FUND PARTICIPATION AGREEMENT
This AGREEMENT is made this _____ day of _______, 199__, by and between Pacific
Life & Annuity Company (the "Company"), a life insurance company domiciled in
Arizona, on its behalf and on behalf of the segregated asset accounts of the
Company listed on Exhibit A to this Agreement (the "Separate Accounts"); Pacific
Select Fund (the "Fund"), a Massachusetts business trust; and Pacific Mutual
Distributors, Inc. ("Distributor"), a California corporation.
WITNESSETH:
WHEREAS, the Fund is registered with the Securities and Exchange Commission
("SEC") as an open-end management investment company under the Investment
Company Act of 1940, as amended ("1940 Act") and the Fund is authorized to issue
separate classes of shares of beneficial interests ("shares"), each representing
an interest in a separate portfolio of assets known as a "portfolio" and each
portfolio has its own investment objective, policies, and limitations; and
WHEREAS, the Fund is available to offer shares of one or more of its portfolios
to separate accounts of insurance companies that fund variable life insurance
policies and variable annuity contracts ("Variable Contracts") and to serve as
an investment medium for Variable Contracts offered by insurance companies that
have entered into participation agreements substantially similar to this
agreement ("Participating Insurance Companies"), and the Fund is currently
comprised of fourteen separate portfolios and other portfolios may be
established in the future; and
WHEREAS, the Fund has obtained an order from the SEC granting Participating
Insurance Companies, separate accounts funding Variable Contracts of
Participating Insurance Companies, and the Fund exemptions from the provisions
of sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act and paragraph (b)(15)
of Rule 6e-3(T) under the 1940 Act, to the extent necessary to permit such
persons to rely on the exemptive relief provided under paragraph (b)(15) of Rule
6e-3(t), even though shares of the Fund may be offered to and held by separate
accounts funding variable annuity contracts or scheduled or flexible premium
variable life insurance contracts of both affiliated and unaffiliated life
insurance companies (the "Shared Funding Exemptive Order"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC under the
Securities Exchange Act of 1934, as amended ("1934 Act"), and is a member in
good standing of the National Association of Securities Dealers, Inc. ("NASD");
and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the company wishes to purchase shares of one or more of the Fund's portfolios on
behalf of its Separate Accounts to serve as an investment medium for Variable
Contracts funded by the Separate Accounts, and the Distributor is authorized to
sell shares of the Fund's portfolios;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and
covenants hereinafter set forth, the parties hereby agree as follows:
ARTICLE I. Sale of Fund Shares
1.1 The Distributor agrees to sell to the Company those shares of the
portfolios offered and made available by the Fund and identified on
Exhibit B ("Portfolios") that the Company orders on behalf of its Separate
Accounts, and agrees to execute such orders on each day on which the Fund
calculates its net asset value pursuant to rules of the SEC ("business
day") at the net asset value next computed after receipt and acceptance by
the Fund or its agent of the order for the shares of the Fund.
1.2. The Fund agrees to make available on each business day shares of the
Portfolios for purchase at the applicable net asset value per share by the
Company on behalf of its Separate Accounts provided, however, that the
Board of Trustees of the Fund 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 the Trustees' fiduciary duties under
applicable law, necessary in the best interests of the shareholders of any
Portfolio.
1.3. The Fund and the Distributor agree that shares of the Portfolios of the
Fund will be sold only to Participating Insurance Companies, their
separate accounts, and other persons consistent with each Portfolio being
adequately diversified pursuant to Section 817(h) of the Internal Revenue
Code of 1986, as amended ("Code") and the regulations thereunder. No
shares of any Portfolio will be sold directly to the general public.
1.4. The Fund and the Distributor will not sell shares of the Portfolios to any
insurance company or separate account unless an agreement containing
provisions substantially the same as this Agreement is in effect to govern
such sales.
1.5. Upon receipt of a request for redemption in proper form from the Company,
the Fund agrees to redeem any full or fractional shares of the Portfolios
held by the Company, ordinarily executing such requests on each business
day at the net asset value next computed after receipt and acceptance by
the Fund or its agent of the request for redemption, except that the Fund
reserves the right to suspend the right of redemption, consistent with
Section 22(e) of the 1940 Act and any rules thereunder. Such redemption
shall be paid consistent with applicable rules of the SEC and procedures
and policies of the Fund as described in the current prospectus.
1.6. The Company agrees to purchase and redeem the shares of each Portfolio in
accordance with the provisions of the current prospectus for the Fund.
1.7. The Company shall pay for shares of the Portfolios on the same day that it
places an order to purchase shares of the Portfolios. Payment shall be in
federal funds transmitted by wire.
