JANUS ASPEN SERIES FUND PARTICIPATION AGREEMENT (Service Shares)
FUND PARTICIPATION AGREEMENT
(Service Shares)
(Service Shares)
THIS AGREEMENT is made this ___day of ___, 2007 between JANUS ASPEN
SERIES, an open-end management investment company organized as a Delaware business trust (the
“Trust”), and Pacific Life Insurance Company, a life insurance company organized under the laws of
the State of Nebraska (the “Company”), on its own behalf and on behalf of each segregated asset
account of the Company set forth on Schedule A, as may be amended from time to time (the
“Accounts”).
W I T N E S S E T H:
WHEREAS, the Trust has registered with the Securities and Exchange Commission as an open-end
management investment company under the Investment Company Act of 1940, as amended (the “1940
Act”), and the beneficial interest in the Trust is divided into several series of shares, each
series representing an interest in a particular managed portfolio of securities and other assets
(the “Portfolios”); and
WHEREAS, the Trust has registered the offer and sale of a class of shares designated the
Service Shares (“Shares”) of each of its Portfolios under the Securities Act of 1933, as amended
(the “1933 Act”); and
WHEREAS, the Trust desires to act as an investment vehicle for separate accounts established
for variable life insurance policies and variable annuity contracts to be offered by insurance
companies that have entered into participation agreements with the Trust (the “Participating
Insurance Companies”); and
WHEREAS, the Trust has received an order from the Securities and Exchange Commission granting
Participating Insurance Companies and their separate accounts exemptions from the provisions of
Sections 9(a), 13(a), 15(a) and 15(b) of 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 Trust to be sold to and held by
variable annuity and variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies and certain qualified pension and retirement plans (the “Exemptive
Order”); and
WHEREAS, the Company has registered or will register (unless registration is not required
under applicable law) certain variable life insurance policies and/or variable annuity contracts
under the 1933 Act (the “Contracts”); and
WHEREAS, the Company has registered or will register each Account as a unit investment trust
under the 1940 Act; and
WHEREAS, the Company desires to utilize the Shares of one or more Portfolios as an
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investment vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree as follows:
ARTICLE I
Sale of Trust Shares
Sale of Trust Shares
1.1 The Trust shall make Shares of its Portfolios listed on Schedule B available to the
Accounts at the net asset value next computed after receipt of such purchase order by the Trust (or
its agent), as established in accordance with the provisions of the then current prospectus of the
Trust. Shares of a particular Portfolio of the Trust shall be ordered in such quantities and at
such times as determined by the Company to be necessary to meet the requirements of the Contracts.
The Trustees of the Trust (the “Trustees”) 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 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 their fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the shareholders of such Portfolio. With
respect to payment of purchase price by the Company and of redemption proceeds by the Trust, the
Company and the Trust shall remit gross purchase and sale orders with respect to each Portfolio and
shall transmit one net payment per Portfolio in accordance with the provisions of this Article I.
1.2 The Trust will redeem any full or fractional Shares of any Portfolio when requested by the
Company on behalf of an Account at the net asset value next computed after receipt by the Trust (or
its agent) of the request for redemption, as established in accordance with the provisions of the
then current prospectus of the Trust. The Trust shall make payment for such Shares in the manner
established from time to time by the Trust, but in no event shall payment be delayed for a greater
period than is permitted by the 0000 Xxx.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints the Company as its
agent for the limited purpose of receiving and accepting purchase and redemption orders resulting
from investment in and payments under the Contracts. Receipt by the Company shall constitute
receipt by the Trust provided that i) such orders are received by the Company in good order prior
to the time the net asset value of each Portfolio is priced in accordance with its prospectus and
ii) the Trust receives notice of such orders by 10:00 a.m. New York time on the next following
Business Day. “Business Day” shall mean any day on which the New York Stock Exchange is open for
trading and on which the Trust calculates its net asset value pursuant to the rules of the
Securities and Exchange Commission.
1.4 Purchase orders that are transmitted to the Trust in accordance with Section 1.3 shall be
paid for no later than 3:00 p.m. New York time on the same Business Day that the Trust receives
notice of the order. Payments shall be made in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust’s Shares will be by book entry only. Stock
certificates will not be issued to the Company or the Account. Shares ordered from the Trust
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will be recorded in the appropriate title for each Account or the appropriate subaccount of each
Account.
