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EXHIBIT 1.A(8)(a)
JANUS ASPEN SERIES
FUND PARTICIPATION AGREEMENT
(SERVICE SHARES)
THIS AGREEMENT is made this 26th day of October, between JANUS ASPEN
SERIES, an open-end management investment company organized as a Delaware
business trust (the "Trust"), and Peoples Benefit Life Insurance Company, a
life insurance company organized under the laws of the State of Iowa (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 Service 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; and
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WHEREAS, the Company desires to utilize the Shares of one or more
Portfolios as an investment vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the
parties agree as follows:
ARTICLE I
Sale of Trust Shares
1.1 The Trust shall make Shares of its Portfolios listed on
Schedule B available to the Accounts at the net asset value next computed
after receipt of such purchase order by the Trust (or its agent), 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 10:00 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.
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1.5 Issuance and transfer of the Trust's Shares will be by book
entry only. Stock certificates will not be issued to the Company or the
Account. Shares ordered from the Trust will be recorded in the appropriate
title for each Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish prompt notice to the Company of any
income dividends or capital gain distributions payable on the Trust's Shares.
The Company hereby elects to receive all such income dividends and capital
gain distributions as are payable on a Portfolio's Shares in additional Shares
of that Portfolio. The Trust shall notify the Company of the number of Shares
so issued as payment of such dividends and distributions.
1.7 The Trust shall make the net asset value per Share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per Share is calculated and shall use its
best efforts to make such net asset value per Share available by 6 p.m. New
York time.
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 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;
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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
distributing the Trust's Shares' prospectus, 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 Company shall bear the
costs of distributing proxy materials (or similar materials such as voting
solicitation instructions) to Contract owners. The Company assumes sole
responsibility for ensuring that such materials are delivered to Contract
owners in accordance with applicable federal and state securities laws.
(b) If the Company elects to include any materials
provided by the Trust, specifically prospectuses, 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.
2.4 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
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 fifteen 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
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such registration statement and prospectus may be amended or supplemented from
time to time), reports of the Trust, Trust-sponsored proxy statements, or in
sales literature or other promotional material approved by the Trust or its
designee, except as required by legal process or regulatory authorities or
with the written permission of the Trust or its designee.
2.7 The Trust shall not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, the Accounts or the Contracts other than information or
representations contained in and accurately derived from the registration
statement or prospectus for the Contracts (as such registration statement and
prospectus may be amended or supplemented from time to time), or in materials
approved by the Company for distribution including sales literature or other
promotional materials, except as required by legal process or regulatory
authorities or with the written permission of the Company.
2.8 So long as, and to the extent that the Securities and
Exchange Commission interprets the 1940 Act to require pass-through voting
privileges for variable policyowners, the Company will provide pass-through
voting privileges to owners of policies whose cash values are invested,
through the Accounts, in shares of the Trust. The Trust shall require all
Participating Insurance Companies to calculate voting privileges in the same
manner and the Company shall be responsible for assuring that the Accounts
calculate voting privileges in the manner established by the Trust. With
respect to each Account, the Company will vote Shares of the Trust held by the
Account and for which no timely voting instructions from policyowners are
received as well as Shares it owns that are held by that Account, in the same
proportion as those Shares for which voting instructions are received. The
Company and its agents will in no way recommend or oppose or interfere with
the solicitation of proxies for Trust shares held by Contract owners without
the prior written consent of the Trust, which consent may be withheld in the
Trust's sole discretion.
2.9 The Company shall notify the Trust of any applicable state
insurance laws that restrict the Portfolios' investments or otherwise affect
the operation of the Trust and shall notify the Trust of any changes in such
laws.
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
Iowa 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 each Account has
been registered or, prior to any issuance or sale of the Contracts, will be
registered as a unit investment trust in accordance with the provisions of the
1940 Act or alternatively, has not registered an Account
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in proper reliance upon the exclusion from registration in 3(c)(11) or
Section 3(c)(7) thereof, the Company represents and agrees that:
(a) AFSG Securities Corporation is the principal
underwriter for each such unregistered Account and its subaccounts
and is a registered broker-dealer under the Securities and Exchange
Act of 1934 (the "1934 Act");
(b) the shares of the Portfolios of the Trust are and
will continue to be the only investment securities held by the
corresponding Account subaccounts; and
(c) with regard to each Portfolio, the Company, on
behalf of the corresponding Account subaccount will:
(i) vote such shares held by it in the same
proportion as the vote of all other holders of such shares;
and
(ii) refrain from substituting shares of
another security for such shares unless the SEC has approved
such substitution in the manner provided in Section 26 of
the 0000 Xxx.
3.3 The 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.
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.
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3.7 The Trust represents that it intends to qualify as a
Regulated Investment Company under Subchapter M of the Internal Revenue Code
of 1986, as amended, (the "Code") and that it will make every effort to
maintain such qualification (under Subchapter M or any successor or similar
provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it
might not so qualify in the future.
3.8 The Trust represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities
dealing with money and/or securities of the Trust are and shall continue to be
at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Trust in an amount not less than the minimal coverage as
required currently by Rule 17g-(1) of the 1940 Act or related provisions as
may be promulgated from time to time. The aforesaid Bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
ARTICLE IV
Potential Conflicts
4.1 The parties acknowledge that the Trust's shares may be made
available for investment to other Participating Insurance Companies. In such
event, the Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Trustees shall promptly inform the
Company if they determine that an irreconcilable material conflict exists and
the implications thereof.
