PARTICIPATION AGREEMENT By and Among PREMIER VIT And PACIFIC LIFE INSURANCE COMPANY And ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
By and Among
PREMIER VIT
And
PACIFIC LIFE INSURANCE COMPANY
And
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
THIS AGREEMENT, made and entered into this 30th day of March 2007 by and among,
PACIFIC LIFE INSURANCE COMPANY, a Nebraska corporation (hereinafter the “Company”), on its own
behalf and on behalf of each separate account of the Company named in Schedule 1 to this Agreement,
as may be amended from time to time (each account referred to as the “Account”), PREMIER VIT, an
open-end diversified management investment company organized under the laws of the State of
Massachusetts (hereinafter the “Fund”), and ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC, a Delaware
limited liability company (hereinafter the “Underwriter”).
WHEREAS, the Fund engages in business as an open-end diversified, management investment
company and was established for the purpose of serving as the investment vehicle for separate
accounts established for variable life insurance contracts and variable annuity contracts to be
offered by insurance companies which have entered into participation agreements substantially
identical to this Agreement (the Company and such other insurance companies being hereinafter
“Participating Insurance Companies”); and
WHEREAS, beneficial interests in the Fund are divided into several series of shares, each
representing the interest in a particular managed portfolio of securities and other assets (the
“Portfolios”); and
WHEREAS, the Fund has obtained an order from the Securities and Exchange Commission
(alternatively referred to as the “SEC” or the “Commission”), dated February 22, 1995 (File No.
812-9290), granting Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief from the provisions of Sections 9(a), 13(a),
15(a), and
15(b) of the Investment Company Act of 1940, as amended, (hereinafter the “1940 Act”) and Rules
6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund to
be sold to and held by variable annuity separate accounts and variable life insurance separate
accounts of both affiliated and unaffiliated Participating Insurance Companies and qualified
pension and retirement plans (“Plans”) (hereinafter the “Mixed and Shared Funding Exemptive
Order”);and
WHEREAS, the Fund is registered as an open-end management investment company under the 1940
Act and its shares are registered under the Securities Act of 1933, as amended (hereinafter the
“1933 Act”); and
WHEREAS, the Company has registered or will register interests in the Account funding certain
variable annuity and/or life contracts, as the case may be (the “Contracts”) under the 1933 Act;
and
WHEREAS, the 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 Nebraska to set aside and invest assets attributable to, among others, the Contracts; and
WHEREAS, the Company has registered the Account as a unit investment trust under the 1940 Act;
and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC under the Securities
Exchange Act of 1934, as amended (hereinafter the “1934 Act”), and is a member in good standing of
the National Association of Securities Dealers, Inc. (hereinafter “NASD”); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations, the Company
intends to purchase shares in the Portfolios named in Schedule 2 on behalf of the Account to fund
the Contracts and the Underwriter is authorized to sell such shares to unit investment trusts such
as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund and the
Underwriter agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund and the Underwriter agree to sell to the Company those shares of the Fund which
the Company orders on behalf of the Account, executing such orders on a daily basis at the
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net asset value next computed after receipt and acceptance by the Fund or its agent of the order for
the shares of the Fund. For purposes of this Section 1.1, the Company shall be the designee of the
Fund for receipt of such orders from the Account and receipt by such designee shall constitute
receipt by the Fund; provided that the Fund receives notice of such order by 10:00 a.m. Eastern
Time on the next following Business Day. The Company may submit orders via facsimile. “Business
Day” shall mean any day on which the New York Stock Exchange is open for trading and on which the
Fund calculates its net asset value pursuant to the rules of the SEC.
1.2. The Company shall pay for Fund shares on the next Business Day after it places an order
to purchase Fund shares in accordance with Section 1.1 hereof. Payment shall be in federal funds
transmitted by wire by 1 p.m. Eastern time (unless the Fund determines and so advises the Company
that sufficient proceeds are available from redemption of shares of other Portfolios, effected
pursuant to redemption requests tendered by the Company on behalf of the Account). Upon receipt by
the Fund or its designee of federal funds so wired such funds shall cease to be the responsibility
of the Company and shall become the responsibility of the Fund.
1.3. The Fund agrees to make its shares available indefinitely for purchase at the applicable
net asset value per share by Participating Insurance Companies and their separate accounts on those
days on which the Fund calculates its net asset value pursuant to rules of the SEC; provided,
however, that the Fund may refuse to sell shares of any Portfolio to any person, or suspend or
terminate the offering of shares of any Portfolio if such action (a) is required by law or by
regulatory authorities having jurisdiction, (b) is, in the sole discretion of the Board of Trustees
of the Fund (hereinafter the “Fund Board”), acting in good faith and in light of their fiduciary
duties under federal and any applicable state laws, necessary in the best interests of the
shareholders of any Portfolio, or (c) is required by any policies that the Fund Board has adopted
or approved and that are applicable to all Participating Insurance Companies. If the Fund Board
refuses to sell shares to the Company, the Company shall have the right to terminate this Agreement
in accordance with section 10.1(b) of this Agreement.
1.4. The Fund and the Underwriter agree that shares of the Fund will be sold only to (i)
Participating Insurance Companies and their separate accounts; and (ii) Plans and persons
participating in such Plans (“participants”), or (iii) such other persons as are permitted under
applicable provisions of the Internal Revenue Code of 1986, as amended, (the “Internal Revenue
Code”), and regulations
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promulgated thereunder, the sale to which will not impair the tax treatment currently afforded the Contracts.
No shares of any Portfolio will be sold to the general public.
1.5. The Fund and the Underwriter will not sell Fund shares to any insurance company or
separate account unless an agreement containing provisions substantially the same as this Agreement
to govern such sales. The Fund shall make available upon written request from the Company, at the
Company’s expense, (i) a list of all other Participating Insurance Companies and (ii) a copy of the
Participation Agreement executed by any other Participating Insurance Company.
