PARTICIPATION AGREEMENT AMONG MFS VARIABLE INSURANCE TRUST, PACIFIC LIFE INSURANCE COMPANY [MAKE SURE TO SAVE AS THE COMPANY NAME — LEAVE THIS AS IS] AND MASSACHUSETTS FINANCIAL SERVICES COMPANY
AMONG
MFS VARIABLE INSURANCE TRUST,
PACIFIC LIFE INSURANCE COMPANY
[MAKE SURE TO SAVE AS THE COMPANY NAME — LEAVE THIS AS IS]
AND
MASSACHUSETTS FINANCIAL SERVICES COMPANY
THIS AGREEMENT, made and entered into this 1st day of May 2007, by and among MFS
VARIABLE INSURANCE TRUST, a Massachusetts business trust (the “Trust”), PACIFIC LIFE INSURANCE
COMPANY, a Nebraska corporation (the “Company”) on its own behalf and on behalf of each of the
segregated asset accounts of the Company set forth in Schedule A hereto, as may be amended from
time to time (the “Accounts”), and MASSACHUSETTS FINANCIAL SERVICES COMPANY, a Delaware corporation
(“MFS”).
WHEREAS, the Trust is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the “1940 Act”), and its shares are registered or will
be registered under the Securities Act of 1933, as amended (the “1933 Act”);
WHEREAS, shares of beneficial interest of the Trust are divided into several series of shares,
each representing the interests in a particular managed pool of securities and other assets;
WHEREAS, certain series of shares of the Trust are divided into two separate share classes, an
Initial Class and a Service Class, and the Trust on behalf of the Service Class has adopted a Rule
12b-1 plan under the 1940 Act pursuant to which the Service Class pays a distribution fee;
WHEREAS, the series of shares of the Trust (each, a “Portfolio,” and, collectively, the
“Portfolios”) and the classes of shares of those Portfolios (the “Shares”) offered by the Trust to
the Company and the Accounts are set forth on Schedule B attached hereto;
WHEREAS, MFS is duly registered as an investment adviser under the Investment Advisers Act of
1940, as amended, and any applicable state securities law, and is the Trust’s investment adviser;
WHEREAS, the Company will issue certain variable annuity and/or variable life insurance
contracts (individually, the “Policy” or, collectively, the “Policies”) which, if required by
applicable law, will be registered under the 1933 Act;
WHEREAS, the Accounts are duly organized, validly existing segregated asset accounts,
established by resolution of the Board of Directors of the Company, to set aside and invest assets
attributable to the aforesaid variable annuity and/or variable life insurance contracts that are
allocated to the Accounts (the Policies and the Accounts covered by this Agreement, and each
corresponding Portfolio covered by this Agreement in which the Accounts invest, are specified in Schedules A and B attached
hereto as may be modified from time to time);
WHEREAS, the Company has registered or will register the Accounts as unit investment trusts
under the 1940 Act (unless exempt therefrom);
WHEREAS, MFS Fund Distributors, Inc. (the “Underwriter”) is registered as a broker-dealer with
the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as
amended (hereinafter the “1934 Act”), and is a member in good standing of the National Association
of Securities Dealers, Inc. (the “NASD”);
WHEREAS, Pacific Select Distributors, Inc. (“PSD”) the underwriter for the individual variable
life policies, is registered as a broker-dealer with the SEC under the 1934 Act and is a member in
good standing of the NASD; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations, the Company
intends to purchase the Shares of the Portfolios as specified in Schedule B attached hereto on
behalf of the Accounts to fund the Policies, and the Trust intends to sell such Shares to the
Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Trust, MFS, and the Company
agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. The Trust agrees to sell to the Company those Shares which the Accounts order (based on
orders placed by Policy holders prior to the pricing time set forth in the applicable
Portfolio’s prospectus, e.g., the close of regular trading on the New York Stock Exchange,
Inc. (the “NYSE”) on that Business Day, as defined below) and which are available for
purchase by such Accounts, executing such orders on a daily basis at the net asset value
next computed after receipt by the Trust or its designee of the order for the Shares. For
purposes of this Section 1.1, the Company shall be the designee of the Trust for receipt of
such orders from Policy owners and receipt by such designee shall constitute receipt by the
Trust; provided that 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
NYSE is open for trading and on which the Trust calculates its net asset value pursuant to
the rules of the SEC. The Company will ensure that orders for transactions in Shares by
Policy owners comply with each Portfolio’s prospectus (including statement of additional
information) restrictions with respect to purchases, redemptions and exchanges. Orders may
be submitted via facsimile. The Company will not engage in, authorize or facilitate market
timing or late trading in Shares and will take all reasonable steps necessary to identify
and prevent market timing and late trading in Shares by Policy holders.
1.2. The Trust agrees to make the Shares available indefinitely for purchase at the
applicable net asset value per share by the Company and the Accounts on those days on which
the Trust calculates its net asset value pursuant to rules of the SEC and the Trust shall
calculate such net asset value on each day which the NYSE is open for trading.
Notwithstanding the foregoing, the Board of Trustees of the Trust (the “Board”) may refuse
to sell any Shares to the Company and the Accounts, or suspend or terminate the offering of
the Shares if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any applicable state laws,
necessary in the best interest of the Shareholders of such Portfolio.
-2-
1.3. The Trust and MFS agree that the Shares will be sold only to insurance companies which
have entered into participation agreements with the Trust and MFS (the “Participating
Insurance Companies”) and their separate accounts, qualified pension and retirement plans
and MFS or its affiliates, and any other person or plan permitted to hold shares of the
Trust pursuant to Treasury Regulation 1.817-5 without impairing the ability of the Company,
on behalf of its separate accounts, to consider the Shares as constituting investments of
the separate accounts for the purpose of satisfying the diversification requirements of
Section 817(h). The Trust and MFS will not sell Trust shares to any insurance company or
separate account unless an agreement containing provisions substantially the same as
Articles III and VII of this Agreement is in effect to govern such sales. The Company will
not resell the Shares except to the Trust or its agents.
