EXHIBIT (8)(ddd)
FORM OF
RETAIL FUND PARTICIPATION AGREEMENT
JANUS ADVISER SERIES
CLASS A SHARES - LOAD-WAIVED
THIS AGREEMENT, made and entered into this ____ of ____________, 2007,
by and among XXXXXXX XXXXX LIFE INSURANCE COMPANY, a life insurance company
organized under the laws of Arkansas (hereinafter the "Company"), on its own
behalf and on behalf of each separate account of the Company set forth in
Schedule A hereto, as may be amended from time to time (each such account
hereinafter referred to as a "Separate Account"), JANUS DISTRIBUTORS LLC (the
"Distributor") and JANUS SERVICES LLC ("Janus Services") ( collectively,
"Janus").
WITNESSETH:
WHEREAS, the Distributor is the principal underwriter of the open-end
management investment company listed on Schedule A hereto (the "Trust), and the
share classes listed on Schedule A hereto (the "Shares") of each series of the
Trust (each a "Fund" and collectively, "the Funds") are offered to the public
through prospectuses (each, a "Prospectus") and statements of additional
information (each, an "SAI"); and
WHEREAS, each Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (hereinafter the
"1940 Act") and its Shares are registered under the Securities Act of 1933, as
amended (hereinafter the "1933 Act"); and
WHEREAS, the Company issues certain variable annuity contracts (the
"Contracts") in connection with retirement plans intended to meet the
qualification requirements of Sections 408, 408A or 403(b) of the Internal
Revenue Code of 1986, as amended (the "Code") or such other retirement plans as
the Company may determine from time to time; and
WHEREAS, each Separate Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors of
the Company under the insurance laws of the State of Arkansas to set aside and
invest assets attributable to the Contracts; and
WHEREAS, the Distributor is registered as a broker-dealer with the
Securities and Exchange Commission (hereinafter the "SEC") under the Securities
Exchange Act of 1934, as amended (hereinafter the "1934 Act"), and Janus
Services is a member in good standing of the National Association of Securities
Dealers, Inc. (hereinafter "NASD"); and
WHEREAS, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx ("Policy Underwriter"),
the underwriter for the variable annuity and the variable life policies, is
registered as a broker-dealer with the SEC under the 1934 Act and is a member in
good standing of the NASD; and
WHEREAS, the Distributor desires the Company and the Company agrees to
provide or cause to be provided distribution assistance pertaining to the Funds;
and
WHEREAS, pursuant to Rule 12b-1 under the 1940 Act, the Trust on behalf
of each Fund has adopted a Distribution and Shareholder Servicing Contract (the
"12b-1 Plan") for each class of those Shares which, among other things,
authorizes the Distributor to compensate financial intermediaries such as the
Company out of each Fund's average daily net assets attributable to such Shares;
and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase Shares in the Funds set forth in
Schedule A on behalf of each corresponding Separate Account set forth on such
Schedule A to fund the Contracts and the Distributor is authorized to sell such
Shares to unit investment trusts such as the Separate Accounts at net asset
value ("NAV"); and
WHEREAS, each Fund issues Shares to the general public and to separate
accounts of insurance companies to fund variable annuity contracts sold in
connection with the certain qualified pension and retirement plans; and
WHEREAS, the Company intends to purchase Shares of other open-end
management investment companies that offer Shares to the general public to fund
the Contracts; and
NOW, THEREFORE, in consideration of their mutual promises, the Company
and Janus agree as follows:
ARTICLE I. Services of the Company
1.1 Services that the Company shall provide or cause to be provided
include the following:
(a) assisting the Distributor in marketing Shares of the Funds
to Contracts and Contract owners.
(b) providing facilities to answer questions from Contract
owners about the Funds; receiving and answering correspondence; assisting
Contract owners in changing account options; and any other activities as the
Distributor may reasonably request to the extent permitted under applicable laws
or regulations or the National Association of Securities Dealers, Inc. ("NASD")
Rules of Conduct, including but not limited to the services set forth on
Schedule B of this Agreement.
1.2 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.
1.3 All orders for Shares are subject to acceptance or rejection by the
Trust in its sole discretion and the Trust may, in its discretion and without
notice, suspend or withdraw the sale of Shares of any Fund, including the sale
of such Shares to the Company for the account of any Contract or Contract
owners. Notwithstanding the foregoing, however, Janus Services must provide
notice to the Company prior to any
suspension or withdrawal of the sale of Shares of any Fund to the account of any
Contract and/or omnibus account of the Company.
1.4 The Company shall not make the Shares available to Contract or
Contract owners except in compliance with federal and state securities law and
subject to the terms of the Prospectus for the Shares. The Company shall be
responsible for delivering the Prospectus, SAI, shareholder reports, proxy
materials and similar materials for the Shares to Contracts or Contract owners
in accordance with and within the time frames required by applicable law.
1.5 Orders for the purchase of Fund Shares shall be executed at the
then-current NAV per Share and all orders for the redemption of any Fund Shares
shall be executed at the NAV per Share.
1.6 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
ARTICLE II. Purchase and Redemption of Fund Shares.
2.1 Janus Services and the Company agree to provide pricing
information, execute orders and wire payments for purchases and redemptions of
Fund Shares through the National Securities Clearing Corporation ("NSCC") and
its subsidiary systems as set forth in Schedule E and as provided in this
Article II. The parties agree that all orders shall generally be processed via
the NSCC, and Janus Services will accept trades not submitted via the NSCC on an
exception only basis in accordance with Section 2.3 herein.
2.2 NSCC Provision. On any business day ("Business Day") that the New
York Stock Exchange and a Fund is open for business, the Company will accept
request orders for the purchase, transfer and redemption of shares of that Fund,
when such request orders are received in compliance ("good order") with the then
existing requirements of the Funds' prospectus. Janus Services, or its
designated affiliate, hereby appoints the Company as an agent of the Funds for
the limited purpose of receiving such requests on behalf of the Separate
Accounts. Orders received by the Company prior to the close of trading on the
New York Stock Exchange (usually 4:00 p.m. Eastern Time) on any Business Day
("Business Day" or "Day 1") shall be transmitted by the Company, via the NSCC's
DCC&S Fund/SERV system to Janus Services or its designated affiliate no later
than 9:00 a.m. Eastern Time on the next Business Day ("Day 2"). Such trades will
be effected as of the close of trading on Day 1 subject to the terms of such
Fund's prospectus.
2.3 Non-NSCC Provision. For all orders not placed via the NSCC, such
orders shall be transmitted via facsimile to Janus Services or its designated
affiliate by 9:00 a.m. Eastern time on Day 2 and subject to the requirements of
Section 2.5. Such trades will be effected on Day 1 subject to the terms of such
Fund's prospectus. Notwithstanding the foregoing sentence, the Company will send
such orders to Janus Services prior to 8:00 a.m. Eastern Time of Day 2 pursuant
to the Trading Requirements listed in Section 2.5 for all Funds sub-advised by
Enhanced Investment Technologies, LLC ("INTECH") as
identified in the then-current Prospectus for each Fund. The Funds will execute
orders at NAV as determined as of the close of trading on Day 1, and dividends,
if applicable, shall begin to accrue on Day 2.
2.4 With respect to request orders placed via the NSCC, the Company
agrees to initiate payment for net purchases of Shares attributable to all
orders executed through NSCC on a given Business Day by wire to Janus Services
or its designated affiliate through NSCC by 1:00 p.m. on Day 2 for each Fund
involved. Janus Services agrees that payment for net redemptions of Shares
attributable to all orders executed through NSCC on a given Business Day will be
wired to the Company through NSCC on such Business Day for each Fund involved.
Such payments will be made by Federal Funds wire transfer and will be initiated
in accordance with the rules and regulations of the NSCC, as amended from time
to time.
With respect to request orders placed on each Business Day on which a
party is unable to access NSCC, the Company will wire payment for net purchase
orders to an account designated by Janus Services. The Company agrees that by
1:00 P.M. Eastern Time on Day 2, the Company will initiate, the wire payment for
net purchases of Shares attributable to all orders executed on a given Business
Day. Janus Services agrees that payment for net redemptions of Shares
attributable to all orders executed on a given Business Day will be wired by
Janus Services, to an account designated by the Company, by 4:00 P.M. Eastern
Time on Day 2; provided, however, that if a Contract Account in any Fund is to
be redeemed in full such that it will have a zero balance following the
redemption, Janus Services reserves the right to wire transfer the redemption
proceeds within the time set forth in the Fund's prospectus. Such payments will
be made by Federal Funds wire transfer.
2.5 The Company will place separate aggregated orders to purchase or
redeem Shares of each Fund. Additionally, all trades must be submitted in
dollars. No Share trades will be accepted.
2.6 Issuance and transfer of the Fund's Shares will be by book entry
only. Share certificates will not be issued to the Company or any Separate
Account. Purchase and redemption orders for Fund Shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
2.7 Janus Services shall furnish to the Company any income, dividends
or capital gain distributions payable on the Fund's Shares as soon as reasonably
available. The Company hereby elects to receive all such dividends and
distributions as are payable on a Fund's Shares in the form of additional Shares
of that Fund. The Company reserves the right to revoke this election and to
receive in cash all such dividends and distributions declared after receipt of
notice of revocation by the Fund.