1.6. The Fund agrees to redeem for cash, upon the Company’s request, any full or fractional
shares of the Fund held by the Company, executing such requests on a daily basis at the net asset
value next computed after receipt and acceptance by the Fund or its agent of the request for
redemption. For purposes of this Section 1.6, the Company shall be the designee of the Fund for
receipt of requests for redemption from each Account and receipt by such designee shall constitute
receipt by the Fund; provided the Fund receives notice of request for redemption by 10:00 a.m.
Eastern Time on the next following Business Day. The Company may submit notices of requests for
redemption via facsimile. Payment shall be in federal funds transmitted by wire to the Company’s
account as designated by the Company in writing from time to time, on the same Business Day the
Fund receives notice of the redemption order from the Company, except that the Fund reserves the
right to delay payment of redemption proceeds, but in no event may such payment be delayed longer
than the period permitted under Section 22(e) of the 1940 Act. The Fund agrees to notify the
Company if it intends to delay payment of redemption proceeds in accordance with its rights under
Section 22(e). After redemption proceeds are received by the Company, neither the Fund nor the
Underwriter shall bear any responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds; the Company alone shall be responsible for such action. If notification of
redemption is received after 10:00 a.m. Eastern Time, payment for redeemed shares will be made on
the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the Portfolios of the Fund named
in Schedule 2 offered by the then current prospectus of the Fund in accordance with the provisions
of such prospectus, provided that such provisions are also consistent with the terms of this
Agreement. Without limiting the scope or effect of the foregoing, on any given Business Day, the
Company shall submit orders to purchase or redeem shares of any Portfolio in a manner consistent with
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the pricing requirements of Rule 22c-1 under the 1940 Act. The Company shall submit one net order
for the Portfolio to the Fund or its designee. However, the Fund reserves the right to obtain the
breakdown of any net order per contractowner. With respect to payment of the purchase price by the
Company and of redemption proceeds by the Fund, the Company and the Fund, as appropriate, shall net
purchase and redemption orders with respect to each Portfolio and shall transmit one net payment
for all of the Portfolios.
1.8. Issuance and transfer of the Fund’s shares will be by book entry only. Stock
certificates will not be issued to the Company or the Account. Purchase and redemption orders for
Fund shares will be recorded in an appropriate title for the Account or the appropriate subaccount
of the Account.
1.9. The Fund shall furnish notice to the Company as soon as reasonably practicable, but no
later than two business days prior to any described action, of any income, dividends or capital
gain distributions payable on the Fund’s shares. The Company hereby elects to receive all such
dividends and distributions as are payable on the Portfolio shares in the form of additional shares
of that Portfolio. The Company reserves the right to revoke this election and to receive all such
dividends and distributions in cash. The Fund shall notify the Company of the number of shares so
issued as payment of dividends and distributions on the same business day that such dividend or
distribution is made.
1.10. The Fund shall make the net asset value per share for each Portfolio available to the
Company on a daily basis as soon as reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset value per share available by 5:50
p.m., Eastern Time, each business day. In the event that the Fund is unable to meet the 5:50 time
stated herein, it shall provide additional time for the Company to place orders for the purchase
and redemption of shares. Such additional time shall be equal to the additional time which the
Fund takes to make the net asset value available to the Company. However, in the event the Fund
makes the net asset value available the following business day, the Company will have until 10:00
a.m. or two hours after such notice (whichever is later) to place orders for the purchase and
redemption of shares. In the event of an error in a Portfolio’s net asset value per share which,
in accordance with procedures adopted by the Fund’s Board consistent with views expressed by the
staff of the SEC regarding appropriate error correction standards, as shall be in effect or amended
from time to time, requires adjustment to
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transactions previously effected on behalf of the Account (a “Pricing Error”), the shall notify the Company as soon as possible
after discovery of the Pricing Error. Such notification may be oral, but shall be confirmed in
writing within 24 hours. In such event, the Fund shall recompute all Account share transactions
that were based on the Pricing Error and credit or debit the Account’s account so that the Account
has the correct number of Portfolio’s shares had all those transactions had been correctly priced.
Notwithstanding anything else in this Section 1.10, neither the Fund, any Portfolio, the
Underwriter, nor any of their affiliates shall be liable for any information provided to the
Company pursuant to this Agreement which information is based on incorrect information supplied by
the Company to the Fund or the Underwriter.
1.11 Without limiting the scope or effect of Section 1.7 hereof, the Company agrees to
cooperate with the Fund and the Underwriter to prevent any person exercising, or purporting to
exercise, rights or privileges under one or more Contracts from engaging in any trading practices
in any Portfolio that the Fund Board determines, in good faith and in its sole discretion, to be
detrimental or potentially detrimental to the other shareholders of the Portfolio, or to be in
contravention of any law or regulation including, without limitation, Section 22 of the 1940 Act
and the rules thereunder. Such cooperation may include, but shall not be limited to, identifying
the person or persons engaging in such trading practices, facilitating the imposition of any
applicable redemption fee on such person or persons, limiting the telephonic or electronic trading
privileges of such person or persons, and taking such other remedial steps, all to the extent
permitted or required by applicable law.
1.12 Each party to this Agreement hereby agrees to abide by and comply with all applicable
anti-money laundering laws and regulations including the Anti-Money Laundering and Abatement Act
and relevant provisions of the USA Patriot Act of 2001. Each party represents that it has
established an Anti-Money laundering Program that complies with all material aspects of the USA
Patriot Act of 2001 and other applicable anti-money laundering laws and regulations. Each party
also hereby agrees to take action to comply with any new or additional anti-money laundering
regulations. The Company will use best efforts to obtain and verify the requisite information with
respect to each investor on whose behalf the Company is acting with respect to the Fund and the
Company agrees to notify the Underwriter promptly whenever potential indications of suspicious
activity or Office of Foreign Asset Control matches are detected with respect to any such investor.