1.8. Issuance and transfer of shares of the Portfolios will be by book entry
only unless otherwise agreed by the Fund. Stock certificates will not be
issued to the Company or the Separate
Accounts unless otherwise agreed by the Fund. Shares ordered from the Fund
will be recorded in an appropriate title for the Separate Accounts or the
appropriate subaccounts of the Separate Accounts.
1.9. The Fund shall promptly furnish notice (by wire or telephone, followed by
written confirmation) to the Company of any income dividends or capital
gain distributions payable on the shares of the Portfolios. The Company
hereby elects to reinvest in the Portfolios all such dividends and
distributions as are payable on a Portfolio's shares and to receive such
dividends and distributions in additional shares of the Portfolio. The
Company reserves the right to revoke this election in writing and to
receive all such dividends and distributions in cash. The Fund shall
notify the Company of the number of shares so issued as payment of such
dividends and distributions.
1.10. The Fund shall instruct its recordkeeping agent to advise the Company on
each business day of the net asset value per share for each Portfolio as
soon as reasonably practical after the net asset value per share is
calculated.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that it is an insurance company duly
organized and in good standing under applicable law and that it is taxed
as an insurance company under Subchapter L of the Code.
2.2. The Company represents and warrants that it has legally and validly
established each of the Separate Accounts as a segregated asset account
under the Arizona Insurance Code, and that each of the Separate Accounts
is a validly existing segregated asset account under applicable federal
and state law.
2.3. The Company represents and warrants that the Variable Contracts issued by
the Company or interests in the Separate Accounts under such Variable
Contracts (1) are or, prior to issuance, will be registered as securities
under the Securities Act of 1933 ("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.
2.4. The Company represents and warrants that each of the Separate Accounts (1)
has been registered as a unit investment trust in accordance with the
provisions of the 1940 Act or, alternatively (2) has not been registered
in proper reliance upon an exclusion from registration under the 1940 Act.
2.5. The Company represents that it believes, in good faith, that the Variable
Contracts issued by the Company are currently treated as annuity contracts
or life insurance policies (which may include modified endowment
contracts), whichever is appropriate, under applicable provisions of the
Code.
2.6. The Company represents and warrants that any of its Separate Accounts that
fund variable life insurance contracts and that are registered with the
SEC as investment companies rely on the exemptions provided by Rule 6e-
3(T), or any successor thereto, and not on Rule 6e-2 under the 1940 Act.
2.7. The Fund represents and warrants that it is duly organized as a business
trust under the laws of the Commonwealth of Massachusetts, and is in good
standing under applicable law.
2.8. The Fund represents and warrants that the shares of the Portfolios are
duly authorized for issuance in accordance with applicable law and that
the Fund is registered as an open-end management investment company under
the 1940 Act.
2.9. The Fund represents that it believes, in good faith, that the Portfolios
currently comply with the diversification provisions of Section 817(h) of
the Code and the regulations issued thereunder relating to the
diversification requirements for variable life insurance policies and
variable annuity contracts.
2.10. The Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC.
ARTICLE III. General Duties
3.1. The Fund shall take all such actions as are necessary to permit the sale
of the shares of each Portfolio to the Separate Accounts, including
maintaining its registration as an investment company under the 1940 Act,
and registering the shares of the Portfolios sold to the Separate Accounts
under the 1933 Act for so long as required by applicable law. The Fund
shall amend its Registration Statement filed with the SEC under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of the shares of the Portfolios. The Fund shall
register and qualify the shares for sale in accordance with the laws of
the various states to the extent deemed necessary by the Fund or the
Distributor.
3.2. The Fund shall make every effort to maintain qualification of each
Portfolio as a Regulated Investment Company under Subchapter M of the Code
(or any successor or similar provision) and shall notify the Company
immediately upon having a reasonable basis for believing that a Portfolio
has ceased to so qualify or that it might not so qualify in the future.
3.3. The Fund shall make every effort to enable each Portfolio to comply with
the diversification provisions of Section 817(h) of the Code and the
regulations issued thereunder relating to the diversification requirements
for variable life insurance policies and variable annuity contracts and
any prospective amendments or other modifications to Section 817 or
regulations thereunder, and shall notify the Company immediately upon
having a reasonable basis for believing that any Portfolio has ceased to
comply.
3.4. The Fund shall be entitled to receive and act upon advice of its General
Counsel or its outside counsel in meeting the requirements specified in
Sections 3.2 and 3.3 hereof.