2.8 Pricing Information. Janus Services or its designated affiliate
will use reasonable efforts to make the following information available to the
Company by 6:30 p.m. Eastern Time on each Business Day: (i) NAV information as
of the close of trading (normally 4:00 p.m. Eastern Time) on the New York Stock
Exchange or as of such other times at which the Fund's NAV is calculated as
specified in such Fund's prospectus; (ii) dividend and capital gains information
as such becomes available; and (iii) in the case of income Funds, the daily
accrual for the Funds' interest rate factor. In the event Janus Services is
unable to make the 6:30 p.m. deadline stated herein, it shall provide additional
time for the Company to place orders for the purchase and redemption of Shares;
provided, however, that all trades are submitted by the
applicable deadlines provided in Sections 2.2 and 2.3 herein. Such additional
time shall be equal to the additional time that Janus Services takes to make the
closing net asset value available to the Company.
2.9 Price Errors. With respect to NAV information, Janus Services shall
make the determination as to whether an error in NAV has occurred and is a
material error, as defined in current SEC guidelines, and Janus Services shall
control its correction of such error in accordance with SEC guidelines and its
own internal policies. In no event shall delays in providing prices due to
conditions beyond the control of Janus Services, such as acts of God, fires,
electrical or phone outages, be considered pricing errors and Janus Services
shall not be required to reimburse for such delays. Janus Services shall use the
same standards with respect to share prices for the Company as for all other
shareholders in the Funds.
1. Notification. If an adjustment is required to correct any
error in the computation of the NAV of Shares ("Price
Error"), Janus Services shall notify the Company as soon as
practicable after discovering the Price Error. Notice may be
made via facsimile or via direct or indirect systems access
and shall state the incorrect price, the correct price and,
to the extent communicated to the Funds' other shareholders,
the reason for the price change.
2. Underpayments. If a Price Error causes a Separate Account
to receive less than the amount to which it would otherwise
have been entitled prior to a price adjustment, Janus
Services shall adjust its records to accurately reflect the
number of Shares held by the Separate Account.
3. Overpayments. If a Price Error causes a Separate Account
to receive more than the amount to which it otherwise would
have been entitled, the Company, when requested by Janus
Services, will use all commercially reasonable efforts to
attempt to collect such excess amount from the applicable
Separate Account. Absent the Company's failure to use all
commercially reasonable efforts to attempt to collect such
amount, the Company will in no event be liable to any of the
parties for any such amounts if, prior to notice from Janus
Services of a price adjustment, such amounts were distributed
to the Separate Account.
4. Expenses. If a Price Error causes the Company to adjust
its records for the Separate Account, Janus Services will
reimburse the Company for all reasonable costs and expenses
(including reasonable hourly compensation for any personnel
utilized by the Company in making such adjustments) incurred
by the Company in making such adjustments.
5. Liability. Except as otherwise expressly set forth in this
Agreement, the Company will have no responsibility or
liability for calculating the Funds' NAV or for a Price
Error. Notwithstanding the foregoing, the Company agrees that
it: (a) shall assume responsibility for any loss to the Fund
caused by a correction to any order placed by the Company
that is made subsequent to the trade date for the order,
provided such order correction was not based on any
negligence on Distributor's part; and (b) will immediately
pay such loss to the Fund upon notification.
2.10 Notwithstanding anything to the contrary contained in the
Agreement, Janus Services will make available for purchase by the Company, on
its behalf and on behalf of the Separate Accounts, a class of Shares available
at net asset value that are not subject to a contingent deferred sales charge
[or redemption fee].
2.11 The Company represents and warrants that it is a "financial
intermediary" as defined by Rule 22c-2 of the 1940 Act and agrees to provide the
Fund, upon written request, the information set forth in the Rule 22c-2 Customer
Information Agreement in Schedule C hereto and it will execute the Fund's
instructions to restrict or prohibit purchases or exchanges of Shares as set
forth on Schedule C
2.12 All orders accepted by the Company shall be subject to the terms
of the then-current Prospectus of each Fund. The Company shall use its best
efforts, and shall reasonably cooperate with Janus Services, to enforce stated
Prospectus policies regarding transactions in Shares, particularly those related
to market timing. The Company acknowledges that orders accepted by it in
violation of the Trust's stated policies may be subsequently revoked or
cancelled by Janus Services and that Janus Services shall not be responsible for
any losses incurred by the Company or any Contract or Contract owner as a result
of such cancellation. Janus Services or its agent shall notify the Company of
any such cancellation prior to 12:00 p.m. Eastern Time on Day 2. Notwithstanding
the foregoing, however, Janus Services shall provide the Company with notice
prior to taking any steps to either curtail or end a Contract's or the Company's
ability to place future trades in a Fund.
2.13 The Company acknowledges that Janus Services 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.
Notwithstanding the foregoing, however, Janus Services shall not refuse any
purchase order of a Contract or omnibus account without prior notice to the
Company.
2.14
ARTICLE III. Representations and Warranties
3.1(a) The Company represents and warrants that the Contracts are or
will be registered unless exempt and that it will make every effort to maintain
such registration under the 1933 Act to the extent required by the 1933 Act;
that the Contracts are intended to be issued and sold in compliance in all
material respects with all applicable federal and state laws. The Company
further represents and warrants that it is an insurance company duly organized
and in good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Arkansas and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment
account for the Contracts. Unless exempt, the Company shall amend its
registration statement for its Contracts under the 1933 Act and the 1940 Act
from time to time as required in order to effect the continuous offering of its
Contracts. The Company shall register and qualify the Contracts for sale in
accordance with securities laws of the various states only if and to the extent
deemed necessary by the Company.
(b) The Company represents, warrants, and covenants that:
(i) The Company will comply in all material respects with all
applicable laws, rules and regulations;
(ii) The performance of the duties and obligations and
provision of services by the Company as described in this Agreement and the
receipt of the fee provided in this Agreement will not violate federal or state
banking law, federal or state securities laws;
;
;
(v) Each transaction shall be for the accounts of Contracts or
Contract owners and not for the Company's own account;
(vi) Any information the Company provides to Contracts or
Contract owners concerning the Funds will be based on information contained in
the Prospectus or SAI for the Funds, or on promotion materials or sales
literature that the Distributor furnishes to the public;
(vii) The Company will distribute Fund Prospectuses, SAIs,
proxy materials and other shareholder communications to Contract owners to the
extent required by law in accordance with applicable regulatory requirements;
(viii) The Company will not effect any transactions
(including, without limitation, any purchases, exchanges and redemptions) in any
Fund Shares, registered in the name of, or beneficially owned by, any Contract
owner, unless to the Company's knowledge, such Contract owner has granted to the
Company full right, power and authority to effect such transactions on such
Contract owner's behalf;
(ix) The Company will obtain from each Contract owner for whom
it acts as agent for the purchase of Fund Shares any taxpayer identification
number certification and such other information as may be required from time to
time under the Code, and the regulations thereunder, and acknowledges that it,
and not Distributor or Janus Services, has responsibility for any withholding
and reporting as may be agreed upon with the applicable Contract fiduciary; and
(x) The Company 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. The Company has policies and
procedures in place to detect money laundering and terrorist financing,
including the reporting of suspicious activity.
3.2 The Distributor represents and warrants that (i) Fund Shares sold
pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that the Fund is
and shall remain registered under the 1940 Act for as long as the Fund Shares
are sold; (ii) the Fund shall amend the registration statement for its Shares
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Shares; and (iii) the Fund shall register
and qualify its Shares for sales in accordance with the laws of the various
states only if and to the extent deemed advisable by the Fund or the
Distributor.
3.3 The Distributor represents that each Fund (a) is currently
qualified as a Regulated Investment Company under Subchapter M of the Code; (b)
will maintain such qualification (under Subchapter M or any successor or similar
provision); and (c) will promptly notify the Company upon having a reasonable
basis for believing that such Fund has ceased to so qualify or might not so
qualify in the future.
3.4 To the extent that the Fund finances distribution expenses pursuant
to Rule 12b-1 under the 1940 Act, the Distributor represents that the Fund's
Board of Trustees or Directors, as applicable, including a majority of its
Trustees/Directors who are not interested persons of the Fund, have formulated
and approved a plan under Rule 12b-1 to finance distribution expenses.
3.5 Janus makes no representation as to whether any aspect of the
Fund's operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or insurance regulations
of the various states except that Janus represents that the Fund's investment
policies, fees and expenses are and shall at all times remain in compliance with
the laws of the States of Arkansas. Janus represents that its operations with
respect to the Funds are and shall at all times remain in material compliance
with the laws of the State of Arkansas to the extent required to perform this
Agreement. Janus agrees to furnish information not otherwise available to the
Company that is required by state insurance law to enable the Company to obtain
the authority needed to issue the Contracts in any applicable state, and to
cooperate reasonably with the Company in any filings of sales literature for the
Contracts, to the extent notified thereof in writing by the Company, provided
such compliance is not inconsistent with any other laws or regulations
applicable to the Funds or Janus.
