<PAGE>
As filed with the Securities and Exchange Commission on March 1, 2000
Registration No. 333-01713
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 6 TO
FORM S-6
FOR REGISTRATION UNDER THE SECURITIES ACT OF 1933 OF SECURITIES OF UNIT
INVESTMENT TRUSTS REGISTERED ON FORM N-8B-2
PACIFIC SELECT EXEC SEPARATE ACCOUNT OF
PACIFIC LIFE INSURANCE COMPANY
(Exact Name of Registrant)
PACIFIC LIFE INSURANCE COMPANY*
(Name of Depositor)
700 Newport Center Drive
P.O. Box 9000
Newport Beach, California 92660
(Address of Depositor's Principal Executive Office)
(949) 219-3743
(Depositor's Telephone Number, including Area Code)
Diane N. Ledger
Vice President
Pacific Life Insurance Company
700 Newport Center Drive
P.O. Box 9000
Newport Beach, California 92660
(Name and Address of Agent for Service of Process)
Copies to:
Jeffrey S. Puretz
Dechert Price & Rhoads
1775 Eye Street, N.W.
Washington, D.C. 20006-2401
It is proposed that this filing will become effective on March 1, 2000 pursuant
to paragraph (b) of Rule 485.
Title of securities being registered: Interests in the Separate Account under
Pacific Select Estate Preserver Last Survivor Flexible Premium Variable Life
Insurance Policies.
Filing Fee: None
<PAGE>
Pacific Select Separate Account of Pacific Life Insurance Company
CROSS-REFERENCE SHEET
Pursuant to Rule 404(c) of Regulation C under the Securities Act of 1933
(Form N-8B-2 Items required by Instruction as to the Prospectus in Form S-6)
<TABLE>
<CAPTION>
Form N-8B-2 Form S-6
Item Number Heading in Prospectus
<S> <C>
1. (a) Name of trust................................. Prospectus front cover
(b) Title of securities issued.................... Prospectus front cover
2. Name and address of each depositor................. Prospectus front cover; Back cover
3. Name and address of trustee........................ N/A
4. Name and address of each principal underwriter..... About Pacific Life
5. State of organization of trust..................... Pacific Select Exec Separate
Account
6. Execution and termination of trust agreement....... Pacific Select Exec Separate
Account
7. Changes of name.................................... N/A
8. Fiscal year........................................ N/A
9. Material Litigation................................ N/A
II. General Description of the Trust and Securities of the Trust
10. (a) Registered or bearer securities............... Pacific Select Estate Preserver basics; The death benefit
(b) Cumulative or distributive securities......... Pacific Select Estate Preserver basics; The death benefit
(c) Withdrawal or redemption...................... Withdrawals, surrenders and loans
(d) Conversion, transfer, etc..................... Withdrawals, surrenders and loans
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Policy
(e) Periodic payment plan......................... N/A
(f) Voting rights................................. Voting Rights
(g) Notice to security holders.................... Reports we'll send you
(h) Consents required............................. Voting rights
(i) Other provisions.............................. N/A
11. Type of securities comprising units................ Pacific Select Estate
Preserver Basics
12. Certain information regarding periodic
payment plan certificates.......................... N/A
13. (a) Load, fees, expenses, etc..................... Deductions from your premiums;
Surrendering your policy
(b) Certain information regarding periodic
payment plan certificates..................... N/A
(c) Certain percentages........................... Deductions from your premiums
(d) Difference in price........................... N/A
(e) Certain other fees, etc....................... Deductions from your premiums;
Surrendering your policy
(f) Certain other profits or benefits............. The death benefit; Your policy's
accumulated value
(g) Ratio of annual charges to income............. N/A
14. Issuance of trust's securities..................... Pacific Select Estate Preserver Basics
15. Receipt and handling of payments from
purchasers......................................... How premiums work
16. Acquisition and disposition of underlying
securities......................................... Your policy's accumulated value; Your
investment options
17. Withdrawal or redemption........................... Withdrawals, surrenders and loans
18. (a) Receipt, custody and disposition
of income..................................... Your policy's accumulated value
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
(b) Reinvestment of distributions................. N/A
(c) Reserves or special funds..................... N/A
(d) Schedule of distributions..................... N/A
19. Records, accounts and reports...................... Statements and Reports
20. Certain miscellaneous provisions of trust
agreement
(a) Amendment..................................... N/A
(b) Termination................................... N/A
(c) and (d) Trustee, removal and successor......... N/A
(e) and (f) Depositors, removal and successor...... N/A
21. Loans to security holders.......................... Withdrawals, Surrenders
and Loan
22. Limitations on liability........................... N/A
23. Bonding arrangements............................... N/A
24. Other material provisions of trust agreement....... N/A
III. Organizations, Personnel and Affiliated Persons of Depositor
25. Organization of depositor.......................... About Pacific Life
26. Fees received by depositor......................... See Items 13(a) and 13(e)
27. Business of depositor.............................. About Pacific Life
28. Certain information as to officials and affiliated
persons of depositor............................... About Pacific Life
29. Voting securities of depositor..................... N/A
30. Persons controlling depositor...................... N/A
31. Payments by depositor for certain services