1.6 The Trust shall furnish prompt notice to the Company of any income dividends or capital
gain distributions payable on the Trust’s Shares. The Company hereby elects to receive all such
income dividends and capital gain distributions as are payable on a Portfolio’s Shares in
additional Shares of that Portfolio. The Trust shall notify the Company of the number of Shares so
issued as payment of such dividends and distributions.
1.7 The Trust 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. If the Trust provides the Company with materially incorrect share net asset value
information, the Trust shall make an adjustment to the number of shares purchased or redeemed for
the Accounts to reflect the correct net asset value per share. The Trust shall make the
determination as to whether an error in net asset value has occurred and is a material error in
accordance with its own internal policies, which are consistent with SEC materiality guidelines.
Any material error in the calculation or reporting of net asset value per share, dividend or
capital gains information shall be reported promptly upon discovery to the Company.
1.8 The Trust agrees that its Shares will be sold only to Participating Insurance Companies
and their separate accounts and to certain qualified pension and retirement plans to the extent
permitted by the Exemptive Order. No Shares of any Portfolio will be sold directly to the general
public. The Company agrees that Trust Shares will be used only for the purposes of funding the
Contracts and Accounts listed in Schedule A, as amended from time to time.
1.9 The Trust agrees that all Participating Insurance Companies shall have the obligations and
responsibilities regarding pass-through voting and conflicts of interest corresponding to those
contained in Section 2.8 and Article IV of this Agreement.
1.10 All orders accepted by the Company shall be subject to the terms of the then current
prospectus of each Portfolio, including without limitation, policies regarding minimum account
sizes. The Company has policies and procedures in place to restrict market timing and excessive
trading. The Company’s transfer and market-timing restrictions are systematically imposed and
disclosed in the Company’s variable life insurance policy prospectuses. The Company 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 the Trust and that the Trust shall not be responsible for
any losses incurred by the Company or Contract or Account as a result of such cancellation. The
Trust or its agent shall notify the Company of such cancellation prior to 12:00 p.m. EST on the
next day following Business Day after any such cancellation.
In addition, the Company acknowledges that the Trust has the right to refuse any purchase
order for any reason, particularly if the Trust determines that a Portfolio would be unable to
invest the money effectively in accordance with its investment policies or would
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otherwise be adversely affected due to the size of the transaction, frequency of trading by the account or other factors.
1.11 Company certifies that it is following all relevant rules and regulations, as well as
internal policies and procedures, regarding “forward pricing” and the handling of mutual fund
orders on a timely basis. As evidence of its compliance, Company shall:
(i) permit Trust or its agent to audit its operations, as well as any books and records
preserved in connection with its provision of services under this Agreement;
(ii) provide Trust with the results of a Statement on Auditing Standards No. 70 (SAS
70) review or similar report of independent auditors as soon as practicable following
execution of this Agreement; or
(iii) provide annual certification to Trust 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 II
Obligations of the Parties
Obligations of the Parties
2.1 The Trust shall prepare and be responsible for filing with the Securities and Exchange
Commission and any state regulators requiring such filing all shareholder reports, notices, proxy
materials (or similar materials such as voting instruction solicitation materials), prospectuses
and statements of additional information of the Trust. The Trust shall bear the costs of
registration and qualification of its shares, preparation and filing of the documents listed in
this Section 2.1 and all taxes to which an issuer is subject on the issuance and transfer of its
shares.
2.2 At the option of the Company, the Trust shall either (a) provide the Company (at the
Company’s expense) with as many copies of the Trust’s Shares’ current prospectus, annual report,
semi-annual report and other shareholder communications, including any amendments or supplements to
any of the foregoing, as the Company shall reasonably request; or (b) provide the Company with a
camera ready copy of such documents in a form suitable for printing. The Trust shall provide the
Company with a copy of the Shares’ statement of additional information in a form suitable for
duplication by the Company. The Trust (at its expense) shall provide the Company with copies of
any Trust-sponsored proxy materials in such quantity as the Company shall reasonably require for
distribution to Contract owners.