1.4. The Trust agrees to redeem for cash or, to the extent permitted by applicable law,
in-kind, on the Company’s request, any full or fractional Shares held by the Accounts (based
on orders placed by Policy owners prior to the close of regular trading on the NYSE on that
Business Day), executing such requests on a daily basis at the net asset value next computed
after receipt by the Trust or its designee of the request for redemption. For purposes of
this Section 1.4, the Company shall be the designee of the Trust for receipt of requests for
redemption from Policy owners and receipt by such designee shall constitute receipt by the
Trust; provided that the Trust receives notice of such request for redemption by 10:00 a.m.
New York time on the next following Business Day. The Company may submit notices of
requests for redemption via facsimile.
1.5. Each purchase, redemption and exchange order placed by the Company shall be placed
separately for each Portfolio and shall not be netted with respect to any Portfolio.
However, with respect to payment of the purchase price by the Company and of redemption
proceeds by the Trust, the Company and the Trust shall net purchase and redemption orders
with respect to each Portfolio and shall transmit one net payment for all of the Portfolios
in accordance with Section 1.6 hereof.
1.6. In the event of net purchases, the Company shall pay for the Shares by 3:00 p.m. New
York time on the next Business Day after an order to purchase the Shares is made in
accordance with the provisions of Section 1.1. hereof. In the event of net redemptions, the
Trust shall pay the redemption proceeds by 2:00 p.m. New York time on the next Business Day
after an order to redeem the shares is made in accordance with the provisions of Section
1.4. hereof. All such payments shall be in federal funds transmitted by wire.
1.7. Issuance and transfer of the Shares will be by book entry only. Stock certificates
will not be issued to the Company or the Accounts. The Shares ordered from the Trust will
be recorded in an appropriate title for the Accounts or the appropriate subaccounts of the
Accounts.
1.8. The Trust shall furnish same day notice (by wire or telephone followed by written
confirmation) to the Company of any dividends or capital gain distributions payable on the
Shares. The Company hereby elects to receive all such dividends and 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.
1.9. The Trust or its custodian shall make the net asset value per share for each Portfolio
available to the Company on each Business Day 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 6:30 p.m. New York time. In the event that the Trust is unable to meet the
6:30 p.m. time stated herein, it shall provide additional time for the Company to place
orders for the purchase and redemption of Shares. Such additional time shall be equal to
the additional time which the
-3-
Trust takes to make the net asset value available to the
Company. If the Trust provides materially incorrect share net asset value information, the
Trust shall make an adjustment to the number of shares purchased or redeemed for the
Accounts to reflect the correct net asset value per share. Any material error in the
calculation or reporting of net asset value per share, dividend or capital gains information
shall be reported promptly upon discovery to the Company.
1.10 Each party or its designee shall maintain and preserve all records as required by law
to be maintained and preserved in connection with providing the services hereunder and in
making Shares available to the Policy holders. Upon the request of MFS or the Trust, the
Company shall provide copies of all the historical records relating to transactions between
the Portfolios and the Policy holders, written communications regarding the Portfolios to or
from such Policy holders’ accounts and other materials, in each case to the extent necessary
for MFS or the Trust to meet its recordkeeping obligations under applicable law or
regulation, including to comply with any request of a governmental body or self-regulatory
organization.
ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. The Company represents and warrants that the Policies are or will be registered under
the 1933 Act or are exempt from or not subject to registration thereunder, and that the
Policies will be issued, sold, and distributed in compliance in all material respects with
all applicable state and federal laws, including without limitation the 1933 Act, the
Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act. The Company
further represents and warrants that it is an insurance company duly organized and in good
standing under applicable law and that it has legally and validly established the Account as
a segregated asset account under applicable law and has registered or, prior to any issuance
or sale of the Policies, will register the Accounts as unit investment trusts in accordance
with the provisions of the 1940 Act (unless exempt therefrom) to serve as segregated
investment accounts for the Policies, and that it will maintain such registration for so
long as any Policies are outstanding. The Company shall amend the registration statements
under the 1933 Act for the Policies and the registration statements under the 1940 Act for
the Accounts from time to time as required in order to effect the continuous offering of the
Policies or as may otherwise be required by applicable law. The Company shall register and
qualify the Policies for sales in accordance with the securities laws of the various states
only if and to the extent deemed necessary by the Company.
2.2. The Company represents and warrants that the Policies are currently and at the time of
issuance will be treated as life insurance, endowment or annuity contract under applicable
provisions of the Internal Revenue Code of 1986, as amended (the “Code”), that it will
maintain such treatment and that it will notify the Trust or MFS immediately upon having a
reasonable basis for believing that the Policies have ceased to be so treated or that they
might not be so treated in the future.
2.3. The Company represents and warrants that PSD the underwriter for the individual
variable life policies, is a member in good standing of the NASD and is a registered
broker-dealer with the SEC. The Company represents and warrants that the Company and PSD
will sell and distribute such policies in accordance in all material respects with all
applicable state and federal securities laws, including without limitation the 1933 Act, the
1934 Act, and the 0000 Xxx.
2.4. The Trust and MFS represent and warrant that the Shares sold pursuant to this Agreement
shall be registered under the 1933 Act, duly authorized for issuance and sold in compliance
with the
-4-
laws of The Commonwealth of Massachusetts and all applicable federal and state
securities laws and that the Trust is and shall remain registered under the 1940 Act. The
Trust shall amend the registration statement for its Shares under the 1933 Act and the 1940
Act from time to time as required in order to effect the continuous offering of its Shares.
The Trust shall register and qualify the Shares for sale in accordance with the laws of the
various states only if and to the extent deemed necessary by the Trust.
2.5. MFS represents and warrants that the Underwriter is a member in good standing of the
NASD and is registered as a broker-dealer with the SEC. The Trust and MFS represent that
the Trust and the Underwriter will sell and distribute the Shares in accordance in all
material respects with all applicable state and federal securities laws, including without
limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.6. The Trust represents that it is lawfully organized and validly existing under the laws
of The Commonwealth of Massachusetts and that it does and will comply in all material
respects with the 1940 Act and any applicable regulations thereunder.