3.6 The Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Distributor further represents that it will sell and distribute the Fund Shares
in accordance in all material respects with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 0000 Xxx.
3.7 The Distributor represents that each Fund is lawfully organized and
validly existing under the laws of the State of Delaware and that each Fund does
and will comply in all material respects with applicable provisions of the 0000
Xxx.
3.8 The Distributor represents and warrants that all of the Fund's
Trustees/Directors, officers, employees, investment advisers having access to
the Funds and/or
securities of the Fund are and continue to be at all times covered by a fidelity
bond or similar coverage for the benefit of the Fund in an amount not less than
the minimal coverage as required by Rule 17g-1 under the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid Bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company. Notwithstanding the foregoing, the parties acknowledge that the
foregoing representation and warranty does not apply to Perkins, Wolf, XxXxxxxxx
and Company, LLC, sub-adviser to one or more of the Funds.
3.9 The foregoing representations and warranties shall be made, by the
party hereto that makes the representation or warranty as of the date first
written above and at the time of each purchase and each sale of the Fund's
Shares pursuant to this Agreement.
ARTICLE IV. Prospectuses; Reports and Proxy Statements; Voting
4.1 Janus shall provide the Company at the Company's expense with as
many printed copies of each Fund's current Prospectus and SAI as the Company may
reasonably request. If requested by the Company, in lieu of providing printed
copies of the Fund's current Prospectus and SAI, the Fund shall provide
camera-ready film, computer diskettes, e-mail transmissions or PDF files
containing the Fund's Prospectus and SAI to have the Prospectus for the
Contracts (if applicable) and the Fund's Prospectus printed together in one
document or separately. The Company may elect to print the Fund's Prospectus
and/or its SAI in combination with other fund companies' Prospectuses and SAI.
4.2(a) Janus shall be responsible for providing the Company at no
charge with copies of the Fund's proxy statements, Fund reports to shareholders,
and other Fund communications to shareholders in such quantity as the Company
shall reasonably require for distributing to Contract owners. The Company
assumes sole responsibility for ensuring that such materials are delivered to
Contract owners in accordance with applicable federal and state securities laws.
4.2(b) Janus shall be responsible for the cost of typesetting and
printing all Fund Prospectuses, SAIs, Fund reports to shareholders, proxy
materials, and other Fund communications to Contract owners and prospective
Contract owners. The Company shall pay for all costs for distributing such
materials.
4.3. The Fund's SAI shall be obtainable by Contract owners from the
Fund, Janus, the Company or such other person as the Fund may designate.
4.4 If and to the extent required by law the Company shall distribute
all proxy material furnished by the Fund to Contract owners to whom voting
privileges are required to be extended and shall:
A. solicit voting instructions from Contract owners;
B. vote the Fund Shares held in the Separate Account in
accordance with instructions received from Contract
owners; and
C. so long as and to the extent that the SEC continues
to interpret the 1940 Act to require pass through
voting privileges for variable annuity contract
owners, vote Fund Shares held in the Separate Account
for
which no timely instructions have been received,
in the same proportion as Fund Shares of such Fund
for which instructions have been received from the
Company's Contract owners. The Company reserves the
right to vote Fund Shares held in any segregated
asset account for its own account, to the extent
permitted by law. Notwithstanding the foregoing, with
respect to the Fund Shares held by unregistered
Separate Accounts that issue Contracts issued in
connection with employee benefit plans subject to the
provisions of the Employee Retirement Income Security
Act of 1974, as amended, the Company shall vote such
Fund Shares allocated to such Contracts only in
accordance with the Company's agreements with such
Contract owners.
4.5 The Distributor represents and warrants that the Fund will comply
with all provisions of the 1940 Act requiring voting by shareholders. The
Distributor represents and warrants that the Fund will not hold annual meetings
but will hold such special meetings as may be necessary from time to time.
ARTICLE V. Sales Material and Information
5.1 The Company shall furnish, or shall cause to be furnished, to the
Fund, Janus or their designee, each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company in which the Fund, the investment adviser to the funds ("the Adviser")
or Janus is described, at least 15 business days prior to its use. No such
literature or material shall be used without prior approval from the Fund, Janus
or their designee. The Company shall only use content from Fund materials
previously approved by Janus. However, failure to object in writing within 15
business days will be deemed approval.
5.2 Neither the Company nor any person contracting with the Company
shall give any information or make any representations or statements on behalf
of the Fund or concerning the Fund in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement or Prospectus for the Fund Shares, as such registration statement and
Prospectus may be amended or supplemented from time to time, or in reports to
shareholders or proxy statements for the Fund, or in sales literature or other
promotional material approved by the Fund or its designee, except with prior
written approval of the Fund or its designee. However, failure to object in
writing within 15 business days will be deemed approval.
5.3 Janus shall furnish, or shall cause to be furnished, to the Company
or its designee, each piece of sales literature or other promotional material in
which the Company or any Separate Account is named, at least five calendar days
prior to its use. No such literature or material shall be used without prior
approval from the Company or its designee, however, the failure to object in
writing within 15 business Days will be deemed approval. Such approval process
shall not apply to subsequent usage of materials that are substantially similar
to prior approved materials.
5.4 Janus shall not give any information or make any representations on
behalf of the Company or concerning the Company, each Separate Account, or the
Contracts other than the information or representations contained in the
Contracts, a disclosure document, registration statement or Prospectus for the
Contracts (if applicable), as such registration statement and Prospectus may be
amended or supplemented from time to time, or in published reports for each
Separate Account which are in the public domain or approved by the Company for
distribution to
Contract owners or participants, or in sales literature or other promotional
material approved by the Company, except with the permission of the Company.
However, failure to object in writing within 15 business days will be deemed
approval.
5.5 Upon request, Janus will provide to the Company at least one
complete copy of all Prospectuses, SAIs, reports to shareholders, proxy
statements, sales literature and other promotional materials, and all amendments
to any of the above, that relate to the Fund or its Shares, promptly after the
filing of such document with the SEC or other regulatory authorities.
5.6. The Company will provide to the Fund at least one complete copy of
all Prospectuses, SAIs, reports, solicitations for voting instructions, and all
amendments to any of the above, if applicable to the investment in a Separate
Account or Contract, promptly after the filing of such document with the SEC or
other regulatory authorities.
5.7 For purposes of this Article V, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, Internet, or other public media),
sales literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, seminar texts, reprints
or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
disclosure documents, prospectuses, statements of additional information,
shareholder reports, and proxy materials.
5.8 Janus International Holding LLC ("Janus Holding") or its affiliate
is the sole owner of the name and xxxx "Xxxxx." All references contained in this
Agreement to "the name or xxxx 'Janus'" shall include but not be limited to the
Janus logo, the website xxx.xxxxx.xxx and any and all electronic links relating
to such website. Neither the Company, nor its affiliates, employees, or agents
shall, without prior written consent of Janus Holding, use the name or xxxx
"Xxxxx" or make representations regarding the Trust, Distributor, Janus Holding,
or their affiliates, or any products or services sponsored, managed, advised, or
administered by the Trust, Distributor, Janus Holding or their affiliates,
except those contained in the then-current Prospectus and the then-current
printed sales literature for the Shares of the Funds. The Company will make no
use of the name or xxxx "Xxxxx" except as expressly provided in this Agreement
or expressly authorized by Janus Holding in writing. All goodwill associated
with the name and xxxx "Xxxxx" shall inure to the benefit of Janus Holding or
its affiliate. Upon termination of this Agreement for any reason, the Company
shall immediately cease any and all use of any Xxxxx xxxx(s).
5.9 The Distributor agrees and acknowledges that it has no right, title
or interest in the names and marks of the Company, and that all use of any
designation comprised in whole or part or such names or marks under this
Agreement shall inure to the benefit of the Company. Except as provided in
Section 5.3, the Distributor acknowledges that neither the Distributor nor the
Fund shall use any such names or marks on its own behalf or on behalf of a Fund
in connection with marketing the Fund without prior written consent of the
Company. Upon
termination of this Agreement for any reason, the Fund and Distributor shall
cease all use of any such names or marks.
ARTICLE VI. Fees and Expenses
6.1 The Distributor shall pay the fees and expenses provided for in the
attached Schedule D.
6.2 The Company agrees to waive the entire initial sales charge, along
with any and all finder's fees and re-allowances set forth in the then-current
Prospectus.
6.3 The Company shall be entitled to receive an on-going 12b-1 fee in
an amount calculated and paid as set forth in Exhibit D. The Distributor's
obligation to pay such 12b-1 fee is limited solely to the proceeds of the 12b-1
fees received from the Trust.
6.4 Distributor will calculate the fees payable pursuant to Exhibit D
of this Agreement at the end of each month and will make such payment to the
Company.
6.5 Each payment will be accompanied by a statement showing the
calculation of the amounts payable by Distributor and such other supporting data
as may be reasonably requested by the Company. Payments to the Company for
periods 180 days or more prior to the current month shall be at Distributor's
discretion. The fees due under this Agreement shall not apply to Fund Shares
held by any Contract or Contract owners prior to the date of this Agreement.
