EXHIBIT (8)(d)
JANUS ASPEN SERIES
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made this 1st day of September, 1995, between
JANUS ASPEN SERIES, an open-end management investment company organized as
a Delaware business trust (the "Trust"), and ANNUITY INVESTORS LIFE
INSURANCE COMPANY, a life insurance company organized under the laws of
the State of Ohio (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 has
registered the offer and sale of its shares under the Securities Act of
1933, as amended (the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for
separate accounts established for variable life insurance policies and
variable annuity contracts to be offered by insurance companies that have
entered into participation agreements with the Trust (the "Participating
Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into
several series of shares, each series representing an interest in a
particular managed portfolio of securities and other assets (the
"Portfolios"); and
WHEREAS, the Trust has received an order from the Securities and
Exchange Commission granting Participating Insurance Companies and their
separate accounts exemptions from the provisions of Sections 9(a), 13(a),
15(a) and 15(b) of the 1940 Act, and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Trust to be
sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated life insurance companies and
certain qualified pension and retirement plans (the "Exemptive Order");
and
WHEREAS, the Company has registered or will register certain
variable life insurance policies and/or variable annuity contracts under
the 1933 Act (the "Contracts"); and
WHEREAS, the Company has registered or will register each Account
as a unit investment trust under the 1940 Act; and
WHEREAS, the Company desires to utilize shares of one or more
Portfolios as an investment vehicle of the Accounts;
NOW THEREFORE, in consideration of their mutual promises, the
parties agree as follows:
ARTICLE I.
Sale of Trust Shares
1.1 The Trust shall make shares of its Portfolios available
to the Accounts at the net asset value next computed after receipt of such
purchase order by the Trust (or its agent), as established in accordance
with the provisions of the then current prospectus of the Trust. Shares
of a particular Portfolio of the Trust shall be ordered in such quantities
and at such times as determined by the Company to be necessary to meet the
requirements of the Contracts. The Trustees of the Trust (the "Trustees")
may refuse to sell shares of any Portfolio to any person, or suspend or
terminate the offering of shares of any Portfolio if such action is
required by law or by regulatory authorities having jurisdiction or is, in
the sole discretion of the Trustees acting in good faith and in light of
their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Portfolio.
1.2 The Trust will redeem any full or fractional shares of
any Portfolio when requested by the Company on behalf of an Account at the
net asset value next computed after receipt by the Trust (or its agent) of
the request for redemption, as established in accordance with the
provisions of the then current prospectus of the Trust. The Trust shall
make payment for such shares in the manner established from time to time
by the Trust, but in no event shall payment be delayed for a greater
period than is permitted by the 0000 Xxx.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust
hereby appoints the Company as its agent for the limited purpose of
receiving and accepting purchase and redemption orders resulting from
investment in and payments under the Contracts. Receipt by the Company
shall constitute receipt by the Trust provided that i) such orders are
received by the Company in good order prior to the time the net asset
value of each Portfolio is priced in accordance with its prospectus and
ii) the Trust receives notice of such orders by 11:00 a.m. New York time
on the next following Business Day. "Business Day" shall mean any day on
which the New York Stock Exchange is open for trading and on which the
Trust calculates its net asset value pursuant to the rules of the
Securities and Exchange Commission.
1.4 Purchase orders that are transmitted to the Trust in
accordance with Section 1.3 shall be paid for no later than 12:00 noon New
York time on the same Business Day that the Trust receives notice of the
order. Payments shall be made in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust's shares will be by
book entry only. Stock certificates will not be issued to the Company or
the Account. Shares ordered from the Trust will be recorded in the
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appropriate title for each Account or the appropriate subaccount of each
Account.
1.6 The Trust shall furnish prompt notice to the Company of
any income dividends or capital gain distributions payable on the Trust's
shares. The Company hereby elects to receive all such income dividends
and capital gain distributions as are payable on a Portfolio's shares in
additional shares of that Portfolio. The Trust shall notify the Company
of the number of shares so issued as payment of such dividends and
distributions by the close of the following Business Day.