2.7. MFS represents and warrants that it is and shall remain duly registered under all
applicable federal securities laws and that it shall perform its obligations for the Trust
in compliance in all material respects with any applicable federal securities laws and with
the securities laws of The Commonwealth of Massachusetts. MFS represents and warrants that
it is not subject to state securities laws other than the securities laws of The
Commonwealth of Massachusetts and that it is exempt from registration as an investment
adviser under the securities laws of The Commonwealth of Massachusetts.
2.8. No less frequently than annually, the Company shall submit to the Board such reports,
material or data as the Board may reasonably request so that it may carry out fully the
obligations imposed upon it by the conditions contained in the exemptive application
pursuant to which the SEC has granted exemptive relief to permit mixed and shared funding
(the “Mixed and Shared Funding Exemptive Order”).
2.9. The Company acknowledges that, with respect to Service Class Shares of a Portfolio, it
or its affiliate(s) may receive payments under the Trust’s Rule 12b-1 plan. The Company,
and not the Trust, MFS nor the Underwriter, is responsible for providing any disclosures
relating to this Agreement and/or payments made to the Company to Policy owners.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. At least annually, the Trust or its designee shall provide the Company, free of charge,
with as many copies of the current prospectus (describing only the Portfolios listed in
Schedule B hereto) for the Shares as the Company may reasonably request for distribution to
existing Policy owners whose Policies are funded by such Shares. The Trust or its designee
shall provide the Company, at the Company’s expense, with as many copies of the current
prospectus for the Shares as the Company may reasonably request for distribution to
prospective purchasers of Policies. If requested by the Company in lieu thereof, the Trust
or its designee shall provide such documentation (including a “camera ready” copy of the new
prospectus as set in type or, at the
request of the Company, as a diskette in the form sent to the financial printer) and other
assistance as is reasonably necessary in order for the parties hereto once each year (or
more frequently if the prospectus for the Shares is supplemented or amended) to have the
prospectus for the Policies and
-5-
the prospectus for the Shares printed together in one
document; the expenses of such printing to be apportioned between (a) the Company and (b)
the Trust or its designee in proportion to the number of pages of the Policy and Shares’
prospectuses, taking account of other relevant factors affecting the expense of printing,
such as covers, columns, graphs and charts; the Trust or its designee to bear the cost of
printing the Shares’ prospectus portion of such document for distribution to owners of
existing Policies funded by the Shares and the Company to bear the expenses of printing the
portion of such document relating to the Accounts; provided, however, that the
Company shall bear all printing expenses of such combined documents where used for
distribution to prospective purchasers or to owners of existing Policies not funded by the
Shares. In the event that the Company requests that the Trust or its designee provides the
Trust’s prospectus in a “camera ready” or diskette format, the Trust shall be responsible
for providing the prospectus in the format in which it or MFS is accustomed to formatting
prospectuses and shall bear the expense of providing the prospectus in such format
(e.g., typesetting expenses), and the Company shall bear the expense of adjusting or
changing the format to conform with any of its prospectuses.
3.2. The prospectus for the Shares shall state that the statement of additional information
for the Shares is available from the Trust or its designee. The Trust or its designee, at
its expense, shall print and provide such statement of additional information to the Company
(or a master of such statement suitable for duplication by the Company) for distribution to
any owner of a Policy funded by the Shares. The Trust or its designee, at the Company’s
expense, shall print and provide such statement to the Company (or a master of such
statement suitable for duplication by the Company) for distribution to a prospective
purchaser who requests such statement or to an owner of a Policy not funded by the Shares.
3.3. The Trust or its designee shall provide the Company free of charge copies, if and to
the extent applicable to the Shares, of the Trust’s proxy materials, reports to Shareholders
and other communications to Shareholders in such quantity as the Company shall reasonably
require for distribution to Policy owners.
3.4. Notwithstanding the provisions of Sections 3.1, 3.2, and 3.3 above, or of Article V
below, the Company shall pay the expense of printing or providing documents to the extent
such cost is considered a distribution expense. Distribution expenses would include by way
of illustration, but are not limited to, the printing of the Shares’ prospectus or
prospectuses for distribution to prospective purchasers or to owners of existing Policies
not funded by such Shares.
3.5. The Trust hereby notifies the Company that it may be appropriate to include in the
prospectus pursuant to which a Policy is offered disclosure regarding the potential risks of
mixed and shared funding.
3.6. If and to the extent required by law, the Company shall:
| (a) | solicit voting instructions from Policy owners; | ||
| (b) | vote the Shares in accordance with instructions received from Policy owners; and | ||
| (c) | vote the Shares for which no instructions have been received in the same proportion as the Shares of such Portfolio for which instructions have been received from Policy owners; |
-6-
so long as and to the extent that the SEC continues to interpret the 1940 Act to require
pass through voting privileges for variable contract owners. The Company will in no way
recommend action in connection with or oppose or interfere with the solicitation of proxies
for the Shares held for such Policy owners. The Company reserves the right to vote shares
held in any segregated asset account in its own right, to the extent permitted by law.
Participating Insurance Companies shall be responsible for assuring that each of their
separate accounts holding Shares calculates voting privileges in the manner required by the
Mixed and Shared Funding Exemptive Order. The Trust and MFS will notify the Company of any
changes of interpretations or amendments to the Mixed and Shared Funding Exemptive Order.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. 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,
MFS, any other investment adviser to the Trust, or any affiliate of MFS are named, at least
five (5) Business Days prior to its use. No such material shall be used if the Trust, MFS,
or their respective designees reasonably objects to such use within five (5) Business Days
after receipt of such material.
