PARTICIPATION AGREEMENT Among VARIABLE INSURANCE PRODUCTS FUNDS, FIDELITY DISTRIBUTORS CORPORATION, and PACIFIC LIFE & ANNUITIES COMPANY
Exhibit (8)(i)
Among
VARIABLE INSURANCE PRODUCTS FUNDS,
FIDELITY DISTRIBUTORS CORPORATION,
and
PACIFIC LIFE & ANNUITIES COMPANY
THIS AGREEMENT, made and entered into as of the 25th day of July, 2005 by and among PACIFIC
LIFE & ANNUITIES COMPANY, (hereinafter the “Company”), an
Arizona insurance company, on its own behalf and on behalf of each segregated asset account of the
Company set forth on Schedule A hereto as may be amended from time to time (each such account
hereinafter referred to as the “Account”); and FIDELITY DISTRIBUTORS CORPORATION (hereinafter the
“Underwriter”), a Massachusetts corporation; and each of VARIABLE INSURANCE PRODUCTS FUND, VARIABLE
INSURANCE PRODUCTS FUND II and VARIABLE INSURANCE PRODUCTS FUND III, each an unincorporated
business trust organized under the laws of the Commonwealth of Massachusetts (each referred to
hereinafter as the “Fund”).
RECITALS
WHEREAS, each Fund engages in business as an open-end management investment company and is
available to act as the investment vehicle for separate accounts established for variable life
insurance policies and variable annuity contracts (collectively, the “Variable Insurance Products”)
to be offered by insurance companies which have entered into participation agreements with the Fund
and the Underwriter (hereinafter “Participating Insurance Companies”); and
WHEREAS, the beneficial interest in each Fund is divided into several series of shares, each
representing the interest in a particular managed portfolio of securities and other assets, any one
or more of which may be made available under this Agreement, as may be amended from time to time by
mutual agreement of the parties hereto (each such series hereinafter referred to as a “Portfolio”);
and
WHEREAS, each Fund has obtained an order from the Securities and Exchange Commission, dated
October 15, 1985 (File No. 812-6102) or September 17, 1986 (File No. 812-
6422), granting
Participating Insurance Companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (hereinafter the “1940 Act”) and Rules 6e-2(b) (15) and 6e-3(T)
(b) (15) thereunder, to the extent necessary to permit shares of the Fund to be sold to and held by
variable annuity and variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies (hereinafter the “Shared Funding Exemptive Order”); and
WHEREAS, each Fund is registered as an open-end management investment company under the 1940
Act and its shares are registered under the Securities Act of 1933, as amended (hereinafter the
“1933 Act”); and
WHEREAS, Fidelity Management & Research Company (“the Adviser”) is duly registered as an
investment adviser under the federal Investment Advisers Act of 1940 and any applicable state
securities law; and
WHEREAS, the variable life insurance and/or variable annuity products identified on Schedule A
hereto (“Contracts”) have been or will be registered by the Company under the 1933 Act, unless such
Contracts are exempt from registration thereunder; and
WHEREAS, each Account is a duly organized, validly existing segregated asset account,
established by the Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to the aforesaid Contracts; and
WHEREAS, the Company has registered or will register each Account as a unit investment trust
under the 1940 Act, unless such Account is exempt from registration thereunder; and
WHEREAS, the Underwriter is registered as a broker dealer with the Securities and Exchange
Commission (“SEC”) under the Securities Exchange Act of 1934, as amended, (hereinafter the “1934
Act”), and is a member in good standing of the National Association of Securities Dealers, Inc.
(hereinafter “NASD”); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations, the Company
intends to purchase shares in the Portfolios on behalf of each Account to fund certain of the
aforesaid Contracts and the Underwriter is authorized to sell such shares to each Account at net
asset value;
AGREEMENT
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Underwriter, and
each Fund agree as follows:
ARTICLE A. Form of Agreement
Although the parties have executed this Agreement in the form of a Master Participation
Agreement for administrative convenience, this Agreement shall create a separate participation
agreement for each Fund, as though the Company, and the Underwriter had executed a separate,
identical form of participation agreement with each Fund. No rights, responsibilities or
liabilities of any Fund shall be attributed to any other Fund.
ARTICLE I. Sale of Fund Shares
1.1. The Underwriter agrees to sell to the Company those shares of the Fund which each
Account orders, executing such orders on a daily basis at the net asset value next computed after
receipt by the Fund or its designee of the order for the shares of the Fund. For purposes of this
Section 1.1, the Company shall be the designee of the Fund for receipt of such orders from each
Account and receipt by such designee shall constitute receipt by the Fund; provided that the Fund
receives notice of such order by 9:30 a.m. Boston time on the next following Business Day.
Beginning no later than three months of the effective date of this Agreement, the Company agrees
that all orders for the purchase and redemption of Fund shares on behalf of the Accounts will be
placed by the Company with the Funds or their transfer agent by electronic transmission. “Business
Day” shall mean any day on which the New York Stock Exchange is open for trading and on which the
Fund calculates its net asset value pursuant to the rules of the Securities and Exchange
Commission.
1.2. The Fund agrees to make its shares available indefinitely for purchase at the applicable
net asset value per share by the Company and its Accounts on those days on which the Fund
calculates its net asset value pursuant to rules of the Securities and Exchange Commission and the
Fund shall use reasonable efforts to calculate such net asset value on each day which the New York
Stock Exchange is open for trading. Notwithstanding the foregoing, the Board of Trustees of the
Fund (hereinafter the “Board”) 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 Board acting in
good faith and in light of their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts. No shares of any Portfolio will be
sold to the general public.
1.4. The Fund and the Underwriter will not sell Fund shares to any insurance company or
separate account unless an agreement containing provisions substantially the same as Articles I,
III, V, VII and Section 2.5 of Article II of this Agreement is in effect to govern such sales.