6.6 If the Company utilizes a third party who has an agreement with
Janus Services and/or Distributor to provide some or all of the services set
forth in this Agreement and the Company wishes Janus Services and/or Distributor
to directly pay such third party for such services, the total payment due to the
Company or the third party from Janus Services and/or Distributor for such
services provided by such third party on behalf of the Company shall not exceed
the fees set forth pursuant to this Agreement. The Company acknowledges that
when placing trades through third parties with which Janus Services and/or
Distributor has agreements to provide some or all of the services set forth in
this Agreement, Janus Services and/or Distributor will process reimbursements
based solely on the information provided by such third parties at the time of
account set-up. If such third parties fail to designate the Company as the
recipient of reimbursement amounts, Janus Services and/or Distributor shall pay
such third parties directly and shall not be responsible for payment of disputed
balances to the Company. In no event shall Janus Services and/or Distributor
make partial payments of fees to both the Company and any such third party.
6.7 The provisions of any Rule 12b-1 Contract and distribution
agreement between the Funds and the Distributor shall control over this
Agreement in the event of any inconsistency. Any Rule 12b-1 Contract in effect
on the date of this Agreement is described in the relevant Fund's Prospectus
and/or SAI. The Company hereby acknowledges that all payments under any Rule
12b-1 Contract are subject to limitations
contained in such Rule 12b-1 Contract and distribution agreement and may be
varied or discontinued at any time.
6.8 The Company agrees that fees received under this Agreement do not
entitle the Funds to any preferred status as compared to other mutual funds
offered on the Company's platform.
6.9 All expenses incident to performance by the Funds under this
Agreement shall be paid by Janus. The Company shall not bear any expenses
related to the cost of registration and qualification of Fund Shares,
preparation and filing of Fund Prospectuses and registration statements, proxy
materials and reports, setting in type and printing the proxy materials and
reports to shareholders (including the costs of printing a Prospectus that
constitutes an annual report), the preparation of all statements and notices
required by any federal or state law, and all taxes on the issuance or transfer
of that Fund's Shares.
ARTICLE VII. Indemnification
7.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless Janus
and each of its respective trustees, directors, officers, employees or agents
and each person, if any, who controls the Fund or Janus within the meaning of
section 15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes
of this Section 7.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or litigation (including reasonable legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's Shares or the Contracts and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
disclosure statement, registration statement, prospectus or statement of
additional information for the Contracts or contained in the Contracts or sales
literature or other promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), 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;
provided that this agreement to indemnify shall not apply as to an Indemnified
Party if such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished by such
Indemnified Party or the Fund to the Company on behalf of the Fund for use in
the registration statement, prospectus or statement of additional information
for the Contracts or in the Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the Contracts or
Fund Shares; or
(ii) arise out of or as a result of (a) statements or
representations by or on behalf of the Company (other than statements or
representations contained in the Fund registration statement, Fund prospectus or
sales literature or other promotional material of the Fund not supplied by the
Company, or persons under its control and other than statements or
representations authorized by the Fund, Janus or the Adviser); or (b) the
willful misfeasance, bad
faith, gross negligence or reckless disregard of duty of the Company or persons
under its control, with respect to the sale or distribution of the Contracts or
Fund Shares; or
(iii) arise out of or as a result of any untrue
statement or alleged untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, statement of additional information or
sales literature or other promotional material of the Fund (or any amendment
thereof or supplement thereto) 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, if such a statement or omission was made in
reliance upon and in conformity with information furnished to the Fund or Janus
by the Company or persons under its control; or
(iv) arise as a result of any material failure by the
Company to provide the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the Company in this Agreement or
arise out of or result from any other material breach by the Company of this
Agreement; except to the extent provided in Sections 7.1(b) and 7.3 hereof.
(b) No party shall be entitled to indemnification to the
extent that such loss, claim, damage, liability or litigation is due to the
willful misfeasance, bad faith, gross negligence or reckless disregard of duty
by the party seeking indemnification.
(c) In accordance with Section 7.3 hereof, the Indemnified
Parties will promptly notify the Company of the commencement of any litigation
or proceedings against them in connection with the issuance or sale of the Fund
Shares or the Contracts or the operation of the Fund.
7.2 Indemnification By Janus
(a) Janus agrees, with respect to each Fund that it
distributes, to indemnify and hold harmless the Company and each of its
directors, officers, employees or agents and each person, if any, who controls
the Company within the meaning of section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 7.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of Janus) or litigation (including reasonable legal and
other expenses) to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Shares of the Funds that it
distributes or the Contracts and:
(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 statement of additional information for
the Fund or sales literature or other promotional material of the Fund (or any
amendment or supplement to any of the foregoing), 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; provided that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with information furnished
by such Indemnified Party or the Company to the Fund or Janus on behalf of the
Company for use in the registration statement, prospectus or statement of
additional
information for the Fund or in sales literature of the Fund (or any amendment or
supplement thereto) or otherwise for use in connection with the sale of the
Contracts or the Fund Shares; or
(ii) arise out of or as a result of (a) statements or
representations (other than statements or representations contained in the
registration statement, prospectus or sales literature for the Contracts not
supplied by the Fund or Janus or persons under their respective control and
other than statements or representations authorized by the Company pursuant to
and in accordance with this Agreement); or (b) the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty of the Fund or Janus or
persons under the control of the Fund or Janus, respectively, with respect to
the sale or distribution of the Contracts or Fund Shares; or
(iii) arise out of or as a result of any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement, prospectus, statement of additional information or sales
literature or other promotional material with respect to the Contracts (or any
amendment thereof or supplement thereto), or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statement or statements therein not misleading, if such statement or
omission was made in reliance upon and in conformity with information furnished
to the Company by the Fund or Janus or persons under the control of the Fund or
Distributor, respectively; or
(iv) arise as a result of any material failure by the
Fund or Janus to provide the services and furnish the materials under the terms
of this Agreement (including a failure, whether unintentional or in good faith
or otherwise, to comply with the qualification requirements specified in Section
3.3 of this Agreement); or
(v) arise out of or result from any material breach
of any representation and/or warranty made by Janus or the Fund in this
Agreement or arise out of or result from any other material breach of this
Agreement by Janus or the Fund; except to the extent provided in Sections 7.2(b)
and 7.3 hereof.
(b) No party shall be entitled to indemnification to the
extent that such loss, claim, damage, liability or litigation is due to the
willful misfeasance, bad faith, gross negligence or reckless disregard of duty
by the party seeking indemnification.
(c) In accordance with Section 7.3 hereof, the Indemnified
Parties will promptly notify Janus of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of the Fund
Shares or the Contracts or the operation of the Separate Accounts.
7.3. Indemnification Procedure
(a) Any person obligated to provide indemnification under
this Article VII ("Indemnifying Party" for the purpose of this Section 7.3)
shall not be liable under the indemnification provisions of this Article VII
with respect to any claim made against a party entitled to indemnification under
this Article VII ("Indemnified Party" for the purpose of this Section 7.3)
unless such Indemnified Party shall have notified the Indemnifying Party in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Indemnified Party (or after such party shall have received notice of such
service on any designated agent), but failure to notify the Indemnifying Party
of any such claim shall not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of the indemnification provision of this Article VII.
In case any such action is brought against the Indemnified Party, the
Indemnifying Party will be entitled to participate, at its own expense, in the
defense thereof. The Indemnifying Party also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by the
Indemnified Party, and the Indemnifying Party will not be liable to such party
under this Agreement for any legal or other expenses subsequently incurred by
such party independently in connection with the defense thereof other than
reasonable costs of investigation, unless:
(i) the Indemnifying Party and the Indemnified Party shall
have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified Party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them.
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VII. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
ARTICLE VIII. Late Trading
The Company certifies that it is, and at all times during the term of
this Agreement shall be, 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,
the Company shall:
upon written request provide annual certification to the
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.
ARTICLE IX. Operations of the Funds
Nothing in this Agreement shall in any way limit the authority of the Trust or
Distributor to take such lawful action as either may deem appropriate or
advisable in connection with all matters relating to the operation of the Funds
and the sale of the Shares. The parties acknowledge that nothing in this
Agreement shall in any way preclude or prevent the Trust's Board of Trustees
from taking any actions deemed necessary by such Trustees in furtherance of
their fiduciary duties to the Trust and its shareholders, which, among other
things, may include the refusal to sell Shares of any Fund to any person, or to
suspend or terminate the offering of the Shares of any Fund, 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 light of the
Trustees' fiduciary duties under applicable law, necessary in the best interests
of the shareholders of any Fund.
ARTICLE X. Applicable Law
10.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The State of New York.
10.2 This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, 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 interpreted and construed in accordance
therewith.