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ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that interests in the Account funding the Contracts
are or will be registered under the 1933 Act and that the Contracts will be issued and sold in
compliance 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 the Account as a segregated asset account under applicable
state law and has registered the Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as segregated investment accounts for the Contracts, and that
it will maintain such registration for so long as any Contracts are outstanding. The Company shall
amend the registration statement under the 1933 Act for the interests in the Account and the
registration statement under the 1940 Act for the Account from time to time as required in order to
affect the continuous offering of the Contracts or as may otherwise be required by applicable law.
The Company shall register and qualify the Contracts for sale in accordance with the securities
laws of the various states only if and to the extent deemed necessary by the Company.
2.2. Subject to Section 2.4 and Article VI, the Company represents and warrants that the
Contracts are currently and at the time of issuance will be treated as variable annuity or life
insurance contracts, as the case may be, under applicable provisions of the Internal Revenue Code
and that it will make every effort to maintain such treatment and that it will notify the Fund and
the Underwriter immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future.
2.3. The Fund and the Underwriter each represents and warrants that 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. 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. The Fund shall register and qualify the shares for sale in
accordance with the laws of the various states only if and to the extent deemed advisable by the
Fund or the Underwriter.
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2.4 The Fund and the Underwriter each represents and warrants that each Portfolio is currently
qualified as a Regulated Investment Company under Subchapter M of the Internal Revenue
Code, and that it will maintain such qualification (under Subchapter M or any successor or similar
provision) and that it will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify in the future. In the
event that a Portfolio fails to so qualify, the Company shall have the right to terminate this
arrangement in accordance with Section 10.1 (b), which right shall be in addition to any other
rights that the Company has.
2.5. The Fund and the Underwriter each represents and warrants that each Portfolio’s
investment objectives, policies and restrictions comply and will continue to comply with applicable
state and federal investment laws as they may apply to the Fund. The Fund makes no representation
as to whether any aspect of its operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws and regulations of any state. The Company
alone shall be responsible for informing the Fund of any insurance restrictions imposed by state
insurance laws which are applicable to the Portfolio. The Fund and the Underwriter will use
reasonable efforts to comply with the state insurance laws that apply to them as a result of the
availability of the Portfolio to contractowners pursuant to this Agreement, provided that the
Company shall inform them in writing of any such state insurance laws. To the extent feasible and
consistent with market conditions, the Portfolio will adjust investments practices to comply with
the aforementioned state insurance laws upon written notice from the Company of such requirements
and proposed adjustments, it being agreed and understood that in any such case the Fund shall be
allowed a reasonable period of time under the circumstances after receipt of such notice to make
any such adjustment.
2.6. The Fund represents and warrants that it currently does not intend to make any payments
to finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise, although
it may make such payments in the future. To the extent that it decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund undertakes to have its Board of Trustees, a majority of
whom are not interested persons of the Fund, formulate and approve any plan under Rule 12b-1 to
finance distribution expenses.
2.7. The Underwriter 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 Underwriter further represents and
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warrants that it will sell and distribute the Fund shares in accordance with all applicable federal and
state securities laws, including without limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.9. The Fund represents and warrants that the Fund is lawfully organized and is and will
continue to be validly existing under the laws of Massachusetts and that it does and will comply
with all applicable provisions of the 0000 Xxx.
2.10. The Fund and Underwriter each represent and warrant that all of their directors,
officers, employees, investment advisers, and other individuals/entities having access to the funds
and/or securities of the Fund are and continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund in an amount not less than the minimal
coverage as required currently by Rule 17g-(1) of 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.
2.11. The Company represents and warrants that all of its directors, officers, employees,
investment advisers, and other individuals/entities dealing with the money and/or securities of the
Fund are covered by a blanket fidelity bond or similar coverage. The Company further represents
and warrants that said fidelity bond includes coverage for larceny and embezzlement and is issued
by a reputable bonding company in an amount not less than $5 million. The Company agrees to make
all reasonable efforts to see that this bond or another bond containing these provisions is always
in effect, and agrees to notify the Fund and the Underwriter in the event that such coverage no
longer applies.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1 The Underwriter shall provide the Company, at the Company’s expense, with as many copies
of the Fund’s current prospectus (which term as used in this Agreement shall also include any
supplements thereto) as the Company may reasonably request for use with prospective contractowners
and applicants. The Underwriter shall print and distribute, at the Fund’s or Underwriter’s
expense, as many copies of said prospectus as necessary for distribution to existing contractowners
or participants and provide same to Company on a timely basis such that Company can satisfy its
obligation to provide the prospectus to existing contractowners or participants, as required by
law. If requested by the Company in lieu thereof, the Fund shall provide such documentation
including a final copy of a current prospectus set in type or at the request of the Company, as a
PDF or diskette in the form sent to
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the financial printer, at the Fund’s expense and other
assistance as is reasonably necessary in order for the Company at least annually (or more
frequently if the Fund prospectus is amended more frequently) to
have the new prospectus for the Contracts and the Fund’s new prospectus printed together in
one document. In such case the Fund shall bear its proportionate share of expenses as described
above.
3.2 The Fund’s prospectus shall state that the Statement of Additional Information (“SAI”,
which term, as used in this Agreement shall include any supplement thereto) for the Fund is
available from the Underwriter (or, in the Fund’s discretion, the prospectus shall state that such
SAI is available from the Fund), and the Underwriter (or the Fund) shall provide such SAI, at its
expense, to the Company and to any owner of or participant under a Contract who requests such SAI
or, at the Company’s expense, to any prospective contractowner or applicant who requests such SAI.
3.3 The Fund shall provide the Company with information regarding the Fund’s expenses,
(including information that is legally required to be included in the prospectus for the Account)
which information may include a table of fees and related narrative disclosure for use in any
prospectus or other descriptive document relating to a Contract.