4.2. The Company shall not give any information or make any representations or statement on
behalf of the Trust, MFS, any other investment adviser to the Trust, or any affiliate of MFS
or concerning the Trust or any other such entity in connection with the sale of the Policies
other than the information or representations contained in the registration statement,
prospectus or statement of additional information for the Shares, as such registration
statement, prospectus and statement of additional information may be amended or supplemented
from time to time, or in reports or proxy statements for the Trust, or in sales literature
or other promotional material approved by the Trust, MFS or their respective designees,
except with the permission of the Trust, MFS or their respective designees. The Trust, MFS
or their respective designees each agrees to respond to any request for approval on a prompt
and timely basis. The Company shall adopt and implement procedures reasonably designed to
ensure that information concerning the Trust, MFS or any of their affiliates which is
intended for use only by brokers or agents selling the Policies (i.e., information
that is not intended for distribution to Policy owners or prospective Policy owners) is so
used, and neither the Trust, MFS nor any of their affiliates shall be liable for any losses,
damages or expenses relating to the improper use of such broker only materials.
4.3. The Trust or its designee shall furnish, or shall cause to be furnished, to the Company
or its designee, each piece of sales literature or other promotional material in which the
Company and/or the Accounts is named, at least five (5) Business Days prior to its use. No
such material shall be used if the Company or its designee reasonably objects to such use
within five (5) Business Days after receipt of such material.
4.4. The Trust and MFS shall not give, and agree that the Underwriter shall not give, any
information or make any representations on behalf of the Company or concerning the Company,
the Accounts, or the Policies in connection with the sale of the Policies other than the
information or representations contained in a registration statement, prospectus, or
statement of additional information for the Policies, as such registration statement,
prospectus and statement of additional
information may be amended or supplemented from time to time, or in reports for the
Accounts, or in sales literature or other promotional material approved by the Company or
its designee, except with the permission of the Company. The Company or its designee agrees
to respond to any request for approval on a prompt and timely basis. The Trust and MFS may
not alter any material
-7-
so provided by the Company or its designee (including, without
limitation, presenting or delivering such material in a different medium, e.g., electronic
or internet) without the prior written consent of the Company. The parties hereto agree
that this Section 4.4. is neither intended to designate nor otherwise imply that MFS is an
underwriter or distributor of the Policies.
4.5. The Company and the Trust (or its designee in lieu of the Company or the Trust, as
appropriate) will each provide to the other at least one complete copy of all registration
statements, prospectuses, statements of additional information, reports, proxy statements,
sales literature and other promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to the Policies, or
to the Trust or its Shares, prior to or contemporaneously with the filing of such document
with the SEC or other regulatory authorities. The Company and the Trust shall also each
promptly inform the other of the results of any examination by the SEC (or other regulatory
authorities) that relates to the Policies, the Trust or its Shares, and the party that was
the subject of the examination shall provide the other party with a copy of relevant
portions of any “deficiency letter” or other correspondence or written report regarding any
such examination.
4.6. No party shall use any other party’s names, logos, trademarks or service marks, whether
registered or unregistered, without the prior written consent of such other party, or after
written consent therefor has been revoked, provided that separate consent is not required
under this Section 4.6 to the extent that consent to use a party’s name, logo, trademark or
service xxxx in connection with a particular piece of advertising or sales literature has
previously been given by a party under Sections 4.2 and 4.4 of this Agreement. The Company
shall not use in advertising, publicly or otherwise the name of the Trust, MFS or any of
their affiliates nor any trade name, trademark, trade device, servicemark, symbol or any
abbreviation, contraction or simulation thereof of the Trust, MFS, or their affiliates
without the prior written consent of the Trust or MFS in each instance. The Trust and MFS
shall not use in advertising, publicly or otherwise the name of the Company or any of its
affiliates nor any trade name, trademark, trade device, servicemark, symbol or any
abbreviation, contraction or simulation thereof of the Company or its affiliates without the
prior written consent of the Company in each instance.
4.7. The Trust and MFS will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Portfolio, and of any material change in the
Trust’s registration statement, particularly any change resulting in change to the
registration statement or prospectus or statement of additional information for any Account.
The Trust and MFS will cooperate with the Company so as to enable the Company to solicit
proxies from Policy owners or to make changes to its prospectus, statement of additional
information or registration statement, in an orderly manner. The Trust and MFS will make
reasonable efforts to attempt to have changes affecting Policy prospectuses become effective
simultaneously with the annual updates for such prospectuses.
4.8. For purpose of this Article IV and Article VIII, the phrase “sales literature or other
promotional material” includes but is not limited to advertisements (such as material
published, or designed for use in, a newspaper, magazine, or other periodical, radio,
television, telephone or tape recording, videotape display, signs or billboards, motion
pictures, or other public media), and sales literature (such as brochures, circulars,
reprints or excerpts or any other advertisement, sales
literature, or published articles), distributed or made generally available to customers or
the public, educational or training materials or communications distributed or made
generally available to some or all agents or employees.
-8-
ARTICLE V. FEES AND EXPENSES
5.1. The Trust shall pay no fee or other compensation to the Company under this Agreement,
and the Company shall pay no fee or other compensation to the Trust, except that, to the
extent the Trust or any Portfolio has adopted and implemented a plan pursuant to Rule 12b-1
under the 1940 Act to finance distribution and for Shareholder servicing expenses, then the
Trust may make payments to the Company or to the underwriter for the Policies in accordance
with such plan. Each party, however, shall, in accordance with the allocation of expenses
specified in Articles III and V hereof, reimburse other parties for expenses initially paid
by one party but allocated to another party. In addition, nothing herein shall prevent the
parties hereto from otherwise agreeing to perform, and arranging for appropriate
compensation for, other services relating to the Trust and/or to the Accounts.
