Exhibit (h)(v)
JANUS ASPEN SERIES
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made this 30th day of June, 1999, between JANUS ASPEN
SERIES, an open-end management investment company organized as a Delaware
business trust (the "Trust"), Janus Distributors, Inc. ("Distributor"), a
Colorado corporation and distributor of the Trust's shares, and THE GUARDIAN
INSURANCE & ANNUITY COMPANY, INC., a life insurance company organized under the
laws of the State of Delaware (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").
WITNESSETH:
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 has registered the offer
and sale of its Institutional Shares ("shares") 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 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 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 desires to utilize shares of one or more Portfolios
specified in Schedule B as an investment vehicle of the Accounts;
-1-
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE I
Sale of Trust Shares
1.1 The Trust shall make shares of its Portfolios 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.
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
accordance with Section 1.4 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
Portfolios calculate their respective net asset values pursuant to the rules of
the Securities and Exchange Commission.
1.4 All purchase, redemption and exchange orders placed by the Company
shall be netted for each Portfolio separately but shall not be netted with
orders for other Portfolios. However, with respect to payment of the purchase
price by the Company and of redemption proceeds by the Trust, the Company and
the Trust shall net purchase and redemption orders with respect to each
Portfolio and shall transmit one net payment for all of the Portfolios. In the
event of net purchase, the Company shall pay for the shares by 2:00 p.m. New
York time on the next Business Day after an order to purchase the shares is made
in accordance with the provisions of Sections 1.1 and 1.3 hereof. In the event
of net redemption, the Trust shall pay
-2-
the redemption proceeds by 3:30 p.m. New York time on the next Business Day
after an order to redeem the shares is made in accordance with the provisions of
Sections 1.2 and 1.3 hereof, provided, however, that redemptions may be
suspended or delayed in accordance with Securities and Exchange Commission
rules. All such payments shall be 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 Accounts.
Shares ordered from the Trust will be recorded in the appropriate title for each
Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish same day notice to the Company of any
dividends or capital gain distributions payable on the Trust's shares. The
Company hereby elects to receive all such 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 and shall use its best efforts to
make such net asset value per share available by 6:30 p.m. New York time. In the
event that the Trust is unable to meet the 6:30 p.m. 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 Trust takes to make the net asset value available to the Company
but in no event past 10:00 a.m. New York time the next Business Day unless
mutually agreed by the parties. In accordance with Section 5.2(f) hereof, if the
Trust provides materially incorrect share net asset value information, the Trust
may make an adjustment to the number of shares purchased or redeemed for the
Accounts to reflect the correct net asset value per share. Any material error in
the calculation or reporting of net asset value per share, dividend or capital
gains information shall be reported to the Company promptly upon discovery.
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.
-3-
ARTICLE II
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 current
prospectus, annual report, semi-annual report and other shareholder
communications, including any amendments or supplements to any of the foregoing
(of which the prospectus, annual report and semiannual report shall describe or
pertain to only those Portfolios listed in Schedule B hereto) 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 its 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 prospectus, statement of additional information, shareholder reports and
other shareholder communications to owners of and applicants for Contracts for
which the Trust is serving or is to serve as an investment vehicle. The Company
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 Corporation ("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. Upon termination of this Agreement for any reason, the Company shall
cease all use of any Xxxxx Xxxx(s) as soon
-4-
as reasonably practicable, except to the extent necessary to make shares of the
Trust available to Contracts then in effect pursuant to Section 6.2.
2.5 (a) 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 ten calendar days prior to its use.
No such material shall be used if the Trust or its designee reasonably objects
to such use within ten calendar days after receipt of such material.
(b) The Trust 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 is named, at least ten calendar days prior to its
use. No such material shall be used if the Company or its designee reasonably
objects to such use within ten calendar 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.
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 or its designee.
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 contractowners, the Company will provide pass-through voting privileges
to owners of Contracts whose account 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 Contractowners are received as well as shares it
owns that are held by that Account, in
-5-
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. The Company reserves the right to vote shares of the Trust held
in any segregated asset account in its own right, to the extent permitted by
law.
ARTICLE III
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 Delaware 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 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 Each party represents that it will use its best efforts to ensure that
the systems that would materially affect the performance of this Agreement will
be fully tested and year 2000 compliant prior to December 31, 1999 and they will
function without material disruption of such party's ability to perform this
Agreement in the year 2000 and beyond. Notwithstanding any other provision of
this agreement, no party shall be liable for indirect, special or consequential
damages (damages that do not flow directly and immediately from a Year 2000
disruption) even if such party had notice of the possibility of such damages.