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
rendered to trust................................. N/A
32. Payments by depositor for certain other services
rendered to trust................................. N/A
33. Remuneration of employees of depositor for
certain services rendered to trust................ N/A
34. Remuneration of other persons for certain
services rendered to trust........................ N/A
IV. Distribution and Redemption of Securities
35. Distribution of trust's securities by states...... N/A
36. Suspension of sales of trust's securities......... N/A
37. Revocation of authority to distribute............. N/A
38. (a) Method of distribution....................... How policies are distributed
(b) Underwriting agreements...................... How policies are distributed
(c) Selling agreements........................... How policies are distributed
39. (a) Organization of principal underwriters....... How policies are distributed
(b) N.A.S.D. membership of principal
underwriters................................. How policies are distributed
40. Certain fees received by principal underwriters... How policies are distributed
41. (a) Business of each principal underwriter....... How policies are distributed
(b) Branch offices of each principal
underwriter.................................. N/A
(c) Salesmen of each principal underwriter....... N/A
42. Ownership of trust's securities by certain persons N/A
43. Certain brokerage commissions received by
principal underwriters............................ N/A
44. (a) Method of valuation.......................... Your Policy's Accumulated Value
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Value
(b) Schedule as to offering price................ How premiums work
(c) Variation in offering price to certain
persons...................................... Monthly Deductions
45. Suspension of redemption rights................... Timing of payments, forms, and requests
46. (a) Redemption Valuation......................... Withdrawals, surrenders and loans
(b) Schedule as to redemption price.............. Withdrawals, surrenders and loans
47. Maintenance of position in underlying securities.. Your investment options
V. Information Concerning the Trustee or Custodian
48. Organization and regulation of trustee............ N/A
49. Fees and expenses of trustees..................... N/A
50. Trustee's lien.................................... N/A
VI. Information Concerning Insurance of Holders of Securities
51. Insurance of holders of trust's securities........ The death benefit
VII. Policy of Registrant
52. (a) Provisions of trust agreement with respect
to selection or elimination of underlying
securities................................... How our accounts work
(b) Transactions involving elimination of
underlying securities........................ How our accounts work
(c) Policy regarding substitution or
elimination of underlying securities......... How our accounts work
(d) Fundamental policy not otherwise
covered...................................... N/A
53. Tax status of trust............................... Variable life insurance and your taxes
VIII. Financial and Statistical Information
</TABLE>
<PAGE>
<TABLE>
<S> <C>
54. Trust's securities during last ten years.......... N/A
55. N/A
56. Certain information regarding periodic payment
plan certificates................................. N/A
57. N/A
58. N/A
59. Financial statements (Instruction 1(c) of
"Instructions as to the Prospectus" of Form S-6).. Financial statements
</TABLE>
<PAGE>
PROSPECTUS
(Included in Post-Effective Amendment No. 5 to the Registrant's Registration
Statement on Form S-6, Accession No. 0001017062-99-000624, as filed on April 9,
1999, and incorporated by reference herein, and Form Type 497, Accession No.
0001017062-99-002119 as filed on December 20, 1999, and incorporated by
reference herein.)
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+A registration statement for Pacific Select Fund relating to shares of the I- +
+Net Tollkeeper Portfolio has been filed with the Securities and Exchange +
+Commission, but has not yet become effective. The information in the +
+prospectus is not complete and may be changed. Interests in the new +
+Investment Option and shares of the I-Net Tollkeeper Portfolio may not be +
+sold until the Fund's registration statement is effective. This supplement +
+and preliminary prospectus are not an offer to sell interests in the +
+Investment Option or shares of the I-Net Tollkeeper Portfolio and do not +
+solicit an offer to buy interests or shares in any state where the offer or +
+sale is not permitted. +
+ +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Supplement to Prospectuses Dated May 1, 1999 for Pacific Select Exec,
Pacific Select Exec II, Pacific Select Choice, Pacific Select Estate Maximizer,
Pacific Select Estate Preserver, Pacific Select Estate Preserver II,
variable life insurance policies (individually, the "Policy") issued by
Pacific Life Insurance Company
Date of Supplement: March 1, 2000
This supplement changes the Prospectuses to reflect the following :
---------------------------------------------------------
A new Variable The new Investment Option will invest in a new
Investment Option Portfolio of the Pacific Select Fund called the I-Net
will be available Tollkeeper Portfolio. Below is information summarizing
May 1, 2000 the new Portfolio:
. I-Net Tollkeeper
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------
Primary Investments
Portfolio Manager Objective (under normal circumstances)
---------------------------------------------------------------------------------
<S> <C> <C>
Pacific Life Insurance Long-term growth of capital. Equity securities of
Company, the adviser, companies which use,
and the Fund have support, or relate
retained Goldman Sachs directly or indirectly
Asset Management as to use of the Internet.