1.5. The Fund agrees to redeem for cash, on the Company’s request, any full or fractional
shares of each Portfolio held by the Company, executing such requests on a daily basis at the net
asset value next computed after receipt by the Fund or its designee of the request for redemption
in accordance with Section 22(c) of the 1940 Act and the rules thereunder and the procedures and
policies of the Fund as described in the then current prospectus. For purposes of this Section
1.5, the Company shall be the designee of the Fund for receipt of requests for redemption from each
Account and receipt by such designee shall constitute receipt by the Fund; provided that the Fund
receives notice of such request for redemption on the next following Business Day.
1.6. The Company agrees that purchases and redemptions of Portfolio shares offered by the
then current prospectus of the Fund shall be made in accordance with the provisions of such
prospectus. Without limiting the foregoing, the Company represents and warrants that:
(a) all purchase and redemption orders it provides under sections 1.1 and 1.5, shall result
solely from Contract Owner transactions fully received and recorded by the Company before the time
as of which each applicable VIP Portfolio net asset value was calculated;
(b) it will use its best efforts to discourage excessive or disruptive trading activity by
third parties with power to act on behalf of multiple contract owners and by individual contract
owners;
(c) any annuity contract forms or variable life insurance policy forms not in use at the time
of execution of this Agreement, but added to in the future via amendment of Schedule A hereto, will
contain language reserving to the Company the right to refuse to accept instructions from persons
that engage in excessive or disruptive trading activity.
1.7. The Company shall pay for Fund shares on the next Business Day after an order to
purchase Fund shares is made in accordance with the provisions of Section 1.1 hereof. Payment
shall be in federal funds transmitted by wire. For purpose of Section 2.10 and
2.11, upon receipt by the Fund of the federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the Fund.
1.8. Issuance and transfer of the Fund’s shares will be by book entry only. Stock
certificates will not be issued to the Company or any Account. Shares ordered from the Fund will
be recorded in an appropriate title for each Account or the appropriate subaccount of each Account.
1.9. The Fund shall furnish same day notice (by wire or telephone, followed by written
confirmation) to the Company of any income, dividends or capital gain distributions payable on the
Fund’s shares. The Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Portfolio shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such income
dividends and
capital gain distributions in cash. The Fund shall promptly notify the Company of the number of
shares so issued as payment of such dividends and distributions.
1.10. The Fund shall make the net asset value per share for each Portfolio available to the
Company on a daily basis as soon as reasonably practical after the net asset value per share is
calculated (normally by 6:30 p.m. Boston time) and shall use its best efforts to make such net
asset value per share available by 7:00 p.m. Boston time.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be registered under
the 1933 Act or are exempt from registration thereunder and that the Contracts will be issued and
sold in compliance in all material respects with all applicable Federal and State laws and that the
sale of the Contracts shall comply in all material respects with state insurance suitability
requirements. The Company further represents and warrants that it is an insurance company duly
organized and in good standing under applicable law and that it has legally and validly established
each Account prior to any issuance or sale thereof as a segregated asset account under the State of
California insurance laws and that each Account is either registered or exempt from registration as
a unit investment trust in accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts.
2.2. The Fund represents and warrants that Fund shares sold pursuant to this Agreement shall
be registered under the 1933 Act, duly authorized for issuance and sold in compliance with the laws
of the State of California and all applicable federal and state securities laws and that the Fund
is and shall remain registered under the 0000 Xxx. The Fund shall amend the Registration Statement
for its shares under the 1933 Act and the 1940 Act from time to time as required in order to effect
the continuous offering of its shares. The Fund shall register and qualify the shares for
sale in accordance with the laws of the various states only if and to the extent deemed advisable
by the Fund or the Underwriter.
2.3. The Fund represents that the Fund and each Portfolio is currently qualified as a
Regulated Investment Company under Subchapter M of the Internal Revenue Code of 1986, as amended,
(the “Code”) and that it will make every effort to maintain such qualification (under Subchapter M
or any successor or similar provision) and that it will notify the Company immediately upon having
a reasonable basis for believing that it has ceased to so qualify or that it might not so qualify
in the future.
2.4 The Company represents that the Contracts are currently treated as endowment, life
insurance or annuity insurance contracts, under applicable provisions of the Code and that it will
make every effort to maintain such treatment and that it will notify the Fund and the Underwriter
immediately upon having a reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future.
2.5 (a) With respect to Initial Class shares, the Fund currently does not intend to make any
payments to finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise,
although it may make such payments in the future. The Fund has adopted a “no fee” or “defensive”
Rule 12b-1 Plan under which it makes no payments for distribution expenses. To the extent that it
decides to finance distribution expenses pursuant to Rule 12b-1, the Fund undertakes to have a
board of trustees, a majority of whom are not interested persons of the Fund, formulate and approve
any plan under Rule 12b-1 to finance distribution expenses.
(b) With respect to Service Class shares and Service Class 2 shares, the Fund has adopted
Rule 12b-1 Plans under which it makes payments to finance distribution expenses. The Fund
represents and warrants that it has a board of trustees, a majority of whom are not interested
persons of the Fund, which has formulated and approved each of its Rule 12b-1 Plans to finance
distribution expenses of the Fund and that any changes to the Fund’s Rule 12b-1 Plans will be
approved by a similarly constituted board of trustees.
2.6 The Fund makes no representation as to whether any aspect of its operations (including,
but not limited to, fees and expenses and investment policies) complies with the insurance laws or
regulations of the various states except that the Fund represents that the Fund’s investment
policies, fees and expenses are and shall at all times remain in compliance with the laws of the
State of California and the Fund and the Underwriter represent that their respective operations are
and shall at all times remain in material compliance with the laws of the State of California to
the extent required to perform this Agreement.
2.7. The Underwriter represents and warrants that it is a member in good standing of the NASD
and is registered as a broker-dealer with the SEC. The Underwriter further represents that it will
sell and distribute the Fund shares in accordance with the laws of the Commonwealth of
Massachusetts and all applicable state and federal securities laws, including without limitation
the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.8 The Fund represents that it is lawfully organized and validly existing under the laws of
the Commonwealth of Massachusetts and that it does and will comply in all material respects with
the 1940 Act.