5.2. The Trust or its designee shall bear the expenses for the cost of registration and
qualification of the Shares under all applicable federal and state laws, including
preparation and filing of the Trust’s registration statement, and payment of filing fees and
registration fees; preparation and filing of the Trust’s proxy materials and reports to
Shareholders; setting in type and printing its prospectus and statement of additional
information (to the extent provided by and as determined in accordance with Article III
above); setting in type and printing the proxy materials and reports to Shareholders (to the
extent provided by and as determined in accordance with Article III above); the preparation
of all statements and notices required of the Trust by any federal or state law with respect
to its Shares; all taxes on the issuance or transfer of the Shares; and the costs of
distributing the Trust’s prospectuses and proxy materials to owners of Policies funded by
the Shares and any expenses permitted to be paid or assumed by the Trust pursuant to a plan,
if any, under Rule 12b-1 under the 1940 Act. The Trust shall not bear any expenses of
marketing the Policies.
5.3. The Company shall bear the expenses of distributing the Shares’ prospectus or
prospectuses in connection with new sales of the Policies and of distributing the Trust’s
Shareholder reports to Policy owners. The Company shall bear all expenses associated with
the registration, qualification, and filing of the Policies under applicable federal
securities and state insurance laws; the cost of preparing, printing and distributing the
Policy prospectus and statement of additional information; and the cost of preparing,
printing and distributing annual individual account statements for Policy owners as required
by state insurance laws.
5.4. With respect to the Service Class Shares of a Portfolio, the Trust may make payments
quarterly to the Underwriter under a Portfolio’s Rule 12b-1 plan, and the Underwriter may in
turn use these payments to pay or reimburse the Company for expenses incurred or paid (as
the case may be) by the Company attributable to Policies offered by the Company,
provided that no such payment shall be made with respect to any quarterly period in
excess of an amount determined from time to time by the Trust’s Board of Trustees and
disclosed in the Trust’s prospectus. The Underwriter shall not be required to provide any
payment to the Company with respect to any quarterly period pursuant to the Trust’s Rule
12b-1 plan unless and until the Underwriter has received the corresponding payment from the
Trust pursuant to the Trust’s Rule 12b-1 plan. The Underwriter shall not be required to
provide any payment to the Company with respect to any
quarterly period pursuant to the Trust’s Rule 12b-1 plan if (i) the Trust’s Rule 12b-1 plan
is no longer in effect during such quarterly period; or (ii) regulatory changes result in
the rescission of Rule 12b-1 or otherwise prohibit the making of such payments. The Trust’s
prospectus or statement of additional information may provide further details about such
payments and the provisions and terms of the Trust’s Rule 12b-1 plan, and the Company hereby
agrees that neither
-9-
the Trust, MFS nor the Underwriter has made any representations to the
Company with respect to the Trust’s Rule 12b-1 plan in addition to, or conflicting with, the
description set forth in the Trust’s prospectus.
5.5. In calculating the payments due under this Agreement, the Company agrees that it will
permit MFS or its representatives to have reasonable access to its employees and records for
the purposes of monitoring of the quality of the services provided hereunder, verifying the
Company’s compliance with the terms of this Agreement and verifying the accuracy of any
information provided by the Company that forms the basis of the fee calculations. In
addition, if requested by MFS, the Company will provide a certification (which may take the
form of a control report or set of agreed upon standards) satisfactory to MFS that certifies
the performance of the services by the Company and the accuracy of information provided by
the Company.
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1. The Trust and MFS represent and warrant that each Portfolio of the Trust will meet the
diversification requirements of Section 817 (h) (1) of the Code and Treas. Reg. 1.817-5,
relating to the diversification requirements for variable annuity, endowment, or life
insurance contracts, as they may be amended from time to time (and any revenue rulings,
revenue procedures, notices, and other published announcements of the Internal Revenue
Service interpreting these sections), as if those requirements applied directly to each such
Portfolio.
6.2. The Trust and MFS represent that each Portfolio will elect to be qualified as a
Regulated Investment Company under Subchapter M of the Code and that they will maintain such
qualification (under Subchapter M or any successor or similar provision).
ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1. The Trust agrees that the Board, constituted with a majority of disinterested trustees,
will monitor each Portfolio of the Trust for the existence of any material irreconcilable
conflict between the interests of the variable annuity contract owners and the variable life
insurance policy owners of the Company and/or affiliated companies (“contract owners”)
investing in the Trust. The Board shall have the sole authority to determine if a material
irreconcilable conflict exists, and such determination shall be binding on the Company only
if approved in the form of a resolution by a majority of the Board, or a majority of the
disinterested trustees of the Board. The Board will give prompt notice of any such
determination to the Company.
7.2. The Company agrees that it will be responsible for assisting the Board in carrying out
its responsibilities under the conditions set forth in the Trust’s exemptive application
pursuant to which the SEC has granted the Mixed and Shared Funding Exemptive Order by
providing the Board, as it may reasonably request, with all information necessary for the
Board to consider any issues raised and agrees that it will be responsible for promptly
reporting any potential or existing conflicts of which it is aware to the Board including,
but not limited to, an obligation by the
Company to inform the Board whenever contract owner voting instructions are disregarded.
The Company also agrees that, if a material irreconcilable conflict arises, it will at its
own cost remedy such conflict up to and including (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 to a vote of all affected contract owners whether to
-10-
withdraw assets from the
Trust or any Portfolio and reinvesting such assets in a different investment medium and, as
appropriate, segregating the assets attributable to any appropriate group of contract owners
that votes in favor of such segregation, or offering to any of the affected contract owners
the option of segregating the assets attributable to their contracts or policies, and (b)
establishing a new registered management investment company and segregating the assets
underlying the Policies, unless a majority of Policy owners materially adversely affected by
the conflict have voted to decline the offer to establish a new registered management
investment company.
7.3. A majority of the disinterested trustees of the Board shall determine whether any
proposed action by the Company adequately remedies any material irreconcilable conflict. In
the event that the Board determines that any proposed action does not adequately remedy any
material irreconcilable conflict, the Company will withdraw from investment in the Trust
each of the Accounts designated by the disinterested trustees and terminate this Agreement
within six (6) months after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall
be limited to the extent required to remedy any such material irreconcilable conflict as
determined by a majority of the disinterested trustees of the Board.