2.3 (a) The Company shall bear the costs of printing and distributing the Trust’s Shares’
prospectus, statement of additional information, shareholder reports and other
shareholder communications to applicants for policies for which Shares of the Trust are
serving or are to serve as an investment vehicle. The Trust shall bear the costs of printing and
distributing the Trust’s Shares’ prospectus, statement of additional information, shareholder
reports and other shareholder communications to owners of policies for which Shares of the
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Trust are serving or are to serve as an investment vehicle. The Trust shall bear the costs of
distributing proxy materials (or similar materials such as voting solicitation instructions) 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.
(b) If the Company elects to include any materials provided by the Trust, specifically
prospectuses, SAIs, shareholder reports and proxy materials, on its web site or in any other
computer or electronic format, the Company assumes sole responsibility for maintaining such
materials in the form provided by the Trust and for promptly replacing such materials with all
updates provided by the Trust.
2.4 The Company agrees and acknowledges that the Trust’s adviser, Janus Capital Management LLC
or its affiliates (“Janus Capital”) is the sole owner of the name and xxxx “Xxxxx” and that all use
of any designation comprised in whole or part of Janus (a “Xxxxx Xxxx”) under this Agreement shall
inure to the benefit of Janus Capital. Except as provided in Section 2.5, the Company shall not
use any Xxxxx Xxxx on its own behalf or on behalf of the Accounts or Contracts in any registration
statement, advertisement, sales literature or other materials relating to the Accounts or Contracts
without the prior written consent of Janus Capital. All references contained in this Agreement to
“the name or xxxx ‘Xxxxx’” 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. The Company will make no
use of the name or xxxx “Xxxxx” except as expressly provided in this Agreement or expressly
authorized by Janus Capital in writing. All goodwill associated with the name and xxxx “Xxxxx”
shall inure to the benefit of Janus Capital or its affiliates. Upon termination of this Agreement
for any reason, the Company shall cease any and all use of any Xxxxx Xxxx(s).
2.5 The Company shall furnish, or cause to be furnished, to the Trust or its designee, a copy
of each Contract prospectus or statement of additional information in which the Trust or its
investment adviser is named prior to the filing of such document with the Securities and Exchange
Commission. The Company shall furnish, or shall cause to be furnished, to the Trust or its
designee, each piece of sales literature or other promotional material in which the Trust or its
investment adviser is named, at least fifteen Business Days prior to its use. No such material
shall be used if the Trust or its designee reasonably objects to such use within fifteen Business
Days after receipt of such material.
2.6 The Company shall not give any information or make any representations or statements on
behalf of the Trust or concerning the Trust or its investment adviser in connection with the sale
of the Contracts other than information or representations contained in and accurately derived from
the registration statement or prospectus for the Trust Shares (as such registration statement and
prospectus may be amended or supplemented from time to time), reports of the Trust, Trust-sponsored
proxy statements, or in sales literature or other promotional
material approved by the Trust or its designee, except as required by legal process or
regulatory authorities or with the written permission of the Trust or its designee.
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2.7 The Trust shall not give any information or make any representations or statements on
behalf of the Company or concerning the Company, the Accounts or the Contracts other than
information or representations contained in and accurately derived from the registration statement
or prospectus for the Contracts (as such registration statement and prospectus may be amended or
supplemented from time to time), or in materials approved by the Company for distribution including
sales literature or other promotional materials, except as required by legal process or regulatory
authorities or with the written permission of the Company.
2.8 So long as, and to the extent that the Securities and Exchange Commission interprets the
1940 Act to require pass-through voting privileges for variable policyowners, the Company will
provide pass-through voting privileges to owners of policies whose cash values are invested,
through the Accounts, in shares of the Trust. The Trust shall require all Participating Insurance
Companies to calculate voting privileges in the same manner and the Company shall be responsible
for assuring that the Accounts calculate voting privileges in the manner established by the Trust.
With respect to each Account, the Company will vote Shares of the Trust held by the Account and for
which no timely voting instructions from policyowners are received as well as Shares it owns that
are held by that Account, in the same proportion as those Shares for which voting instructions are
received. The Company and its agents will in no way recommend or oppose or interfere with the
solicitation of proxies for Trust shares held by Contract owners without the prior written consent
of the Trust, which consent may be withheld in the Trust’s sole discretion.
2.9 The Company has determined that the investment restrictions set forth in the current Trust
prospectus are sufficient to comply with all investment restrictions under state insurance laws
that are currently applicable to the Portfolios as a result of the Accounts’ investment therein.