3.4. The Fund shall provide the Company with copies of its voting instructions, proxy
material, if any, reports to shareholders and certain other communications to shareholders in such
quantity as the Company shall reasonably require and the Fund shall bear the costs of distributing
them to existing contractowners or participants (except for costs relating to activities
attributable to the Company).
3.5. If and to the extent required by law the Company shall:
(i) | solicit voting instructions from contractowners or participants; | ||
(ii) | vote the Fund shares held in the Account in accordance with instructions received from contractowners or participants; and | ||
(iii) | vote Fund shares held in the Account for which no timely instructions have been received, in the same proportion as Fund shares of such Portfolio for which instructions have been received from the Company’s contractowners or participants; |
so long as and to the extent that the SEC continues to interpret the 1940 Act to require
“pass-through” voting privileges for variable contractowners. The Company reserves the right to
vote Fund shares held in any segregated asset account in its own right, to the extent permitted by
law. Participating Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in the
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Fund calculates voting privileges in a manner consistent
with other Participating Insurance Companies as those procedures are provided to the Company by the
adviser.
3.6. The Fund will comply with all provisions of the 1940 Act requiring voting by
shareholders, and in particular as required, the Fund will either provide for annual meetings or
comply with Section 16(c) of the 1940 Act (although the Fund is not one of the trusts described in
Section 16(c) of that Act) as well as with Sections 16(a) and, if and when applicable, 16(b).
Further, the Fund will act in accordance with the SEC interpretation of the requirements of Section
16(a) with respect to periodic elections of directors and with whatever rules the Commission may
promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund or the
Underwriter, each piece of sales literature or other promotional material in which the Fund or the
Fund’s adviser or the Underwriter is named, at least fifteen days prior to its use. No such
material shall be used if the Fund or the Underwriter reasonably objects in writing to such use
within fifteen days after receipt of such material.
4.2. The Company shall not 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 or SAI for
the Fund shares, as such registration statement, prospectus and SAI may be amended or supplemented
from time to time, or in reports or proxy statements for the Fund, or in sales literature or other
promotional material approved by the Fund or by the Underwriter, except with the permission of the
Fund or the Underwriter. The Fund and the Underwriter agree to respond to any request for approval
within fifteen days of receipt of the request.
4.3. The Fund and the Underwriter 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 its the Account is named, at least fifteen days prior to its use. No such material
shall be used if the Company reasonably objects in writing to such use within fifteen days after
receipt of such material.
4.4 The Fund and the Underwriter shall not give any information or make any representations on
behalf of the Company or concerning the Company, each Account, or the Contracts
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other than the information or representations contained in a registration statement, prospectus or SAI for the
Contracts, as such registration statement, prospectus and SAI may be amended or supplemented from
time to time, or in published reports for each Account which are in the public domain or approved
by the Company for distribution to contractowners or participants, or in sales literature or
other promotional material approved by the Company, except with the permission of the Company. The
Company agrees to respond to any request for approval within fifteen days of receipt of the
request.
4.5. The Fund will provide to the Company at least one complete copy of all registration
statements, prospectuses, SAIs, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Portfolio or its shares, contemporaneously with the filing of such
document with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all registration
statements, prospectuses, statements of additional information, reports, solicitations for voting
instructions, sales literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that relate to the
Contracts, contemporaneously with the filing of such document with the SEC or other regulatory
authorities.
4.7. For purposes of this Article IV, 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, 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, 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, prospectuses,
statements of additional information, shareholder reports, and proxy materials and any other
material constituting sales literature or advertising under NASD rules, the 1940 Act or the 1933
Act.
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ARTICLE V. Fees and Expenses
5.1. The Fund shall pay no fee or other compensation to the Company under this
Agreement, except that if the Fund or any Portfolio adopts and implements a plan pursuant to Rule
12b-1 to finance distribution expenses, then, subject to obtaining any required exemptive orders or
other regulatory approvals, the Underwriter may make payments to the Company or to the underwriter
for the Contracts if and in amounts agreed to by the Underwriter in writing. Currently, no such payments
are contemplated.
5.2. Unless otherwise specified, each party shall bear the expenses incident to its
performance hereunder. The Fund shall bear the expenses for the cost of registration and
qualification of the Fund’s shares, preparation and filing of the Fund’s prospectus and
registration statement, Fund voting instructions, proxy materials and reports, setting in type,
printing and distributing the prospectuses, the voting instructions, proxy materials and reports to
existing shareholders and contractowners, the preparation of all statements and notices required by
any federal or state law, all taxes on the issuance or transfer of the Fund’s shares, and any
expenses permitted to be paid or assumed by the Fund pursuant to a plan, if any, under Rule 12b-1
under the 1940 Act.
ARTICLE VI. Diversification
6.1. The Fund represents and warrants that the Portfolio will at all times invest its assets
in such a manner as to ensure that the Contracts will be treated as variable contracts under the
Internal Revenue Code and the regulations issued thereunder. Without limiting the scope of the
foregoing, the Fund represents and warrants that the Portfolio will comply with Section 817(h) of
the Internal Revenue Code and Treasury Regulation 1.817-5(b) and (f), relating to the
diversification requirements for variable annuity, endowment, or life insurance contracts and any
amendments or other modifications to such Section or Regulations (and any revenue rulings, revenue
procedures, notices and other published announcements of the Internal Revenue Service interpreting
these sections) as if those requirements applied separately to the Portfolio. In the event of a
breach of this Article VI by the Fund, and in addition to other remedies and actions set forth in
this Agreement, the Fund will take all reasonable steps (a) to notify the Company of such breach
and (b) to adequately diversify the Fund so as to achieve compliance with the grace period afforded
by Treasury Regulation 1.817-5.
