JANUS ASPEN SERIES FUND PARTICIPATION AGREEMENT
JANUS ASPEN SERIES
(Institutional Shares)
THIS AGREEMENT is made this 1st day of November, 2005,
between JANUS ASPEN SERIES, an open-end management investment company organized
as a Delaware business trust (the "Trust"), JANUS DISTRIBUTORS LLC (the
"Distributor"), a Delaware limited liability company (the "Distributor"), and
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.), a life insurance company organized
under the laws of the State of Delaware (the "Company"), on its own behalf
and
on behalf of each segregated asset account of the Company set forth on Schedule
A, as may be amended from time to time (the "Accounts").
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 exempt therefrom;
WHEREAS, the Company will comply with additional conditions pursuant to Section 12(d)(1)(E) of the 1940 Act to hold shares of the Portfolios in one or more unregistered separate accounts; and and
WHEREAS, the Company will comply with additional conditions pursuant to Section 12(d)(1)(E) of the 1940 Act to hold shares of the Portfolios in one or more unregistered separate accounts; and and
WHEREAS, the Company desires to utilize 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
1.1The Trust shall make Shares of its Portfolios listed
on
Schedule B available to the Accounts at the net asset value next computed after
receipt of such purchase order by the Trust (or its agent), as established
in
accordance with the provisions of the then current prospectus of the Trust.
Shares of a particular Portfolio of the Trust shall be ordered in such
quantities and at such times as determined by the Company to be necessary to
meet the requirements of the Contracts. The Trustees of the Trust (the
"Trustees") may refuse to sell Shares of any Portfolio to any person, or suspend
or terminate the offering of Shares of any Portfolio if such action is required
by law or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Trustees acting in good faith and in light of their fiduciary
duties under federal and any applicable state laws, necessary in the best
interests of the shareholders of such Portfolio. With respect to payment of
purchase price by the Company and of redemption proceeds by the Trust, the
Company and the Trust shall remit gross purchase and sale orders with respect
to
each Portfolio and shall transmit one net payment per Portfolio in accordance
with the provisions of this Article I.
1.2The Trust will redeem any full or fractional Shares
of any
Portfolio when requested by the Company on behalf of an Account at the net
asset
value next computed after receipt by the Trust (or its agent) of the request
for
redemption, as established in accordance with the provisions of the then current
prospectus of the Trust. The Trust shall make payment for such Shares in the
manner established from time to time by the Trust, but in no event shall payment
be delayed for a greater period than is permitted by the 0000 Xxx.
1.3For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints
the
Company as its agent for the limited purpose of receiving and accepting purchase
and redemption orders resulting from investment in and payments under the
Contracts. Receipt by the Company shall constitute receipt by the Trust provided
that i) such orders are received by the Company in good order prior to the
time
the net asset value of each Portfolio is priced in accordance with its
prospectus (which as of the date of execution of this Agreement is the
close
of the regular trading session of the New York Stock Exchange (normally
4:00 p.m. New York time) each day that the NYSE is open4:00 p.m. Eastern
Time)and ii) the Trust receives notice of such orders by 9:00 a.m. New York
time
on the next following Business Day. "Business Day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the Securities and
Exchange Commission.
1.4Purchase orders that are transmitted to the Trust in
accordance with Section 1.3 shall be paid for no later than 12:00 p.m. New
York
time on the same Business Day that the Trust receives notice of the order.
Payments shall be made in federal funds transmitted by wire.
1.5Issuance 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.
1.6The 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.
1.7The 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.Non-material errors will be corrected in the next Business Day's
net asset value per share.. . The Trust shall be liable for the reasonable
administrative costs incurred by the Company in relation to the correction
of
any material error. Non-material errors will be corrected in the next Business
Day's net asset value per shareIn the event of a Price Error, Janus Services
shall reimburse Service Provider for any reasonable costs for reprocessing
values under the Plans using the least costly method of correction.
1.8The 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 Accounts listed in Schedule A, as amended from time to time.
-
-
- 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.
-
- 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 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 policies may be subsequently revoked or cancelled by the Trust and that the Trust shall not be responsible for any losses incurred by the Company or Contract or Account as a result of such cancellation. The Trust or its agent shall notify the Company of such cancellation prior to 12:00 p.m. EST on the next following Business Day after any such cancellation.
-
In addition, the Company acknowledges that the Trust has
the
right to refuse any purchase order for any reason, particularly if the Trust
determines that a Portfolio would be unable to invest the money effectively
in
accordance with its investment policies or would otherwise be adversely affected
due to the size of the transaction, frequency of trading by the account or
other
factors.