portfolio manager Such companies include
those in the media,
telecommunications, and
technology sectors.
---------------------------------------------------------------------------------
</TABLE>
This chart is only a summary. For more complete
information on the Portfolio, including a discussion of
the Portfolio's investment techniques and the risks
associated with its investments, see the accompanying
Fund Preliminary Prospectus. You should read the
prospectus carefully.
---------------------------------------------------------
An overview of the The following is added to the chart under Fees and
Policy is amended Expenses Paid by the Pacific Select Fund:
<TABLE>
<CAPTION>
--------------------------------------------------------------
Portfolio Advisory Fee Other Expenses Total Expenses+
--------------------------------------------------------------
<S> <C> <C> <C>
I-Net Tollkeeper* 1.50% 0.15% 1.65%
</TABLE>
* Expenses are estimated. There were no actual advisory
fees or other expenses for this Portfolio in 1999
because the Portfolio has not yet started. See Fees
and Expenses Paid by Pacific Select Fund in the
Prospectus for information about expense caps through
December 31, 2000 for this Portfolio.
+ The Fund has implemented a brokerage enhancement
12b-1 plan, under which brokerage transactions may be
placed with broker-dealers in return for credits that
may be used to help promote distribution of Fund
shares. There are no fees or charges to any Portfolio
under this plan, although the Fund's Distributor may
defray expenses which it would otherwise incur for
distribution. If you assume the credits are a direct
Fund expense, the expense would have no effect on
Other Expenses shown above.
1
<PAGE>
---------------------------------------------------------
Allocating Your This information is added to the discussion in the
Premiums is Prospectus on Allocating Your Premiums.
amended
You may instruct us to allocate all or part of your net
premiums to the I-Net Tollkeeper Investment Option on
or after May 1, 2000. You may not instruct us to
allocate your net premiums to this Investment Option
prior to May 1, 2000, when the Option first becomes
available. Your net premium or Policy's Accumulated
Value may be invested in up to 20 Investment Options at
any one time.
---------------------------------------------------------
Transfers of This information is added to the discussion in the
Accumulated Value Prospectus on Transfers of Accumulated Value.
is amended
You may instruct us to transfer Accumulated Value to a
Variable Investment Option and specify a future date on
which the Accumulated Value is to be transferred. This
instruction may cover any Variable Investment Option
currently available under your contract and the I-Net
Tollkeeper Investment Option, subject to the limitation
on Investment Options described above. For the I-Net
Tollkeeper Investment Option, you may not specify a
date prior to May 1, when the Option first becomes
available. If you specify May 1 for the I-Net
Tollkeeper Investment Option, and we receive the
instructions prior to that date, the requested amount
will be transferred effective as of the close of
business on May 1, 2000, or, if we hold your net
premiums in the Money Market Investment Option, your
Free-Look Transfer Date, whichever is later. You may
revoke your transfer instructions at any time before we
transfer Accumulated Value by providing us with a
revocation in proper form, which we must receive no
later than 4:00 p.m. Eastern time on the last Business
Day before the date you have specified for a transfer.
While highly remote, there is a possibility that the I-
Net Tollkeeper Investment Option will not become
effective on May 1, in which case we would not effect
the transfer to this Option, and your Accumulated Value
would remain in the Investment Option from which you
requested it be transferred until the day the I-Net
Tollkeeper becomes effective, if ever, or your Free-
Look Transfer Date, if later, unless you instruct
otherwise.
---------------------------------------------------------
Illustrations is This information is added to the discussion in the
amended Prospectus on Illustrations.
We will provide you with illustrations based on
If you ask us, different sets of assumptions upon your request. You
we'll provide you can request such illustrations at any time.
with different Illustrations may help you understand how your policy
kinds of values would vary over time based on different
illustrations. assumptions. We have filed examples of such an
illustration as an exhibit to the registration
. Illustrations statement that relates to each Policy on file with the
based on SEC.
information you
give us about the
age of the person
to be insured by
the policy, their
risk class, the
face amount, the
death benefit and
premium payments.