2.9. The Underwriter represents and warrants that the Adviser is and shall remain duly
registered in all material respects under all applicable federal and state securities laws and that
the Adviser shall perform its obligations for the Fund in compliance in all material respects with
the laws of the Commonwealth of Massachusetts and any applicable state and federal securities laws.
2.10 The Fund and the Underwriter represent and warrant that all of their directors,
officers, employees, investment advisers, and other individuals/entities dealing with the money
and/or securities of the Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act or related provisions as may
be promulgated from time to time. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11 The Company represents and warrants that all of its directors, officers, employees,
investment advisers, and other individuals/entities employed or controlled by the Company dealing
with the money and/or securities of the Fund are covered by a blanket fidelity bond or similar
coverage in an amount not less than $5 million. The aforesaid bond includes coverage for larceny
and embezzlement and is issued by a reputable bonding company. The Company agrees that any amounts
received under such bond in connection with claims that arise from the arrangements described in
this Agreement will be held by the Company for the benefit of the Fund. The Company agrees to make
all reasonable efforts to see that this bond or another bond containing these provisions is always
in effect, and agrees to notify the Fund and the Underwriter in the event that such coverage no
longer applies. The Company agrees to exercise its best efforts to ensure that other
individuals/entities not employed or controlled by the Company and dealing with the money and/or
securities of the Fund maintain a similar bond or coverage in a reasonable amount.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company with as many printed copies of the Fund’s
current prospectus and Statement of Additional Information as the Company may reasonably request.
If requested by the Company in lieu thereof, the Fund shall provide such documentation (including a
final copy of the new prospectus as set in type, in pdf format, or on a diskette, at the Fund’s
expense), and such other assistance as is reasonably necessary in order for the Company once each
year (or more frequently if the prospectus and/or Statement of Additional Information for the Fund
is amended during the year) to have the prospectus, private offering memorandum or other disclosure
document (“Disclosure Document”) for the Contracts and the Fund’s prospectus printed together in
one document, and to have the Statement of Additional Information for the Fund and the Statement of
Additional Information for the Contracts printed together in one document. Alternatively, the
Company may print the Fund’s prospectus and/or its Statement of Additional Information in
combination with other fund companies’ prospectuses and statements of additional information.
Except as provided in the following three sentences, all expenses of printing and distributing Fund
prospectuses and Statements of Additional Information shall be the expense of the Company. For
prospectuses and Statements of Additional Information provided by the Company to its existing
owners of Contracts in order to update disclosure annually as required by the 1933 Act and/or the
1940 Act, the cost of printing shall be borne by the Fund. If the Company chooses to receive
camera-ready film in lieu of receiving printed copies of the Fund’s prospectus, the Fund will
reimburse the Company in an amount equal to the product of A and B where A is the number of such
prospectuses distributed to owners of the Contracts, and B is the Fund’s per unit cost of
typesetting and printing the Fund’s prospectus. The same procedures shall be followed with respect
to the Fund’s Statement of Additional Information. In the event that Portfolios of the Fund are
made available in Contracts that were available for purchase before the date of this Agreement, the
quantities above shall be limited to owners of Contracts issued after the date of this Agreement.
The Company agrees to provide the Fund or its designee with such information as may be
reasonably requested by the Fund to assure that the Fund’s expenses do not include the
cost of
printing any prospectuses or Statements of Additional Information other than those actually
distributed to existing owners of the Contracts.
3.2. The Fund’s prospectus shall state that the Statement of Additional Information for the
Fund is available from the Underwriter or the Company (or in the Fund’s discretion, the Prospectus
shall state that such Statement is available from the Fund), and the Underwriter (or the Fund), at
its expense, shall print, or otherwise reproduce, and provide sufficient copies of the Statement of
Additional Information free of charge to the Company for any owner of a Contract who requests such
Statement.
3.3. The Fund, at its expense, shall provide the Company with copies of its proxy statements,
reports to shareholders, and other communications (except for prospectuses and Statements of
Additional Information, which are covered in Section 3.1) to shareholders in such quantity as the
Company shall reasonably require for distributing to Contract owners who have allocated assets to
subaccounts invested in the Funds.
3.4. If and to the extent required by law the Company shall:
(i) | solicit voting instructions from Contract owners; | ||
(ii) | vote the Fund shares in accordance with instructions received from Contract owners; and | ||
(iii) | vote Fund shares for which no instructions have been received in a particular separate account in the same proportion as Fund shares of such portfolio for which instructions have been received in that separate account, |
so long as and to the extent that the Securities and Exchange Commission continues to interpret the
1940 Act to require pass-through voting privileges for variable contract owners or to the extent
otherwise required by law. The Company reserves the right to vote Fund shares held in any
segregated asset account in its own right, to the extent permitted by law. Participating Insurance
Companies shall be responsible for assuring that each of their separate accounts participating in
the Fund calculates voting privileges in a manner consistent with the standards set forth on
Schedule B attached hereto.
3.5. The Fund will comply with all provisions of the 1940 Act requiring voting by
shareholders, and in particular the Fund will either provide for annual meetings or comply with
Section 16(c) of the 1940 Act (although the Fund is not one of the trusts described in Section
16(c) of that Act) as well as with Sections 16(a) and, if and when applicable, 16(b). Further, the
Fund will act in accordance with the Securities and Exchange Commission’s interpretation of the
requirements of Section 16(a) with respect to periodic elections of directors or trustees
and with whatever rules the Commission may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund or its designee,
each piece of sales literature or other promotional material that the Company develops or
distributes and in which the Fund, the Adviser or the Underwriter is named, at least fifteen
Business Days prior to its use. No such material shall be used if the Fund or its designee
reasonably objects to such use within fifteen Business Days after receipt of such material.
4.2. The Company shall not give any information or make any representations or statements on
behalf of the Fund or concerning the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or supplemented from time
to time, or in reports or proxy statements for the Fund, or in sales literature or other
promotional material approved by the Fund or its designee or by the Underwriter, except with the
written permission of the Fund or the Underwriter or the designee of such party.