1.11Company certifies that it is following all applicable rules and
regulations, as well as internal policies and procedures, regarding "forward
pricing" and the handling of mutual fund orders on a timely basis. As evidence
of its compliance, Company shall:
(i) permit Trust or its agent to audit its operations, as well as any books
and records preserved in connection with its provision of services under this
Agreement;
(ii)provide Trust with the results of a Statement on Auditing Standards
No.
70 (SAS 70) review or similar report of independent auditors as soon as
practicable following execution of this Agreement; or
(iii)provide annual certification to Trust that it is following all
relevant rules, regulations, and internal policies and procedures regarding
"forward pricing" and the handling of mutual fund orders on a timely
basis..
ARTICLE II
Obligations of the Parties
2.1The 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.
2.2At the option of the Company, the Trust shall either
(a)
provide the Company (at the Company's expense) with as many copies of the
Trust's Shares' current prospectus, annual report, semi-annual report and other
shareholder communications, including any amendments or supplements to any
of
the foregoing, as the Company shall reasonably request; or (b) provide the
Company with a camera ready copy of such documents in a form suitable for
printing. The Trust shall provide the Company with a copy of the Shares'
statement of additional information in a form suitable for duplication by the
Company. The Trust (at its expense) shall provide the Company with copies of
any
Trust-sponsored proxy materials in such quantity as the Company shall reasonably
require for distribution to Contract owners.
2.3(a)The Company shall bear the costs of printing and
ddistributing the Trust's Shares' prospectus to prospective owners of policies
,
statement of additional information, shareholder reports and other shareholder
communications to owners of and applicants for policies for which Shares of
the
Trust are serving or are to serve as an investment vehicle. The TrustCompany
shall bear the costs of printingdistributing the Trust's Shares' prospectus
to
owners of policies for which Shares of the Trust are serving or are to serve
as
an investment vehicle. The Trust shall bear the costs of distributing proxy
materials (or similar materials such as voting solicitation instructions) to
Contract owners. The Company assumes sole responsibility for ensuring that
such
materials are delivered to Contract owners in accordance with applicable federal
and state securities laws. [ISSUE OF PROXY COST REIMBURSEMENT OUT FOR INTERNAL
APPROVAL.]
(b)If the Company elects to include any materials provided
by
the Trust, specifically prospectuses, SAIs, shareholder reports and proxy
materials, on its web site or in any other computer or electronic format, the
Company assumes sole responsibility for maintaining such materials in the form
provided by the Trust and for promptly replacing such materials with all updates
provided by the Trust.
2.4The Company agrees and acknowledges that the Trust's
adviser, Janus Capital Management LLC or its affiliates ("Janus Capital"),
is
the sole owner of the name and xxxx "Xxxxx" and that all use of any designation
comprised in whole or part of Janus (a "Xxxxx Xxxx") under this Agreement shall
inure to the benefit of Janus Capital. Except as provided in Section 2.5, the
Company shall not use any Xxxxx Xxxx on its own behalf or on behalf of the
Accounts or Contracts in any registration statement, advertisement, sales
literature or other materials relating to the Accounts or Contracts without
the
prior written consent of Janus Capital. All references contained in this
Agreement to "the name or xxxx 'Xxxxx'" shall include but not be limited to
the
Janus logo, the website xxx.xxxxx.xxx and any and all electronic links
relating to such website. The Company will make no use of the name or xxxx
"Xxxxx" except as expressly provided in this Agreement or expressly authorized
by Janus Capital in writing. All goodwill associated with the name and xxxx
"Xxxxx" shall inure to the benefit of Janus Capital or its affiliates. Upon
termination of this Agreement for any reason, the Company shall cease any and
all use of any Xxxxx Xxxx(s).
2.5The
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 within a reasonable time of prior
to the filing of such document with the Securities and Exchange Commission.
[If
Janus is mentioned in these materials, we should be able to review it prior
to
filing. We catch issues with such materials on a very regular basis and view
this review as an important element in our working relationship.] The Company
shall furnish, or shall cause to be furnished, to the Trust or its designee,
each piece of sales literature or other promotional material in which the Trust
or its investment adviser is named, at least fifteen Business Days prior to
its
use. No such material shall be used if the Trust or its designee reasonably
objects to such use within ten Business Days after receipt of such
material.
2.6The
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.
2.7The Trust and the Distributor 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.
2.8So 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.
2.9The 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.2.9The 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
3.1The Company represents and warrants that it is an
insurance company duly organized and in good standing under the laws of the
State of Delaware and that it has legally and validly established each Account
as a segregated asset account under such law on the date set forth in Schedule
A.