The Company shall notify the Trust of any additional applicable state insurance laws that restrict
the Portfolios’ investments or otherwise affect the operation of the Trust after the date of this
Agreement.
ARTICLE III
Representations and Warranties
Representations and Warranties
3.1 The Company represents and warrants that it is an insurance company duly organized and in
good standing under the laws of the State of Nebraska and that it has legally and validly
established each Account as a segregated asset account under such law on the date set forth in
Schedule A.
3.2 The Company represents and warrants that each Account has been registered or, prior to any
issuance or sale of the Contracts, will be registered as a unit investment trust in accordance with
the provisions of the 0000 Xxx.
3.3 The Company represents and warrants that the Contracts or interests in the Accounts (1)
are or, prior to issuance, will be registered as securities under the 1933 Act or, alternatively
(2) are not registered because they are properly exempt from registration under the
1933 Act or will be offered exclusively in transactions that are properly exempt from registration
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under the 1933 Act. The Company further represents and warrants that the Contracts
will be issued and sold in compliance in all material respects with all applicable federal and
state laws; and the sale of the Contracts shall comply in all material respects with state
insurance suitability requirements.
3.4 The Trust represents and warrants that it is duly organized and validly existing under the
laws of the State of Delaware.
3.5 The Trust represents and warrants that the Trust Shares offered and sold pursuant to this
Agreement will be registered under the 1933 Act and the Trust shall be registered under the 1940
Act prior to any issuance or sale of such Shares. The Trust shall amend its registration statement
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 Trust shall register and qualify its Shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable by the Trust.
3.6 The Trust represents and warrants that the investments of each Portfolio will comply with
the diversification requirements set forth in Section 817(h) of the Internal Revenue Code of 1986,
as amended, and the rules and regulations thereunder.
3.7 The Company represents and warrants that it is in compliance with all applicable
anti-money laundering laws, rules and regulations including, but not limited to, the U.S.A. PATRIOT
Act of 2001, P.L. 107-56.
ARTICLE IV
Potential Conflicts
Potential Conflicts
4.1 The parties acknowledge that the Trust’s shares may be made available for investment to
other Participating Insurance Companies. In such event, the Trustees will monitor the Trust for
the existence of any material irreconcilable conflict between the interests of the contract owners
of all Participating Insurance Companies. 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 variable annuity contract and variable
life insurance contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Trustees shall promptly inform the Company if they determine
that an irreconcilable material conflict exists and the implications thereof.
4.2 The Company agrees to promptly report any potential or existing conflicts of which it is
aware to the Trustees. The Company will assist the Trustees in carrying out their responsibilities
under the Exemptive Order by providing the Trustees with all information
reasonably necessary for the Trustees to consider any issues raised including, but not limited
to, information as to a decision by the Company to disregard Contract owner voting instructions.
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4.3 If it is determined by a majority of the Trustees, or a majority of its disinterested
Trustees, that a material irreconcilable conflict exists that affects the interests of Contract
owners, the Company shall, in cooperation with other Participating Insurance Companies whose
contract owners are also affected, at its expense and to the extent reasonably practicable (as
determined by the Trustees) take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, which steps could include: (a) withdrawing the assets allocable
to some or all of the Accounts from the Trust or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio of the Trust, or
submitting the question of whether or not such segregation should be implemented to a vote of all
affected Contract owners and, as appropriate, segregating the assets of any appropriate group
(i.e., annuity contract owners, life insurance contract owners, or variable contract owners
of one or more Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a change; and (b) establishing a
new registered management investment company or managed separate account.
4.4 If a material irreconcilable conflict arises because of a decision by the Company to
disregard Contract owner voting instructions and that decision represents a minority position or
would preclude a majority vote, the Company may be required, at the Trust’s election, to withdraw
the affected Account’s investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Any such withdrawal and termination must take place within six (6) months
after the Trust gives written notice that this provision is being implemented. Until the end of
such six (6) month period, the Trust shall continue to accept and implement orders by the Company
for the purchase and redemption of shares of the Trust.
4.5 If a material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to the Company conflicts with the majority of other state
regulators, then the Company will withdraw the affected Account’s investment in the Trust and
terminate this Agreement with respect to such Account within six (6) months after the Trustees
inform the Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested Trustees. Until the end of such six (6) month period, the Trust
shall continue to accept and implement orders by the Company for the purchase and redemption of
Shares of the Trust.