4.3. The Fund, Underwriter, or their designees 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 and/or its separate account(s), is named or its logo used at least fifteen
Business Days prior to its use. No such material shall be used if the Company or its designee
reasonably objects to such use within fifteen Business Days after receipt of such material. Except
as otherwise expressly provided in this Agreement, neither the Fund nor any of its affiliates shall
use any trademark, trade name, service xxxx or logo of the Company or the Adviser, or any of their
affiliates, or any variation of such trademark, trade name, service xxxx or logo, without the prior
written consent of the Company or the Adviser, as applicable, the granting of which shall be at
that party’s sole option and subject to such quality control and other specifications and
requirements as the Company or Adviser, as applicable, shall specify
4.4. The Fund and the Underwriter shall not give any information or make any representations
on behalf of the Company or concerning the Company, each Account, or the Contracts other than the
information or representations contained in a registration statement, prospectus (which shall
include an offering memorandum, if any) or Statement of Additional Information for the Contracts,
as such registration statement, prospectus or Statement of Additional Information may be amended or
supplemented from time to time, or in published reports for each Account which are in the public
domain or approved by the Company for distribution to Contract owners, or in sales literature or
other promotional material approved by the Company or its designee, except with the written
permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of all registration
statements, prospectuses, Statements of Additional Information, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with the Securities and Exchange Commission or
other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all registration
statements, prospectuses or offering memoranda, Statements of Additional Information, reports,
solicitations for voting instructions, sales literature and other promotional materials,
applications for exemptions, requests for no action letters, and all amendments to any of the
above, that relate to the Contracts or each Account, contemporaneously with the filing of such
document with the SEC or other regulatory authorities or, if a Contract and its associated Account
are exempt from registration, at the time such documents are first published.
4.7. For purposes of this Article IV, the phrase “sales literature or other promotional
material” includes, but is not limited to, any of the following that refer to the Fund or any
affiliate of the Fund: advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media), sales literature
(i.e., any written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made generally available
to some or all agents or employees, and registration statements, Disclosure Documents, Statements
of Additional Information, shareholder reports, and proxy materials., and any other communications
distributed or made generally available with regard to the Fund.
ARTICLE V. Fees and Expenses
5.1. The Fund and Underwriter shall pay no fee or other compensation to the Company under
this agreement, except that if the Fund or any Portfolio adopts and implements a plan pursuant to
Rule 12b-1 to finance distribution expenses, then the Underwriter may make payments to the Company
or to the underwriter for the Contracts if and in amounts agreed to by the Underwriter in writing
and such payments will be made out of existing fees otherwise payable to the Underwriter, past
profits of the Underwriter or other resources available to the Underwriter. No such payments shall
be made directly by the Fund.
5.2. All expenses incident to performance by the Fund under this Agreement shall be paid by
the Fund. The Fund shall see to it that all shares of the Fund are registered and authorized for
issuance in accordance with applicable federal law and, if and to the extent deemed advisable by
the Fund, in accordance with applicable state laws prior to their sale. The Fund shall bear the
expenses for the cost of registration and qualification of the Fund’s shares, preparation and
filing of the Fund’s prospectus and registration statement, proxy materials and reports, setting
the prospectus in type, setting in type and printing the proxy materials and reports to
shareholders (including the costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices required by any federal or state law, and all taxes on
the issuance or transfer of the Fund’s shares. The Fund or the Underwriter will provide the
Company with information concerning the Fund’s expenses to the extent such information is required
for the Company to prepare prospectuses or offering memoranda, which information may include a
table of fees and related narrative disclosure for use in any prospectus or other
descriptive
document relating to a Contract and the Company is entitled to rely upon any information so
provided.
5.3. The Company shall bear the expenses of distributing the Fund’s prospectus and reports to
owners of Contracts issued by the Company. The Fund shall bear the costs of soliciting Fund
proxies from Contract owners, including the costs of mailing proxy materials and tabulating proxy
voting instructions, not to exceed the costs charged by any service provider engaged by the Fund
for this purpose. The Fund and the Underwriter shall not be responsible for the costs of any proxy
solicitations other than proxies sponsored by the Fund.
ARTICLE VI. Diversification
6.1. The Fund will at all times invest money from the Contracts in such a manner as to ensure
that the Contracts will be treated as variable contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund will at all times comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts and any amendments or
other modifications to such Section or Regulations. In the event of a breach of this Article VI by
the Fund, it will take all reasonable steps (a) to notify Company of such breach and (b) to
adequately diversify the Fund so as to achieve compliance within the grace period afforded by
Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Fund for the existence of any material irreconcilable
conflict between the interests of the contract owners of all separate accounts investing in the
Fund. An irreconcilable material conflict may arise for a variety of reasons, including: (a) an
action by any state insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any relevant proceeding; (d)
the manner in which the investments of any Portfolio are being managed; (e) a difference in voting
instructions given by 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 Board shall
promptly inform the Company if it determines that an irreconcilable material conflict exists and
the implications thereof.
7.2. The Company will report any potential or existing conflicts of which it is aware to the
Board. The Company will assist the Board in carrying out its responsibilities under the Shared
Funding Exemptive Order, by providing the Board with all information reasonably necessary for the
Board to consider any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever Contract owner voting instructions are disregarded.
7.3. If it is determined by a majority of the Board, or a majority of its disinterested
trustees, that a material irreconcilable conflict exists, the Company and other Participating
Insurance Companies shall, at their expense and to the extent reasonably practicable (as determined
by a majority of the disinterested trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1), withdrawing the assets
allocable to some or all of the separate accounts from the Fund or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited to) another Portfolio of
the Fund, or submitting the question whether such segregation should be implemented to a vote of
all affected 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 (2), establishing
a new registered management investment company or managed separate account.