3.2The Company represents and warrants that each Account
has
been registered or, prior to any issuance or sale of the Contracts, will be
registered as a unit investment trust in accordance with the provisions of
the
1940 Act, unless exempt therefrom.
3.3The Company represents and warrants that the Contracts
or
interests in the Accounts (1) are or, prior to issuance, will be registered
as
securities under the 1933 Act or, alternatively (2) are not registered because
they are properly exempt from registration under the 1933 Act or will be offered
exclusively in transactions that are properly exempt from registration under
the
1933 Act. The Company further represents and warrants that the Contracts will
be
issued and sold in compliance in all material respects with all applicable
federal and state laws; and the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements. [EMAIL PROVIDES
BACKGROUND FOR INSERTIONS BELOW.]
3.4The Company represents and warrants that 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.
3.5The Company represents and warrants that it will not
hold
any other investment security (as defined in Section 3 of the 0000 Xxx) in
an
unregistered separate account that holds shares of a Portfolio.
3.6The Company represents and warrants that 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 of all of
the
Portfolio's other shareholders.
3.7The Company represents and warrants that 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.
3.8The Trust represents and warrants that it is duly
organized and validly existing under the laws of the State of Delaware.
3.59The Trust represents and warrants that the Trust Shares
offered and sold pursuant to this Agreement will be registered under the 1933
Act and the Trust shall be registered under the 1940 Act prior to any issuance
or sale of such Shares. The Trust shall amend its registration statement under
the 1933 Act and the 1940 Act from time to time as required in order to effect
the continuous offering of its Shares. The Trust shall register and qualify
its
Shares for sale in accordance with the laws of the various states only if and
to
the extent deemed advisable by the Trust.
3.610The Trust and the Distributor represent and warrant
that
the investments of each Portfolio will comply with the diversification
requirements set forth in Section 817(h) of the Internal Revenue Code of 1986,
as amended, and the rules and regulations thereunder.
3.7 11 The Company represents and warrants that it is in compliance with
all applicable anti-money laundering laws, rules and regulations including,
but
not limited to, the U.S.A. PATRIOT Act of 2001, P.L. 107-56.
3.812The Trust represents that each Portfolio is or will be qualified as
a
Regulated Investment Company under Subchapter M of the Code, and that it will
use best efforts to maintain such qualification (under Subchapter M or any
successor or similar provisions) and 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.
3.13The Distributor represents and warrants that it is a member in good standing of the National Association of Securities Dealers and is registered as a broker-dealer with the SEC. The Distributor further represents that it will sell and distribute the Fund shares in accordance with all applicable law, including, without limitation, state and federal securities laws, the 1933 Act, the 1940 Act, the Securities Exchange Act of 1934.
ARTICLE IV
Potential Conflicts
4.1The 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.
4.2The 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.
4.3If 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.
4.4If 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.
4.5If 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.
4.6For 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.
4.7The 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.
4.8If 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
5.1Indemnification By the Company. The Company agrees
to indemnify and hold harmless the Trust, the Distributor, and each of their
Trustees, officers, employees and agents and each person, if any, who controls
the Trust or the Distributor within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Article V) against
any and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or expenses (including
the
reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection
therewith) (collectively, "Losses"), to which the Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise, insofar
as such Losses:
(a)arise out of or are based upon any untrue statements
or
alleged untrue statements of any material fact contained in a registration
statement or prospectus for the Contracts or in the Contracts themselves or
in
sales literature for the Trust generated or approved by the Company on behalf
of
the Contracts or Accounts (or any amendment or supplement to any of the
foregoing) (collectively, "Company Documents" for the purposes of this Article
V), or arise out of or are based upon the omission or the alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein not misleading, provided that this indemnity shall not
apply as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately derived
from
written information furnished to the Company by or on behalf of the Trust or
the
Distributor for use in Company Documents or otherwise for use in connection
with
the sale of the Contracts or Trust Shares; or
(b)arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Trust Documents as defined in Section 5.2(a)) or wrongful conduct of the
Company or persons under its control, with respect to the sale or acquisition
of
the Contracts or Trust Shares; or
(c)arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Trust Documents as
defined in Section 5.2(a) or the omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in reliance upon
and accurately derived from written information furnished to the Trust by or
on
behalf of the Company; or
(d)arise out of or result from any failure by the Company
to
provide the services or furnish the materials required under the terms of this
Agreement; or
(e)arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company.