6.2. Without limiting their obligations under Section 6.1 above, the Fund represents and
warrants that the Portfolio will elect to be qualified as a Regulated Investment Company under
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Subchapter M of the Code, that it or it’s adviser will operate each such Regulated Investment
Company in such a way as to avoid the imposition of any federal taxes, and that they will maintain
such qualification (under Subchapter M or any successor or similar provision).
6.3. Subject to Sections 6.1 and 6.2, the Company represents that the Contracts are currently,
and at the time of issuance shall be, treated as life insurance or annuity insurance contracts,
under applicable provisions for the Code, and that it will maintain such treatment, and that it
will notify the Fund and the Underwriter immediately upon having a reasonable basis of believing
the Contracts have ceased to be so treated or that they might not be so treated in the future. The
Company will bear all costs, expenses (including but not limited to legal fees) in connection with
any issue arising under this Section 6.3.
ARTICLE VII. Potential Conflicts
7.1. The Fund Board will monitor the Fund for the existence of any material
irreconcilable conflict among the interests of the contractowners of all separate accounts
investing in the Fund. An irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority; (b) a change in applicable
federal or state insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by insurance, tax, or
securities regulatory authorities; (c) an administrative or judicial decision in any relevant
proceeding; (d) the manner in which the investments of any Portfolio are being managed; (e) a
difference in voting instructions given by Participating Insurance Companies or by variable annuity
contractowners and variable life insurance contractowners; or (f) a decision by a Participating
Insurance Company to disregard the voting instructions of contractowners. The Fund Board shall
promptly inform the Company if it determines that an irreconcilable material conflict exists and
the implications thereof. A majority of the Fund Board shall consist of persons who are not
“interested” persons of the Fund.
7.2. The Company has reviewed a copy of the Mixed and Shared Funding Exemptive Order, and in
particular, has reviewed the conditions to the requested relief set forth therein. As set forth in
the Mixed and Shared Funding Exemptive Order, the Company will report any potential or existing
conflicts of which it is aware to the Fund Board. The Company agrees to assist the Fund Board in
carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order, by providing
the Fund Board with all information reasonably necessary for the Fund Board to consider any issues
raised.
14
This includes, but is not limited to, an obligation by the Company to inform the Fund
Board whenever contractowner voting instructions are disregarded. The Fund Board shall record in
its minutes or other appropriate records, all reports received by it and all action with regard to
a potential or existing conflict. The Company agrees to carry out the responsibilities described above with a view only to the
interests of contractowners (per condition of SEC order).
7.3. If it is determined by a majority of the Fund Board, or a majority of its disinterested
Directors, that an irreconcilable material conflict exists, the Company and other Participating
Insurance Companies shall, at their expense and to the extent reasonably practicable (as determined
by a majority of the disinterested Directors), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1) withdrawing the assets
allocable to some or all of the separate accounts from the Fund or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited to) another Portfolio of
the Fund, or submitting the question whether such segregation should be implemented to a vote of
all affected contractowners and, as appropriate, segregating the assets of any appropriate group
(i.e., variable annuity contractowners, or variable life insurance contractowners, or
variable contractowners of one or more Participating Insurance Companies) that votes in favor of
such segregation, or offering to the affected variable contractowners the option of making such a
change; and (2) establishing a new registered management investment company or managed separate
account.
7.4. If the Company’s disregard of voting instructions could lead to a material irreconcilable
conflict with the majority of contractowner voting instructions, and the Company’s judgment
represents a minority position or would preclude a majority vote, the Company may be required, at
the Fund’s election, to withdraw the Account’s investment in the Fund and terminate this Agreement
with respect to such Account. Any such withdrawal and termination must take place within 60 days
after the Fund gives written notice to the Company that this provision is being implemented and no
charge or penalty will be imposed as a result of such withdrawal. Until the end of such 60 day
period the Underwriter and Fund shall continue to accept and implement orders by the Company for
the purchase (and redemption) of shares of the Fund.
7.5. If a particular state insurance regulator’s decision applicable to the Company conflicts
with the majority of other state insurance regulators, then the Company will withdraw the
15
Account’s investment in the Fund and terminate this Agreement with respect to such Account. Any such
withdrawal and termination must take place within 60 days after the Fund gives written notice to
the Company that this provision is being implemented. Until the end of such 60 day period the
Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase (and redemption) of shares
of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of the
disinterested members of the Fund Board shall determine whether any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the Fund or the Adviser be
required to establish a new funding medium for the Contracts. The Company shall not be required by
Section 7.3 to establish a new funding medium for the Contracts if an offer to do so has been
declined by vote of a majority of contractowners materially adversely affected by the
irreconcilable material conflict.
7.7. The Company shall at least annually submit to the Fund Board such reports, materials or
data as the Fund Board may reasonably request so that the Fund Board may fully carry out the duties
imposed upon it as delineated in the Mixed and Shared Funding Exemptive Order, and said reports,
materials and data shall be submitted more frequently if deemed appropriate by the Fund Board.