7.4. 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 Mixed and
Shared Funding Exemptive Order) on terms and conditions materially different from those
contained in the Mixed and Shared Funding Exemptive Order, then (a) the Trust and/or the
Participating Insurance Companies, as appropriate, shall take such steps as may be necessary
to comply with Rule 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent
such rules are applicable; and (b) Sections 3.5, 3.6, 7.1, 7.2, 7.3 and 7.4 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE VIII. INDEMNIFICATION
| 8.1. | Indemnification by the Company |
The Company agrees to indemnify and hold harmless the Trust, MFS, any affiliates of
MFS, and each of their respective directors/trustees, officers and each person, if any, who
controls the Trust or MFS within the meaning of Section 15 of the 1933 Act, and any agents
or employees of the foregoing (each an “Indemnified Party,” or collectively, the
“Indemnified Parties” for purposes of this Section 8.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written consent of the
Company) or expenses (including reasonable counsel fees) to which any Indemnified Party may
become subject under any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Shares or the Policies and:
| (a) | arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement, prospectus or statement of additional information for the Policies or contained in the Policies or sales literature or other promotional material for the Policies (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission |
-11-
| or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reasonable reliance upon and in conformity with information furnished to the Company or its designee by or on behalf of the Trust or MFS for use in the registration statement, prospectus or statement of additional information for the Policies or in the Policies or sales literature or other promotional material (or any amendment or supplement) or otherwise for use in connection with the sale of the Policies or Shares; or | |||
| (b) | arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus, statement of additional information or sales literature or other promotional material of the Trust not supplied by the Company or its designee, or persons under its control and on which the Company has reasonably relied) or wrongful conduct of the Company or persons under its control, with respect to the sale or distribution of the Policies or Shares; or | ||
| (c) | arise out of any untrue statement or alleged untrue statement of a material fact contained in the registration statement, prospectus, statement of additional information, or sales literature or other promotional literature of the Trust, or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements therein not misleading, if such statement or omission was made in reliance upon information furnished to the Trust by or on behalf of the Company; or | ||
| (d) | 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; or | ||
| (e) | arise as a result of any failure by the Company to provide the services and furnish the materials under the terms of this Agreement; |
as limited by and in accordance with the provisions of this Article VIII.
| 8.2. | Indemnification by the Trust |
The Trust agrees to indemnify and hold harmless the Company and each of its directors
and officers and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act, and any agents or employees of the foregoing (each an “Indemnified
Party,” or collectively, the “Indemnified Parties” for purposes of this Section 8.2) against
any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the written consent
of the Trust) or expenses (including reasonable counsel fees) to which any Indemnified Party
may become subject under any statute, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the Shares or the Policies and:
-12-
| (a) | arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement, prospectus, statement of additional information or sales literature or other promotional material of the Trust (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reasonable reliance upon and in conformity with information furnished to the Trust, MFS, the Underwriter or their respective designees by or on behalf of the Company for use in the registration statement, prospectus or statement of additional information for the Trust or in sales literature or other promotional material for the Trust (or any amendment or supplement) or otherwise for use in connection with the sale of the Policies or Shares; or | ||
| (b) | arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus, statement of additional information or sales literature or other promotional material for the Policies not supplied by the Trust, MFS, the Underwriter or any of their respective designees or persons under their respective control and on which any such entity has reasonably relied) or wrongful conduct of the Trust or persons under its control, with respect to the sale or distribution of the Policies or Shares; or | ||
| (c) | arise out of any untrue statement or alleged untrue statement of a material fact contained in the registration statement, prospectus, statement of additional information, or sales literature or other promotional literature of the Accounts or relating to the Policies, or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements therein not misleading, if such statement or omission was made in reliance upon information furnished to the Company by or on behalf of the Trust, MFS or the Underwriter; or | ||
| (d) | arise out of or result from any material breach of any representation and/or warranty made by the Trust in this Agreement (including a failure, whether unintentional or in good faith or otherwise, to comply with the diversification requirements specified in Article VI of this Agreement) or arise out of or result from any other material breach of this Agreement by the Trust; or | ||
| (e) | arise out of or result from the materially incorrect or untimely calculation or reporting of the daily net asset value per share or dividend or capital gain distribution rate; or | ||
| (f) | arise as a result of any failure by the Trust to provide the services and furnish the materials under the terms of the Agreement; |
as limited by and in accordance with the provisions of this Article VIII.
8.3. In no event shall the Trust be liable under the indemnification provisions contained in
this Agreement to any individual or entity, including without limitation, the Company, or
any Participating Insurance Company or any Policy holder, with respect to any losses,
claims, damages,
-13-
liabilities or expenses that arise out of or result from (i) a breach of
any representation, warranty, and/or covenant made by the Company hereunder or by any
Participating Insurance Company under an agreement containing substantially similar
representations, warranties and covenants; (ii) the failure by the Company or any
Participating Insurance Company to maintain its segregated asset account (which invests in
any Portfolio) as a legally and validly established segregated asset account under
applicable state law and as a duly registered unit investment trust under the provisions of
the 1940 Act (unless exempt therefrom); or (iii) the failure by the Company or any
Participating Insurance Company to maintain its variable annuity and/or variable life
insurance contracts (with respect to which any Portfolio serves as an underlying funding
vehicle) as life insurance, endowment or annuity contracts under applicable provisions of
the Code.
8.4. Neither the Company nor the Trust shall be liable under the indemnification provisions
contained in this Agreement with respect to any losses, claims, damages, liabilities or
expenses to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party’s willful misfeasance, willful misconduct, or negligence in the
performance of such Indemnified Party’s duties or by reason of such Indemnified Party’s
reckless disregard of obligations and duties under this Agreement.