1.7 The Trust shall make the net asset value per share for
each Portfolio available to the Company on a daily basis as soon as
reasonably practical after the net asset value per share is calculated and
shall use its best efforts to make such net asset value per share
available by 6 p.m. New York time. When available, the net asset value
will be communicated to the Company by telephone and confirmed by
facsimile.
1.8 The Trust agrees that its shares will be sold only to
Participating Insurance Companies and their separate accounts and to
certain qualified pension and retirement plans to the extent permitted by
the Exemptive Order. No shares of any Portfolio will be sold directly to
the general public. The Company agrees that Trust shares will be used
only for the purposes of funding the Contracts and Accounts listed in
Schedule A, as amended from time to time.
1.9 The Trust agrees that all Participating Insurance
Companies shall have the obligations and responsibilities regarding pass-
through voting and conflicts of interest corresponding to those contained
in Section 2.8 and Article IV. of this Agreement.
ARTICLE II.
Obligations of the Parties
2.1 The Trust shall prepare and be responsible for filing
with the Securities and Exchange Commission and any state regulators
requiring such filing all shareholder reports, notices, proxy materials
(or similar materials such as voting instruction solicitation materials),
prospectuses and statements of additional information of the Trust. The
Trust shall bear the costs of registration and qualification of its
shares, preparation and filing of the documents listed in this Section 2.1
and all taxes to which an issuer is subject on the issuance and transfer
of its shares.
2.2 At the option of the Company, the Trust shall either (a)
provide the Company (at the Company's expense) with as many copies of the
Trust's current prospectus, annual report, semi-annual report and other
shareholder communications, including any amendments or supplements to any
of the foregoing, as the Company shall reasonably request; or (b) provide
the Company with a camera ready copy of such documents in a form suitable
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for printing. The Trust shall provide the Company with a copy of its
statement of additional information in a form suitable for duplication by
the Company. The Trust (at its expense) shall provide the Company with
copies of any Trust-sponsored proxy materials in such quantity as the
Company shall reasonably require for distribution to Contract owners.
2.3 The Company shall bear the costs of printing and
distributing the Trust's prospectus, statement of additional information,
shareholder reports and other shareholder communications to owners of and
applicants for policies for which the Trust is serving or is to serve as
an investment vehicle. The Company shall bear the costs of distributing
proxy materials (or similar materials such as voting solicitation
instructions) to Contract owners. The Company assumes sole responsibility
for ensuring that such materials are delivered to Contract owners in
accordance with applicable federal and state securities laws.
2.4 The Company agrees and acknowledges that the Trust's
adviser, Janus Capital Corporation ("Janus Capital"), is the sole owner of
the name and xxxx "Xxxxx" and that all use of any designation comprised in
whole or part of Janus (a "Xxxxx Xxxx") under this Agreement shall inure
to the benefit of Janus Capital. Except as provided in Section 2.5, the
Company shall not use any Xxxxx Xxxx on its own behalf or on behalf of the
Accounts or Contracts in any registration statement, advertisement, sales
literature or other materials relating to the Accounts or Contracts
without the prior written consent of Janus Capital. Upon termination of
this Agreement for any reason, the Company shall cease all use of any
Xxxxx Xxxx(s) as soon as reasonably practicable.
2.5 The Company shall furnish, or cause to be furnished, to
the Trust or its designee, a copy of each Contract prospectus or statement
of additional information in which the Trust or its investment adviser is
named prior to the filing of such document with the Securities and
Exchange Commission. The Company shall furnish, or shall cause to be
furnished, to the Trust or its designee, each piece of sales literature or
other promotional material in which the Trust or its investment adviser is
named, at least ten 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.
2.6 The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the
Trust or its investment adviser in connection with the sale of the
Contracts other than information or representations contained in and
accurately derived from the registration statement or prospectus for the
Trust shares (as such registration statement and prospectus may be amended
or supplemented from time to time), reports of the Trust, Trust-sponsored
proxy statements, or in sales literature or other promotional material
approved by the Trust or its designee, except as required by legal process
or regulatory authorities or with the written permission of the Trust or
its designee.