7.4. 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 Fund’s election, to withdraw
the affected Account’s investment in the Fund 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 members of the Board. Any such withdrawal and termination must take place within
six (6) months after the Fund gives written notice that this provision is being implemented, and
until the end of that six month period the Underwriter and Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5. If a 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 Fund and
terminate this Agreement with respect to such Account within six months after the Board informs 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 members of the Board. Until the end of the foregoing six month period, the
Underwriter and Fund shall continue to accept and implement orders by the Company for the purchase
(and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of the
disinterested members of the Board shall determine whether any proposed action adequately remedies
any irreconcilable material conflict, but in no event will the Fund be required to establish a new
funding medium for the Contracts. The Company shall not be required by Section 7.3 to establish a
new funding medium for the Contracts if an offer to do so has been declined by vote of a majority
of Contract owners materially adversely affected by the irreconcilable material conflict. In the
event that the Board determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will
withdraw the Account’s investment in the
Fund and terminate this Agreement within six (6) months after the Board informs 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 members of the Board.
7.7. 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 Act or the rules promulgated
thereunder with respect to mixed or shared funding (as defined in the Shared Funding Exemptive
Order) on terms and conditions materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and
Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1,
7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
8.1(a). The Company agrees to indemnify and hold harmless the Fund and each trustee of the
Board and officers and each person, if any, who controls the Fund within the meaning of Section 15
of the 1933 Act or who is under common control with the Fund, the Underwriter or the Adviser
(collectively, the “Indemnified Parties” for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with the written consent
of the Company) or litigation (including legal and other expenses), to which the Indemnified
Parties may become subject under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of, or investment in, the Fund’s shares or the
Contracts and:
(i) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the Registration Statement, prospectus
(which shall include an offering memorandum, if any), or Statement of Additional
Information for the Contracts or contained in the Contracts or sales literature or
other promotional material for the Contracts (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this agreement to indemnify shall
not apply as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with information
furnished to the Company by or on behalf of the Fund for use in any Registration
Statement, prospectus (which shall include an offering memorandum, if any) relating to
the Contracts or in the Contracts or sales literature
or other promotional material
(or any amendment or supplement) or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other than
statements or representations contained in the registration statement, prospectus or
sales literature of the Fund not supplied by the Company, or persons under its
control) or wrongful conduct of the Company or persons under its control, with respect
to the sale or distribution of the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement, prospectus, or sales literature
or other promotional material of the Fund or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading if
such a statement or omission was made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the Company; or
(iv) arise as a result of any material failure by the Company to provide the
services and furnish the materials under the terms of this Agreement; or
(v) arise out of or result from any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or result from any
other material breach of this Agreement by the Company,
as limited by and in accordance with the provisions of Sections 8.1(b) and 8.1(c) hereof.
8.1(b). The Company shall not be liable under this indemnification provision with respect to
any losses, claims, damages, liabilities or litigation incurred or assessed against an Indemnified
Party as such may arise from such Indemnified 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 or to the Fund, whichever
is applicable.
8.1(c). The Company shall not be liable under this indemnification provision with respect to
any claim made against an Indemnified Party unless such Indemnified Party shall have notified the
Company in writing within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any designated agent), but
failure to notify the Company of any such claim shall not relieve the Company from any liability
which it may have to the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought against the
Indemnified Parties, the Company shall be entitled to participate, at its own expense, in the
defense of such action. The Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the Company to such party
of the Company’s election to assume the defense thereof, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the Company
will not be liable to such
party under this Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs of investigation.
8.1(d). The Indemnified Parties will promptly notify the Company of the commencement of any
litigation or proceedings against them in connection with the issuance or sale of the Fund Shares
or the Contracts or the operation of the Fund.
8.2. Indemnification by the Underwriter
8.2(a). The Underwriter agrees to indemnify and hold harmless the Company and each of its
directors and officers and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or is under common control with such party (collectively, the
“Indemnified Parties” for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written consent of the
Underwriter) or litigation (including legal and other expenses) to which the Indemnified Parties
may become subject under any statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of, or investment in, the Fund’s shares or the Contracts and:
(i) | arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement, prospectus, statement of additional information or sales literature of the Fund (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to the Underwriter, the Adviser or Fund by or on behalf of the Company for use in the registration statement or prospectus for the Fund or in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Contracts or Fund shares; or | ||
(ii) | arise out of or as a result of statements or representations (other than statements or representations contained in the Registration Statement, prospectus (which shall include an offering memorandum, if any), Statement of Additional Information or sales literature or other promotional material for the Contracts not supplied by the Underwriter, Adviser or persons under its control) or wrongful conduct of the Fund, Adviser or Underwriter or persons under their control, with respect to the sale or distribution of the Contracts or Fund shares; or | ||
(iii) | arise out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, prospectus (which shall |
include an offering memorandum, if any), Statement
of Additional Information or sales literature or other promotional material
covering the Contracts, or any amendment thereof or supplement thereto, or
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in reliance
upon and in conformity with information furnished to the Company by or on
behalf of the Fund; or
(iv) | arise as a result of any material failure by the Fund to provide the services and furnish the materials under the terms of this Agreement (including a failure, whether unintentional or in good faith or otherwise, to comply with the diversification requirements specified in Article VI of this Agreement or the representations or warranties of the Fund as stated herein); or | ||
(v) | arise out of or result from any material breach of any representation and/or warranty made by the Underwriter in this Agreement or arise out of or result from any other material breach of this Agreement by the Underwriter; |
as limited by and in accordance with the provisions of Sections 8.2(b) and 8.2(c) hereof.
8.2(b). The Underwriter shall not be liable under this indemnification provision with respect
to any losses, claims, damages, liabilities or litigation to which an Indemnified Party would
otherwise be subject by reason of such Indemnified 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 and duties under this Agreement or to the Company or the
Account, whichever is applicable.
