or the
Accounts. Shares ordered from the Fund will be recorded in the
appropriate xxxxxx for each Account or the appropriate subaccount
of each Account.
3. Expenses.
(a) Except as otherwise provided in this Agreement, all expenses
incident to the performance by the Fund under this Agreement shall
be paid by the Fund, including the cost of registration of Fund
shares with the Securities and Exchange Commission (the "SEC") and
in states where required. The Fund and Adviser shall pay no fee or
other compensation to the Company under this Agreement, and the
Company shall pay no fee or other compensation to the Fund or
Adviser, except as provided herein and in Schedule C attached
hereto and made a part of this Agreement as may be amended from
time to time with the mutual consent of the parties hereto. All
expenses incident to performance by each party of its respective
duties under this Agreement shall be paid by that party, unless
otherwise specified in this Agreement.
(b) The Fund or the Adviser shall provide to the Company Post Script
files of periodic fund reports to shareholders and other materials
that are required by law to be sent to Contract Owners. In
addition, the Fund or the Adviser shall provide the Company with a
sufficient quantity of its prospectuses, statements of additional
information and any supplements to any of these materials, to be
used in connection with the offerings and transactions
contemplated by this Agreement. In addition, the Fund shall
provide the Company with a sufficient quantity of its proxy
material that is required to be sent to Contract Owners. The
Company shall be responsible for delivering such materials to
Contract Owners in accordance with federal and state law, provided
the Fund or Adviser provides such materials to the Company on a
timely basis. The Adviser shall be permitted to review and approve
the typeset form of such material prior to such printing provided
such material has been provided by the Adviser to the Company
within a reasonable period of time prior to typesetting and
further provided that the Company's procedures provide for a
reasonable amount of time for the Adviser to provide such
materials. The Company shall be responsible for conforming
information in the typeset form to the information provided in the
post script files.
(c) In lieu of the Fund's or Adviser's providing printed copies of
prospectuses, statements of additional information and any
supplements to any of these materials, and periodic fund reports
to shareholders, the Company shall have the right to request that
the Fund transmit a copy of such materials in an
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electronic format (Post Script files), which the Company may use
to have such materials printed together with similar materials of
other Account funding media that the Company or any distributor
will distribute to existing or prospective Contract Owners or
Participants subject to the conditions set forth in (b) above.
4. Representations.
The Company agrees that it and its agents shall not, without the written
consent of the Fund or the Adviser, make representations concerning the Fund, or
its shares except those contained in the then current prospectuses and in
current printed sales literature approved by (or deemed approved by failure to
request changes within the expected time frame or because a form of such
materials has been approved or deemed approved) the Fund or the Adviser.
5. Termination.
This agreement shall terminate as to the sale and issuance of new
Contracts:
(a) at the option of either the Company, the Adviser or the Fund, upon
sixty days advance written notice to the other parties;
(b) at the option of the Company, upon one week advance written notice
to the Adviser and the Fund, if Fund shares are not available for
any reason to meet the requirement of Contracts as determined by
the Company. Reasonable advance notice of election to terminate
shall be furnished by Company;
(c) at the option of either the Company, the Adviser or the Fund,
immediately upon institution of formal proceedings against the
broker-dealer or broker-dealers marketing the Contracts, the
Account, the Company, the Fund or the Adviser by the National
Association of Securities Dealers, Inc. (the "NASD"), the SEC or
any other regulatory body;
(d) upon the determination of the Accounts to substitute for the
Fund's shares the shares of another investment company in
accordance with the terms of the applicable Contracts. The Company
will give 60 days written notice to the Fund and the Adviser of
any decision to replace the Fund's' shares;
(e) upon "assignment" of this Agreement as that term is defined in the
1940 Act, unless made with the written consent of all other
parties hereto;
(f) if Fund shares are not registered, issued or sold in conformance
with Federal law or such law precludes the use of Fund shares as
an underlying investment medium for Contracts issued or to be
issued by the Company. Prompt notice shall be given by the
appropriate party should such situation occur.
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6. Continuation of Agreement.
Termination as the result of any cause listed in Section 5 shall not
affect the Fund's obligation to furnish its shares to Contracts then in force
for which its shares serve or may serve as the underlying medium unless such
further sale of Fund shares is prohibited by law or the SEC or other regulatory
body, or is determined by the Fund's Board to be necessary in the best interests
of the shareholders of any Portfolio.