3.5. The Company shall take all such actions as are necessary under applicable
federal and state law to permit the sale of the Variable Contracts issued
by the Company, including registering each Separate Account as an
investment company to the extent required under the 1940 Act, and
registering the Variable Contracts or interests in the Separate Accounts
under the Variable Contracts to the extent required under the 1933 Act,
and obtaining all necessary approvals to offer the Variable Contracts from
state insurance commissioners.
3.6. The Company shall make every effort to maintain the treatment of the
Variable Contracts issued by the Company as annuity contracts or life
insurance policies, whichever is appropriate, under applicable provisions
of the Code, and shall notify the Fund and the Distributor immediately
upon having a reasonable basis for believing that such Variable Contracts
have ceased to be so treated or that they might not be so treated in the
future.
3.7. The Company shall offer and sell the Variable Contracts issued by the
Company in accordance with applicable provisions of the 1933 Act, the 1934
Act, the 1940 Act, the NASD Rules of Fair Practice, and state law
respecting the offering of variable life insurance policies and variable
annuity contracts.
3.8. The Distributor shall sell and distribute the shares of the Portfolios of
the Fund in accordance with the applicable provisions of the 1933 Act, the
1934 Act, the 1940 Act, the NASD Rules of Fair Practice, and state law.
3.9. A majority of the Board of Trustees of the Fund shall consist of persons
who are not "interested persons" of the Fund ("disinterested Trustees"),
as defined by Section 2(a)(19) of the 1940 Act, except that if this
provision of this Section 3.9 is not met by reason of the death,
disqualification, or bona fide resignation of any Trustee or Trustees,
then the operation of this provision shall be suspended (a) for a period
of 45 days if the vacancy or vacancies may be filled by the Fund's Board;
(b) for a period of 60 days if a vote of shareholders is required to fill
the vacancy or vacancies; or (c) for such longer period as the SEC may
prescribe by order upon application.
3.10. The Company agrees to provide, as promptly as possible, notice to the Fund
and to the Distributor if the Company has reason to know about a meeting
of some or all of the owners of the Variable Contracts or shareholders of
the Fund, where the agenda or purpose of the meeting relates, in whole or
in part, to the Fund and that has not been called by the Fund's Board of
Trustees (and which shall not include a vote of Variable Contract Owners
having an interest in a Separate Account to substitute shares of another
investment company for corresponding shares of the Fund or a Portfolio, as
described in Section 9(e) and to which the notice provision of Section 9.2
shall apply). In such an event, the Company agrees to distribute proxy
statements and any additional solicitation materials upon the request of
the Fund or the Distributor to the owners of the Variable Contracts issued
by the Company at least 30 days prior to the meeting. The Company further
agrees that it shall take no action, directly or indirectly, in
furtherance of shareholders of the Fund or Contract Owners taking any
action with respect to the Fund by written consent and without a meeting.
3.11. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities having jurisdiction (including,
without limitation, the SEC, the NASD, and state insurance regulators) and
shall permit such authorities reasonable access to its books and records
in connection with any investigation or inquiry relating to this Agreement
or the transactions contemplated hereby.
ARTICLE IV. Potential Conflicts
4.1. The Fund's Board of Trustees shall monitor the Fund for the existence of
any material irreconcilable conflict (1) between the interests of owners
of variable annuity contracts and variable life insurance policies, and
(2) between the interests of owners of Variable Contracts ("Variable
Contract Owners") issued by different Participating Insurance Companies
that invest in the Fund. 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 interpretive 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 the Fund or any Portfolio are being
managed; or (e) a decision by a Participating Insurance Company to
disregard the voting instructions of Variable Contract Owners.
4.2. The Company agrees that it shall be responsible for reporting any
potential or existing conflicts to the Fund's Board of Trustees. The
Company will be responsible for assisting the Board of Trustees of the
Fund in carrying out its responsibilities under this agreement, by
providing the Board with all information reasonably necessary for the
Board to consider any issues raised. This includes, but is not limited to,
an obligation by the Company to inform the Board whenever Variable
Contract Owner voting instructions are disregarded. The Company shall
carry out its responsibility under this Section 4.2 with a view only to
the interests of the Variable Contract Owners.