8.2(c). The Underwriter shall not be liable under this indemnification provision with respect
to any claim made against an Indemnified Party unless such Indemnified Party shall have notified
the Underwriter in writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such Indemnified Party
(or after such Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Underwriter of any such claim shall not relieve the Underwriter
from any liability which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Underwriter will be entitled to participate, at its own
expense, in the defense thereof. The Underwriter also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action. After notice from the
Underwriter to such party of the Underwriter’s election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and
the Underwriter will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
8.2(d). The Company agrees promptly to notify the Underwriter of the commencement of any
litigation or proceedings against it or any of its officers or directors in connection with the
issuance or sale of the Contracts or the operation of each Account.
8.3. Indemnification By the Fund
8.3(a). The Fund agrees to indemnify and hold harmless the Company, and each of its directors
and officers and each person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or is under common control with such party (collectively, the “Indemnified Parties”
for purposes of this Section 8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund) or litigation
(including legal and other expenses) to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements result from the gross
negligence, bad faith or willful misconduct of the Board or any member thereof, are related to the
operations of the Fund and:
(i) | arise as a result of any material failure by the Fund to provide the services and furnish the materials under the terms of this Agreement (including a material failure, to comply with the diversification requirements specified in Article VI of this Agreement); or | ||
(ii) | arise out of or result from any material breach of any representation and/or warranty made by the Fund in this Agreement or arise out of or result from any other material breach of this Agreement by the Fund; |
as limited by and in accordance with the provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(b). The Fund shall not be liable under this indemnification provision with respect to any
losses, claims, damages, liabilities or litigation incurred or assessed against an Indemnified
Party as such may arise from such Indemnified 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 and duties under this Agreement or to the Company, the
Fund, the Underwriter or each Account, whichever is applicable.
8.3(c). The Fund shall not be liable under this indemnification provision with respect to any
claim made against an Indemnified Party unless such Indemnified Party shall have notified the Fund
in writing within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any designated agent), but
failure to notify the Fund of any such claim shall not relieve the Fund from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise than on account of
this indemnification provision. In case any such action is brought against the Indemnified
Parties, the Fund will be entitled to participate, at its own expense, in the defense thereof. The
Fund also shall be entitled to assume the defense thereof,
with counsel satisfactory to the party
named in the action. After notice from the Fund to such party of the Fund’s election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Fund will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3(d). The Company and the Underwriter agree promptly to notify the Fund of the commencement
of any litigation or proceedings against it or any of its respective officers or directors in
connection with this Agreement, the issuance or sale of the Contracts, with respect to the
operation of either Account, or the sale or acquisition of shares of the Fund.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof interpreted under and in
accordance with the laws of the Commonwealth of Massachusetts.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934 and 1940 acts, and
the rules and regulations and rulings thereunder, including such exemptions from those statutes,
rules and regulations as the Securities and Exchange Commission may grant (including, but not
limited to, the Shared Funding Exemptive Order) and the terms hereof shall be interpreted and
construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the first to occur of:
(a) | termination by any party for any reason by sixty (60) days advance written notice delivered to the other parties; or | ||
(b) | termination by the Company by written notice to the Fund and the Underwriter with respect to any Portfolio based upon the Company’s determination that shares of such Portfolio are not reasonably available to meet the requirements of the Contracts; or | ||
(c) | termination by the Company by written notice to the Fund and the Underwriter with respect to any Portfolio in the event any of the Portfolio’s shares are not registered, issued or sold in accordance with applicable state and/or federal law or such law precludes the use of such shares as the underlying investment media of the Contracts issued or to be issued by the Company; or | ||
(d) | termination by the Company by written notice to the Fund and the Underwriter with respect to any Portfolio in the event that such Portfolio ceases to qualify |
as a Regulated Investment Company under Subchapter M of the Code or
under any successor or similar provision, or if the Company reasonably believes
that the Fund may fail to so qualify; or
(e) | termination by the Company by written notice to the Fund and the Underwriter with respect to any Portfolio in the event that such Portfolio fails to meet the diversification requirements specified in Article VI hereof; or | ||
(f) | termination by the Fund or the Underwriter by written notice to the Company, upon a determination, in their sole judgment exercised in good faith, that the Company and/or its affiliated companies has suffered a material adverse change in its business, operations, financial condition or prospects since the date of this Agreement or is the subject of material adverse publicity; or | ||
(g) | termination by the Company by written notice to the Fund and, the Underwriter, if the Company shall determine, in its sole judgment exercised in good faith, that the Fund, the Underwriter, or the Adviser has suffered a material adverse change in its business, operations, financial condition or prospects since the date of this Agreement or is the subject of material adverse publicity; or | ||
(h) | termination by the Company upon any substitution of the shares of another investment company or series thereof for shares of a Portfolio of the Fund in accordance with the terms of the Contracts, provided that the Company has given at least forty-five days’ prior written notice to the Adviser and the Fund of the date of substitution; or | ||
(i) | termination by the Fund, Underwriter, or Adviser in the event that formal administrative proceedings are instituted against the Company by the NASD, the SEC, the Insurance Commissioner or like official of any state or any other regulatory body regarding the Company’s duties under this Agreement or related to the sale of the Contracts, the operation of any Account, or the purchase of the Fund shares; provided, however, that the Fund, Underwriter, or Adviser determines in its sole judgment exercised in good faith, that any such administrative proceedings will have a material adverse effect upon the ability of the Company to perform its obligations under this Agreement; or | ||
(j) | termination by the Company in the event that formal administrative proceedings are instituted against the Fund, Underwriter, or Adviser by the NASD, the SEC, or any state securities or insurance department or any other regulatory body; provided, however, that the Company determines in its sole judgment exercised in good faith, that any such administrative proceedings will have a material adverse effect upon the ability of the Fund, Underwriter, or Adviser to perform its obligations under this Agreement. |
10.2. | Notwithstanding any termination of this Agreement, the Fund and the Underwriter shall at the option of the Company, continue to make available additional shares of the Fund pursuant to the terms and conditions of this Agreement, for all Contracts in effect on the effective date of termination of this Agreement (hereinafter referred to as “Existing Contracts”). Specifically, without limitation, the owners of the Existing Contracts shall be permitted to retain investments in the Fund, reallocate investments in the Fund, redeem investments in the Fund and/or invest in the Fund upon the making of additional purchase payments under the Existing Contracts. The parties agree that this Section 10.2 shall not apply to any terminations under Article VII and the effect of such Article VII terminations shall be governed by Article VII of this Agreement. |
10.3. The provisions of Articles II (Representations and Warranties), VIII (Indemnification),
IX (Applicable Law) and XII (Miscellaneous) shall survive termination of this Agreement. In
addition, all other applicable provisions of this Agreement shall survive termination as long as
shares of the Fund are held on behalf of Contract owners in accordance with section 10.2, except
that the Fund and Underwriter shall have no further obligation to make Fund shares available in
Contracts issued after termination.