4.6 For purposes of Sections 4.3 through 4.6 of this Agreement, a majority of the
disinterested Trustees shall determine whether any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the Company be required to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will withdraw the Account’s investment in the
Trust and terminate this Agreement within six (6) months after the Trustees inform the Company
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in writing of the foregoing determination; provided, however, that such withdrawal and termination
shall be limited to the extent required by any such material irreconcilable conflict as determined
by a majority of the disinterested Trustees.
4.7 The Company shall at least annually submit to the Trustees such reports, materials or data
as the Trustees may reasonably request so that the Trustees may fully carry out the duties imposed
upon them by the Exemptive Order, and said reports, materials and data shall be submitted more
frequently if deemed appropriate by the Trustees.
4.8 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 Exemptive Order) on terms and conditions
materially different from those contained in the Exemptive Order, then the Trust 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.
ARTICLE V
Indemnification
Indemnification
5.1 Indemnification By the Company. The Company agrees to indemnify and hold harmless
the Trust and each of its Trustees, officers, employees and agents and each person, if any, who
controls the Trust within the meaning of Section 15 of the 1933 Act (collectively, the “Indemnified
Parties” for purposes of this Article V) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company) or expenses
(including the reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, “Losses”), to which the Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged untrue statements
of any material fact contained in a registration statement or prospectus for the Contracts
or in the Contracts themselves or in sales literature for the Trust generated or approved by
the Company on behalf of the Contracts or Accounts (or any amendment or supplement to any
of the foregoing) (collectively, “Company Documents” for the purposes of this Article V), 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 indemnity 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
was accurately derived from written information furnished to the Company by or on behalf of
the Trust for use in Company Documents or otherwise for use in connection with the sale of
the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations (other than statements or
representations contained in and accurately derived from Trust Documents as defined in
Section 5.2(a)) or wrongful conduct of the Company or persons under its
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control, with respect to the sale or acquisition of the Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged untrue statement of a
material fact contained in Trust Documents as defined in Section 5.2(a) 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 statement or omission was made in
reliance upon and accurately derived from written information furnished to the Trust by or
on behalf of the Company; or
(d) arise out of or result from any failure by the Company to provide the services or
furnish the materials required under the terms of this Agreement; or
(e) 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 of this Agreement by the Company.
5.2 Indemnification By the Trust. The Trust agrees to indemnify and hold harmless the
Company and each of its directors, officers, employees and 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 Article V) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of the Trust) or
expenses (including the reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, “Losses”), to which the Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged untrue statements
of any material fact contained in the registration statement or prospectus for the Trust (or
any amendment or supplement thereto), (collectively, “Trust Documents” for the purposes of
this Article V), 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 indemnity 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 was accurately derived from written information furnished to the
Trust by or on behalf of the Company for use in Trust Documents or otherwise for use in
connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations (other than statements or
representations contained in and accurately derived from Company Documents) or wrongful
conduct of the Trust or persons under its control, with respect to
the sale or acquisition of the Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged untrue statement of a
material fact contained in Company Documents or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
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statements therein not misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Company by or on behalf of the
Trust; or
(d) arise out of or result from any failure by the Trust to provide the services or
furnish the materials required under the terms of this Agreement;
(e) arise out of or result from the materially incorrect or untimely calculation
or reporting of the daily net asset value per share or dividend or capital gain distribution
rate; or
(e) arise out of or result from any material breach of any representation and/or
warranty made by the Trust in this Agreement or arise out of or result from any other
material breach of this Agreement by the Trust.
5.3 Neither the Company nor the Trust shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any Losses incurred or assessed against an
Indemnified Party that arise from such Indemnified Party’s willful misfeasance, bad faith or
negligence in the performance of such Indemnified Party’s duties or by reason of such Indemnified
Party’s reckless disregard of obligations or duties under this Agreement.