3.5 The Trust and the Distributor represent and warrant that the Trust is
duly organized and validly existing under the laws of the State of Delaware.
3.6 The Trust and Distributor represent and warrant 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
-6-
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 and in compliance in all
material respects with all applicable state securities laws. Sales of shares of
the Trust shall be sold in compliance in all material respects with applicable
federal and state securities laws.
3.7 The Trust and the Distributor represent and warrant 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
(the "Code"), and the rules and regulations thereunder. The Trust and the
Distributor represent on behalf of each Portfolio that each Portfolio will elect
to be qualified as a Regulated Investment Company under Subchapter M of the Code
and that every effort will be made to maintain such qualification (under
Subchapter M or any successor or similar provision) and that the Trust or its
designee will notify the Company promptly upon having a reasonable basis for
believing that any Portfolio has ceased to so qualify or that any Portfolio
might not so qualify in the future.
3.8 The Distributor represents and warrants that it is registered as a
broker-dealer under the Securities Exchange Act of 1934.
ARTICLE IV
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, without limitation: (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.
-7-
4.3 If it is determined by a majority of the Trustees, or a majority of
its Trustees who are not "interested persons" of the Trust (as such term is
defined in the 1940 Act) (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 and the Company) take
whatever steps are necessary to remedy or eliminate the irreconcilable material
conflict, which steps could include, without limitation: (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 4.5 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict with respect to any
Account, 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
-8-
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 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
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
Section 5.1) 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 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
-9-
from written information furnished to the Company or its designee 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 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
Section 5.2) 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, prospectus, statement of additional information, or sales
literature or other promotional materials of the Trust (or any amendment
or supplement to any of the foregoing), (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
-10-
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 statements therein not
misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Company or
its designee 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; 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; or
(f) 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 for any Portfolio. With respect
to net asset value information, the Trust will make a determination, in
accordance with Securities and Exchange Commission guidelines, as to
whether an error has occurred. Any correction of pricing errors shall be
accomplished using the least costly corrective action, as agreed to by the
Trust in writing. In no event shall the Trust be required to reimburse for
pricing errors caused by conditions beyond the control of the Trust,
including, but not limited to, Acts of God, fires, electrical or phone
outages.
5.3 Indemnification By the Distributor. The Distributor 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 Section 5.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Distributor) 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, prospectus,
-11-
statement of additional information, or sales literature or other
promotional materials of the Trust (or any amendment or supplement to any
of the foregoing), (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 Distributor 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 Distributor 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 statements therein not
misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Company or
its designee by or on behalf of the Distributor; or
(d) arise out of or result from any failure by the Distributor 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 Distributor in this Agreement
or arise out of or result from any other material breach of this Agreement
by the Distributor; or
(f) 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 for any Portfolio. With respect
to net asset value information, the Trust will make a determination, in
accordance with Securities and Exchange Commission guidelines, as to
whether an error has occurred. Any correction of pricing errors shall be
accomplished using the least costly corrective action, as agreed to by the
Trust in writing. In no event shall the Trust or Distributor be required
to reimburse for pricing errors caused by conditions beyond the control of
the Trust or Distributor, including, but not limited to, Acts of God,
fires, electrical or phone outages.
5.4 Neither the Company, the Trust, nor the Distributor shall be liable
under the indemnification provisions of Sections 5.1, 5.2, or 5.3, as
applicable, with respect to any Losses incurred or assessed against an
Indemnified Party that arise from such Indemnified
-12-
Party's willful misfeasance, bad faith or gross 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.
5.5 Neither the Company, the Trust, nor the Distributor shall be liable
under the indemnification provisions of Sections 5.1, 5.2, or 5.3 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, 5.2, and 5.3.
5.6 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
6.1 This Agreement may be terminated by any party for any reason by ninety
(90) days advance written notice delivered to each other party. In addition, any
party may terminate this Agreement immediately if at any time it is reasonably
determined that continuing to perform under this Agreement would violate any
federal or state law.
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.
-13-
ARTICLE VII
Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to each 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 each other party.
If to the Trust:
Janus Aspen Series
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Distributor:
Janus Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Company:
The Guardian Insurance & Annuity Company, Inc.
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Executive Vice President
ARTICLE VIII
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.
-14-
8.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of State of Delaware.
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 any party without the prior written approval of each 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 all
parties.
-15-
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.