7. 8. If and to the extent that Rule 6e-2 and Rule 6e-3 (T) are amended, or Rule 6e-3 is
adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated
thereunder with respect to mixed or shared funding (as defined in the Mixed and Shared Funding
Exemptive Order) on terms and conditions materially different from those contained in the Mixed and
Shared Funding Exemptive Order, (a) the Fund and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3 (T), as
amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.5,
3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that
terms and conditions substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund and the Underwriter, and each
of their directors, officers, employees or agents and each person, if any, who controls, is
16
controlled by, or is under common control with, the Fund or the Underwriter within the meaning of
such terms under the federal securities laws (collectively, the “indemnified parties” for purposes
of this Section 8.1) 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 that are related to the sale, holding, acquisition or distribution of the
Shares or the Contracts and:
(i) | arise out of or are based upon any untrue statements or alleged untrue statements of any material fact contained in the Account registration statement, Account prospectus or Account SAI or contained in the Account’s or Contract’s sales literature or other promotional material (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 in light of the circumstances in which they were made; provided that this agreement to indemnify and hold harmless 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 to the Company by or on behalf of any indemnified party, or approved for use by or on behalf of any indemnified party for use in the Account registration statement, Account prospectus or Account SAI or in the Contract’s or Account’s sales literature or other promotional material (or any amendment or supplement to any of the foregoing) or otherwise for use in connection with the sale, holding, acquisition or distribution of the Contracts or Fund shares; or | ||
(ii) | arise out of or as a result of statements or representations or wrongful conduct of the Company or persons under its control, with respect to the sale, holding, acquisition or distribution of the Contracts or Fund shares, provided that this agreement to indemnify and hold harmless 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 to the Company by or on behalf of any indemnified party, or approved for use by or on behalf of any indemnified party for use in the Account registration statement, Account prospectus or Account SAI or in the Contract’s or Account’s sales literature or other promotional material (or any amendment or supplement to any of the foregoing) or otherwise for use in connection with the sale, holding, acquisition or distribution of the Contracts or Fund shares; or | ||
(iii) | arise out of any untrue statement or alleged untrue statement of a material fact contained in the Fund registration statement, Fund prospectus, Fund SAI, 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 in light of the circumstances in which they were made, if such statement or omission was made in reliance upon and in conformity with |
17
information furnished to the Fund by or on behalf of the Company or persons under its control reasonably believed by the Fund, the Adviser or the Underwriter to be authorized to act on its behalf under this Agreement; or |
(iv) | arise as a result of any failure by the Company to provide the services and furnish the materials or to make any payments under the terms of this Agreement; or | ||
(v) | arise out of any material breach of any covenant, 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 8.1(b) and 8.3 hereof. This indemnification shall be in
addition to any liability which the Company may otherwise have.
(b) No indemnified party shall be entitled to indemnification if 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 or due to the breach of any representation,
warranty, and/or covenant made by the indemnified party.
(c) The indemnified parties will promptly notify the Company of the commencement of any
litigation or proceedings against them in connection with the issuance, sale, holding, acquisition
or distribution of the Fund shares, the Account or the Contracts or the operation of the Fund for
which indemnification may be sought under this section 8.1.
8.2 Indemnification By the Underwriter
(a) The Underwriter, on its own behalf and on behalf of the Fund, agrees to indemnify and
hold harmless the Company and each of its directors, officers, employees or agents and each person,
if any, who controls, is controlled by, or is under common control with, the Company within the
meaning of such terms under the federal securities laws (collectively, the “indemnified parties”
for purposes of this Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Underwriter) 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 that are related to the
sale, holding, acquisition or distribution or the Shares or the Contracts and :
(i) | arise out of or are based upon any untrue statements or alleged untrue statements of any material fact contained in the Fund registration statement, Fund prospectus or Fund SAI or sales literature or other |
18
promotional material of the Fund, or the Underwriter (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 in light of the circumstances in which they were made; provided that this agreement to indemnify and hold harmless 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 to the Underwriter, Adviser or Fund by or on behalf of the Company for use in the Fund registration statement, Fund prospectus or Fund SAI or in sales literature or other promotional material of the Fund or the Underwriter (or any amendment or supplement thereto) or otherwise for use in connection with the sale, acquisition, holding or distribution of the Contracts or Fund shares; or | |||
(ii) | arise out of or as a result of statements or representations or wrongful conduct of the Underwriter or the Fund, with respect to the sale, acquisition, holding or distribution of the Contracts or Fund shares, provided that this agreement to indemnify and hold harmless 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 to the Underwriter by or in the Underwriter’s sales literature or other promotional material (or any amendment or supplement to same) or on behalf of any indemnified party for use in connection with the sale, holding, acquisition or distribution of the Contracts or Fund shares; or | ||
(iii) | arise out of any untrue statement or alleged untrue statement of a material fact contained in an Account registration statement, Account prospectus, Account, SAI or Contract or Account sales literature or other promotional material (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 in light of the circumstances in which they were made, if such statement or omission was made in reliance upon and in conformity with information furnished to the Company by or on behalf of the Underwriter or the Fund or persons under their control and reasonably believed by the Company to be authorized to act on their behalf under this Agreement | ||
(iv) | arise as a result of any failure by the Fund or the Underwriter to provide the services and furnish the materials or to make payments under the terms of this Agreement or | ||
(v) | arise out of or result from any material breach of any convenant, representation and/or warranty made by the Underwriter or the Fund in this Agreement or arise out of or result from any other material breach of this Agreement by the Underwriter or the Fund; |
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This indemnification shall be in
addition to any liability which the Underwriter may otherwise have.
(b) No indemnified party shall be entitled to indemnification if 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.
19
(c) The indemnified parties will promptly notify the Underwriter of the commencement of any
litigation or proceedings against them in connection with the issuance or sale of the Contracts or
the operation of the Account for which indemnification may be sought under this section.
(d) In no event shall Underwriter be liable under the indemnification provisions contained in
this Agreement to any indemnified party with respect to any losses, claims, damages, liabilities or
expenses that arise out of or result from (i) a breach of any representation, warranty, and/or
covenant made by the Company hereunder or by any Participating Insurance Company under an agreement
containing substantially similar representations, warranties and covenants; (ii) the failure by the
Company or any Participating Insurance Company to maintain its segregated asset account (which
invests in any Portfolio) as a legally and validly established segregated asset account under
applicable state law and as a duly registered unit investment trust under the provisions of the
1940 Act (unless exempt therefrom); or (iii) the failure by the Company or any Participating
Insurance Company to maintain its variable annuity or life insurance contracts (with respect to
which any Portfolio serves as an underlying funding vehicle) as annuity contracts or life insurance
contracts under applicable provisions of the Internal Revenue Code.