7. Advertising Materials; Filed Documents.
(a) Advertising and sales literature with respect to the Fund prepared
by the Company or its agents for use in marketing its Contracts
will be submitted to the Fund or its designee for review before
such material is submitted to any regulatory body for review. No
such material shall be used if the Fund or its designee reasonably
object to such use in writing, transmitted by facsimile within
three Business Days after receipt of such material.
(b) The Fund will provide additional copies of its financials as soon
as available to the Company and at least one complete copy of all
registration statements, prospectuses, statements of additional
information, annual and semi-annual reports, proxy statements and
all amendments or supplements to any of the above that relate to
the Fund promptly after the filing of such document with the SEC
or other regulatory authorities. At the Adviser's request, the
Company will provide to the Adviser at least one complete copy of
all registration statements, prospectuses, statements of
additional information, annual and semi-annual reports, proxy
statements, and all amendments or supplements to any of the above
that relate to the Account promptly after the filing of such
document with the SEC or other regulatory authority. The Fund and
Adviser will not be responsible for any information contained in
such materials that they have been given an opportunity to review
before filing.
(c) The Fund or the Adviser will provide via Excel spreadsheet
diskette format or in electronic transmission or other mutually
agreeable format to the Company at least quarterly, portfolio
information necessary to update Fund profiles within ten Business
Days following the end of each quarter.
(d) The Fund will reimburse the Company for any incorrect information
provided to the Company under this Section as provided for in
Schedule C.
8. Proxy Voting.
(a) The Company shall provide pass-through voting privileges on Fund
shares held by registered separate accounts to all Contract
Owner's and Participant's to the extent the SEC continues to
interpret the 1940 Act as requiring such
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privileges. The Company shall provide pass-through voting
privileges on Fund shares held by unregistered separate accounts
to all Contract Owner's.
(b) The Company will distribute to Contract Owner's and Participant's,
as appropriate, all proxy material furnished by the Fund and will
vote Fund shares in accordance with instructions received from
such Contract Owner's and Participant's. If and to the extent
required by law, the Company, with respect to each group Contract
and in each Account, shall vote Fund shares for which no
instructions have been received in the same proportion as shares
for which such instructions have been received. The Company and
its agents shall not oppose or interfere with the solicitation of
proxies for Fund shares held for such Contract Owner's and
Participant's.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Fund and the
Adviser, and their trustees, directors, officers, employees,
agents and each person, if any, who controls the Fund or its
Adviser within the meaning of the Securities Act of 1933 (the
"1933 Act") against any losses, claims, damages or liabilities to
which the Fund or Adviser or any such trustee, director, officer,
employee, agent, or controlling person may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) (i) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement, prospectus or sales literature of the Company or arise
out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii)
arise out of or as a result of conduct, statements or
representations (other than statements or representations
contained in the prospectuses or sales literature of the Fund) of
the Company or its agents, with respect to the sale and
distribution of Contracts for which Fund shares are the underlying
investment (iii) arise out of or result from any failure by the
Company to provide the services or furnish the materials required
under the terms of this Agreement; or (iv) arise out of or result
from any material breach of any representation and/or warranty
made by the Company in the Agreement or arise out of or result
from any other material breach of this Agreement by the Company.
The Company will reimburse any legal or other expenses reasonably
incurred by the Fund or Adviser or any such trustee, director,
officer, employee, agent, investment adviser, or controlling
person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or omission or alleged omission
made in such Registration Statement or prospectus in conformity
with written materials furnished to the Company by the Fund
specifically for use therein.