ARTICLE XI. Termination
11.1 This Agreement shall terminate:
(a) at the option of any party upon six months' advance
written notice to the other parties unless otherwise agreed in a separate
written agreement among the parties; or
(b) at the option of the Fund or Distributor, upon
institution of formal proceedings against the Company by the NASD, NASD
Regulation, Inc. ("NASDR"), 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 administration of the Contracts, the
operation of the Separate Accounts, or the purchase of the Fund Shares, which in
the judgment of the Fund, Distributor or the Adviser are reasonably likely to
have a material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(c) at the option of the Company upon institution of formal
proceedings against the Fund, Distributor or the Adviser by the NASD, NASDR, the
SEC, or any state securities or insurance department or any other regulatory
body, related to the purchase or sale of the Fund Shares or the operation of the
Fund which in the judgment of the Company are reasonably likely to have a
material adverse effect on Distributor's, the Fund's or the Adviser's ability to
perform its obligations under this Agreement; or
(d) at the option of the Company if a Fund delineated in
Schedule A ceases to qualify as a Regulated Investment Company under Subchapter
M of the Code (a "RIC"), or under any successor or similar provision, and the
disqualification is not cured within the period permitted for such cure, or if
the Company reasonably believes that any such Fund may fail to so qualify and be
unable to cure such disqualification within the period permitted for such cure;
or
(e) at the option of any party to this Agreement, upon
another party's material breach of any provision of this Agreement; provided
that the party not in breach shall give the party in breach notice of the breach
and the party in breach does not cure such breach within 30 days of receipt of
such notice of breach; or
(f) at the option of the Company, if the Company determines
in its sole judgment exercised in good faith, that either the Fund, the
Distributor or the Adviser has suffered a material adverse change in its
business, operations or financial condition since the date of this Agreement or
is the subject of material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Company; or
(g) at the option of the Fund or the Distributor if the Fund
or the Distributor, respectively, shall determine in its sole judgment exercised
in good faith, that the Company has
suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact upon the business
and operations of the Fund or Distributor; or
(h) at the option of the Company, if the Company determines
that Shares of the Funds are not reasonably available to meet the requirements
of the Contracts; or
(i) at the option of the Company, in the event any of the
Funds' Shares are not registered, issued, or sold in accordance with applicable
state and/or federal law or such laws preclude the use of such Shares as the
underlying investment media of the Contracts issued or to be issued by the
Company; or
(j) at the option of the Company upon any substitution of the
Shares of another investment company or series thereof for Fund Shares in
accordance with the terms of the Contracts.
(k) This Agreement will automatically terminate with respect
to a Fund in the event of its assignment (as such term is defined in the 0000
Xxx) with respect to such Fund. This Agreement may also be terminated with
respect to any Fund 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 Contract relating to such Fund or any agreement
relating to such Contract, including this Agreement, or by a vote of a majority
of the Shares of such Fund on 60 days' written notice.
11.2 Notice Requirement
(a) In the event that any termination of this Agreement is
based upon the provisions of Sections 11.1(b), 11.1(c), 11.1(d), 11.1(h) or
11.1(i), prompt written notice of the election to terminate this Agreement for
cause shall be furnished by the party terminating the Agreement to the
non-terminating parties, with said termination to be effective upon receipt of
such notice by the non-terminating parties; provided that for any termination of
this Agreement based on the provisions of Section 9.1(d), said termination shall
be effective upon the Fund's failure to qualify as a RIC and to cure such
disqualification within the period permitted for such cure.
(b) In the event that any termination of this Agreement is
based upon the provisions of Sections 11.1(e), 11.1(f), 11.1(g) or 11.1(j) prior
written notice of the election to terminate this Agreement for cause shall be
furnished by the party terminating this Agreement to the non-terminating
parties. Such prior written notice shall be given by the party terminating this
Agreement to the non-terminating parties at least 60 days before the effective
date of termination.
11.3 It is understood and agreed that the right to terminate this
Agreement pursuant to Section 8.1(a) may be exercised for any reason or for no
reason.
11.4 Effect of Termination
(a) Notwithstanding any termination of this Agreement the
Company may require the Fund and the Distributor to continue to allow
redemptions of Shares of the Fund for so long after the termination of this
Agreement as the Company desires for all Contracts in effect on
the effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"), unless such further sale and/or redemption of Fund Shares
is proscribed by law, regulation or an applicable regulatory body.
(b) [For so long as Shares are held by the Accounts and
Company continues to provide services to the Accounts, Distributor shall remain
obligated to pay Company the fee in effect as of the date of termination. Such
fee shall apply only to Shares purchased prior to the date of termination. This
Agreement, or any provision thereof, shall survive the termination to the extent
necessary for each party to perform its obligations with respect to Shares for
which a fee continues to be due subsequent to such termination. ]
ARTICLE XII. Force Majeure
12.1 Neither party shall be liable for damages resulting from delayed
or defective performance when such delays arise out of causes beyond the control
and without the fault or negligence of the party and could not have been
reasonably prevented by the party through back-up systems and other business
continuation and disaster recovery procedures commonly employed by other
SEC-registered investment advisers that meet reasonable commercial standards in
the investment company industry. Such causes may include, but are not restricted
to, Acts of God or of the public enemy, terrorism, acts of the State in its
sovereign capacity, fires, floods, earthquakes, power failure, disabling
strikes, epidemics, quarantine restrictions and freight embargoes.
ARTICLE XIII. Notices
13.1 (a) Any notice shall be deemed duly given only if sent by hand or
overnight express delivery, evidenced by written receipt or by certified mail,
return receipt requested, to the other party at the address of such party set
forth below or at such other address as such party may from time to time specify
in writing to the other party. All notices shall be deemed given the date
received or rejected by the addressee.
If to the Company:
Xxxxxxx Xxxxx Life Insurance Company
Attention: Xxxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Distributor
If to Distributor: If to Janus Services:
Janus Distributors LLC Janus Services LLC
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: General Counsel
ARTICLE XIV. Miscellaneous
14.1 Subject to law and regulatory authority, each party hereto shall
treat as confidential the names and addresses of the owners of the Contracts and
all other information reasonably identified as such in writing by any other
party hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of the affected party until such time as it may come into the
public domain. In addition, the parties hereby represent that they will use and
disclose Personal Information (as defined below) only to carry out the purposes
for which it was disclosed to them and will not use or disclose Personal
information if prohibited by applicable law, including, without limitation,
statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public
Law 106-102). "Personal Information" means financial and medical information
that identifies an individual personally and is not available to the public,
including, but not limited to, credit history, income, financial benefits,
policy or claim information and medical records. If either party outsources
services to a third party, such third party will agree in writing to maintain
the security and confidentiality of any information shared with them.
14.2 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
14.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
14.4 If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
14.5 This Agreement shall not be assigned by any party hereto without
the prior written consent of all the parties.
14.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, NASDR and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) reasonable access to its books and records
in connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby. Notwithstanding the foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may reasonably request in order to ascertain whether the
insurance operations of the Company are being conducted in a manner consistent
with the California laws and regulations.
14.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
14.8 The parties to this Agreement may amend by written agreement the
Schedules to this Agreement from time to time to reflect changes in or relating
to the Contracts, the Separate Accounts or the Funds of the Fund.
14.9 The Distributor and the Company hereby acknowledge that: (i) each
has adopted an anti-money laundering program that complies with the requirements
of applicable anti-money laundering laws, including the USA Patriot Act, the
Bank Secrecy Act and applicable regulations thereunder; (ii) each regularly
searches its databases for shareholder/customer names and countries appearing on
U.S. governmental agencies' lists of prohibited persons (e.g., lists maintained
by the Office of Foreign Assets Control); and (iii) each monitors its compliance
with such program. The Distributor and the Company agree to use reasonable
efforts to notify the other of any: (i) identified instances of non-compliance
that involve an account related to the Contracts, Contract owners, the Funds or
the Distributor, either through a shareholder or transaction(s); and (ii) other
anti-money laundering issues that may arise with respect to the Contracts,
Contract owners, the Funds or the Distributor. The Distributor and the Company
agree to notify the other with such periodic certifications of compliance as may
reasonably be requested.
14.10 The Company agrees to use its best efforts to assist the
Distributor and the Funds to identify and address excessive or short-term
trading in the Funds. The Company further agrees to notify the Distributor in
the event that the Company becomes aware of any excessive or short-term trading
that is inconsistent with the Company's policies and procedures with respect to
content value allocated to any of the Funds. The Company agrees that upon notice
from the Distributor that any excessive or short-term activity is disruptive to
the Fund(s), to use reasonable efforts to identify and deter such activities by
Contract owner and/or Contract owner's agent.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative as of the date first written above.
XXXXXXX XXXXX LIFE INSURANCE JANUS SERVICES LLC
COMPANY
By By:
--------------------------- ---------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------ ------------------------
JANUS DISTRIBUTORS LLC
By
---------------------------
Name:
-------------------------
Title:
------------------------
SCHEDULE A
ACCOUNTS, CONTRACTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
As of ______________, 2007
NAME OF SEPARATE
ACCOUNT AND DATE CONTRACTS FUNDED PORTFOLIOS AND
ESTABLISHED BY BOARD OF BY SEPARATE ACCOUNT CLASS OF SHARES
DIRECTORS AVAILABLE TO CONTRACTS
XXXXXXX XXXXX LIFE VARIABLE
ANNUITY SEPARATE ACCOUNT D ML-VA-010 EACH SERIES OF JANUS ADVISER SERIES,
XXXXXXX XXXXX INVESTOR CLASS A SHARES (LOAD-WAIVED):
ESTABLISHED: JUNE 21, 2002 CHOICE (XXX SERIES) FLEXIBLE
PREMIUM VARIABLE ANNUITY Janus Adviser Forty Fund
Janus Adviser Mid Cap Growth Fund
SCHEDULE B
TO
RETAIL FUND PARTICIPATION AGREEMENT
The Company shall, at the Company's expense, provide the following services for
Contract owners:
Receive, aggregate, and process Contract owner orders;
Issue confirmations for transactions by Contract owners;
Maintain records for Contract owners, which records shall reflect
Shares purchased and redeemed, including the date and price for all
transactions, and Share balances;
Disburse or credit to Contract owners, and maintain records of, all
proceeds of redemptions of Shares and all other distributions not
reinvested in Shares; and
Prepare and transmit to Contract owners periodic account statements
showing the total number of Shares owned by the Contract owners as of
the statement closing date, purchases and redemptions of Shares by the
Contract owners during the period covered by the statement, and the
dividends and other distributions paid to the Contract owners during
the statement period (whether paid in cash or reinvested in Shares).