. Illustrations
that show the
allocation of
premium payments
to specified
variable
accounts. These
will reflect the
expenses of the
Portfolio of the
Fund in which the
Variable Account
invests.
. Illustrations
that use a
hypothetical
gross rate of
return that's
greater than 12%.
These are
available only to
certain large
institutional
investors.
2
<PAGE>
PART II. ADDITIONAL INFORMATION NOT REQUIRED IN PROSPECTUS
CONTENTS OF REGISTRATION STATEMENT
This Registration Statement on Form S-6 comprises the following papers and
documents:
The facing sheet.
The cross-reference sheet.
The Prospectus consisting of 117 pages (including illustrations).
Supplement dated March 1, 2000 to prospectus dated May 1, 1999 consisting
of 2 pages.
The undertaking to file reports.
Representation pursuant to Section 26(e) of the Investment Company Act of
1940.
The signatures.
Written Consent of the following person (included in the exhibits shown below):
Deloitte & Touche LLP, Independent Auditors
Dechert Price & Rhoads, Outside Counsel
The following exhibits:
1. (1) (a) Resolution of the Board of Directors of the Depositor dated
November 22, 1989 and copies of the Memoranda concerning
Pacific Select Exec Separate Account dated May 12, 1988 and
January 26, 1993./1/
(b) Resolution of the Board of Directors of Pacific Life Insurance
Company authorizing conformity to the terms of the current
Bylaws./4/
(2) Inapplicable
(3) (a) Distribution Agreement Between Pacific Mutual Life Insurance
Company and Pacific Equities Network/1/
(b) Form of Selling Agreement Between Pacific Equities Network and
Various Broker-Dealers/3/
(4) Inapplicable
(5) (a) Last Survivor Flexible Premium Variable Life Insurance
Policy (Form 96-56)/2/
(b) Accelerated Living Benefit Rider/1/
(c) Policy Split Option Rider/1/
(d) Last Survivor Added Protection Benefit (Form R96-LSAPB)/2/
(e) Individual Annual Renewable Term Rider (Form R96-ART)/2/
(f) Enhanced Policy Split Option Rider (Form R96-EPSO)/2/
(g) Fixed LT Account Endorsement/5/
(6) (a) Articles of Incorporation of Pacific Life Insurance
Company/4/
(b) Bylaws of Pacific Life Insurance Company/4/
(7) Inapplicable
(8) Inapplicable
(9) (a) Participation Agreement between Pacific Life Insurance
Company and Pacific Select Fund
(b) M Fund Inc. Participation Agreement with Pacific Life
Insurance Company.
(10) Applications and General Questionnaire/1/
2. Form of Opinion and consent of legal officer of Pacific Mutual as to
legality of Policies being registered/1/ (Incorporated by reference to
Exhibit No. 3 filed in Registrant's Registration Statement on Form S-6
filed via EDGAR on March 14, 1996, File No. 333-01713, Accession Number
0000898430-96-000838.)
3. Inapplicable
<PAGE>
4. Inapplicable
5. Inapplicable
6. (a) Consent of Independent Auditors/5/
(b) Consent of Dechert Price & Rhoads/2/
7. (a) Opinion of Actuary
(b) Illustration of Policy Benefits Draft
8. Memorandum Describing Issuance, Transfer, and Redemption
Procedures/1/
9. Powers of Attorney
_______________________
/1/ Filed as part of the Registration Statement on Form S-6 filed via
EDGAR on March 14, 1996, File No. 333-01713, Accession Number
0000898430-96-000838.
/2/ Filed as part of Pre-Effective Amendment No. 1 to the Registration
Statement on Form S-6 filed via EDGAR on October 25, 1996, File
No. 333-01713 Accession Number 0001017062-96-000349.
/3/ Filed as part of Post-Effective Amendment No.1 to the Registration
Statement on Form S-6 filed via EDGAR on January 15, 1997, File
No. 333-01713 Accession Number 0001017062-97-000040.
/4/ Filed as part of Post-Effective Amendment No. 3 to the Registration
Statement on Form S-6 filed via EDGAR on April 24, 1998, File
No. 333-01713, Accession Number 0001017062-98-000895.
/5/ Filed as part of Post-Effective Amendment No. 5 to the Registration
Statement on Form S-6 filed via EDGAR on April 9, 1999, File No. 333-
01713, Accession Number 0001017062-99-000624.