10.4. The Company shall not redeem Fund shares attributable to the Contracts (as opposed to
Fund shares attributable to the Company’s assets held in the Account) except (i) as necessary to
implement Contract Owner initiated or approved transactions, or (ii) as required by state and/or
federal laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a “Legally Required Redemption”) or (iii) pursuant to the terms of a
substitution order issued by the SEC, or as otherwise permitted by the SEC, pursuant to Section
26(c) of the 1940 Act.. Except in cases where permitted under the terms of the Contracts, the
Company shall not prevent Contract Owners from allocating payments to a Portfolio that was
otherwise available under the Contracts without first giving the Fund or the Underwriter 90 days
notice of its intention to do so.
ARTICLE XI. 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 Fund: | ||||
00 Xxxxxxxxxx Xxxxxx | ||||
Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||
Attention: Treasurer | ||||
If to the Company: | ||||
Pacific Life & Annuities Company |
000 Xxxxxxx Xxxxxx Xxxxx | ||||
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 | ||||
Attention: General Counsel | ||||
If to the Underwriter: | ||||
00 Xxxxxxxxxx Xxxxxx | ||||
Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||
Attention: Treasurer |
ARTICLE XII. Miscellaneous
12.1 All persons dealing with the Fund must look solely to the property of the Fund for the
enforcement of any claims against the Fund as neither the Board, officers, agents or shareholders
assume any personal liability for obligations entered into on behalf of the Fund.
12.2 Subject to the requirements of legal process and regulatory authority, each party hereto
shall treat as confidential the names and addresses of the owners of the Contracts and all
information reasonably identified as confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate or utilize such names and addresses
and other confidential information until such time as it may come into the public domain without
the express written consent of the affected party.
12.3 The captions in this Agreement are included for convenience of reference only and in no
way define or delineate any of the provisions hereof or otherwise affect their construction or
effect.
12.4 This Agreement may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
12.5 If any provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be affected thereby.
12.6 Each party hereto shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the SEC, the NASD and state insurance regulators) and
shall permit 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.
Notwithstanding the generality of the foregoing, each party hereto further agrees to furnish the
California Insurance Commissioner, or such other state in which the Company becomes domesticated,
with any information or reports in connection with services provided under this Agreement which
such Commissioner may request in order to ascertain whether the insurance operations of the Company
are being conducted in a manner consistent with the California Insurance Regulations and any other
applicable law or regulations.
12.7 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.
12.8. This Agreement or any of the rights and obligations hereunder may not be assigned by
any party without the prior written consent of all parties hereto; provided, however, that the
Underwriter may assign this Agreement or any rights or obligations hereunder to any affiliate of or
company under common control with the Underwriter, if such assignee is duly licensed and registered
to perform the obligations of the Underwriter under this Agreement. The Company shall promptly
notify the Fund and the Underwriter of any change in control of the Company.
12.9. The Company shall furnish, or shall cause to be furnished, to the Fund or its designee
copies of the following reports:
(a) | the Company’s annual statement (prepared under statutory accounting principles) and annual report (prepared under generally accepted accounting principles (“GAAP”), if any), as soon as practical and in any event within 90 days after the end of each fiscal year; | ||
(b) | the Company’s quarterly statements (statutory) (and GAAP, if any), as soon as practical and in any event within 45 days after the end of each quarterly period; | ||
(c) | any financial statement, proxy statement, notice or report of the Company sent to stockholders and/or policyholders, as soon as practical after the delivery thereof to stockholders; | ||
(d) | any registration statement (without exhibits) and financial reports of the Company filed with the Securities and Exchange Commission or any state insurance regulator, as soon as practical after the filing thereof; | ||
(e) | any other report submitted to the Company by independent accountants in connection with any annual, interim or special audit made by them of the books of the Company, as soon as practical after the receipt thereof. |
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in its
name and on its behalf by its duly authorized representative.
PACIFIC LIFE & ANNUITIES COMPANY | ||||||
By: | ||||||
Name: | ||||||
Its: | ||||||
By: | ||||||
Name: | ||||||
Its: | ||||||
VARIABLE INSURANCE PRODUCTS FUND, | ||||||
VARIABLE INSURANCE PRODUCTS FUND II, and | ||||||
VARIABLE INSURANCE PRODUCTS FUND III | ||||||
By: | ||||||
Name: | Xxxxxxxxx Xxxxxxxx | |||||
Their: | Treasurer, SVP | |||||
FIDELITY DISTRIBUTORS CORPORATION | ||||||
By: | ||||||
Name: | Don Holborn | |||||
Its: | Executive Vice President |
Schedule A
Separate Accounts and Associated Contracts
Separate Accounts and Associated Contracts
Name of Separate Account and |
||
Date Established by Board of Directors |
||
Pacific Select Exec Separate Account of |
||
Pacific Life & Annuity Company |
||
Established 9/24/1988 |
||
Pacific COLI Separate Account II of Pacific |
||
Life & Annuity Company |
||
Established 10/17.2003 |
||
Separate Account I of Pacific Life & Annuity |
||
Company |
||
Established 6/8/2002 |
||
Policy Form Numbers of Contracts |
||
Funded By Separate Account |
||
Pacific Select Exec II-NY
|
98-52-NY | |
Pacific Select Exec III-NY |
||
Pacific Select Performer 000-XX
|
X00XX0-XX | |
Xxxxxxx Xxxxxx Xxxxxx Preserver-NY |
||
P03500-NY | ||
P0156-NY | ||
Custom COLI-NY P04CC2-NY |
||
Magnastar Variable Life Insurance Policy |
||
P02MIN |
||
Magnastar Survivorship Variable Life |
||
Insurance Policy P02M2N |
SCHEDULE B
PROXY VOTING PROCEDURE
PROXY VOTING PROCEDURE
The following is a list of procedures and corresponding responsibilities for the handling of
proxies relating to the Fund by the Underwriter, the Fund and the Company. The defined terms
herein shall have the meanings assigned in the Participation Agreement except that the term
“Company” shall also include the department or third party assigned by the Insurance Company to
perform the steps delineated below.