8.3. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII (“indemnifying party”
for the purpose of this Section 8.3) shall not be liable under the indemnification provisions of
this Article VIII with respect to any claim made against a party entitled to indemnification under
this Article VIII (“indemnified party” for the purpose of this Section 8.3) 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 under the indemnification provision of this Article VIII,
except to the extent that the failure to notify results in the failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of failure to give
such notice. 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
20
entitled to assume the defense thereof, with counsel satisfactory to the party named in the action (which
approval shall not be unreasonably withheld). 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 it, 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, 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. The indemnifying party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
A successor by law of a party to this Agreement shall be entitled to the benefits of the
indemnification contained in this Article VIII. The indemnification provisions contained in this
Article VIII shall survive any termination of this Agreement.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof interpreted under and in
accordance with the laws of the State of New York.
9.2. 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 (including, but not limited to the Mixed and Shared
Funding Exemptive Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. Termination
10.1. This Agreement shall terminate as to any Portfolio:
(a) at the option of any party upon 90 days’ advance written notice to the other parties
unless otherwise agreed in a separate written agreement among the parties; or
21
(b) at the option of the Company or Contract Distributor if shares of the Portfolio are not
reasonably available to meet the requirements of the Contracts as determined by the Company; or
(c) at the option of the Fund upon institution of formal proceedings against the Company by
the NASD, the SEC, the insurance commission of any state or any other regulatory body regarding the
Company’s duties under this Agreement or related to the sale of the Contracts, the administration
of the Contracts, the operation of the Account, or the purchase of the Fund shares, which would
have a material adverse effect on the Company’s ability to perform its obligations under this
Agreement; or
(d) at the option of the Company upon institution of formal proceedings against the Fund or
the Underwriter by the NASD, the SEC, or any state securities or insurance department or any other
regulatory body, which would have a material adverse effect on the Fund’s or the Underwriter’s
ability to perform its obligations under this Agreement; or
(e) at the option of the Company or the Fund, upon receipt of any necessary regulatory
approvals and/or the vote of the contractowners having an interest in the Account (or any
subaccount) to substitute the shares of another investment company for the corresponding Portfolio
shares of the Fund in accordance with the terms of the Contracts for which those Portfolio shares
had been selected to serve as the underlying investment media. The Company will give at least 90
days prior written notice to the Fund of the date of any proposed vote or other action taken to
replace a Portfolio’s shares. The Fund will give at least 90 days prior written notice to the
Company of the date of any proposed vote or other action taken to replace a Portfolio’s shares; or
(f) at the option of the Company or the Fund upon a determination by a majority of the Fund
Board, or a majority of the disinterested Fund Board members, that an irreconcilable material
conflict exists among the interests of (i) all contractowners of variable insurance products of all
separate accounts or (ii) the interests of the Participating Insurance Companies investing in the
Fund as delineated in Article VII of this Agreement; or
(g) at the option of the Company if a Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code, or under any successor or similar
provision, or if the Company reasonably believes that the Portfolio may fail to so qualify; or
22
(h) at the option of the Company if the Portfolio fails to meet the requirements specified in
Article VI hereof; or
(i) at the option of any party to this Agreement, upon another party’s material breach of any
provision of this Agreement; or
(j) at the option of the Company, if it determines in its sole judgment exercised in good
faith, that either the Fund or the Underwriter 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 as it relates to the selling, administration or maintenance of the
Contracts; or
(k) at the option of the Fund or Underwriter, if the Fund or Underwriter 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 Underwriter; or
(l) at the option of the Fund in the event any of the Contracts are not issued or sold in
accordance with applicable federal and/or state law in all material respects, or any Contract no
longer qualifies for treatment as an annuity or life insurance contract, as the case may be, under
the Internal Revenue Code. Termination under this sub-paragraph shall be effective immediately
without advance notice of termination of this Agreement.
10.2. Notice Requirement
(a) In the event that any termination of this Agreement is based upon the provisions of
Article VII, such prior written notice shall be given in advance of the effective date of
termination as required by such provisions.
(b) In the event that any termination of this Agreement is based upon the provisions of
Sections 10.1(b) — (d) or 10.1(g) — (i), prompt written notice of the election to terminate for
cause shall be furnished by the terminating party the Agreement to the non-terminating parties,
with said termination to be effective upon receipt of such notice by the non-terminating parties.
(c) In the event that any termination of this Agreement is based upon the provisions of
Sections 10.1(j) or 10.1(k), prior written notice of the election to terminate this Agreement for
23
cause shall be furnished by the terminating party to the non-terminating parties. Such prior
written notice shall be given by the terminating party this Agreement to the non-terminating
parties at least 30 days before the effective date of termination, provided that such termination will not be effective if
the circumstances giving rise to the notice are cured prior to the termination date. It shall be
in the discretion of the party otherwise entitled to terminate this Agreement to determine whether
any such circumstance has been sufficiently cured.
10.3. It is understood and agreed that the right to terminate this Agreement pursuant to
Section 10.1(a) may be exercised for any reason or for no reason.
10.4. Effect of Termination
(a) Notwithstanding any termination of this Agreement by the Company pursuant to Section 10.1
of this Agreement, and subject to Section 1.3 of this Agreement, the Company may require the Fund
and the Underwriter to, continue to make available additional shares of the Fund for so long after
the termination of this Agreement as the Company desires pursuant to the terms and conditions of
this Agreement as provided in paragraph (b) below, for all Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as “Existing Contracts”).
Specifically, without limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Portfolio, redeem investments in the Portfolio and/or invest in the
Portfolio upon the making of additional purchase payments under the Existing Contracts. The
parties agree that this Section 10.4 shall not apply to any terminations under Article VII and the
effect of such Article VII terminations shall be governed by Article VII of this Agreement.