<PAGE>
UNDERTAKING TO FILE REPORTS
Subject to the terms and conditions of Section 15(d) of the Securities
Exchange Act of 1934, the undersigned Registrant hereby undertakes to file with
the Securities and Exchange Commission such supplementary and periodic
information, documents and reports as may be prescribed by any rule or
regulation of the Commission heretofore or hereafter duly adopted pursuant to
authority conferred in that section.
REPRESENTATION PURSUANT TO SECTION 26(e) OF THE INVESTMENT COMPANY ACT OF 1940
Pacific Life Insurance Company and Registrant represent that the fees and
charges to be deducted under the Variable Life Insurance Policy ("Policy")
described in the prospectus contained in this registration statement are, in the
aggregate, reasonable in relation to the services rendered, the expenses to be
incurred, and the risks assumed in connection with the Policy.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Pacific Select Exec Separate Account of Pacific Life Insurance Company certifies
that it meets all of the requirements for effectiveness of this Registration
Statement pursuant to Rule 485(b) under the Securities Act of 1933 and has duly
caused this Post-Effective Amendment No. 6 to the Registration Statement to be
signed on its behalf by the undersigned thereunto duly authorized, all in the
City of Newport Beach, and State of California, on this 1st day of March,
2000.
PACIFIC SELECT EXEC SEPARATE ACCOUNT
(Registrant)
BY: PACIFIC MUTUAL LIFE INSURANCE COMPANY
(Depositor)
BY: _____________________________________
Thomas C. Sutton*
Chairman & Chief Executive Officer
*BY: /s/ DAVID R. CARMICHAEL
David R. Carmichael
as attorney-in-fact
(Power of Attorney is contained in Exhibit 9 in this Post-Effective Amendment
No. 6 to the Registration Statement on Form S-6 of Pacific Select Exec Separate
Account, File No. 333-01713.)
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities act of 1933, Pacific Life
Insurance Company certifies that it meets all of the requirements for
effectiveness of this Registration Statement pursuant to Rule 485(b) under the
Securities Act of 1933 and has duly caused this Post-Effective Amendment No. 6
to the Registration Statement to be signed on its behalf by the undersigned
thereunto duly authorized, all in the City of Newport Beach, and State of
California, on this 1st day of March, 2000.
PACIFIC LIFE INSURANCE COMPANY
(Registrant)
BY: _____________________________________
Thomas C. Sutton*
Chairman & Chief Executive Officer
*BY: /s/DAVID R. CARMICHAEL
David R. Carmichael
as attorney-in-fact
(Power of attorney is contained in Exhibit 9 in this Post-Effective Amendment
No. 6 to the Registration Statement on Form S-6 of Pacific Select Exec Separate
Account, File No. 333-01713.)
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 6 to the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
Thomas C. Sutton* Director, Chairman ____________, 2000
of the Board and
Chief Executive Officer
Glenn S. Schafer* Director and President ____________, 2000
Khanh T. Tran* Director, Senior Vice ____________, 2000
President and Chief
Financial Officer
David R. Carmichael* Director, Senior Vice ____________, 2000
President and General
Counsel
Audrey L. Milfs* Director, Vice President ____________, 2000
and Corporate Secretary
Edward R. Byrd* Vice President and
Controller ____________, 2000
Brian D. Klemens* Vice President and
Treasurer ____________, 2000
Lynn C. Miller* Executive Vice President ____________, 2000
*BY: /s/ DAVID R. CARMICHAEL March 1, 2000
David R. Carmichael
as attorney-in-fact
</TABLE>
(Powers of Attorney are contained as Exhibit 9 in this Post-Effective Amendment
No. 6 to the Registration Statement on Form S-6 of Pacific Select Exec
Separate Account, File No. 333-01713.)
<PAGE>
EXHIBIT 1.(9).(a)
FUND PARTICIPATION AGREEMENT
----------------------------
This Agreement is made the 1st day of January, 2000, by and among PACIFIC
LIFE INSURANCE COMPANY (formerly Pacific Mutual Life Insurance Company)
("Pacific Life"), a life insurance company domiciled in California, on its
behalf and on behalf of its segregated asset accounts listed on Exhibit A to
this Agreement; PACIFIC LIFE & ANNUITY COMPANY (formerly PM Group Life Insurance
Company) ("PL&A", and, together with Pacific Life, the "Companies"), a life
insurance company domiciled in Arizona, on its behalf and on behalf of its
segregated asset accounts listed on Exhibit A to this Agreement (the segregated
asset accounts of the Companies are referred to collectively as the "Separate
Accounts"); PACIFIC SELECT FUND (the "Fund"), a Massachusetts business trust;
and PACIFIC MUTUAL DISTRIBUTORS, INC. (formerly Pacific Equities Network )
("Distributor"), a California corporation.