5.4 Neither the Company nor the Trust shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the other party in writing within a reasonable
time after the summons, or other first written notification, giving information of the nature of
the claim shall have been served upon or otherwise received by such Indemnified Party (or after
such Indemnified Party shall have received notice of service upon or other notification to any
designated agent), but failure to notify the party against whom indemnification is sought of any
such claim shall not relieve that party from any liability which it may have to the Indemnified
Party in the absence of Sections 5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties, the indemnifying party
shall be entitled to participate, at its own expense, in the defense of such action. The
indemnifying party also shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action. After notice from the indemnifying party to the
Indemnified Party of an election to assume such defense, 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 the Indemnified 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.
ARTICLE VI
Termination
Termination
6.1 This Agreement may be terminated by either party for any reason by ninety (90) days
advance written notice delivered to the other party.
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6.2 Notwithstanding any termination of this Agreement, the Trust shall, at the option of the
Company, continue to make available additional shares of the Trust (or any Portfolio) pursuant to
the terms and conditions of this Agreement for all Contracts in effect on the effective date of
termination of this Agreement, provided that the Company continues to pay the costs set forth in
Section 2.3.
6.3 The provisions of Article V shall survive the termination of this Agreement, and the
provisions of Article IV and Section 2.8 shall survive the termination of this Agreement as long as
Shares of the Trust are held on behalf of Contract owners in accordance with Section 6.2.
ARTICLE VII
Notices
Notices
Any notice shall be sufficiently given when sent by registered or certified mail 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 Trust:
If to the Company:
Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: General Counsel
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: General Counsel
ARTICLE VIII
Miscellaneous
Miscellaneous
8.1 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.
8.2 This Agreement may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
8.3 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.
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8.4 This Agreement shall be construed and the provisions hereof interpreted under and in
accordance with the laws of State of Colorado.
8.5 The parties to this Agreement acknowledge and agree that all liabilities of the Trust
arising, directly or indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of the Trust and that no Trustee, officer, agent or holder of
shares of beneficial interest of the Trust shall be personally liable for any such liabilities.
8.6 Each party shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the Securities and Exchange Commission, the National
Association of Securities Dealers, Inc., and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with any investigation or
inquiry relating to this Agreement or the transactions contemplated hereby.
8.7 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, which the parties
hereto are entitled to under state and federal laws.
8.8 The parties to this Agreement acknowledge and agree that this Agreement shall not be
exclusive in any respect.
8.9 Neither this Agreement nor any rights or obligations hereunder may be assigned by either
party without the prior written approval of the other party.
8.10 No provisions of this Agreement may be amended or modified in any manner except by a
written agreement properly authorized and executed by both parties.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused their duly authorized officers to execute this
Participation Agreement as of the date and year first above written.
| PACIFIC LIFE INSURANCE COMPANY |
||||
| By: | ||||
| Xxxxx X. Xxxx | ||||
| Executive Vice President and Chief Financial Officer | ||||
| ATTEST: | ||||
| Name: | Xxxxxx Milfs | |||
| Title: | Corporate Secretary | |||
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Schedule A
Separate Accounts and Associated Contracts
Separate Accounts and Associated Contracts
| Contracts Funded | ||
| Name of Separate Account | By Separate Account | |
Pacific Select Exec Separate Account
|
Pacific Select Exec | |
May 12, 1998
|
Pacific Select Exec II | |
| Pacific Select Exec III | ||
| Pacific Select Choice | ||
| Pacific Select Estate Preserver | ||
| Pacific Select Estate Preserver II | ||
| Pacific Select Estate Preserver III | ||
| Pacific Select Estate Preserver IV | ||
| Pacific Select Estate Preserver V | ||
| Pacific Select Estate Maximizer | ||
| Pacific Select Performer 500 | ||
| M’s Versatile Product | ||
| M’s Versatile Product-VI | ||
| M’s Versatile Product-Survivorship | ||
| Pacific Select Accumulator | ||
Pacific COLI Separate Account
|
Custom COLI | |
July 17, 1992
|
Custom COLI Rider | |
Pacific COLI II Separate Account
|
Custom COLI II | |
October 12, 1998 |
||
Pacific COLI III Separate Account
|
Custom COLI III | |
October 12, 1998 |
||
Diversified Fixed Investment Variable Account
|
Custom COLI Rider | |
September 25, 1996 |
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Schedule B
List of Portfolios
List of Portfolios
Name of Portfolio
All Portfolios of Janus Aspen Series open to new investors (as set forth in the current prospectus
of Janus Aspen Series).
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