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2.7 The Trust shall not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, the Accounts or the Contracts other than information or
representations contained in and accurately derived from the registration
statement or prospectus for the Contracts (as such registration statement
and prospectus may be amended or supplemented from time to time), or in
materials approved by the Company for distribution including sales
literature or other promotional materials, except as required by legal
process or regulatory authorities or with the written permission of the
Company.
2.8 So long as, and to the extent that the Securities and
Exchange Commission interprets the 1940 Act to require pass-through voting
privileges for variable policyowners, the Company will provide pass-
through voting privileges to owners of policies whose cash values are
invested, through the Accounts, in shares of the Trust. The Trust shall
require all Participating Insurance Companies to calculate voting
privileges in the same manner and the Company shall be responsible for
assuring that the Accounts calculate voting privileges in the manner
established by the Trust. With respect to each Account, the Company will
vote shares of the Trust held by the Account and for which no timely
voting instructions from policyowners are received as well as shares it
owns that are held by that Account, in the same proportion as those shares
for which voting instructions are received. The Company and its agents
will in no way recommend or oppose or interfere with the solicitation of
proxies for Trust shares held by Contract owners without the prior written
consent of the Trust, which consent may be withheld in the Trust's sole
discretion.
ARTICLE III.
Representations and Warranties
3.1 The Company represents and warrants that it is an
insurance company duly organized and in good standing under the laws of
the State of Ohio and that it has legally and validly established each
Account as a segregated asset account under such law on the date set forth
in Schedule A.
3.2 The Company represents and warrants that it has
registered or, prior to any issuance or sale of the Contracts, will
register each Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for
the Contracts.
3.3 The Company represents and warrants that the Contracts
will be registered under the 1933 Act prior to any issuance or sale of the
Contracts; 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.
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3.4 The Trust represents and warrants that it is duly
organized and validly existing under the laws of the State of Delaware.
3.5 The Trust represents and warrants that the Trust shares
offered and sold pursuant to this Agreement will be registered under the
1933 Act and the Trust shall be registered under the 1940 Act prior to any
issuance or sale of such shares. The Trust shall amend its registration
statement under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of its shares. The
Trust shall register and qualify its shares for sale in accordance with
the laws of the various states only if and to the extent deemed advisable
by the Trust.
3.6 The Trust represents and warrants that the investments of
each Portfolio will comply with the diversification requirements set forth
in Section 817(h) of the Internal Revenue Code of 1986, as amended, and
the rules and regulations thereunder.
ARTICLE IV.
Potential Conflicts
4.1 The parties acknowledge that the Trust's shares may be
made available for investment to other Participating Insurance Companies.
In such event, the Trustees will monitor the Trust for the existence of
any material irreconcilable conflict between the interests of the contract
owners of all Participating Insurance Companies. An irreconcilable
material conflict may arise for a variety of reasons, including: (a) an
action by any state insurance regulatory authority; (b) a change in
applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or
securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life
insurance contract owners; or (f) a decision by an insurer to disregard
the voting instructions of contract owners. The Trustees shall promptly
inform the Company if they determine that an irreconcilable material
conflict exists and the implications thereof.
4.2 The Company agrees to promptly report any potential or
existing conflicts of which it is aware to the Trustees. The Company will
assist the Trustees in carrying out their responsibilities under the
Exemptive Order by providing the Trustees with all information reasonably
necessary for the Trustees to consider any issues raised including, but
not limited to, information as to a decision by the Company to disregard
Contract owner voting instructions.