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(b) The Fund and the Adviser agree to indemnify and hold harmless the
Company and its directors, officers, employees, agents and each
person, if any, who controls the Company within the meaning of the
1933 Act against any losses, claims, damages or liabilities to
which the Company or any such director, officer, employee, agent
or controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) (i) arise out of or are based upon
any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, prospectuses or
sales literature of the Fund or Adviser or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) arise out of or result from any
failure by the Fund and/or Adviser to provide the services or
furnish the materials required under the terms of this Agreement;
or (iii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund and/or Adviser in
the Agreement or arise out of or result from any other material
breach of this Agreement by the Fund and/or Adviser. The Fund will
reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, employee, agent, or
controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the Fund will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or omission or alleged
omission made in such Registration Statement or prospectuses which
are in conformity with written materials furnished to the Fund by
the Company specifically for use therein.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying
party hereunder, notify the indemnifying party of the commencement
thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 10. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to
the extent that it may wish to, assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section 9
for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
10. Potential Conflicts.
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(a) The Company has received a copy of an application for exemptive
relief, as amended, filed by the Fund 5/21/93 on and on 12/9/93
with the SEC and the order issued by the SEC dated 3/2/94 (File
No. 812-8408) in response thereto (the "Shared Funding Exemptive
Order"). The Company has reviewed the conditions to the requested
relief set forth in such application for exemptive relief. As set
forth in such application, the Board of Trustees of Fund (the
"Board") will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the Contract
Owners of all separate accounts ("Participating Companies")
investing in the Fund. An irreconcilable material conflict may
arise for a variety of reasons, including: (i) an action by any
state insurance regulatory authority; (ii) a change in applicable
federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action
or interpretative letter, or any similar actions by insurance, tax
or securities regulatory authorities; (iii) an administrative or
judicial decision in any relevant proceeding; (iv) the manner in
which the investments of any portfolio are being managed; (v) a
difference in voting instructions given by variable annuity
Contract Owners and variable life insurance Contract Owners; or
(vi) a decision by an insurer to disregard the voting instructions
of Contract Owners. The Board shall promptly inform the Company if
it determines that an irreconcilable material conflict exists and
the implications thereof.
(b) The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the Shared Funding
Exemptive Order by providing the Board with all information
reasonably necessary for the Board to consider any issues raised.
This includes, but is not limited to, an obligation by the Company
to inform the Board whenever Contract Owner voting instructions
are disregarded.
(c) If a majority of the Board, or a majority of its disinterested
Board members, determines that a material irreconcilable conflict
exists with regard to Contract Owner investments in a Fund, the
Board shall give prompt notice to all Participating Companies and
the Company shall, in cooperation with other Participating
Companies whose Contract Owners are affected, and to the extent
reasonably practicable (as determined by a majority of the
disinterested Board members), 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:
(i) withdrawing the assets allocable to the Account from the Fund
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
9
any appropriate group (i.e., annuity Contract Owners, life
insurance Contract Owners, or variable Contract Owners of
one or more Participating Companies) that votes in favor of
such segregation, or offering to the affected Contract
Owners the option of making such a change; and/or
(ii) establishing a new registered management investment company
or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard its Contract Owner voting
instructions and said decision represents a minority position or
would preclude a majority vote by all of its Contract Owners
having an interest in the Fund, the Company at its sole cost, may
be required, at the Board's election, to withdraw an Account's
investment in the Fund and terminate this Agreement; provided,
however, that such withdrawal and termination shall be limited to
the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members
of the Board.
(e) For the purpose of this Section 10, a majority of the
disinterested Board members shall determine whether or not any
proposed action adequately remedies any irreconcilable material
conflict, but in no event will the Fund be required to establish a
new funding medium for any Contract. The Company shall not be
required by this Section 11 to establish a new funding medium for
any Contract if an offer to do so has been declined by vote of a
majority of the Contract Owners or Participants materially
adversely affected by the irreconcilable material conflict.
(f) If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with
respect to mixed or shared funding (as defined in the Exemptive
Order, then the Fund and/or the Participating Insurance Companies,
as appropriate, shall take such steps as may be necessary to
comply with Rules 6e-2 and 63-3(T), as amended, and Rule 6e-3, as
adopted, to the extent such rules are applicable.
11. Miscellaneous.
(a) Amendment and Waiver. Neither this Agreement, nor any provision
hereof, may be amended, waived, discharged or terminated orally,
but only by an instrument in writing signed by all parties hereto.
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(b) Notices. All notices and other communications hereunder shall be
given or made in writing and shall be delivered personally, or
sent by telex, telecopier or registered or certified mail, postage
prepaid, return receipt requested, to the party or parties to whom
they are directed at the following addresses, or at such other
addresses as may be designated by notice from such party to all
other parties.