4.3 The Company agrees that in the event that it is determined by a majority
of the Board of Trustees of the Fund or a majority of the Fund's
disinterested Trustees that a material irreconcilable conflict exists, the
Company shall, to the extent reasonably practicable (as determined by a
majority of the disinterested Trustees of the Board of the Fund), take
whatever steps are necessary to eliminate the irreconcilable material
conflict, including: (1) withdrawing the assets allocable to some or all
of the Separate Accounts from the Fund or any Portfolio and reinvesting
such assets in a different investment medium, which may include another
portfolio of the Fund, or submitting the question of whether such
segregation should be implemented to a vote of all affected Variable
Contract Owners and, as appropriate, segregating the assets of any
appropriate group (i.e., contract Owners of Variable Contracts issued by
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Variable Contract Owners the
option of making such a change; and (2) establishing a new registered
management investment company or managed separate account. If a material
irreconcilable conflict arises because of the Company's decision to
disregard Variable Contract Owners' voting instructions and
that decision represents a minority position or would preclude a majority
vote, the Company shall be required, at the Fund's election, to withdraw
the Separate Accounts' investment in the Fund, and no charge or penalty
will be imposed as a result of such withdrawal. The Fund shall neither be
required to bear the costs of remedial actions taken to remedy a material
irreconcilable conflict nor shall it be requested to pay a higher
investment advisory fee for the sole purpose of covering such costs. In
addition, no Variable Contract Owner shall be required directly to
indirectly to bear the direct or indirect costs of remedial actions taken
to remedy a material irreconcilable conflict. A new funding medium for any
Variable Contract need not be established pursuant to this Section 4.3, if
an offer to do so has been declined by vote of a majority of Variable
Contract Owners materially adversely affected by the irreconcilable
material conflict. All reports received by the Fund's Board of Trustees of
potential or existing conflicts, and all Board action with regard to
determining the existence of a conflict, notifying Participating Insurance
Companies and the Fund's investment adviser of a conflict, and determining
whether any proposed action adequately remedies a conflict,, shall be
properly recorded life insurance policies, and (2) between the interests
of owners of Variable Contracts ("Variable Contract Owners") issued by
different Participating Insurance Companies that invest in the Fund. 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
interpretive 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 the Fund or any Portfolio are being managed; or (e) a
decision by a Participating Insurance Company to disregard the voting
instructions of Variable Contract Owners.
4.2 The Company agrees that it shall be responsible for reporting any
potential or existing conflicts to the Fund's Board of Trustees. The
Company will be responsible for assisting the Board of Trustees of the
Fund in carrying out its responsibilities under this Agreement, by
providing the Board with all information reasonably necessary for the
Board to consider any issues raised. This includes, but is not limited to,
an obligation by the Company to inform the Board whenever Variable
Contract Owner voting instructions are disregarded. The Company shall
carry out its responsibility under this Section 4.2 with a view only to
the interests of the Variable Contract Owners.
4.3 The Company agrees that in the event that it is determined by a majority
of the Board of Trustees of the Fund or a majority of the Fund's
disinterested Trustees that a material irreconcilable conflict exists, the
Company shall, to the extent reasonably practicable (as determined by a
majority of the disinterested Trustees of the Board of the Fund), take
whatever steps are necessary to eliminate the irreconcilable material
conflict, including: (1) withdrawing the assets allocable to some or all
of the Separate Accounts from the Fund or any Portfolio and reinvesting
such assets in a different investment medium, which may include another
portfolio of the Fund, or submitting the question of whether such
segregation should be implemented to a vote of all affected Variable
Contract Owners and, as appropriate, segregating the assets of any
appropriate group (i.e., Contract Owners of Variable Contracts issued by
one or more Participating Insurance Companies) that votes in
favor of such segregation, or offering to the affected Variable Contract
Owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account. If a
material irreconcilable conflict arises because of the Company's decision
to disregard Variable Contract Owners' voting instructions and that
decision represents a minority position or would preclude a majority vote,
the Company shall be required, at the Fund's election, to withdraw the
Separate Accounts' investment in the Fund, and no charge or penalty will
be imposed as a result of such withdrawal. The Fund shall neither be
required to bear the costs of remedial actions taken to remedy a material
irreconcilable conflict nor shall it be requested to pay a higher
investment advisory fee for the sole purpose of covering such costs. In
addition, no Variable Contract Owner shall be required directly or
indirectly to bear the direct or indirect costs of remedial actions taken
to remedy a material irreconcilable conflict. A new funding medium for any
Variable Contract need not be established pursuant to this Section 4.3, if
an offer to do so has been declined by vote of a majority of Variable
Contract Owners materially adversely affected by the irreconcilable
material conflict. All reports received by the Fund's Board of Trustees of
potential or existing conflicts, and all Board action with regard to
determining the existence of a conflict, notifying Participating Insurance
Companies and the Fund's investment adviser of a conflict, and determining
whether any proposed action adequately remedies a conflict, shall be
properly recorded in the minutes of the Board of Trustees of the Fund or
other appropriate records, and such minutes or other records shall be made
available to the SEC upon request. The Company and the Fund shall carry
out their responsibilities under this Section 4.3 with a view only to the
interests of the Variable Contract Owners.