W I T N E S S E T H
-------------------
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 "series" and each
series has its own investment objective, policies, and limitations; and
WHEREAS, Pacific Life, the Fund and the Distributor are currently parties
to a Fund Participation Agreement dated November 6, 1992, as amended by an
Addendum to the Agreement dated January 4, 1994, an Addendum to the Agreement
dated August 15, 1994, an
1
<PAGE>
Addendum to the Agreement dated November 20, 1995, and an Addendum to the
Agreement dated December 18, 1998 (the "Current Agreement"), pursuant to which
Fund shares are offered and sold to certain segregated asset accounts of Pacific
Life; and
WHEREAS, the Fund is available to offer shares of one or more of its series
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 ("Participating Insurance Companies")
substantially similar to the Current Agreement, and the Fund is currently
comprised of multiple separate series, and other series 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, inter alia, 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
2
<PAGE>
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Companies wish to purchase shares of one or more of the Fund's
series on behalf of their 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 series; and
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants hereinafter set forth, the parties hereby agree to amend and
restate the Current Agreement as follows:
ARTICLE I. Sale of Fund Shares
-------------------
1.1. The Distributor agrees to sell to the Companies those shares of the
series offered and made available by the Fund and identified in Exhibit B
("Series"), that a 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
Series for purchase at the applicable net asset value per share by the Companies
on behalf of their Separate Accounts; provided, however, that the Board of
Trustees of the Fund may refuse to sell shares of any Series to any person, or
suspend or terminate the offering of shares of any Series, if such action is
required by law or by regulatory authorities having jurisdiction or is, in the
sole
3
<PAGE>
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 Series.
1.3. The Fund and Distributor agree that shares of the Series of the Fund
will be sold only to Participating Insurance Companies, their separate accounts,
and other persons consistent with each Series being adequately diversified
pursuant to Section 817(h) of the Internal Revenue Code of 1986, as amended
("Code") and the regulations thereunder.
1.4. The Fund and the Distributor will not sell shares of the Series to any
insurance company other than the Companies or to the separate account of any
such other insurance company unless an agreement containing provisions
substantially the same as those in Article IV and Sections 5.5 and 5.6 of
Article V of this Agreement is in effect to govern such sales.
1.5. Upon receipt of a request for redemption in proper form from a
Company, the Fund agrees to redeem any full or fractional shares of the Series
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. Each Company agrees to purchase and redeem the shares of each Series
in accordance with the provisions of the current prospectus for the Fund.
4
<PAGE>
1.7. Each Company shall pay for shares of the Series in federal funds
transmitted by wire no later than 11:00 a.m. Eastern time the next following
business day after it places an order to purchase shares.
1.8. Issuance and transfer of shares of the Series will be by book entry
only unless otherwise agreed by the Fund. Stock certificates will not be issued
to the Companies 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 each Company of any income dividends or capital gain
distributions payable on the shares of the Series. Each Company hereby elects
to reinvest in the Series all such dividends and distributions as are payable on
a Series' shares and to receive such dividends and distributions in additional
shares of that Series. Each Company reserves the right to revoke this election
in writing and to receive all such dividends and distributions in cash. The
Fund shall notify each 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 each
Company on each business day of the net asset value per share for each Series as
soon as reasonably practicable after the net asset value per share is
calculated.
5
<PAGE>
ARTICLE II. Representations and Warranties
------------------------------
2.1. Pacific Life 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. PL&A 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.
2.3. Pacific Life represents and warrants that it has legally and validly
established each of its Separate Accounts as a segregated asset account under
the California Insurance Code, and that each of its Separate Accounts is a
validly existing segregated asset account under applicable federal and state
law.
2.4. PL&A represents and warrants that it has legally and validly
established each of its 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.
2.5. Pacific Life represents and warrants that the Variable Contracts
issued by it or interests in its 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.
6
<PAGE>
2.6. PL&A represents and warrants that the Variable Contracts issued by it
or interests in its 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.
2.7. Each Company represents and warrants that each of its 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.
2.8. Each Company represents that it believes, in good faith, that the
Variable Contracts issued by that 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.
2.9. 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.
2.10. The Fund represents and warrants that the shares of the Series 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.
7
<PAGE>
2.11. The Fund represents that it believes, in good faith, that the Series
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.
2.12. 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 Series to the Separate Accounts, including
maintaining its registration as an investment company under the 1940 Act, and
registering the shares of 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 Series. 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
Series as a Regulated Investment Company under Subchapter M of the Code (or any
successor or similar provision) and shall notify the Companies immediately upon
having a reasonable basis for believing that a Series has ceased to so qualify
or that it might not so qualify in the future.