JANUS ASPEN SERIES
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Vice President
JANUS DISTRIBUTORS, INC.
By: /s/ Xxxxxx Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx Xxxxx
Title: President
THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
-16-
Schedule A
Separate Accounts and Associated Contracts
Name of Separate Account and Contracts Funded
Date Established by Board of Directors By Separate Account
-------------------------------------- -------------------
The Guardian Separate Account E, The Guardian Investor Retirement
Established September 26, 1996 Asset Manager (flexible premium
variable annuity)
-17-
Schedule B
To Participation Agreement between
Janus Aspen Series and
The Guardian Insurance & Annuity Company, Inc.
Name of Portfolio
-----------------
Janus Aspen Series - Aggressive Growth Portfolio
Janus Aspen Series - Capital Appreciation Portfolio
Janus Aspen Series - Growth Portfolio
Janus Aspen Series - Worldwide Growth Portfolio
Dated June 30, 1999
-18-
AMENDMENT TO FUND PARTICIPATION AGREEMENT
This Amendment to the Fund Participation Agreement ("Agreement") dated
June 30, 1999, among Janus Aspen Series, an open-end management investment
company organized as a Delaware business trust (the "Trust"), Janus
Distributors, Inc. ("Distributor"), a Colorado corporation and Distributor of
the Trust's shares, and The Guardian Insurance & Annuity Company, Inc., a
Delaware life insurance company (the "Company") is effective as of August 31,
2000.
AMENDMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Schedule B of this Agreement shall be deleted and replaced with the
attached Schedule B.
2. All other terms of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
THE GUARDIAN INSURANCE & JANUS DISTRIBUTORS, INC.
ANNUITY COMPANY, INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx Xxxxxx Xxxxx
------------------------------ ----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxxx Xxxxxx Xxxxx
Title: Executive Vice President, Title: Vice President
Equity Products
JANUS ASPEN SERIES
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Schedule B
To Participation Agreement between
Janus Aspen Series and
The Guardian Insurance & Annuity Company, Inc.
Name of Portfolio
-----------------
All Portfolios of Janus Aspen Series (Institutional Shares)*
The Company has no obligation to make available any or all of the Portfolios of
Janus Aspen Series.
* Certain Portfolios of Janus Aspen Series may become closed to new investors
after the date of this Agreement. If a certain Janus Aspen Series Portfolio
closes, such Portfolio may no longer be available for purchase or may be
purchased only under certain restrictions as determined by that Portfolio and
set forth in the Portfolio's then current prospectus.
AMENDMENT TO FUND PARTICIPATION AGREEMENT
This Amendment to the Fund Participation Agreement ("Agreement") dated
June 30, 1999, among Janus Aspen Series, an open-end management investment
company organized as a Delaware business trust (the "Trust"), Janus
Distributors, Inc. ("Distributor"), a Colorado corporation and Distributor of
the Trust's shares, and The Guardian Insurance & Annuity Company, Inc., a
Delaware life insurance company (the "Company") is effective as of August 1,
2000.
AMENDMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Schedule A of this Agreement shall be deleted and replaced with the
attached Schedule A.
2. All other terms of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
THE GUARDIAN INSURANCE & JANUS DISTRIBUTORS, INC.
ANNUITY COMPANY, INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------------ ----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President, Title: Assistant Vice President
Equity Products
JANUS ASPEN SERIES
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Schedule A
Separate Accounts and Associated Contracts
Name of Separate Account and Date Contracts Funded
Established by the AUL Exec. Comm. By Separate Account
---------------------------------- -------------------
The Guardian Separate Account E, The Guardian Investor Retirement
Established September 26, 1996 Asset Manager (flexible premium
variable annuity)
Separate Account N Park Avenue VUL - Millennium Series
Established September 23, 1999 Park Avenue SVUL - Millennium Series
Separate Account K Park Avenue Life '95
Established February 27, 0000 Xxxx Xxxxxx Life '97
Park Avenue 2000 (Effective 12/00)
Separate Account M Park Avenue VUL Policy
Established November 18, 1993
Separate Account D The Guardian Investor Individual
Established in 1989 Annuity Contract
Separate Account A ValueGuard II Individual and Group
Established in 1981 Deferred Annuity Contract
Separate Account F C&C Variable Annuity
Established February 24, 2000
AMENDMENT TO FUND PARTICIPATION AGREEMENT
This Amendment to the Fund Participation Agreement ("Agreement") dated
June 30, 1999, among Janus Aspen Series, an open-end management investment
company organized as a Delaware business trust (the "Trust"), Janus
Distributors, Inc. ("Distributor"), a Colorado corporation and Distributor of
the Trust's shares, and The Guardian Insurance & Annuity Company, Inc., a
Delaware life insurance company (the "Company") is effective as of May 1, 2000.
AMENDMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Schedule A of this Agreement shall be deleted and replaced with the
attached Schedule A.
2. All other terms of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date and year first above written.
THE GUARDIAN INSURANCE & JANUS DISTRIBUTORS, INC.
ANNUITY COMPANY, INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------------ ----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President, Title: Assistant Vice President
Equity Products
JANUS ASPEN SERIES
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Schedule A
Separate Accounts and Associated Contracts
Name of Separate Account and Date Contracts Funded
Established by the AUL Exec. Comm. By Separate Account
---------------------------------- -------------------
The Guardian Separate Account E, The Guardian Investor Retirement
Established September 26, 1996 Asset Manager (flexible premium
variable annuity)
Separate Account N Park Avenue VUL - Millennium Series
Established September 23, 1999 Park Avenue SVUL - Millennium Series
Separate Account K Park Avenue Life '95
Established February 27, 0000 Xxxx Xxxxxx Life '97
Separate Account M Park Avenue VUL Policy
Established November 18, 1993
Separate Account D The Guardian Investor Individual
Established in 1989 Annuity Contract
Separate Account A ValueGuard II Individual and Group
Established in 1981 Deferred Annuity Contract
[LETTERHEAD OF JANUS]
July 19, 1999
Xx. Xxxx X. Xxxxx
Executive Vice President
The Guardian Insurance & Annuity Company, Inc.
0 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxx:
This letter sets forth the agreement between The Guardian Insurance &
Annuity Company, Inc. (the "Company"), and Janus Capital Corporation (the
"Adviser"), concerning certain administrative services.
1. Administrative Services and Expenses. Administrative services for the
separate accounts of the Company (the "Accounts") which invests in one or
more portfolios (collectively, the "Portfolios") of Janus Aspen Series
(the "Trust") pursuant to the Participation Agreement among the Company,
Janus Distributors, Inc. and the Trust dated June 30, 1999, (the
"Participation Agreement"), and for purchasers of variable annuity or life
insurance contracts (the "Contracts") issued through the Accounts are the
responsibility of the Company. Administrative services for the Portfolios,
in which the Accounts invest, and for purchasers of shares of the
Portfolios, are the responsibility of the Trust. The administrative
services the Company intends to provide to the Trust and its Portfolios
are set forth in Schedule A attached to this letter agreement, which may
be amended from time to time.
2. Service Fee. In consideration of the anticipated administrative expense
savings resulting to the Trust from the Company's services, the Adviser
agrees to pay the Company a fee ("Service Fee"), computed daily and paid
monthly in arrears, at an annual rate equal to fifteen (15) basis points
(0.15%) of the average monthly value of the shares of the Portfolios held
in the Accounts.
For purposes of this Paragraph 2, the average monthly value of the shares
of the Portfolios will be based on the sum of the daily net asset values
of the Portfolios (as calculated by the Portfolios) on each calendar day
in a month divided by the number of calendar days in the month.
3. Nature of Payments. The parties to this letter agreement recognize and
agree that the Adviser's payments to the Company relate to administrative
services to the Trust only and do not constitute payment in any manner for
administrative services provided by
Xx. Xxxx X. Xxxxx
July 19, 1999
Page 2
the Company to the Account or to the Contracts or for investment advisory
services and that these payments are not otherwise related to investment
advisory services or expenses.
4. Representations and Warranties.
a. The Adviser represents and warrants that in the event the Trustees
of the Trust approve the payment of all or any portion of the
Service Fee by the Trust, the Trust will calculate in the same
manner the Service Fee to all insurance companies that have entered
into Service Fee arrangements with the Adviser and/or the Trust (the
"Participating Insurance Companies"). To the extent that the Service
Fee is paid by the Trust as provided in Section 9 of this Agreement,
the Adviser represents and warrants that all such payments will
comply with applicable federal and state law, including, without
limitation, the Investment Company Act of 1940 (the "1940 Act") and
the rules and regulations thereunder.