4.4 The Board of Trustees of the Fund shall promptly notify the Company in
writing of its determination of the existence of an irreconcilable
material conflict and its implications.
ARTICLE V. Prospectuses and Proxy Statements; Voting
5.1 The Company shall distribute such prospectuses, proxy statements and
periodic reports of the Fund to the owners of Variable Contracts issued by
the Company as required to be distributed to such Variable Contract Owners
under applicable federal or state law.
5.2 The Distributor shall provide the Company with as many copies of the
current prospectus of the Fund as the Company may reasonably request. If
requested by the Company in lieu thereof, the Fund shall provide such
documentation (including a final copy of the Fund's prospectus as set in
type or in camera-ready copy) and other assistance as is reasonably
necessary in order for the Company to print together in one document the
current prospectus for the Variable Contracts issued by the Company and
the current prospectus for the Fund. The Fund shall bear the expense of
printing copies of its current prospectus that will be distributed to
existing Variable Contract Owners, and the Company shall bear the expense
of printing copies of the Fund's prospectus that are used in connection
with offering the Variable Contracts issued by the Company.
5.3 The Fund and the Distributor shall provide (1) at the Fund's expense, one
copy of the Fund's current Statement of Additional Information ("SAI") to
the Company and to any owner of
a Variable Contract issued by the Company who requests such SAI, (2) at
the Company's expense, such additional copies of the Fund's current SAI as
the Company shall reasonably request and that the Company shall require in
accordance with applicable law in connection with offering the Variable
Contracts issued by the Company.
5.4 The Fund, at its expense, shall provide the Company with copies of its
proxy material, periodic reports to shareholders and other communications
to shareholders in such quantity as the Company shall reasonably require
for purposes of distributing to owners of Variable Contracts issued by the
Company. The Fund, at the Company's expense, shall provide the Company
with copies of its periodic reports to shareholders and other
communications to shareholders in such quantity as the Company shall
reasonably request for use in connection with offering the Variable
Contracts issued by the Company. If requested by the Company in lieu
thereof, the Fund shall provide such documentation (including a final copy
of the Fund's proxy materials, periodic reports to shareholders and other
communications to shareholders, as set in type or in camera-ready copy)
and other assistance as reasonably necessary in order for the Company to
print such shareholder communications for distribution to owners of
Variable Contracts issued by the Company.
5.5 For so long as the SEC interprets the 1940 Act to require pass-through
voting by Participating Insurance Companies whose Separate Accounts are
registered as investment companies under the 1940 Act, the Company shall
vote shares of each Portfolio of the Fund held in a Separate Account or a
subaccount thereof, whether or not registered under the 1940 Act, at
regular and special meetings of the Fund in accordance with instructions
timely received by the Company (or its designated agent) from owners of
Variable Contracts funded by such Separate Account or subaccount thereof
having a voting interest in the Portfolio. The Company shall vote shares
of a Portfolio of the Fund held in a Separate Account or a subaccount
thereof that are attributable to the Variable Contracts as to which no
timely instructions are received, as well as shares held in such Separate
Account or subaccount thereof that are not attributable to the Variable
Contracts and owned beneficially by the Company (resulting from charges
against the Variable Contracts or otherwise), in the same proportion as
the votes cast by owners of the Variable Contracts funded by that Separate
Account or subaccount thereof having a voting interest in the Portfolio
from whom instructions have been timely received. The Company shall vote
shares of each Portfolio of the Fund held in its general account, if any,
in the same proportion as the votes cast with respect to shares of the
Portfolio held in all Separate Accounts of the Company or subaccounts
thereof, in the aggregate.
5.6 The Fund shall disclose in its prospectus that (1) shares of the
Portfolios of the Fund are offered to affiliated or unaffiliated insurance
company separate accounts which fund both annuity and life insurance
contracts, (2) due to differences in tax treatment or other
considerations, the interests of various Variable Contract Owners
participating in the Fund or a Portfolio might at some time be in
conflict, and (3) the Board of Trustees of the Fund will monitor for any
material conflicts and determine what action, if any, should be taken. The
Fund hereby notifies the Company that prospectus disclosure may be
appropriate regarding potential risks of offering shares of the Fund to
separate accounts funding both
variable annuity contracts and variable life insurance policies and to
separate accounts funding Variable Contracts of unaffiliated life
insurance companies.