8
<PAGE>
3.3. The Fund shall make every effort to enable each Series 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 Companies immediately upon having reasonable basis for believing
that any Series 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
Section 3.2 and 3.3 hereof.
3.5. Each 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 that 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. Each Company shall make every effort to maintain the treatment of the
Variable Contracts issued by that 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.
9
<PAGE>
3.7. Each Company shall offer and sell the Variable Contracts issued by
that Company in accordance with applicable provisions of the 1933 Act, the 1934
Act, the 1940 Act, the NASD Conduct Rules, 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 Series of
the Fund in accordance with the applicable provisions of the 1933 Act, the 1934
Act, the 1940 Act, the NASD Conduct Rules, 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, as defined by Section
2(a)(19) of the 1940 Act ("disinterested Trustees"), 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. Each Company agrees to provide, as promptly as possible, notice to
the Fund and to the Distributor if that 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
10
<PAGE>
corresponding shares of the Fund or a Series, as described in Section 9.1(e) and
to which the notice provision of Section 9.2 shall apply). In such an event,
that 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 that Company at least 30 days prior
to the meeting. That 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
scheduled premium variable life insurance policies and owners of flexible
premium variable life insurance policies; (2) between the interests of owners of
variable annuity contracts and owners of scheduled premium or flexible premium
variable life insurance policies, and (3) 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
11
<PAGE>
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
Series are being managed; (e) a decision by a Participating Insurance Company to
disregard the voting instructions of Variable Contract Owners.
4.2. Each Company agrees that it shall be responsible for reporting any
potential or existing conflict to the Fund's Board of Trustees. Each 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 each Company to inform
the Board whenever Variable Contract Owner voting instructions are disregarded.
Each Company shall carry out its responsibility under this Section 4.2 with a
view only to the interests of its Variable Contract Owners.
4.3. Each 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, that
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 Series and reinvesting such assets in a different investment
medium, which may include another Series of
12
<PAGE>
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 a Company's
decision to disregard Variable Contract Owners' voting instructions and that
decision represents a minority position or would preclude a majority vote, that
Company shall be required, at the Fund's election, to withdraw its 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 or 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
13
<PAGE>
records, and such minutes or other records shall be made available to the SEC
upon request. Each 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 each 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. Each Company shall distribute such prospectuses, proxy statements and
periodic reports of the Fund to the owners of Variable Contracts issued by that
Company as required to be distributed to such Variable Contract Owners under
applicable federal or state law.
5.2. The Distributor shall provide each Company with as many copies of the
current prospectus of the Fund as that Company may reasonably request. If
requested by a Company in lieu thereof, the Fund shall provide such
documentation (including a final copy of the Fund's prospectus as set in type,
electronic file 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 each Company shall bear the expense of printing copies of the Fund's
prospectus that are used in connection with offering those Variable Contracts
issued by that Company.
14
<PAGE>
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
each Company and to any owner of a Variable Contract issued by a Company who
requests such SAI, (2) at a Company's expense, such additional copies of the
Fund's current SAI as that Company shall reasonably request and that that
Company shall require in accordance with applicable law in connection with
offering the Variable Contracts issued by that Company.
5.4. The Fund, at its expense, shall provide a Company with copies of its
proxy material, periodic reports to shareholders and other communications to
shareholders in such quantity as that Company shall reasonably require for
purposes of distributing to owners of Variable Contracts issued by that Company.
The Fund, at a Company's expense, shall provide that Company with copies of its
periodic reports to shareholders and other communications to shareholders in
such quantity as that Company shall reasonably request for use in connection
with offering the Variable Contracts issued by that Company. If requested by a
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 that Company to print
such shareholder communications for distribution to owners of Variable Contracts
issued by that 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, each Company shall vote
shares of each Series of the Fund held
15
<PAGE>
in a Separate Account or a subaccount thereof that is registered as an
investment company under the 1940 Act, at regular and special meetings of the
Fund in accordance with instructions timely received by that Company (or its
designated agent) from owners of Variable Contracts funded by such Separate
Account or subaccount thereof having a voting interest in the Series. Each
Company shall vote shares of a Series of the Fund held in a such a registered
Separate Account or a subaccount thereof that are attributable to its 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
its 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 Series from whom
instructions have been timely received. Each Company shall vote shares of each
Series of the Fund held in its general account, if any, in the same proportion
as the votes cast with respect to shares of the Series held in all Separate
Accounts of that Company or subaccounts thereof, whether or not registered, in
the aggregate.