4.3 If it is determined by a majority of the Trustees, or a
majority of its disinterested Trustees, that a material irreconcilable
conflict exists that affects the interests of Contract owners, the Company
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shall, in cooperation with other Participating Insurance Companies whose
contract owners are also affected, at its expense and to the extent
reasonably practicable (as determined by the Trustees) take whatever steps
are necessary to remedy or eliminate the irreconcilable material conflict,
which steps could include: (a) withdrawing the assets allocable to some
or all of the Accounts from the Trust or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited
to) another Portfolio of the Trust, or submitting the question of whether
or not such segregation should be implemented to a vote of all affected
Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the
affected Contract owners the option of making such a change; and (b)
establishing a new registered management investment company or managed
separate account.
4.4 If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting instructions
and that decision represents a minority position or would preclude a
majority vote, the Company may be required, at the Trust's election, to
withdraw the affected Account's investment in the Trust and terminate this
Agreement with respect to such Account; provided, however that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of
the disinterested Trustees. Any such withdrawal and termination must take
place within six (6) months after the Trust gives written notice that this
provision is being implemented. Until the end of such six (6) month
period, the Trust shall continue to accept and implement orders by the
Company for the purchase and redemption of shares of the Trust.
4.5 If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company
will withdraw the affected Account's investment in the Trust and terminate
this Agreement with respect to such Account within six (6) months after
the Trustees inform the Company in writing that it has determined that
such decision has created an irreconcilable material conflict; provided,
however, that such withdrawal and termination shall be limited to the
extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested Trustees. Until the end of
such six (6) month period, the Trust shall continue to accept and
implement orders by the Company for the purchase and redemption of shares
of the Trust.
4.6 For purposes of Sections 4.3 through 4.6 of this
Agreement, a majority of the disinterested Trustees shall determine
whether any proposed action adequately remedies any irreconcilable
material conflict, but in no event will the Company be required to
establish a new funding medium for the Contracts if an offer to do so has
been declined by vote of a majority of Contract owners materially
adversely affected by the irreconcilable material conflict. In the event
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that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will
withdraw the Account's investment in the Trust and terminate this
Agreement within six (6) months after the Trustees inform the Company in
writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required by any
such material irreconcilable conflict as determined by a majority of the
disinterested Trustees.
4.7 The Company shall at least annually submit to the
Trustees such reports, materials or data as the Trustees may reasonable
request so that the Trustees may fully carry out the duties imposed upon
them by the Exemptive Order, and said reports, materials and data shall be
submitted more frequently if deemed appropriate by the Trustees.
4.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with respect
to mixed or shared funding (as defined in the Exemptive Order) on terms
and conditions materially different from those contained in the Exemptive
Order, then the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with
Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable.
ARTICLE V.
Indemnification
5.1 Indemnification By the Company. The Company agrees to
indemnify and hold harmless the Trust and each of its Trustees, officers,
employees and agents and each person, if any, who controls the Trust
within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this 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
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
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not misleading, provided that this indemnity shall not apply as
to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and was
accurately derived from written information furnished to the
Company by or on behalf of the Trust for use in Company Documents
or otherwise for use in connection with the sale of the Contracts
or Trust shares; or
(b) arise out of or result from statements or
representations (other than statements or representations
contained in and accurately derived from Trust Documents as
defined in Section 5.2(a)) or wrongful conduct of the Company or
persons under its control, with respect to the sale or
acquisition of the Contracts or Trust shares; or
(c) arise out of or result from any untrue statement
or alleged untrue statement of a material fact contained in Trust
Documents as defined in Section 5.2(a) or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance
upon and accurately derived from written information furnished to
the Trust by or on behalf of the Company; or
(d) arise out of or result from any failure by the
Company to provide the services or furnish the materials required
under the terms of this Agreement; or
(e) arise out of or result from any material breach
of any representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company.