SCHEDULE C
RULE 22C-2 CUSTOMER INFORMATION AGREEMENT
Xxxxxxx Xxxxx Life Insurance Company (hereinafter referred to as
"Intermediary") and Janus Services LLC and Janus Distributors LLC ("Fund") have
simultaneously entered into a Participation Agreement to offer Fund as an
investment option under Intermediary's variable annuity and/or life insurance
contracts. This Rule 22c-2 Customer Information Agreement ("Customer Information
Agreement") describes, among other things, the rights and obligations of the
parties hereto with respect to certain customer information to be provided to
Fund, or a Fund's transfer agent or other entity designated in writing by Fund
(collectively Fund's "Designee"), by or on behalf of Intermediary in connection
with the processing of Intermediary's customers' purchase, redemption, transfer
and exchange transactions in accounts maintained with respect to the Fund
subject to the Participation Agreement.
Prior to the effective date of this Customer Information Agreement, the
Fund and the Intermediary agree that any request made to the Intermediary by the
Fund for Customer transaction information, and the Intermediary's response to
such request, shall be governed by the practices the Fund and the Intermediary
had utilized in the absence of a formal agreement, if any, to govern such
requests.
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the contexts:
The term "Intermediary" shall mean an insurance company separate
account.
The term "Fund" shall mean an open-end management investment company
that is registered or required to register under Section 8 of the Investment
Company Act of 1940 and includes (i) an investment adviser to or administrator
for the Fund; (ii) the principal underwriter or distributor for the Fund; or
(iii) the transfer agent for the Fund. The term not does include any "excepted
funds" as defined in SEC Rule 22c-2(b) under the Investment Company Act of 1940.
The term "Shares" means the interests of Customers corresponding to the
redeemable securities of record issued by the Fund under the Investment Company
Act of 1940 that are held by the Intermediary.
The term "Customer" means the holder of interests in a variable annuity
or variable life insurance contract issued by the Intermediary ("Contract"), or
a participant in an employee benefit plan with a beneficial interest in a
contract.
The term "Customer-Initiated Transfer Purchase" means a transaction
that is initiated or directed by a Customer that results in a transfer of assets
within a Contract to a Fund, but does not include transactions that are
executed: (i) automatically pursuant to a contractual or systematic program or
enrollment such as transfer of assets within a Contract to a Fund as a result of
"dollar cost averaging" programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (ii) pursuant to a Contract death
benefit; (iii) one-time step-up in Contract value pursuant to a Contract death
benefit; (iv) allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, retirement plan
salary reduction contributions, or planned premium payments to the Contract; or
(v) pre-arranged transfers at the conclusion of a required free look period.
The term "Customer-Initiated Transfer Redemption" means a transaction
that is initiated or directed by a Customer that results in a transfer of assets
within a Contract out of a Fund, but does not include transactions that are
executed: (i) automatically pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Contract out of a Fund as a
result of annuity payments, loans, systematic withdrawal programs, insurance
company approved asset allocation programs and automatic rebalancing programs;
(ii) as a result of any deduction of charges or fees under a Contract; (iii)
within a Contract out of a Fund as a result of scheduled withdrawals or
surrenders from a Contract; or (iv) as a result of payment of a death benefit
from a Contract.
The term "written" includes electronic writings and facsimile
transmissions.
Accordingly, in consideration of the mutual covenants herein contained, the
parties hereto intending to be legally bound agree as follows:
1. CUSTOMER INFORMATION
(a) AGREEMENT TO PROVIDE INFORMATION. Notwithstanding anything to the
contrary contained in any Fund Participation Agreement, Intermediary agrees to
provide the Fund or its Designee, upon written request, the taxpayer
identification number ("TIN"), the Individual/International Taxpayer
Identification Number ("ITIN"), or other government-issued identifier ("GII")
and the Contract owner number or participant account number associated with the
Customer, if known, of any or all Customer(s) of the account, and the amount,
date and transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an account
maintained by the Intermediary during the period covered by the request. Unless
specifically requested by the Fund or Fund's Designee in writing, the
Intermediary shall only be required to provide underlying Contract activity
information relating to Customer-Initiated Transfer Purchases or
Customer-Initiated Transfer Redemptions.
(b) PERIOD COVERED BY REQUEST. Requests must set forth a specific
period, not to exceed ninety (90) days from the date of the request. The Fund or
Fund's Designee may request in writing transaction information that is older
than ninety (90) days as it deems necessary to investigate compliance with
policies established by the Fund for the purpose of eliminating or reducing any
dilution of the value of the outstanding shares issued by the Fund (the "Market
Timing Policies").
(c) TIMING OF REQUESTS. Fund requests for Customer information shall be
made no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with the Fund's Market Timing Policies. Any requests made
more frequently than quarterly shall be made in writing and mutually agreed
upon.
(d) FORM AND TIMING OF RESPONSE.
(1) Intermediary agrees to provide, promptly upon written
request of the Fund or its designee, the requested information specified in 1(a)
but in any event not later than ten (10) days from the date of the request. If
requested by the Fund or its Designee, Intermediary agrees to use best efforts
to determine promptly whether any specific person about whom it has received the
identification and transaction information specified in 1(a) is itself a
financial intermediary ("indirect intermediary") and, upon further written
request of the Fund or its designee, promptly either: (i) provide (or arrange to
have provided) the information set forth in 1(a) for those Customers who hold an
account with an indirect intermediary; or (ii) restrict or prohibit the indirect
intermediary from purchasing, in nominee name on behalf of other persons,
securities
issued by the Fund. Intermediary additionally agrees to inform the Fund whether
it plans to perform (i) or (ii).
(2) Responses required by this paragraph must be communicated
in writing and in a format mutually agreed upon by the Fund or Fund's Designee
and the Intermediary; and
(3) To the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the NSCC Standardized
Data Reporting Format.
2. LIMITATIONS ON USE OF INFORMATION. The Fund agrees not to use the information
received pursuant to this Agreement for any purpose other than as necessary to
comply with the provisions of Rule 22c-2 or to fulfill other regulatory or legal
requirements subject to the privacy provisions of Title V of the
Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and comparable state laws.
(a) Fund acknowledges that (i) the purpose for providing Intermediary's
confidential Customer Data (as defined in 1(a)) to Fund or Fund's Designee is to
better enable Fund and/or Fund's Designee to monitor for violations of the
Fund's Market Timing Policies by Intermediary's customers, and (ii) Fund or
Fund's Designee is responsible for determining when Fund or the Fund's Designee
need Intermediary's assistance in monitoring and enforcing the Fund's Market
Timing Policies through a request for Trade Data pursuant to paragraph 1 or an
instruction to prohibit further purchases or exchanges pursuant to paragraphs 5
and 6 hereunder.
(b) Notwithstanding anything herein to the contrary, to the extent Fund
or Fund's Designee receives Customer Data or any other Confidential Data (as
defined below, and together with the Customer Data hereinafter referred to as
the "Data"), Fund covenants, represents and warrants for Fund, Fund's Designee
and any parent, subsidiary or affiliate of either that: (i) Fund shall not use
any Data except to the extent necessary to carry out the purpose of this
Agreement and for no other purpose (including, without limitation, any
marketing, sales or other promotional efforts by any of Fund or; (ii) Fund shall
not disclose any Data to any third party, including, without limitation,
either's third party service providers without Intermediary's prior written
consent and an agreement in writing from the third party to use or disclose such
Data only to the extent necessary to carry out the purpose of this Agreement and
for no other purposes; (iii) Fund shall maintain, and shall require all third
parties approved under clause (ii) to maintain, effective industry-accepted
information security measures to protect the Data from unauthorized disclosure
or use; and (iv) Fund shall provide Intermediary with information regarding such
security measures upon Intermediary's reasonable request and promptly provide
Intermediary with information regarding any failure of such security measures or
any security breach which are actually known by Fund related to the Data. For
the purposes of this Agreement, "Confidential Data" means the nonpublic personal
information (as defined in 15 U.S.C. Section 6809(4)) of Intermediary (and/or
Intermediary's parent, affiliated or subsidiary companies) of customers or
prospective customers received by Fund or Fund's Designee under the terms of
this Agreement or any other agreement between Intermediary and Fund associated
with the distribution of, or services with respect to, the Fund, including, but
not limited to: (a) an individual's name, address, e-mail address, IP address,
social security number, and/or telephone number; (b) the fact that an individual
has a relationship with Intermediary and/or Intermediary's parent, affiliated or
subsidiary companies; or (c) an individual's other account information.