1. | The number of proxy proposals is given to the Company by the Underwriter as early as possible before the date set by the Fund for the shareholder meeting to facilitate the establishment of tabulation procedures. At this time the Underwriter will inform the Company of the Record, Mailing and Meeting dates. This will be done verbally approximately two months before meeting. |
2. | Promptly after the Record Date, the Company will perform a “tape run”, or other activity, which will generate the names, addresses and number of units which are attributed to each contractowner/policyholder (the “Customer”) as of the Record Date. Allowance should be made for account adjustments made after this date that could affect the status of the Customers’ accounts as of the Record Date. |
Note: The number of proxy statements is determined by the activities described in Step #2.
The Company will use its best efforts to call in the number of Customers to Fidelity, as soon
as possible, but no later than two weeks after the Record Date.
3. | The Fund’s Annual Report no longer needs to be sent to each Customer by the Company either before or together with the Customers’ receipt of a proxy statement. Underwriter will provide the last Annual Report to the Company pursuant to the terms of Section 3.3 of the Agreement to which this Schedule relates. |
4. | The text and format for the Voting Instruction Cards (“Cards” or “Card”) is provided to the Company by the Fund. The Company, at its expense, shall produce and personalize the Voting Instruction Cards. The Legal Department of the Underwriter or its affiliate (“Fidelity Legal”) must approve the Card before it is printed. Allow approximately 2-4 business days for printing information on the Cards. Information commonly found on the Cards includes: |
a. | name (legal name as found on account registration) | ||
b. | address | ||
c. | Fund or account number | ||
d. | coding to state number of units | ||
e. | individual Card number for use in tracking and verification of votes (already on Cards as printed by the Fund) |
(This and related steps may occur later in the chronological process due to possible uncertainties
relating to the proposals.)
5. | During this time, Fidelity Legal will develop, produce, and the Fund will pay for the Notice of Proxy and the Proxy Statement (one document). Printed and folded notices and statements will be sent to Company for insertion into envelopes (envelopes and return envelopes are provided and paid for by the Insurance Company). Contents of envelope sent to Customers by Company will include: |
a. | Voting Instruction Card(s) |
||
b. | One proxy notice and statement (one document) | ||
c. | return envelope (postage pre-paid by Company) addressed to the Company or its tabulation agent | ||
d. | “urge buckslip” — optional, but recommended. (This is a small, single sheet of paper that requests Customers to vote as quickly as possible and that their vote is important. One copy will be supplied by the Fund.) | ||
e. | cover letter — optional, supplied by Company and reviewed and approved in advance by Fidelity Legal. |
6. | The above contents should be received by the Company approximately 3-5 business days before mail date. Individual in charge at Company reviews and approves the contents of the mailing package to ensure correctness and completeness. Copy of this approval sent to Fidelity Legal. |
7. | Package mailed by the Company. |
* | The Fund must allow at least a 15-day solicitation time to the Company as the shareowner. (A 5-week period is recommended.) Solicitation time is calculated as calendar days from (but not including) the meeting, counting backwards. |
8. | Collection and tabulation of Cards begins. Tabulation usually takes place in another department or another vendor depending on process used. An often used procedure is to sort Cards on arrival by proposal into vote categories of all yes, no, or mixed replies, and to begin data entry. |
Note: Postmarks are not generally needed. A need for postmark information would be
due to an insurance company’s internal procedure and has not been required by Fidelity
in the past.
9. | Signatures on Card checked against legal name on account registration which was printed on the Card. |
Note: For Example, If the account registration is under “Xxxxxxx X. Xxxxx, Trustee,”
then that is the exact legal name to be printed on the Card and is the signature
needed on the Card.
10. | If Cards are mutilated, or for any reason are illegible or are not signed properly, they are sent back to Customer with an explanatory letter, a new Card and return envelope. The mutilated or illegible Card is disregarded and considered to be not received for purposes of vote tabulation. Any Cards that have “kicked out” (e.g. mutilated, illegible) of the procedure are “hand verified,” i.e., examined as to why they did not complete the system. Any questions on those Cards are usually remedied individually. |
11. | There are various control procedures used to ensure proper tabulation of votes and accuracy of that tabulation. The most prevalent is to sort the Cards as they first arrive into categories depending upon their vote; an estimate of how the vote is progressing may then be calculated. If the initial estimates and the actual vote do not coincide, then an internal audit of that vote should occur. This may entail a recount. |
12. | The actual tabulation of votes is done in units which is then converted to shares. (It is very important that the Fund receives the tabulations stated in terms of a percentage and the number of shares.) Fidelity Legal must review and approve tabulation format. |
13. | Final tabulation in shares is verbally given by the Company to Fidelity Legal on the morning of the meeting not later than 10:00 a.m. Boston time. Fidelity Legal may request an earlier deadline if required to calculate the vote in time for the meeting. |
14. | A Certification of Mailing and Authorization to Vote Shares will be required from the Company as well as an original copy of the final vote. Fidelity Legal will provide a standard form for each Certification. |
15. | The Company will be required to box and archive the Cards received from the Customers. In the event that any vote is challenged or if otherwise necessary for legal, regulatory, or accounting purposes, Fidelity Legal will be permitted reasonable access to such Cards. |
16. | All approvals and “signing-off” may be done orally, but must always be followed up in writing. |