JANUS ASPEN SERIES
FUND PARTICIPATION AGREEMENT
(Institutional Shares)
THIS AGREEMENT is made this ____ day of___________, 2012, between
JANUS ASPEN SERIES, an open-end management investment company organized as a
Delaware statutory trust (the "Trust"), and Symetra Life Insurance Company, a
life insurance company organized under the laws of the State of Washington
(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 Institutional 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 (unless registration is not
required under applicable law); and
WHEREAS, the Company desires to utilize the Shares of one or more
Portfolios as an investment vehicle of the Accounts;
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 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) on a
continuous basis on each day which the NYSE is open for regular trading and on
those days on which the Trust calculates its Portfolio's net asset value, 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 orders placed by Contract owners.
The Trust will use its best efforts to make such net asset value per share
available by 6:30 p.m. Eastern Time each Business Day. In the event that the
Trust is unable to meet the 6:30 p.m. time stated herein, it shall provide a
reasonable additional time for the Company to place orders for the purchase
and redemption of Portfolio shares. 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 his
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 use best efforts
to make payment for redemption orders for such Shares by 1:00 p.m. Eastern
Time on the next Business Day after receiving a redemption order, provided,
however, that the Trust reserves the right to delay payment of redemption
proceeds 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 (or its agents) 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 9:00 a.m. Eastern 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 1:00 p.m. Eastern
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 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. In addition to any of its indemnification
obligations hereunder, the Trust shall bear the reasonable costs of correcting
such errors and shall reimburse the Company for any expenses incurred related
to correction of the net asset value.
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 (a) 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, market timing and
excessive trading. The Company shall use its commercially reasonable best
efforts, and shall reasonably cooperate with, the Trust to enforce stated
prospectus policies regarding transactions in Shares, particularly those
related to market timing. The Company acknowledges that orders accepted by
it in violation of the Trust's stated prospectus 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. Eastern Time on the next following Business
Day after any such cancellation, and, if no such timely notice is provided,
then the Trust will be responsible for any losses as a result of such revoked
or canceled orders. The Trust will use its best efforts to provide the
Company with 30 days' written notice if its stated prospectus policies that
would impact the Company's obligations under this Agreement are amended or
revised.
(b) 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 otherwise be
adversely affected due to the size of the transaction, frequency of trading by
the account or other factors.
1.11 The 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, the Company shall, at Company's option:
(a) permit the 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;
(b) provide the 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
(c) provide annual certification to the 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
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 Trust's expense) with as many copies of the
Trust's Shares' current prospectus or then current summary prospectus (as such
term is defined in Rule 498 under the 1933 Act or any successor provision),
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) If the Company elects to print the Trust's shareholder
documents pursuant to Section 2.2(b), the Trust shall bear the costs of
printing the Trust's Shares' prospectus, shareholder reports and other
shareholder communications to Contract owners of policies for which Shares of
the Trust are serving as an investment vehicle. The Company shall bear the
costs of distributing such prospectuses, reports and shareholder
communications to Contract owners and for printing and distributing such
prospectuses, reports and shareholder communications for applicants for
policies. The Company shall be responsible for printing and distributing
statements of additional information to policy owners and applicants. 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, statements of additional information,
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).
The Trust agrees and acknowledges that the Company is the sole owner
of the name and xxxx "Symetra" that all use of any designation comprised in
whole or part of Symetra (a "Symetra Xxxx") under this Agreement shall inure
to the benefit of the Company. The Trust shall not use any Symetra Xxxx on
its own behalf in any materials without the prior written consent of Symetra.
Notwithstanding the foregoing, this provision shall not be interpreted
to prevent either party from providing information about the other party to
their directors, regulators, accountants, legal counsel or otherwise in the
ordinary course of their respective businesses.
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 (15) Business Days prior to its use. No such material shall be used
if the Trust or its designee reasonably objects to such use within seven (7)
Business Days after receipt of such material. If approved, the Company may use
the piece of sales literature or other promotional material in substantially
the same form for a period of one year so long as the sales literature or
other promotional material is not materially changed and the performance
advertised is as of the most recent calendar quarter-end pursuant to SEC Rule
482.
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.
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
3.1 The Company represents and warrants that:
(a) it is an insurance company duly organized and in good
standing under the laws of the State of Washington 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;
(b) 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 1940 Act, or is not required to
be so registered under applicable law;
(c) 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;
(d) 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. The Company further represents that
it has policies and procedures in place to detect money laundering and
terrorist financing, including the reporting of suspicious activity;
(e) either the Company or the principal underwriter of any
unregistered separate account holding Portfolio shares is a broker or dealer
registered under the Securities Exchange Act of 1934 (the "1934 Act") or is
controlled (as defined in the 0000 Xxx) by a broker or dealer registered under
the 1934 Act;
(f) it will not hold any other investment security (as
defined in Section 3 of the 0000 Xxx) in an investment division that holds
shares of a Portfolio offered in the unregistered Account;
(g) it will seek instructions from holders of interests in
an unregistered separate account holding Portfolio shares with regard to the
voting of all proxies solicited in connection with a Portfolio and will vote
those proxies only in accordance with those instructions, or the Company will
vote Portfolio shares held in its unregistered separate accounts in the same
proportion as the vote all of the Portfolio's other shareholders;
(h) it will not substitute another security for shares of
a Portfolio held in an unregistered separate account unless the Securities and
Exchange Commission approves the substitution in the manner provided in
Section 26 of the 1940 Act; and
(i) [The Company to Select Alternative A or B]
[x] A. The Company is a "financial intermediary" as
defined by SEC Rule 22c-2 of the 1940 Act ("The Rule"), and has entered into
an appropriate agreement with the Trust or one of its affiliates pursuant to
the requirements of The Rule.