ARTICLE VI. Sales Material and Information
6.1 The Company shall furnish, or shall cause to be furnished, to the Fund or
its designee, each piece of sales literature or other promotional material
in which the Fund (or any Portfolio thereof) or its investment adviser or
the Distributor is named, and no such sales literature or other promotional
material shall be used without the approval of the Fund and the Distributor
or the designee of either.
6.2 The Company agrees that neither it nor any of its affiliates or agents
shall give any information or make any representations or statements on
behalf of the Fund or concerning the Fund other than the information or
representations contained in the Registration Statement or prospectus for
the Fund shares, as such registration statement and prospectus may be
amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional
material approved by the Fund or its designee and by the Distributor or its
designee, except with the permission of the Fund or its designee and the
Distributor or its designee.
6.3 The Fund or the Distributor or the designee of either shall furnish to the
Company or its designee, each piece of sales literature or other
promotional material in which the Company or its Separate accounts are
named, and no such material shall be used without the approval of the
Company or its designee.
6.4 The Fund and the Distributor agree that each and the affiliates and agents
of each shall not give any information or make any representations on
behalf of the Company or concerning the Company, the Separate Accounts, or
the Variable Contracts issued by the Company, other than the information or
representations contained in a registration statement or prospectus for
such Variable Contracts, as such registration statement and prospectus may
be amended or supplemented from time to time, or in reports for the
Separate Accounts or prepared for distribution to owners of such Variable
Contracts, or in sales literature or other promotional material approved by
the Company or its designee, except with the permission of the Company.
6.5 The Fund will provide to the Company at least one complete copy of all
prospectuses, Statements of Additional Information, reports, proxy
statements and other voting solicitation materials, and all amendments and
supplements to any of the above, that relate to the Fund or its shares,
promptly after the filing of such document with the SEC or other regulatory
authorities.
6.6 The Company will provide to the Fund at least one complete copy of all
prospectuses (which shall include an offering memorandum if the Variable
Contracts issued by the Company or interests therein are not registered
under the 1933 Act), Statements of Additional Information, reports,
solicitations for voting instructions, and all amendments or supplements
to any of the above, that relate to the Variable Contracts issued by the
Company or the Separate Accounts promptly after the filing of such document
with the SEC or other regulatory authority.
6.7 For purposes of this Article VI, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such
as periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, computerized media, or other
public media), sales literature (i.e., any written communication
distributed or made generally available to customers or the public,
including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training materials
or other communications distributed or made generally available to some or
all agents or employees.
ARTICLE VII. Indemnification
7.1 Indemnification By The Company
7.1(a). The Company agrees to indemnify and hold harmless the Fund, each of
its Trustees and officers, any affiliated person of the Fund within
the meaning of Section 2(a)(3) of the 1940 Act, and the Distributor
(collectively, the "Indemnified Parties" for purposes of this
Section 7.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written
consent of the Company) or litigation expenses (including legal and
other expenses), to which the Indemnified Parties may become
subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or litigation
expenses are related to the sale or acquisition of the Fund's
shares or the Variable Contracts issued by the Company and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement or prospectus (which shall include
an offering memorandum) for the Variable Contracts (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 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
reliance upon and in conformity with information furnished to
the Company by or on behalf of the Fund for use in the
registration statement or prospectus for the Variable
Contracts issued by the Company or sales literature (or any
amendment or supplement) or otherwise for use in connection
with the sale of such Variable Contracts or Fund shares; or
(ii) arise out of or as a result of any statement or
representation (other than statements or representations
contained in the registration statement,
prospectus or sales literature of the Fund not supplied by the
Company or persons under its control) or wrongful conduct of the
Company or any of its affiliates, employees or agents with
respect to the sale or distribution of the Variable Contracts
issued by the Company or the Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement,
prospectus, or sales literature of the Fund 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 statements therein not
misleading if such a statement or omission was made in reliance
upon information furnished to the Fund by or on behalf of the
Company;
except to the extent provided in Sections 7.1(b) and 7.1(c) hereof.
7.1(b). The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation
expenses to which an Indemnified Party would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the
performance of his or her duties or by reason of his or her reckless
disregard of obligations or duties under this Agreement or to the
Fund.
7.1(c). The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless
such Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Party shall have received notice
of such service on any designated agent), but failure to notify the
Company of any such claim shall not relieve the Company from any
liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified
Parties, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Company to such
party of the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and the Company will not be liable to such
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.
7.1(d). The Indemnified Parties shall promptly notify the Company of the
commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Fund shares or the
Variable Contracts issued by the Company or the operation of the Fund.