To the Company:
Aetna Insurance Company of America
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Counsel
To the Fund:
Janus Aspen Series
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
To the Advisor:
Janus Capital Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Any notice, demand or other communication given in a manner prescribed in
this subsection (b) shall be deemed to have been delivered on receipt.
(c) Successors and Assigns. This agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any party hereto may execute this Agreement by
signing any such counterpart.
(e) Severability. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby.
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(f) Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto and supersedes all
prior agreement and understandings relating to the subject matter
hereof.
(g) Governing Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Connecticut.
(h) It is understood by the parties that this Agreement is not an
exclusive arrangement in any respect.
(i) The terms of this Agreement and the Schedules thereto will be held
confidential by each party except to the extent that either party
or its counsel may deem it necessary to disclose such terms.
(j) Each party shall cooperate with each other party and all
appropriate governmental authorities (including without limitation
the Securities and Exchange Commission, the National Association
of Securities Dealers, Inc., and state insurance regulators) and
shall permit such authorities reasonable access to its books and
records in connection with any investigation or inquiry relating
to this Agreement or the transactions contemplated hereby.
(k) The Company agrees and acknowledges that the Adviser is the sole
owner of the name and xxxx "Xxxxx" and that all use of any
designation comprised in whole or part of Janus (a "Xxxxx Xxxx")
under this Agreement shall inure to the benefit of Janus Capital.
. Any use of a Xxxxx Xxxx by the Company must be in a form
approved by the Adviser. Upon termination of this Agreement for
any reason, the Company shall cease all use of any Xxxxx Xxxx(s)
as soon as reasonably practicable.
12. Limitation on Liability of Trustees, etc.
This agreement has been executed on behalf of the Fund by the undersigned
officer of the Fund in his or her capacity as an officer of the Fund. The
obligations of this agreement shall be binding upon the assets and property of
the Fund only and shall not be binding on any Trustee, officer or shareholder of
the Fund individually.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers effective as of the 8th day of December, 1997.
AETNA INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
Date: 12/8/97
-----------------------------------------
JANUS ASPEN SERIES
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Assistant Vice President
-----------------------------------------
Date: 12/2/97
-----------------------------------------
JANUS CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
Date: 12/2/97
-----------------------------------------
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Schedule A
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Schedule B
Janus Aspen Aggressive Growth
Janus Aspen Growth
Janus Aspen Worldwide Growth
Jaspen Aspen Balanced
Janus Aspen Flexible Income
Janus Aspen Short-Term Bond
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Schedule C
The following costs, expenses and reimbursements will be paid by the party
indicated:
1. For purposes of Sections 2 and 7, the Fund or the Adviser shall be liable
to the Company for systems and out of pocket costs incurred by the Company
in making a Contract owner's or a participant's account whole, if such
costs or expenses are a result of the Fund's failure to provide timely or
correct (as determined by the Fund) net asset values, dividend and capital
gains or financial information and if such information is not corrected by
4pm EST of the next business day after releasing such incorrect information
provided the incorrect NAV as well as the correct NAV for each day that the
error occurred is provided. If a mistake is caused in supplying such
information or confirmations, which results in a reconciliation with
incorrect information, the amount required to make a Contract Owner's or a
Participant's account whole shall be borne by the party providing the
incorrect information, regardless of when the error is corrected.
2. For purposes of Section 3, the Fund or the Adviser shall pay for the cost
of typesetting, printing and distributing periodic fund reports to
shareholders, prospectuses, prospectus supplements, statements of
additional information, proxy materials and other materials that are
required by law to be sent to existing Contract Owners or Participants and
the Company shall pay for the cost of printing such materials for
prospective Contract Owners or Participants and the cost of distributing
such materials. Each party shall be provided with such supporting data as
may reasonably be requested for determining expenses under this Section.
3. The Fund shall pay all expenses in connection with the provision to the
Company of a sufficient quantity of Fund initiated proxy material under
Section 2. The cost associated with proxy preparation, group authorization
letters, programming for tabulation and necessary materials (including
postage) will be paid by the Fund.
Dated this 8th day of December, 1997.
AETNA INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
-----------------------------------------
JANUS ASPEN SERIES
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------------
Title: Assistant Vice President
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16
JANUS CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Vice President
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17
