Exhibit 99-B.8.30
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made as of the 11th day of May, 1994, between Janus
Capital Corporation, a Colorado corporation ("Janus"), and Aetna Life Insurance
and Annuity Company, a life insurance company organized under the laws of the
State of Connecticut (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:
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WHEREAS, the Company has established the Accounts to serve as
investment vehicles for certain variable annuity contracts and funding
agreements offered by the Company set forth on Schedule A ("Contracts"); and
WHEREAS, each Janus Fund set forth on Schedule B hereto (which may be
amended from time to time by mutual written consent) ("Fund or Funds") engages
in business as an investment company registered under the Investment Company Act
of 1940, as amended ("1940 Act"); and
WHEREAS, to the extent permitted by applicable securities and insurance
laws and regulations, the Company intends to purchase shares in the Funds on
behalf of each Account.
NOW, THEREFORE, in consideration of their mutual promises, the Company
and Janus agree as follows:
ARTICLE I.
Sale of Fund Shares
1.1. Janus shall make shares of the Funds available for purchase by the
Company at the net asset value next computed after receipt of such purchase
order by Janus, as established in accordance with the provisions of the then
current prospectus of the applicable Fund. The Company will transmit orders from
time to time to Janus for the purchase of shares of the Funds. Janus may refuse
to sell shares of any Fund to any person, or suspend or terminate the offering
of shares of any Fund if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of Janus,
necessary or in the best interests of the shareholders of such Fund.
1.2. The Company shall submit payment for shares of the Funds no later
than 12:00 noon New York time on the next Business Day after Janus receives the
order pursuant to section 1.1. Payments shall be made in federal funds
transmitted by wire to Janus. Upon receipt by Janus of the federal funds so
wired, such funds shall cease to be the responsibility of the Company and shall
become the responsibility of Janus for this purpose. "Business Day" shall mean
any day on which the New York Stock Exchange is open for trading and on which
the Funds calculate their net asset values pursuant to the rules of the
Securities and Exchange Commission.
1.3. Janus will redeem any full or fractional shares of any Fund when
requested by the Company at the net asset value next computed after receipt by
Janus of the request for redemption, as established in accordance with the
provisions of the then current prospectus of such Fund.
1.4. Issuance and transfer of a Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
1.5. Janus shall furnish prompt notice to the Company of any income
dividends or capital gain distributions payable on Fund shares. The Company
hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Fund's shares in additional shares of that
Fund. Janus shall notify the Company of the number of shares so issued as
payment of such dividends and distributions.
1.6. Janus shall calculate Fund net asset values on each Business Day,
as defined in section 1.2. Janus shall make the net asset value per share for
each Fund 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.
ARTICLE II.
Obligations of the Parties
2.1. Janus 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 Funds. Janus 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. Recordkeeping and other administrative services to Contract owners
shall be the responsibility of the Company and shall not be the responsibility
of Janus, Janus Service Corporation, or the Funds' transfer agent, Investors
Fiduciary Trust Company. Janus and the Funds will recognize one omnibus account
for the Company in the Funds. Upon the request of Janus, the Company shall
provide copies of all records relating to the Funds as may reasonably be
requested to enable the Funds or their representatives to comply with any
request of a governmental body or self-regulatory organization.
2.3. The Company agrees and acknowledges that Janus Capital Corporation
("Janus Capital") is the sole owner of the name and xxxx "Xxxxx" and that any
and all use of any designation comprised in whole or in part of Janus (a "Xxxxx
Xxxx") under this Agreement shall inure to the benefit of Janus. The use by the
Company of any Xxxxx Xxxx in any advertisement or sales literature of other
materials promoting the Funds shall be with the prior written consent of Janus.
Except to the extent required by law, the Company shall not, without prior
written consent of Janus, make written representations regarding the Funds,
Janus or their affiliates, except those contained in the then current prospectus
and the then current printed sales literature for the Funds. Upon termination of
this Agreement for any reason, the Company shall cease all use of any Xxxxx
Xxxx(s) as soon as reasonably practicable. The Company shall not hold itself out
to the public or engage in any activity as an agent or distributor for the
Funds. The Company will comply with all applicable state and federal laws with
respect to the use of shares of the Funds.
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
Connecticut 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 that the Contracts are currently treated as
annuity contracts under applicable provisions of the Code and that it will make
every effort to maintain such treatment and that it will notify Janus
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.
3.3. The Company represents and warrants that the Contracts will be
issued and sold in compliance in all material respects with all applicable
federal and state laws; and the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements.
3.4. Janus represents and warrants that it is duly organized and
validly existing under the laws of the State of Colorado.