7.2 Indemnification By The Distributor
7.2(a). The Distributor agrees to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who
is an affiliated person of the Company within the meaning of
Section 2(a)(3) of the 1940 Act (collectively, the "Indemnified
Parties" for purposes of this Section 7.2) against any and all
losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Distributor) or
litigation expenses (including legal and other expenses) to which
the Indemnified Parties may become subject under any statute, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities or litigation expenses are related to the sale or
acquisition of the Fund's shares or the Variable Contracts issued
by the Company and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement or prospectus or sales literature
of the Fund (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
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 reliance upon and in conformity with
information furnished to the Distributor or the Fund or the
designee of either by or on behalf of the Company for use in
the registration statement or prospectus for the Fund or in
sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Variable
Contracts issued by the Company or Fund shares; or
(ii) arise out of or as a result of any statement or
representation (other than statements or representations
contained in the registration statement, prospectus or sales
literature for the Variable Contracts not supplied by the
Distributor or any employees or agents thereof) or wrongful
conduct of the Fund or Distributor, or the affiliates,
employees, or agents of the Fund or the Distributor with
respect to the sale or distribution of the Variable Contracts
issued by the Company or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, or sales literature covering the Variable
Contracts issued by the Company, 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 Fund;
except to the extent provided in Sections 7.2(b) and 7.2(c) hereof.
7.2(b). The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities
or litigation expenses to which an Indemnified Party would
otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of his or her duties or by
reason of his or her reckless disregard of obligations and duties
under this Agreement or to the Company or the Separate Accounts.
7.2(c). The Distributor shall not be liable under this indemnification
provision with respect to any claim made against the Indemnified
Party unless such Party shall have notified the Distributor in
writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Party
shall have received notice of such service on any designated
agent), but failure to notify the Distributor of any such claim
shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of this Indemnification Provision. In
case any such action is brought against the Indemnified Parties,
the Distributor will be entitled to participate, at its own
expense, in the defense thereof. The Distributor also shall be
entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Distributor
to such party of the Distributor's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Distributor will not
be liable to such 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.
7.2(d). The Company shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of
its officers or directors in connection with the issuance or sale
of the Variable Contracts issued by the Company or the operation of
the Separate Accounts.
ARTICLE VIII. Applicable Law
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Arizona.
8.2 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 and regulations as the SEC may
grant (including, but not limited to, the Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE IX. Termination
9.1. This Agreement shall terminate:
(a) at the option of any party upon 180 days advance written notice to the
other parties; or
(b) at the option of the Company if shares of the Portfolios are not
reasonably available to meet the requirements of the Variable Contracts
issued by the Company, as determined by the Company, and upon prompt
notice by the Company to the other parties; or
(c) at the option of the Fund or the Distributor upon institution of formal
proceedings against the Company or its agent by the NASD, the SEC, or
any state securities or insurance department or any other regulatory
body regarding the Company's duties under this Agreement or related to
the sale of the Variable Contracts issued by the Company, the operation
of the Separate Accounts, or the purchase of the Fund shares; or
(d) at the option of the Company upon institution of formal proceedings
against the Fund or the Distributor by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body; or
(e) upon requisite vote of the Variable Contract Owners having an interest
in the Separate Accounts (or any subaccounts thereof) to substitute the
shares of another investment company for the corresponding shares of
the Fund or a Portfolio in accordance with the terms of the Variable
Contracts for which those shares had been selected to serve as the
underlying investment media; or
(f) in the event any of the shares of a Portfolio 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 Variable Contracts issued or to be issued by
the Company; or
(g) by any party to the Agreement upon a determination by a majority of the
Trustees of the Fund, or a majority of its disinterested Trustees, that
an irreconcilable conflict exists; or
(h) at the option of the Company if the Fund or a Portfolio fails to meet
the diversification requirements specified in Section 3.3 hereof.
9.2 Each party to this Agreement shall promptly notify the other parties to the
Agreement of the institution against such party of any such formal
proceedings as described in Sections 9.1(c) and (d) hereof. The Company
shall give 60 day's prior written notice to the Fund of the date of any
proposed vote of Variable Contract Owners to replace the Fund's shares as
described in Section 9.1(e) hereof.
9.3 Except as necessary to implement Variable Contract Owner initiated
transactions, or as required by state insurance laws or regulations, the
Company shall not redeem Fund shares attributable to the Variable Contracts
issued by the Company (as opposed to Fund shares attributable to the
Company's assets held in the Separate Accounts), and the Company shall not
prevent Variable Contract Owners from allocating payments to a Portfolio,
until 60 days after the Company shall have notified the Fund or Distributor
of its intention to do so.