5.2 Indemnification By the Trust. The Trust agrees to
indemnify and hold harmless the Company and each of its directors,
officers, employees and agents and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively,
the "Indemnified Parties" for purposes of this Article V.) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Trust) or expenses (including
the reasonable costs of investigating or defending any alleged loss,
claim, damage, liability or expense and reasonable legal counsel fees
incurred in connection therewith) (collectively, "Losses"), to which the
Indemnified Parties may become subject under any statute or regulation, or
at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue
statements or alleged untrue statements of any material fact
contained in the registration statement or prospectus for the
Trust or in sales literature generated or approved by the Trust
or on behalf of the Trust (or any amendment or supplement
thereto), (collectively, "Trust Documents" for the purposes of
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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.
5.3 Neither the Company nor the Trust shall be liable under
the indemnification provisions of Sections 5.1 or 5.2, as applicable, with
respect to any Losses incurred or assessed against an Indemnified Party
that arise from such Indemnified Party's willful misfeasance, bad faith or
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement.
5.4 Neither the Company nor the Trust shall be liable under
the indemnification provisions of Sections 5.1 or 5.2, as applicable, with
respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the other party in writing within a
reasonable time after the summons, or other first written notification,
giving information of the nature of the claim shall have been served upon
or otherwise received by such Indemnified Party (or after such Indemnified
Party shall have received notice of service upon or other notification to
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any designated agent), but failure to notify the party against whom
indemnification is sought of any such claim shall not relieve that party
from any liability which it may have to the Indemnified Party in the
absence of Sections 5.1 and 5.2.
5.5 In case any such action is brought against the
Indemnified Parties, the indemnifying party shall be entitled to
participate, at its own expense, in the defense of such action. The
indemnifying party also shall be entitled to assume the defense thereof,
with counsel reasonably satisfactory to the party named in the action.
After notice from the indemnifying party to the Indemnified Party of an
election to assume such defense, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the
indemnifying party will not be liable to the Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such
party independently in connection with the defense thereof other than
reasonable costs of investigation.
ARTICLE VI.
Termination
6.1 This Agreement may be terminated by either party for any
reason by ninety (90) days advance written notice delivered to the other
party.
6.2 Notwithstanding any termination of this Agreement, the
Trust shall, at the option of the Company, continue to make available
additional shares of the Trust (or any Portfolio) pursuant to the terms
and conditions of this Agreement for all Contracts in effect on the
effective date of termination of this Agreement, provided that the Company
continues to pay the costs set forth in Section 2.3.
6.3 The provisions of Article V. shall survive the
termination of this Agreement, and the provisions of Article IV. and
Section 2.8 shall survive the termination of this Agreement as long as
shares of the Trust are held on behalf of Contract owners in accordance
with Section 6.2.
ARTICLE VII.
Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify
in writing to the other party.
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If to the Trust:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
If to the Company:
00xx Xxxxx, Xxxxxxxx Xxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
ARTICLE VIII.
Miscellaneous
8.1 The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
8.2 This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together shall constitute one and
the same instrument.
8.3 If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
the Agreement shall not be affected thereby.
8.4 This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of State of
Colorado.
8.5 The parties to this Agreement acknowledge and agree that
all liabilities of the Trust arising, directly or indirectly, under this
Agreement, of any and every nature whatsoever, shall be satisfied solely
out of the assets of the Trust and that no Trustee, officer, agent or
holder of shares of beneficial interest of the Trust shall be personally
liable for any such liabilities.
8.6 Each party shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc., and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with
any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
8.7 The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights,
remedies and obligations, at law or in equity, which the parties hereto
are entitled to under state and federal laws.
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8.8 The parties to this Agreement acknowledge and agree that
this Agreement shall not be exclusive in any respect.
8.9 Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the prior written
approval of the other party.
8.10 No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized
and executed by both parties.
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.
ANNUITY INVESTORS
LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxx
__________________________
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
JANUS ASPEN SERIES
By: /s/ Xxxxxxx X. Xxxxxxxx
_________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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SCHEDULE A
Separate Accounts and Associated Contracts
Name of Separate Account and Contracts Funded
Date Established by Board of Directors By Separate Account
-------------------------------------- -------------------
Annuity Investors Variable Account A Group Flexible Premium
May 26, 1995 Deferred Annuity
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