4.2 The Company agrees to promptly report any potential or
existing conflicts of which it is aware to the Trustees. The Company will
assist the Trustees in carrying out their responsibilities under the Exemptive
Order by providing the Trustees with all information reasonably necessary for
the Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting
instructions.
4.3 If it is determined by a majority of the Trustees, or a
majority of its disinterested Trustees, that a material irreconcilable
conflict exists that affects the interests of Contract owners, the Company
shall, in cooperation with other Participating Insurance
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Companies whose contract owners are also affected, at its expense and to the
extent reasonably practicable (as determined by the Trustees) take whatever
steps are necessary to remedy or eliminate the irreconcilable material
conflict, which steps could include: (a) withdrawing the assets allocable to
some or all of the Accounts from the Trust or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited to)
another Portfolio of the Trust, or submitting the question of whether or not
such segregation should be implemented to a vote of all affected Contract
owners and, as appropriate, segregating the assets of any appropriate group
(i.e., annuity contract owners, life insurance contract owners, or variable
contract owners of one or more Participating Insurance Companies) that votes
in favor of such segregation, or offering to the affected Contract owners the
option of making such a change; and (b) establishing a new registered
management investment company or managed separate account.
4.4 If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting instructions and
that decision represents a minority position or would preclude a majority
vote, the Company may be required, at the Trust's election, to withdraw the
affected Account's investment in the Trust and terminate this Agreement with
respect to such Account; provided, however that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. Any such withdrawal and termination must take place within six (6)
months after the Trust gives written notice that this provision is being
implemented. Until the end of such six (6) month period, the Trust shall
continue to accept and implement orders by the Company for the purchase and
redemption of shares of the Trust.
4.5 If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the affected Account's investment in the Trust and terminate this
Agreement with respect to such Account within six (6) months after the
Trustees inform the Company in writing that it has determined that such
decision has created an irreconcilable material conflict; provided, however,
that such withdrawal and termination shall be limited to the extent required
by the foregoing material irreconcilable conflict as determined by a majority
of the disinterested Trustees. Until the end of such six (6) month period, the
Trust shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust.
4.6 For purposes of Sections 4.3 through 4.6 of this Agreement,
a majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no
event will the Company be required to establish a new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable material
conflict. In the event that the Trustees determine that any proposed action
does not adequately remedy any irreconcilable material conflict, then the
Company will withdraw the Account's investment in the Trust and terminate this
Agreement within six (6) months after the Trustees inform the Company in
writing of the foregoing determination; provided, however, that such
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withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested Trustees.
4.7 The Company shall at least annually submit to the Trustees
such reports, materials or data as the Trustees may reasonably request so that
the Trustees may fully carry out the duties imposed upon them by the Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Trustees.
4.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Exemptive Order) on terms and
conditions materially different from those contained in the Exemptive Order,
then the Trust and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and
6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable.
ARTICLE V
Indemnification
5.1 Indemnification By the Company. The Company agrees to
indemnify and hold harmless the Trust and each of its Trustees, officers,
employees and agents and each person, if any, who controls the Trust within
the meaning of Section 15 of the 1933 Act (collectively, the "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 for use in Company Documents or otherwise for use in connection
with the sale of the Contracts or Trust Shares; or
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(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 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
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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 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.
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ARTICLE VI
Termination
6.1 (a) This Agreement may be terminated by either party
for any reas on by ninety (90) days advance written notice delivered to the
other party.
(b) This Agreement may be terminated by the Company
immediately upon written notice to the Trust with respect to any Portfolio:
(i) based upon the Company's determination
that shares of such Portfolio are not reasonably available
to meet the requirements of the Contracts; or
(ii) in the event any of the Portfolio's shares
are not registered, issued or sold in accordance with
applicable state and/or federal law or such law precludes
the use of such shares as the underlying investment media of
the Contracts issued or to be issued by the Company; or
(iii) in the event that such Portfolio ceases to
qualify as a Regulated Investment Company under Subchapter M
of the Code or under any successor or similar provision, or
if the Company reasonably believes that the Trust may fail
to so qualify; or
(iv) in the event that such Portfolio fails to
meet the diversification requirements specified in this
Agreement.
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.
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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 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Company:
Peoples Benefit Life Insurance Company
0000 Xxxxxxxx Xx. XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxx Xxx, Division Counsel
ARTICLE VIII
Miscellaneous
8.1 The captions in this Agreement are included for convenience
of reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
8.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.3 If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
8.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of State of Colorado.
8.5 The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this
Agreement, of any and every nature whatsoever, shall be satisfied solely out
of the assets of the Trust and that no Trustee, officer, agent or holder of
shares of beneficial interest of the Trust shall be personally liable for any
such liabilities.
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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.
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.
Date: 11/28/00
JANUS ASPEN SERIES
By: /s/Xxxxxx About Xxxxx
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Name: Xxxxxx Xxxxx Xxxxx
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Title: Vice President and Secretary
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PEOPLES BENEFIT LIFE INSURANCE COMPANY
By: /s/Xxxx Xxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxx
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Title: Vice President
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Schedule A
Separate Accounts and Associated Contracts
Contracts Funded
Name of Separate Account By Separate Account
------------------------ -------------------
Peoples Benefit Variable Life Account A AVUL070900 1200
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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.
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