(c) Fund explicitly acknowledges that all of the Data is Intermediary's
exclusive property and shall remain so notwithstanding any release thereof in
accordance with the terms of this Agreement.
(d) Fund shall safeguard and preserve as confidential and not use,
except as expressly provided herein, any or all information other than the Data
provided pursuant to, or in connection with, this Agreement to Fund or Fund's
Designee, including, but not limited to, Intermediary's affiliate's branch
office names and identification numbers, Xxxxxxx Xxxxx Financial Advisor names,
as well as Intermediary's affiliate's, parent's or subsidiary's systems,
business, plans and operations, which information collectively shall include any
such information that is orally disclosed to Fund or Fund's Designee, or learned
by Fund or Fund's Designee while on Intermediary's premises or derived as a
result of, or in connection with, this Agreement and its subject matter or any
other agreement between Intermediary and Fund associated with the distribution
of or services with respect to the Funds.
(e) Except as expressly provided for herein, Fund will not, without
first obtaining Intermediary's prior written consent, disclose to any person,
firm or enterprise, or use for Fund's benefit, any Confidential Information.
Fund and Fund's Designee, if any, shall limit Fund's disclosure of the
Confidential Information to as few persons as possible and only to those persons
with a need to know that are Fund's or Fund's Designee's employees or
independent contractors engaged by Fund or Fund's Designee and subject to an
agreement to maintain the confidentiality of information provided to such
independent contractors. Fund and Fund's Designee, if any, shall take all steps
necessary to prevent disclosure of any Confidential Information in a manner
consistent with Fund's obligations under this Agreement. Fund and Fund's
Designee, if any, shall have no obligation with respect to particular
information to the extent, but only to the extent, that such information: (i) is
already rightfully known to Fund or Fund's Designee at the time it is obtained
from Intermediary, free from any obligation to keep such information
confidential, as demonstrated by competent evidence; (ii) is or becomes publicly
known through no wrongful act of Fund or Fund's Designee's or without breach of
any terms and conditions of this Agreement; (iii) is rightfully received from a
third party without restriction and without breach of any terms and conditions
of this Agreement, as demonstrated by competent evidence; or (iv) is required to
be disclosed by law, regulation, or customer order (provided that Fund or Fund's
Designee shall promptly notify Intermediary of any such use or requirement prior
to disclosure in order to afford such Intermediary an opportunity to seek a
protective order to prevent or limit public disclosure of the information).
(f) Upon Intermediary's request, Fund and Fund's Designee, if any,
shall promptly return the Confidential Information (and any copies, extracts,
and summaries thereof) to Intermediary, or, with Intermediary's written consent,
shall promptly destroy, in a manner satisfactory to Intermediary, such materials
(and any copies, extracts, and summaries thereof) and shall further provide
Intermediary with written confirmation of same.
3. REMEDIES. Fund and Fund's Designee acknowledge that in the event of a breach
or threatened breach of this Agreement, Intermediary may have no adequate remedy
at law, and, accordingly, shall be entitled to obtain an injunction against such
breach. However, no specification in this Agreement of a specific legal or
equitable remedy shall be construed as a waiver of or a prohibition against any
other legal or equitable remedies in the event of a breach of a provision of
this Agreement. Intermediary shall be entitled to legal damages and/or equitable
relief from Fund as well as from Fund's Designee for any breach of this
Agreement by Fund's Designee.
4. ADOPTION OF INTERMEDIARY'S MARKET TIMING POLICIES. If Fund considers, at any
time, the adoption of Intermediary's or Intermediary's affiliate(s) Market
Timing Policies in lieu of the Fund's Market Timing Policies for Customers
investing through Intermediary, Fund shall provide Intermediary written notice
of any such consideration at least 90 (ninety) days in advance of
implementing any such policy and secure Intermediary's prior written consent to
such arrangements.
5. FUND MARKET TIMING AND OTHER TRADING POLICIES. All orders accepted by the
Company shall be subject to the terms of the then-current Prospectus of each
Fund, including without limitation, policies regarding minimum initial
investments, market timing, excessive trading and redemption fees. The Company
shall use its best efforts, and shall reasonably cooperate with Janus Services,
to enforce stated Prospectus policies regarding transactions in Shares,
particularly those related to market timing and excessive trading.
6. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Shares by a Customer that has been identified by the Fund as having
engaged in transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund. Unless otherwise directed by the Fund, any such
restrictions or prohibitions shall only apply to Customer-Initiated Transfer
Purchases or Customer-Initiated Transfer Redemptions that are effected directly
or indirectly through Intermediary. Instructions shall be in writing and sent to
Intermediary at:
Xxxxxxx Xxxxx Insurance Group Services, Inc.
Attention: Service Center Controller
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
with a copy to:
Financial Data Services, Inc.
Attention: President
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
7. FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and the
specific individual Contract owner number or participant account number
associated with the Customer, if known, and the specific restriction(s) to be
executed, including how long the restriction(s) is(are) to remain in place. If
the TIN, ITIN, GII or the specific individual Contract owner number or
participant account number associated with the Customer is not known, the
instructions must include an equivalent identifying number of the Customer(s) or
account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, Fund agrees to provide to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Customer, information regarding those trades of the contract holder
that violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
8. TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt of
the instructions by the Intermediary.
9. NOTICE. All notices in connection with this Agreement shall be in writing and
sent to Intermediary at:
Xxxxxxx Xxxxx Insurance Group, Inc.
Attention: General Counsel
0000 Xxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Financial Data Services, Inc.
Attention: President
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
, and sent to Fund at:
Janus Compliance
xxxxxxxxxxxxxxx@xxxxx.xxx
Notice shall be deemed to have been given on the date it was delivered
personally to the other party or any officer or was either received by express
delivery, telecopy (with receipt), or e-mail by the other party at its address
specified in this Agreement. Either party may change the address to which
notices to it shall be sent by giving notice thereof in accordance with this
provision.
10. CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the accounts in
connection with the Contracts. This Agreement supplements those Fund
Participation Agreements. To the extent the terms of this Agreement conflict
with the terms of a Fund Participation Agreement, the terms of this Agreement
shall control.
11. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreements except as specifically provided in paragraph 16.
12. GOVERNING LAW. This Agreement shall be construed and the provisions hereof
incorporated under and in accordance with the laws of the State of
New York
without giving effect to provisions relating to conflict of laws.
13. NAMING OF A DESIGNEE. If Fund desires to name an entity as a "Designee" for
the purposes of this Agreement, Fund shall do so in writing in advance of the
provision of any Trade Data to that entity. Fund shall be fully responsible for
Fund's Designee's compliance with the terms and conditions of this Agreement.
14. AMENDMENT. No modification, amendment, supplement to, or waiver of this
Agreement or any of its provisions or any schedule hereto shall be binding upon
the parties hereto unless made in writing and duly signed by the party against
whom enforcement thereof is sought. Intermediary's failure or delay to enforce
at any time any of the provisions of this Agreement, or to exercise any option
which is herein provided, or to require at any time performance of any of the
provisions hereof, shall in no way be construed to be a waiver of such
provisions of this Agreement.
15. SEVERABILITY. In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable,
the remaining provisions of this Agreement shall be unimpaired, and the invalid,
illegal, or unenforceable provision(s) shall be replaced by a mutually
acceptable provision(s), which
being valid, legal, and enforceable, comes closest to the intention of the
parties underlying the invalid, illegal, or unenforceable provision(s).
16. SURVIVAL OF TERMINATION. The following paragraphs shall survive the
termination of this Agreement: 2, 3, 8, 10, 11, and this paragraph 16.
SCHEDULE D
FEES AND EXPENSES
1. Administrative and Transfer Agency Services
Administrative and transfer agency services to Contract owners and participants
shall be the responsibility of the Company and shall not be the responsibility
of the Distributor. The Company will provide properly registered and licensed
personnel and any systems needed for all Contract owners servicing and support
-- for both fund and annuity and life insurance information and questions,
including:
TRANSFER AGENCY SERVICES
Maintenance of books and records
- Maintain separate records for each Contract owner with respect
to each of the Funds held by such Contract owner, which
records shall reflect shares purchased, redeemed and
transferred and share balances. The Company shall maintain an
omnibus account for each Fund with the transfer agent of the
Funds representing the position of such Contract owners and
such account shall be in the name of the Company or its
nominee as the record owner of the shares owned by such
Contract owners.
- Perform miscellaneous accounting services to assist transfer
agent in recording transfers of shares (via net purchase
orders).
- Reconciliation and balancing of the separate account at the
Fund level in the general ledger and reconciliation of cash
accounts at general account.
Purchase orders
- Determination of net amount of cash flow into the Fund.
- Reconciliation and deposit of receipts at Fund (wire order)
and confirmation thereof.
Redemption orders
- Determination of net amount required for redemptions by Fund.
- Notification to Fund of cash required to meet payments.
- Cost of share redemptions.