8.5. Promptly after receipt by an Indemnified Party under this Section 8.5. of notice of
commencement of any action, such Indemnified Party will, if a claim in respect thereof is to
be made against the indemnifying party under this section, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any Indemnified Party otherwise than
under this section. In case any such action is brought against any Indemnified Party, and
it notified the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, assume the defense
thereof, with counsel satisfactory to such Indemnified Party. After notice from the
indemnifying party of its intention to assume the defense of an action, the Indemnified
Party shall bear the expenses of any additional counsel obtained by it, and the indemnifying
party shall not be liable to such Indemnified Party under this section for any legal or
other expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation.
8.6. Each of the parties agrees promptly to notify the other parties of the commencement of
any litigation or proceeding against it or any of its respective officers, directors,
trustees, employees or 1933 Act control persons in connection with the Agreement, the
issuance or sale of the Policies, the operation of the Accounts, or the sale or acquisition
of Shares.
8.7. A successor by law of the parties to this Agreement shall be entitled to the benefits
of the indemnification contained in this Article VIII. The indemnification provisions
contained in this Article VIII shall survive any termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof interpreted under and in
accordance with the laws of The Commonwealth of Massachusetts.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts, and
the rules and regulations and rulings thereunder, including such exemptions from those
statutes, rules
-14-
and regulations as the SEC may grant and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS
The Trust, MFS, and the Company agree that each such party shall promptly notify the
other parties to this Agreement, in writing, of the institution of any formal proceedings brought
against such party or its designees by the NASD, the SEC, or any insurance department or any other
regulatory body regarding such party’s duties under this Agreement or related to the sale of the
Policies, the operation of the Accounts, or the purchase of the Shares.
ARTICLE XI. CONTROLS AND PROCEDURES
11.1. The Company has implemented controls and procedures that are reasonably designed to
ensure compliance with applicable laws and regulations, as well as the terms of this
Agreement. Without limiting the foregoing, these controls and are reasonably designed to
ensure, and MFS or the Trust may request certifications on an annual basis with respect to,
each of the following:
| (a) | Orders for Shares received by the Company for each Portfolio comply with the restrictions with respect to purchases, transfers, redemptions and exchanges agreed to by the parties; | ||
| (b) | Orders for Shares received by the Company prior to the Portfolio’s pricing time set forth in its prospectus (e.g., the close of the New York Stock Exchange — normally 4:00 p.m. Eastern time) are segregated from those received by the Company at or after such time, and are properly transmitted to the Portfolios (or their agents) for execution at the current day’s net asset value (“NAV”); and orders received by the Company at or after such time are properly transmitted to the Portfolios (or their agents) for execution at the next day’s NAV; | ||
| (c) | Market timing and late trading in Shares by Policy holders is identified and prevented; | ||
| (d) | Compliance with applicable state securities laws, including without limitation “blue sky” laws and related rules and regulations; | ||
| (e) | Compliance with all applicable federal, state and foreign laws, rules and regulations regarding the detection and prevention of money laundering activity; and | ||
| (f) | Effective business continuity and disaster recovery systems with respect to the services contemplated by the Agreement. |
11.2 The Company shall ensure that any other party to whom the Company assigns or delegates
any services hereunder is responsible for, and has controls and procedures that are
reasonably designed to ensure, each of the items set forth in Section 11.1 above.
-15-
ARTICLE XII. TERMINATION
12.1. This Agreement shall terminate with respect to the Accounts, or one, some, or all
Portfolios:
| (a) | at the option of any party upon six (6) months’ advance written notice to the other parties; or | ||
| (b) | at the option of the Company to the extent that the Shares of Portfolios are not reasonably available to meet the requirements of the Policies or are not “appropriate funding vehicles” for the Policies, as reasonably determined by the Company. Without limiting the generality of the foregoing, the Shares of a Portfolio would not be “appropriate funding vehicles” if, for example, such Shares did not meet the diversification or other requirements referred to in Article VI hereof; or if the Company would be permitted to disregard Policy owner voting instructions pursuant to Rule 6e-2 or 6e-3(T) under the 1940 Act. Prompt notice of the election to terminate for such cause and an explanation of such cause shall be furnished to the Trust by the Company; or | ||
| (c) | at the option of the Trust or MFS upon institution of formal proceedings against the Company by the NASD, the SEC, or any insurance department or any other regulatory body regarding the Company’s duties under this Agreement or related to the sale of the Policies, the operation of the Accounts, or the purchase of the Shares; or | ||
| (d) | at the option of the Company upon institution of formal proceedings against the Trust by the NASD, the SEC, or any state securities or insurance department or any other regulatory body regarding the Trust’s or MFS’ duties under this Agreement or related to the sale of the Shares; or | ||
| (e) | at the option of the Company, the Trust or MFS upon receipt of any necessary regulatory approvals and/or the vote of the Policy owners having an interest in the Accounts (or any subaccounts) to substitute the shares of another investment company for the corresponding Portfolio Shares in accordance with the terms of the Policies for which those Portfolio Shares had been selected to serve as the underlying investment media. The Company will give thirty (30) days’ prior written notice to the Trust of the Date of any proposed vote or other action taken to replace the Shares; or | ||
| (f) | termination by either the Trust or MFS by written notice to the Company, if either one or both of the Trust or MFS respectively, shall determine, in their sole judgment exercised in good faith, that the Company has suffered a material adverse change in its business, operations, financial condition, or prospects since the date of this Agreement or is the subject of material adverse publicity; or | ||
| (g) | termination by the Company by written notice to the Trust and MFS, if the Company shall determine, in its sole judgment exercised in good faith, that the Trust or MFS has suffered a material adverse change in this business, operations, financial condition or prospects since the date of this Agreement or is the subject of material adverse publicity; or |
-16-
| (h) | at the option of any party to this Agreement, upon another party’s material breach of any provision of this Agreement; or | ||
| (i) | upon assignment of this Agreement, unless made with the written consent of the parties hereto. |
12.2. The notice shall specify the Portfolio or Portfolios, Policies and, if applicable, the
Accounts as to which the Agreement is to be terminated.
12.3. It is understood and agreed that the right of any party hereto to terminate this
Agreement pursuant to Section 12.1(a) may be exercised for cause or for no cause.