b. The Company represents and warrants that: (1) it and its employees
and agents meet the requirements of applicable law, including but
not limited to federal and state securities law and state insurance
law, for the performance of services contemplated herein; and (2) it
will not purchase shares of the Portfolios with Account assets
derived from tax-qualified retirement plans except indirectly,
through Contracts purchased in connection with such plans and that
the Service Fee does not include any payment to the Company (a) that
is in excess of "reasonable compensation" for the services provided
by the Company to Contract owners under the Contracts, within the
contemplation of Section 408(b)(2) and 408(c)(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and
Section 4975(d)(2) and 4975(d)(10) of the Internal Revenue Code of
1986, as amended (the "Code"), or (b) that will constitute a
non-exempt "prohibited transaction" as such term, is defined in
Section 406 of ERISA and Section 4975 of the Code, with respect to
Contract assets invested in the Portfolios.
c. The Company represents, warrants and agrees that: (1) no portion of
the Service Fee will be rebated by the Company to any Contract
owner; and (2) if the Company reasonably determines that it is
required by applicable law, the Company will disclose to each
Contract owner the existence of the Service Fee received by the
Company pursuant to this letter agreement in a form consistent with
the requirements of applicable law and will disclose the amount of
the Service Fee, if any, that is paid by the Trust.
Xx. Xxxx X. Xxxxx
July 19, 1999
Page 3
5. Indemnification
a. The Company agrees to indemnify and hold harmless the Adviser and
its directors, officers, and employees from any and all loss,
liability and expense resulting from any gross negligence or willful
wrongful act of the Company in performing its services under this
letter agreement, from the inaccuracy or breach of any
representation made in this letter agreement, or from a breach of a
material provision of this letter agreement, except to the extent
such loss, liability or expense is the result of the Advisers
willful misfeasance, bad faith or gross negligence in the
performance of its duties.
b. The Adviser agrees to indemnify and hold harmless the Company and
its directors, officers, agents and employees from any and all loss,
liability and expense resulting from any gross negligence or willful
wrongful act of the Adviser in performing its services under this
letter agreement, from the inaccuracy or breach of any
representation made in this letter agreement, or from a breach of a
material provision of this letter agreement, except to the extent
such loss, liability or expense is the result of the Company's
willful misfeasance, bad faith or gross negligence in the
performance if its duties.
6. Termination.
a. Either party may terminate this letter agreement, without penalty,
on sixty (60) days' written notice to the other party.
b. This letter agreement will terminate at the option of either party
in the event of the termination of the Participation Agreement.
c. This letter agreement will terminate immediately upon the
determination of either party, with the advice of counsel, that the
payment of the Service Fee is in conflict with applicable law.
7. Amendment. This letter agreement may be amended only upon mutual agreement
of the parties hereto in writing.
8. Confidentiality. The terms of this letter agreement will be treated as
confidential and will not be disclosed to the public or any outside party
except with each party's prior written consent, as required by law or
judicial process or as provided in paragraph 4c herein.
Xx. Xxxx X. Xxxxx
July 19, 1999
Page 4
9. Assignment. This letter agreement may not be assigned (as that term is
defined in the 0000 Xxx) by either party without the prior written
approval of the other party, which approval will not be unreasonably
withheld, except that the Adviser may assign its obligations under this
letter agreement, including the payment of all or any portion of the
Service Fee, to the Trust upon thirty (30) days' written notice to the
Company. Each party represents and warrants that any assignment by such
party of any or all of its obligations under this letter agreement will
comply with all applicable federal and state laws.
10. Governing Law. This letter agreement will be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of
Delaware.
11. Counterparts. This letter agreement may be executed in counterparts, each
of which will be deemed an original but all of which will together
constitute one and the same instrument.
If this letter agreement is consistent with your understanding of the matters we
discussed concerning administrative expense payments, kindly sign below and
return a signed copy to us.
Very truly yours,
JANUS CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Attachment: Schedule A
Schedule A
Pursuant to the letter agreement to which this Schedule is attached, the Company
will perform administrative services including, but not limited to, the
following:
1. [Print and mail to Contract owners copies of the Portfolios'
prospectuses, proxy materials, periodic fund reports to shareholders and other
materials that the Trust is required by law or otherwise to provide to its
shareholders.]
2. Provide Contract owner services including, but not limited to, advice
with respect to inquiries related to the Portfolios (not including information
about performance or related to sales) and communicating with Contract owners
about Portfolio (and subaccount) performance.
3. Provide other administrative support for the Trust as described in the
Participation Agreement and relieve the Trust of other usual or incidental
administrative services provided to individual Contract owners as mutually
agreed to by the Company and the Adviser.