All purchase and redemption orders shall be submitted with an identifier that
will enable Janus to receive daily transaction reporting that includes, but is
not limited to:
- Trade Date
- Firm Name
- Dealer Code or Clearing ID - NSCC Dealer Code under which the
Janus account is registered.
- Dealer Firm or Clearing Firm - Name of company clearing the
trades.
- Branch Code or Office ID - Branch number for the branch where
the trade originated (embedded in Xxxxxxx Xxxxx account
number).
- Rep Code - Number identifying the Financial Advisor.
- Fund Cusip Number
- Purchase Amount - In dollars
- Redemption Amount - In dollars
- Asset Value - In dollars
- - Platform Description - Including Firm Name
and Program Name
- - Retirement/Non-Retirement
- Retirement Type - Investment Only, Retirement Alliance
Service, 401(k), XXX, 529
ADMINISTRATIVE SERVICES
Reports
- Periodic information reporting to the Fund
- Distribution of annual and semi-annual shareholder reports (to
existing contract owners).
Other administration support and fund communications
- Sub-accounting services.
- Providing other administration support to the Fund as mutually
agreed between the Company and the Fund.
- Relieving the Fund of other usual or incidental administration
services provided to individual shareholders.
- Preparation of reports to third party reporting services.
- Acting as proxy agent with regard to Contract owners in
connection with the holding of annual, if any, and special
meetings of Shareholders.
- Mailing such notices, proxies, and proxy statements in
connection with the holding of such meetings as may be
required by applicable law.
- Receiving and tabulating votes cast by Contract owners by
proxy and voting Separate Account shares in proportion to
Contract owner votes as required under the Act.
- Confirmations of transactions relating to Fund shares as
required by applicable law.
2. Administrative and Transfer Agency Service Fees
For the administrative services set forth above, Janus Services or any of its
affiliates shall pay out of its own resources a servicing fee based on the
annual rate of xx% the average aggregate net daily assets invested in the Class
A Shares (load-waived) of the Portfolios through the Accounts at the end of each
calendar quarter. For the transfer agency services set forth above, the Fund
shall pay out of Fund assets to the extent permitted by the Prospectus and SAI,
a servicing fee based on the annual rate of xx% of the average aggregate net
daily assets invested in the Class A Shares (load-waived) of the Portfolios
through the Accounts at the end of each calendar quarter. Such payments will be
made to the Company within thirty (xx) days after the end of each calendar
quarter. Such fees shall be paid quarterly in arrears. Each payment will be
accompanied by a statement showing the calculation of the fee payable to the
Company for the quarter and such other supporting data as may be reasonably
requested by the Company. The Company will
calculate the asset balance on each day on which the fee is to be paid pursuant
to this Agreement with respect to each Portfolio for the purpose of reconciling
its calculation of average aggregate net daily assets with Janus Services'
calculation. Annually (as of December 31) or upon reasonable request of Janus
Services, Company will provide Janus Services a statement showing the number of
subaccounts in each Class of Shares of each Portfolio as of the most recent
calendar quarter end. [The Company acknowledges that fees in this Section 2 are
for administrative services and transfer agency services only, and not for
distribution.]
3. 12b-1 Distribution Related Fees (Class A Shares load-waived Only)
In accordance with the Portfolios' plans pursuant to Rule 12b-1 under the
Investment Company Act of 1940, the Distributor will make payments to the
Company at an annual rate of xx% of the average daily net assets invested in the
Class A shares (load-waived)of the Portfolios through the Accounts in each
calendar quarter. The Distributor will make such payments to the Company within
thirty (xx) days after the end of each calendar quarter. Each payment will be
accompanied by a statement showing the calculation of the fee payable to the
Company for the quarter and such other supporting data as may be reasonably
requested by the Company. The Rule 12b-1 distribution related fees will be paid
to the Company for as long as the Accounts own any Shares of a Portfolio and (i)
distribution services are being provided pursuant to this Agreement and (ii) a
Rule 12b-1 plan is in effect with respect to such Portfolio. The Company agrees
to provide the following services, including, but not limited to:
-delivering prospectuses and marketing materials to prospective and existing
contract owners;
-providing educational materials regarding the shares;
-providing facilities to answer questions from prospective and existing contract
owners about the Portfolios;
-providing training to its sales force regarding the Portfolios;
-receiving and answering correspondence;
-assisting contract owners in completing application forms and selecting
investment options.
SCHEDULE E
TO
PARTICIPATION AGREEMENT
PROCEDURES FOR PRICING AND ORDER/SETTLEMENT THROUGH NATIONAL SECURITIES CLEARING
CORPORATION'S MUTUAL FUND PROFILE SYSTEM AND MUTUAL FUND SETTLEMENT, ENTRY AND
REGISTRATION VERIFICATION SYSTEM
1. AS PROVIDED IN SECTION 2.1 OF THE PARTICIPATION AGREEMENT, THE PARTIES
HEREBY AGREE TO PROVIDE PRICING INFORMATION, EXECUTE ORDERS AND WIRE
PAYMENTS FOR PURCHASES AND REDEMPTIONS OF FUND SHARES THROUGH NATIONAL
SECURITIES CLEARING CORPORATION ("NSCC") AND ITS SUBSIDIARY SYSTEMS AS
FOLLOWS:
(a) Janus or its affiliates will furnish to Company or its affiliate
through NSCC's Mutual Fund Profile System ("MFPS") (1) the most current
net asset value information for each Fund, (2) a schedule of
anticipated dividend and distribution payment dates for each Fund,
which is subject to change without prior notice, ordinary income and
capital gain dividend rates on the Fund's ex-date, and (3) in the case
of fixed income funds that declare daily dividends, the daily accrual
or the interest rate factor. All such information shall be furnished to
Company or its affiliate by 6:30 p.m. Eastern Time on each business day
that the Fund is open for business (each a "Business Day") or at such
other time as that information becomes available. Changes in pricing
information will be communicated to both NSCC and Company.
(b) Upon receipt of Fund purchase, exchange and redemption instructions for
acceptance as of the time at which a Fund's net asset value is
calculated as specified in such Fund's prospectus ("Close of Trading")
on each Business Day ("Instructions"), and upon its determination that
there are good funds with respect to Instructions involving the
purchase of Shares, Company or its affiliate will calculate the net
purchase or redemption order for each Fund. Orders for net purchases or
net redemptions derived from Instructions received by Company or its
affiliate prior to the Close of Trading on any given Business Day will
be sent to the Defined Contribution Interface of NSCC's Mutual Fund
Settlement, Entry and Registration Verification System ("Fund/SERV") by
5:00 a.m. Eastern Time on the next Business Day. Subject to Company's
or its affiliate's compliance with the foregoing, Company or its
affiliate will be considered the agent of the Distributor and the
Funds, and the Business Day on which Instructions are received by
Company or its affiliate in proper form prior to the Close of Trading
will be the date as of which shares of the Funds are deemed purchased,
exchanged or redeemed pursuant to such Instructions. Instructions
received in proper form by Company or its affiliate after the Close of
Trading on any given Business Day will be treated as if received on the
next following Business Day. Dividends and capital gains distributions
will be automatically reinvested at net asset value in accordance with
the Fund's then current prospectuses.
(c) Company or its affiliate will wire payment for net purchase orders by
the Fund's NSCC Firm Number, in immediately available funds, to an NSCC
settling bank account designated by Company or its affiliate no later
than 5:00 p.m. Eastern time on the same Business Day such purchase
orders are communicated to NSCC. For purchases of shares of daily
dividend accrual funds, those shares will not begin to accrue dividends
until the day the payment for those shares is received.
(d) NSCC will wire payment for net redemption orders by Fund, in
immediately available funds, to an NSCC settling bank account
designated by Company or its affiliate, by 5:00 p.m. Eastern Time on
the Business Day such redemption orders are communicated to NSCC,
except as provided in a Fund's prospectus and statement of additional
information.
(e) With respect to (c) or (d) above, if Janus does not send a confirmation
of Company's or its affiliate's purchase or redemption order to NSCC by
the applicable deadline to be included in that Business Day's payment
cycle, payment for such purchases or redemptions will be made the
following Business Day.
(f) If on any day Company or its affiliate, or Janus is unable to meet the
NSCC deadline for the transmission of purchase or redemption orders, it
may at its option transmit such orders and make such payments for
purchases and redemptions directly to Janus or Company or its
affiliate, as applicable, as is otherwise provided in the Agreement.
(g) These procedures are subject to any additional terms in each Fund's
prospectus and the requirements of applicable law. The Funds reserve
the right, at their discretion and without notice, to suspend the sale
of shares or withdraw the sale of shares of any Fund.
2. Company or its affiliate, Janus and clearing agents (if applicable) are each
required to have entered into membership agreements with NSCC and met all
requirements to participate in the MFPS and Fund/SERV systems before these
procedures may be utilized. Each party will be bound by the terms of their
membership agreement with NSCC and will perform any and all duties, functions,
procedures and responsibilities assigned to it and as otherwise established by
NSCC applicable to the MFPS and Fund/SERV system and the Networking Matrix Level
utilized.
3. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect. Unless otherwise indicated herein, the
terms defined in the Agreement shall have the same meaning as in this Schedule.