12.4. Except as necessary to implement Policy owner initiated transactions, or as required
by state insurance laws or regulations, the Company shall not redeem the Shares attributable
to the Policies (as opposed to the Shares attributable to the Company’s assets held in the
Accounts), and the Company shall not prevent Policy owners from allocating payments to a
Portfolio that was otherwise available under the Policies, until thirty (30) days after the
Company shall have notified the Trust of its intention to do so.
12.5. Notwithstanding any termination of this Agreement, the Trust and MFS shall, at the
option of the Company, continue to make available additional shares of the Portfolios
pursuant to the terms and conditions of this Agreement, for all Policies in effect on the
effective date of termination of this Agreement (the “Existing Policies”), except as
otherwise provided under Article VII of this Agreement. Specifically, without limitation,
the owners of the Existing Policies shall be permitted to transfer or reallocate investment
under the Policies, redeem investments in any Portfolio and/or invest in the Trust upon the
making of additional purchase payments under the Existing Policies.
ARTICLE XIII. NOTICES
Any notice shall be sufficiently given when sent by registered or certified mail, overnight
courier or facsimile 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:
MFS Variable Insurance Trust
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Assistant Secretary
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Assistant Secretary
If to the Company:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx XX 00000
Attn: General Counsel
-17-
If to MFS:
Massachusetts Financial Services Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx, General Counsel
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx, General Counsel
ARTICLE XIV. MISCELLANEOUS
14.1. Subject to the requirement of legal process and regulatory authority, each party
hereto shall treat as confidential the names and addresses of the owners of the Policies and
all information reasonably identified as confidential in writing by any other party hereto
and, except as permitted by this Agreement or as otherwise required by applicable law or
regulation, shall not disclose, disseminate or utilize such names and addresses and other
confidential information without the express written consent of the affected party until
such time as it may come into the public domain.
14.2. 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.
14.3. This Agreement may be executed simultaneously in one or more counterparts, each of
which taken together shall constitute one and the same instrument.
14.4. 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.
14.5. The Schedule attached hereto, as modified from time to time, is incorporated herein by
reference and is part of this Agreement.
14.6. Each party hereto shall cooperate with each other party in connection with inquiries
by appropriate governmental authorities (including without limitation the SEC, the NASD, and
state insurance regulators) relating to this Agreement or the transactions contemplated
hereby.
14.7. 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.
14.8. A copy of the Trust’s Declaration of Trust is on file with the Secretary of State of
The Commonwealth of Massachusetts. The Company acknowledges that the obligations of or
arising out of this instrument are not binding upon any of the Trust’s trustees, officers,
employees, agents or shareholders individually, but are binding solely upon the assets and
property of the Trust in
accordance with its proportionate interest hereunder. The Company further acknowledges that
the assets and liabilities of each Portfolio are separate and distinct and that the
obligations of or arising out of this instrument are binding solely upon the assets or
property of the Portfolio on whose behalf the Trust has executed this instrument. The
Company also agrees that the obligations of each Portfolio hereunder shall be several and
not joint, in accordance with its proportionate interest hereunder, and the Company agrees
not to proceed against any Portfolio for the obligations of another Portfolio.
-18-
-19-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in its
name and on its behalf by its duly authorized representative and its seal to be hereunder affixed
hereto as of the date specified above.
| PACIFIC LIFE INSURANCE COMPANY By its authorized officer, |
||||
| By: | ||||
| Xxxxx X. Xxxx | ||||
| Executive Vice President and Chief Financial Officer | ||||
| ATTEST: | ||||
| Xxxxxx Milfs | ||||
| Corporate Secretary | ||||
| MFS VARIABLE INSURANCE TRUST, on behalf of the Portfolios By its authorized officer and not individually, |
||||
| By: | ||||
| Xxxxx X. Xxxxxx | ||||
| Assistant Secretary | ||||
| MASSACHUSETTS FINANCIAL SERVICES COMPANY By its authorized officer, |
||||
| By: | ||||
| Xxxxxx X. Xxxxxxx | ||||
| President and Chief Executive Officer | ||||
SCHEDULE A
Separate Accounts and Associated Variable Life Contracts
| Name of Separate Account and | Policies/Contracts Funded | |
| Date Established by Board of Directors | By Separate Account | |
Pacific Select Exec Separate Account
|
Pacific Select Exec | |
May 12, 1998
|
Pacific Select Exec II | |
| Pacific Select Exec III | ||
| Pacific Select Choice |
-20-
| Name of Separate Account and | Policies/Contracts Funded | |
| Date Established by Board of Directors | By Separate Account | |
| Pacific Select Estate Preserver | ||
| Pacific Select Estate Preserver II | ||
| Pacific Select Estate Preserver III | ||
| Pacific Select Estate Preserver IV | ||
| Pacific Select Estate Preserver V | ||
| Pacific Select Estate Maximizer | ||
| Pacific Select Performer 500 | ||
| M’s Versatile Product | ||
| M’s Versatile Product-VI | ||
| M’s Versatile Product-Survivorship | ||
| Pacific Select Accumulator | ||
Pacific COLI Separate Account
|
Custom COLI | |
July 17, 1992
|
Custom COLI Rider | |
Pacific COLI II Separate Account
|
Custom COLI II | |
October 12, 1998 |
||
Pacific COLI III Separate Account
|
Custom COLI III | |
October 12, 1998 |
||
Diversified Fixed Investment Variable Account
|
Custom COLI Rider | |
September 25, 1996 |
-21-
SCHEDULE B
AND
MASSACHUSETTS FINANCIAL SERVICES COMPANY
MASSACHUSETTS FINANCIAL SERVICES COMPANY
The Separate Account(s) shown on SCHEDULE A may invest in the following Portfolios of
the MFS Variable Insurance Trust:
Names of Portfolios:
MFS Utilities Series — Service Class
MFS New Discovery Series — Service Class
MFS New Discovery Series — Service Class
-22-