[ ] B. The Company is not a "financial intermediary"
as defined by The Rule at the time this Agreement is entered into, and shall:
(i) immediately notify the Trust upon determining that it has become a
"financial intermediary"; and (ii) take steps to comply with the requirement
to enter into an appropriate agreement with the Trust upon a determination
that it has become a financial intermediary.
3.2 The Trust represents and warrants that:
(a) it is duly organized and validly existing under the
laws of the State of Delaware and the Trust will comply in all material
respects with the applicable provisions of the 1940 Act and any applicable
regulations thereunder. The Trust represents and warrants that the Trust's
operations, and that of each Portfolio, does and will materially comply with
applicable federal and state law;
(b) 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; and
(c) the investments of each Portfolio is and will comply
with Subchapter M of the Internal Revenue Code of 1986 and the diversification
requirements set forth in Section 817(h) of the Internal Revenue Code of 1986,
as amended, and the rules and regulations thereunder.
(d) the Trust's directors, officers, employees, investment
advisers, and other individuals/entities associated with Janus Capital
Management LLC and its affiliates having access to the funds and/or securities
of the Trust are and continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Trust in an amount not less
than the minimal coverage as required currently by Rule 17g-(1) of the 1940
Act or related provisions as may be promulgated from time to time. The
aforesaid bond includes coverage for larceny and embezzlement and is issued by
a reputable bonding company.
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: (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.
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 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 "Trust
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 indemnified party) 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 Trust 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, the "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 Trust 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 the Shares; or
(b) arise out of or result from statements or
representations (other than statements or representations contained in and
accurately derived from the 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 the Shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in the Trust 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 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 "Company Indemnified Parties"
for purposes of this Article V) against any and all Losses to which the Company
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, the "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 Company 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 the Trust Documents or otherwise for use in
connection with the sale of the Contracts or the Shares; or
(b) arise out of or result from statements or
representations (other than statements or representations contained in and
accurately derived from the Company Documents) or wrongful conduct of the
Trust or persons under its control, with respect to the sale or acquisition of
the Contracts or the Shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in the 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 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.
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
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.
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
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:
Janus Aspen Series
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Legal Counsel
If to the Company:
Symetra Life Insurance Company
000 000xx Xxx. XX, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Legal Counsel
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.
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 Financial Industry Regulatory
Authority 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.
8.11 The Trust acknowledges that the identities of the customers of
the Company or any of its affiliates (collectively the "Protected Parties" for
purposes of this Section 8.11), information maintained regarding Protected
Parties, and all computer programs and procedures developed by the Protected
Parties or any of their employees or agents in connection with the Company's
performance of its duties under this Agreement are the valuable property of
the Protected Parties. The Trust agrees that if they come into possession of
any list or compilation of the identities of or other information about the
Protected Parties' customers, or any other property of the Protected Parties,
other than such information as may be independently and lawfully developed or
compiled by the Trust or an affiliate, the Trust will hold such information or
property in confidence and refrain from using, disclosing or distributing any
of such information or other property except: (a) with the Company's prior
written consent; or (b) as required by law, judicial or regulatory process.
Subject to the requirements of legal process and regulatory authority, each
party hereto in particular shall treat as confidential any "non-public
personal information" about any "consumer" of any party as such terms are
defined in the SEC's Regulation S-P and shall not disclose or use such
information without the express consent of such party. Such consent shall
specify the purposes for which information may be disclosed or used, which
disclosure or use shall be consistent with Regulation S-P. The Trust
acknowledges that any breach of the agreements in this Section 8.11 would
result in immediate and irreparable harm to the Protected Parties for which
there would be no adequate remedy at law and agree that in the event of such
a breach, the Protected Parties will be entitled to equitable relief by way
of temporary and permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
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:
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
SYMETRA LIFE INSURANCE COMPANY
By:
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
Schedule A
Separate Accounts and Associated Contracts
Contracts Funded
Name of Separate Account By Separate Account
------------------------ -------------------
Symetra Resource Variable Account B Symetra True Variable Annuity
Separate Account VL (unregistered) Symetra Variable Corporate Owned
Life Insurance Contract (private
placement)
Schedule B
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) except Janus Aspen Protected
Series - Growth.