9.4 If this Agreement terminates, any provision of this Agreement necessary to
the orderly windup of business under it will remain in effect as to that
business, after termination.
ARTICLE X. 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 Fund:
Pacific Select Fund
Attn: SEC Regulatory Compliance Department
700 Newport Center Drive
P.O. Box 7500
Newport Beach, CA 92260
If to the Distributor:
Pacific Mutual Distributors, Inc.
Attn: Compliance Officer
700 Newport Center Drive, NB-3
Newport Beach, CA 92660
If to the Company:
Pacific Life & Annuity Company
c/o Pacific Life Insurance Company
700 Newport Center Drive
P.O. Box 7500
Newport Beach, CA 92260
ARTICLE XI. Miscellaneous
11.1 The Fund and the Company agree that if and to the extent Rule 6e-3(T) under
the 1940 Act is amended or if Rule 6e-3 is adopted in final form, to the
extent applicable, the Fund and the Company shall each take such steps as
may be necessary to comply with the Rule as amended or adopted in final
form.
11.2 A copy of the Fund's Agreement and Declaration of Trust is on file with the
Secretary of the Commonwealth of Massachusetts and notice is hereby given
that the Agreement has been executed on behalf of the Fund by a Trustee of
the Fund in his or her capacity as Trustee and not individually. The
obligations of this Agreement shall only be binding upon the assets and
property of the Fund and shall not be binding upon any Trustee, officer or
shareholder of the Fund individually.
11.3 Nothing in this Agreement shall impede the Fund's Trustees or shareholders
of the shares of the Fund's Portfolios from exercising any of the rights
provided to such Trustees or shareholders in the Fund's Agreement and
Declaration of Trust, as amended, a copy of which will be provided to the
Company upon request.
11.4 It is understood that the name "Pacific", "Pacific Mutual", "Pacific Life",
or "Pacific Select" or any derivative thereof or logo associated with that
name is the valuable property of the Distributor and its affiliates, and
that the Company has the right to use such name (or derivative or logo)
only so long as this Agreement is in effect. Upon termination of this
Agreement the Company shall forthwith cease to use such name (or derivative
or logo).
11.5 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.
11.6 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
11.7 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.
11.8 This Agreement may not be assigned by any party to the Agreement except
with the written consent of the other parties to the Agreement.
Notwithstanding the forgoing, the Company may assign some or all of its
duties under this Agreement to Pacific Life Insurance Company upon such
terms and conditions as are deemed appropriate between the Company and
Pacific Life Insurance Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
PACIFIC SELECT FUND
Attest: By:
- ---------------------------------- ---------------------------------
Name: Name: Thomas C. Sutton
Title: President
PACIFIC MUTUAL DISTRIBUTORS, INC.
Attest: By:
- ---------------------------------- ---------------------------------
Name: Name:
Title: President
PACIFIC LIFE & ANNUITY COMPANY
Attest: By:
- ---------------------------------- ---------------------------------
Name: Name:
Title: President
EXHIBIT A
PACIFIC SELECT EXEC SEPARATE ACCOUNT
SEPARATE ACCOUNT A
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit A to be executed
by their Officers designated below on this ____ day of ____________, 1998.
PACIFIC SELECT FUND
Attest: By:
- ---------------------------------- ---------------------------------
Name: Name: Thomas C. Sutton
Title: President
PACIFIC MUTUAL DISTRIBUTORS, INC.
Attest: By:
- ---------------------------------- ---------------------------------
Name: Name:
Title: President
PACIFIC LIFE & ANNUITY COMPANY
Attest: By:
- ---------------------------------- ---------------------------------
Name: Name:
Title: President
EXHIBIT B
MONEY MARKET PORTFOLIO
MANAGED BOND PORTFOLIO
GOVERNMENT SECURITIES PORTFOLIO
HIGH YIELD BOND PORTFOLIO
GROWTH PORTFOLIO
GROWTH LT PORTFOLIO
EQUITY INCOME PORTFOLIO
MULTI-STRATEGY PORTFOLIO
EQUITY PORTFOLIO
BOND AND INCOME PORTFOLIO
EQUITY INDEX PORTFOLIO
INTERNATIONAL PORTFOLIO
EMERGING MARKETS PORTFOLIO
AGGRESSIVE EQUITY PORTFOLIO
MID-CAP VALUE PORTFOLIO
LARGE-CAP VALUE PORTFOLIO
SMALL-CAP INDEX PORTFOLIO
REIT PORTFOLIO