3.5. Janus represents and warrants that Fund shares offered and sold
pursuant to this Agreement will be registered under the 1933 Act and the Funds
shall be registered under the 1940 Act prior to any issuance or sale of such
shares.
3.6. Janus makes no representation as to whether any aspect of any
Fund's operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or regulations of the
various states.
ARTICLE IV.
Indemnification
4.1. Indemnification By the Company. The Company agrees to indemnify
and hold harmless Janus, Janus Service Corporation, the Funds, and each of their
trustees, officers, employees and agents and each person, if any, who controls
Janus within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Article IV) 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 any
disclosure document 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 IV), 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 Janus
for use in Company Documents or otherwise for use in connection with
the sale of the Contracts or Fund shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately
derived from Janus Documents as defined in Section 4.2(a)) or wrongful
conduct of the Company or persons under its control, with respect to
the sale or acquisition of the Contracts or Fund shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Fund Documents
as defined in Section 4.2(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 Janus 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.
4.2. Indemnification By Janus. Janus 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 IV) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of Janus) 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 Fund (or any amendment or
supplement thereto), (collectively, "Fund Documents" for the purposes
of this Article IV), 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 Janus by or on behalf of
the Company for use in Janus Documents or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(b) 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 Janus; or
(c) arise out of or result from any failure by Janus to
provide the services or furnish the materials required under the terms
of this Agreement; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by Janus in this Agreement or arise
out of or result from any other material breach of this Agreement by
Janus.
4.3. Neither the Company nor Janus shall be liable under the
indemnification provisions of sections 4.1 or 4.2, 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 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.
4.4. Neither the Company nor Janus shall be liable under the
indemnification provisions of sections 4.1 or 4.2, as applicable, with respect
to any claim made against an Indemnified Party unless such Indemnified Party
shall have notified the other party in writing within a reasonable time after
the summons, or other first written notification, giving information of the
nature of the claim shall have been served upon or otherwise received by such
Indemnified Party (or after such Indemnified Party shall have received notice of
service upon or other notification to any designated agent), but failure to
notify the party against whom indemnification is sought of any such claim or
shall not relieve that party from any liability which it may have to the
Indemnified Party in the absence of sections 4.1 and 4.2.
4.5. 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 V.
Fees and Expenses
5.1 Janus recognizes the Company as the sole shareholder of each
Fund's shares purchased under this Agreement. Janus further recognizes that
substantial savings in administrative expense such as significant reductions in
postage expense and shareholder communications and recordkeeping by virtue of
each Fund's having a sole shareholder rather than multiple shareholders will be
derived. In consideration of the administrative savings resulting from such
arrangement, Janus agrees to pay the Company a fee equivalent to 15 basis points
per annum of the average amount invested in each Fund through the Accounts in
accordance with this Agreement ("Fee").
5.2 Janus will calculate the amount of the Fee to be paid to the
Company at the end of each calendar quarter and will make such payment to the
Company within thirty (30) days thereafter. Each check for such payment will be
accompanied by a statement showing the calculation of the Fee for the relevant
calendar quarter and such other supporting data as may be reasonably requested
by the Company.
ARTICLE VI.
Termination
6.1. This Agreement shall continue in full force and effect until the
first to occur of;
(a) termination by any party for any reason on sixty (60)
days' advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to Janus with
respect to any Fund based upon the Company's determination that shares
of such Fund are not reasonably available to meet the requirements of
the Contracts; or
(c) termination by the Company by written notice to Janus with
respect to any Fund in the event any of the Fund'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; and
(d) termination by the Company by written notice to Janus with
respect to any Fund in the event that such Fund 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 such Fund may fail to do so qualify.
(e) termination by Janus if it is determined by any federal or
state regulatory authority that compensation to be paid hereunder is in
violation of or inconsistent with any federal or state law. If Janus
terminates for such reason, the Company may maintain investments in the
Funds without further payment from Janus.
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 Janus:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
If to the Company:
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq., RE4C
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 of effect.
8.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will 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 the State of Colorado.
8.5. Each party 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.
8.6. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
8.7. The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
8.8. Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the prior written approval of the other
party.
8.9. 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.
AETNA LIFE INSURANCE AND ANNUITY COMPANY
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title Senior Vice President
JANUS CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
Schedule A
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Separate Accounts and Associated Contracts
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Name of Separate Account and Contracts Funded
Date Established by Board of Directors By Separate Account
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Separate Account F EGF-PVU-IC
EGFA-PVU-IC
Schedule B
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Janus Funds
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Janus Fund
Janus Balanced Fund
Janus Flexible Income Fund