(b) If shares of a Portfolio continue to be made available after termination of this
Agreement pursuant to this Section 10.4, the provisions of this Agreement shall remain in effect
and thereafter the Fund, the Underwriter, or the Company or Contract Distributor may terminate the
Agreement, as so continued pursuant to this Section 10.4, upon written notice to the other parties
in accordance with Section 10.2 hereof.
10.5. Except as necessary to implement contractowner initiated or approved transactions, or
as required by state insurance laws or regulations, the Company shall not redeem Fund shares
attributable to the Contracts (as opposed to Fund shares attributable to the Company’s assets held
in the Account), and the Company shall not prevent contractowners from allocating payments to a
24
Portfolio that was otherwise available under the Contracts, until 90 days after the Company shall
have notified the Fund or Underwriter of its intention to do so. Nothing in this paragraph 10.5 is intended to
restrict the Company’s ability to deduct fees and charges associated with the Contracts.
10.6 In the event of any termination of this Agreement with respect to any Portfolio, the
parties agree to cooperate and give reasonable assistance to one another in taking all necessary
and appropriate steps for the purpose of ensuring that the Account owns no Shares of the Portfolio
six months after such termination. Such steps may include combining the affected Account with
another Account, substituting other mutual fund shares for those of the affected Portfolio, or
otherwise terminating participation by the Contracts in the Portfolio.
25
ARTICLE XI. Notices
Any notice shall be deemed duly given only if sent by hand, 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.
If to the Fund:
Premier VIT
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Secretary
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Secretary
If to the Company:
Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx XX 00000
Attn: General Counsel
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx XX 00000
Attn: General Counsel
If to the Underwriter:
Allianz Global Investors Distributors LLC
0000 Xxxxxxxx Xxxxxx
Legal Department
Attn: Xxxxxxx Xxxx
Email: Xxxxxxx.Xxxx@xxxxxxxxx-xx.xxx
Fax: 000.000.0000
0000 Xxxxxxxx Xxxxxx
Legal Department
Attn: Xxxxxxx Xxxx
Email: Xxxxxxx.Xxxx@xxxxxxxxx-xx.xxx
Fax: 000.000.0000
26
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Fund must look solely to the property of the Fund for the
enforcement of any claims against the Fund as neither the Fund Board, officers, agents or
shareholders assume any personal liability for obligations entered into on behalf of the Fund.
12.2. Subject to law and regulatory authority, each party hereto shall treat as confidential
all information reasonably identified as such in writing by any other party hereto (including
without limitation the names and addresses of the owners of the Contracts) and, except as
contemplated by this Agreement, shall not disclose, disseminate or utilize such confidential
information until such time as it may come into the public domain without the express prior written
consent of the affected party.
12.3. 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.
12.4. This Agreement may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
12.5. 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.
12.6. This Agreement shall not be assigned by any party hereto without the prior written
consent of all the parties.
12.7. Each party hereto shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the SEC, the NASD and state insurance regulators) and
shall permit each other and such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. Each party hereto shall immediately notify the other parties of (i) the
issuance by any court or regulatory body of any stop order, cease and desist order, or other
similar order that may affect the business contemplated by this Agreement, (ii) any request by any
regulatory body, including without limitation the SEC, NASD, or state regulator, for information
relating to such other parties, (iii) the initiation of any investigation or inquiry (other than
routine examination) of the party by any regulatory body, including without limitation the SEC,
NASD, or state regulator relating to this Agreement or the transactions contemplated hereby, or
(iv) any other action or circumstances that could adversely affect the ability of the party to
fulfill the terms of this Agreement.
27
12.8. Each party represents that 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.
12.9. The parties to this Agreement, upon mutual written agreement, may amend the schedules to
this Agreement from time to time to reflect changes in or relating to the Contracts, the Accounts
or the Portfolios of the Fund, or changes in the laws and regulations affecting the business
contemplated by this Agreement.
12.10 The rights, remedies, and obligations contained in this Agreement are cumulative and are
in addition to any and all rights, remedies, and obligations, at law or in equity, that the parties
are entitled to under federal and state laws.
28
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 and year first written above.
Company: | ||||
Pacific Life Insurance Company | ||||
By: | /s/ Xxxxx X. Xxxx | |||
Xxxxx X. Xxxx | ||||
Executive Vice President and CFO |
ATTEST: | /s/ Xxxxxx X. Milfs | |||
Xxxxxx Milfs, Corporate Secretary | ||||
Fund: | ||||
Premier VIT |
By: | /s/ Xxxxx Xxxxxxxx | |||
Underwriter: | ||||
Allianz Global Investors Distributors LLC | ||||
By: | /s/ E. Xxxxx Xxxxx | |||
29
Schedule 1
Participation Agreement
By and Among
Premier VIT, Allianz Global Investors Distributors LLC and
Pacific Life Insurance Company
By and Among
Premier VIT, Allianz Global Investors Distributors LLC and
Pacific Life Insurance Company
The following separate accounts of Pacific Life Insurance Company are permitted in accordance
with the provisions of this Agreement to invest in Portfolios of the Fund shown in Schedule 2 with
respect to the Contracts listed below:
Names of Separate Accounts:
Pacific Select Exec Separate Account
Pacific COLI Separate Account
Pacific COLI II Separate Account
Pacific COLI III Separate Account
Diversified Fixed Investment Variable Account
Pacific COLI Separate Account
Pacific COLI II Separate Account
Pacific COLI III Separate Account
Diversified Fixed Investment Variable Account
Date: March 30, 2007
Schedule 2
Participation Agreement
Among
Premier VIT, Allianz Global Investors Distributors LLC and
Pacific Life Insurance Company
Among
Premier VIT, Allianz Global Investors Distributors LLC and
Pacific Life Insurance Company
The Separate Account(s) shown on Schedule 1 may invest in the following Portfolios of Premier
VIT:
Names of Portfolios:
OpCap Small Cap Portfolio
Date: March 30, 2007