5.2Indemnification By the Trust. The Trust agrees to
indemnify and hold harmless the Company and each of its directors, officers,
employees and agents and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Article V) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Trust) or expenses (including the reasonable costs of
investigating or defending any alleged loss, claim, damage, liability or expense
and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Indemnified Parties may become subject
under any statute or regulation, or at common law or otherwise, insofar as
such
Losses:
(a)arise out of or are based upon any untrue statements
or
alleged untrue statements of any material fact contained in the registration
statement or prospectus for the Trust (or any amendment or supplement thereto),
(collectively, "Trust Documents" for the purposes of this Article V), or arise
out of or are based upon the omission or the alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this indemnity shall not apply as to
any
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and was accurately derived from written
information furnished to the Trust by or on behalf of the Company for use in
Trust Documents or otherwise for use in connection with the sale of the
Contracts or Trust Shares; or
(b)arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents) or wrongful conduct of the Trust or persons under its
control, with respect to the sale or acquisition of the Contracts or Trust
Shares; or
(c)arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Company Documents
or
the omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the 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.
5.3Indemnification By the Distributor.The Distributor agrees
to indemnify and hold harmless the Company and each of its directors, officers,
employees and agents and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Article V) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Distributor) or expenses (including the reasonable costs of
investigating or defending any alleged loss, claim, damage, liability or expense
and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Indemnified Parties may become subject
under any statute or regulation, or at common law or otherwise, insofar as
such
Losses:
(a)arise out of or are based upon any untrue statements
or
alleged untrue statements of any material fact contained in the registration
statement or prospectus for the Trust (or any amendment or supplement thereto),
(collectively, "Trust Documents" for the purposes of this Article V), or arise
out of or are based upon the omission or the alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this indemnity shall not apply as to
any
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and was accurately derived from written
information furnished to the Trust by or on behalf of the Company for use in
Trust Documents or otherwise for use in connection with the sale of the
Contracts or Trust Shares; or
(b)arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents) or wrongful conduct of the Distributor or persons under
its control, with respect to the sale or acquisition of the Contracts or Trust
Shares; or
(c)arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Company Documents
or
the omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and accurately derived
from
written information furnished to the Company by or on behalf of the Distributor;
or
(d)arise out of or result from any failure by the Distributor
to provide the services or furnish the materials required under the terms of
this Agreement; or
(e)arise out of or result from any material breach of any
representation and/or warranty made by the Distributor or the Trust in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Distributor or the Trust.
5.4Neither the Company, the Distributor, nor the Trust
shall
be liable under the indemnification provisions of Sections 5.1, 5.2, or 5.3,
as
applicable, with respect to any Losses incurred or assessed against an
Indemnified Party that arise from such Indemnified 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.
5.5Neither the Company, the Distributor, nor the Trust
shall
be liable under the indemnification provisions of Sections 5.1, 5.2, or 5.3
as
applicable, with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the other party in writing within
a
reasonable time after the summons, or other first written notification, giving
information of the nature of the claim shall have been served upon or otherwise
received by such Indemnified Party (or after such Indemnified Party shall have
received notice of service upon or other notification to any designated agent),
but failure to notify the party against whom indemnification is sought of any
such claim shall not relieve that party from any liability which it may have
to
the Indemnified Party in the absence of Sections 5.1, 5.2, or 5.3.
5.6In 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
6.1This Agreement may be terminated as follows:
(a) by any party for any reason upon six-months advance
written notice delivered to the other parties; or
(i)by
any party upon the
other party's breach of any representation in Article III or any material
provision of this Agreement, which breach has not been cured to the satisfaction
of the terminating party within ten (10) days after written notice of such
breach is delivered to the Trust, the Adviser or the Company, as the case may
be; or
6.3The 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: General Counsel
If to the Distributor:
Janus Distributors LLC
000 Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Company:
Sun Life Assurance Company of Canada (U.S.)
One Sun Life Executive Park, SC1335
Xxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxx, Senior Counsel
ARTICLE VIII
Miscellaneous
8.1The 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.
8.2This Agreement may be executed simultaneously in two
or
more counterparts, each of which taken together shall constitute one and the
same instrument.
8.3If 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.
8.4This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of State of
Colorado.
8.5The 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.[SEE EMAIL.]
8.6Each party shall cooperate with each other party and
all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc., and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated
hereby.
8.7The 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.
8.8The parties to this Agreement acknowledge and agree
that
this Agreement shall not be exclusive in any respect.
8.9Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the prior written approval
of
the other party.
8.10No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by both parties.
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: Xxxxxx X. Xxxx
Title: Vice President
Date:_______________
JANUS DISTRIBUTORS LLC
By:___________________
Name: Xxxxxx X. Xxxx
Title: Vice President
Date:_______________
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
|
For the President
By:__________________________________
Name:________________________________
Title:_________________________________
Date:_________________________________
|
For the Secretary
By:__________________________________
Name:________________________________
Title:_________________________________
Date:_________________________________
|
Schedule A
Separate Accounts
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 Global Technology Portfolio
and Global Life Sciences Portfolio.