5.6. The Fund shall disclose in its prospectus or Statement of Additional
Information, to the extent pertinent, that (1) shares of the Series of the Fund
are offered to affiliated or unaffiliated insurance company separate accounts
which fund both annuity and life insurance contracts and, (2) due to differences
in tax treatment or other considerations, the interests of various Variable
Contract Owners participating in the Fund or a Series 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 Companies that
16
<PAGE>
prospectus disclosure may be appropriate, to the extent pertinent, regarding
potential risks of offering shares of the Fund to separate accounts funding both
variable annuity contracts and variable life insurance policies, to separate
accounts funding Variable Contracts of unaffiliated life insurance companies.
ARTICLE VI. Sales Material and Information
------------------------------
6.1. Each 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 Series thereof) or its investment advisers 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. Each 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 or by the Distributor or its designee, except with the permission of
the Fund or its designee or the Distributor or its designee.
6.3. The Fund or the Distributor or the designee of either shall furnish to
each Company or its designee, each piece of sales literature or other
promotional material in which
17
<PAGE>
that Company or its Separate Accounts are named, and no such material shall be
used without the approval of that 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 a Company or concerning that Company, its Separate Accounts, or the
Variable Contracts issued by that 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 that Company or its
designee, except with the permission of that Company.
6.5. The Fund will provide to each 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. Each 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 that 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 that Company or
18
<PAGE>
its 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
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, 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, 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 Pacific Life
-------------------------------
7.1(a). Pacific Life 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 and Section 7.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of Pacific Life) 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,
19
<PAGE>
liabilities or litigation expenses are related to the sale or acquisition of the
Fund's shares or the Variable Contracts issued by Pacific Life 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 issued by Pacific Life or sales literature for such 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 Pacific Life by or on behalf of the Fund for use in the registration
statement or prospectus for the Variable Contracts issued by Pacific Life 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 for the Variable Contracts not
supplied by Pacific Life or persons under its control) or wrongful conduct of
Pacific Life or any of its affiliates, employees or agents with respect to the
sale or distribution of the Variable Contracts issued by Pacific Life 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 Pacific Life;
except to the extent provided in Sections 7.1(b) and 7.1(c) hereof.
7.1(b). Pacific Life 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.
20
<PAGE>
7.1(c). Pacific Life shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Party shall have notified Pacific Life 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 Pacific Life of any such claim shall not relieve Pacific Life
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, Pacific Life
shall be entitled to participate, at its own expense, in the defense of such
action. Pacific Life also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from
Pacific Life to such party of Pacific Life's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and Pacific Life 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 Pacific Life 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
Pacific Life or the operation of the Fund.
21
<PAGE>
7.2. Indemnification by PL&A
-----------------------
7.2(a). PL&A agrees to indemnify and hold harmless the Indemnified
Parties against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of PL&A) or litigation
expenses (including legal and other expenses), to which the Indemnified Parties
may become subject under any statue, 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 PL&A 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 issued by PL&A or sales literature for such 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 PL&A by or on behalf of the Fund for use in the registration statement or
prospectus for the Variable Contracts issued by PL&A 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 for the Variable Contracts not
supplied by PL&A or persons under its control) or wrongful conduct of PL&A or
any of its affiliates, employees or agents with respect to the sale or
distribution of the Variable Contracts issued by PL&A 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 PL&A;
except to the extent provided in Sections 7.2(b) and 7.2(c) hereof.
22
<PAGE>
7.2(b). PL&A 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.
7.2(c). PL&A shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such Party
shall have notified PL&A 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
PL&A of any such claim shall not relieve PL&A 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, PL&A shall be entitled to participate,
at its own expense, in the defense of such action. PL&A also shall be entitled
to assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from PL&A to such party of PL&A's election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and PL&A 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.
23
<PAGE>
7.2(d). The Indemnified Parties shall promptly notify PL&A 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 PL&A
or the operation of the Fund.
7.3. Indemnification by the Distributor
----------------------------------
7.3(a). The Distributor agrees to indemnify and hold harmless the
Fund and each Company and each of their trustees, directors and officers and
each person, if any, who is an affiliated person of the Fund or that Company
within the meaning of Section 2(a)(3) the 1940 Act (collectively, the
"Indemnified Parties" for purposes of this Section 7.3) 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 that
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 or either by or on behalf of that 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 that 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
24
<PAGE>
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 that 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 that 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 that Company by or
on behalf of the Fund;
except to the extent provided in Sections 7.3(b) and 7.3(c) hereof.
7.3(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 a Company or its
Separate Accounts.
7.3(c). The Distributor 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 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
25
<PAGE>
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.
7.3(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 California.
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 Amended Shared Funding Order) and the terms
hereof shall be interpreted and construed in accordance therewith.
26
<PAGE>
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) as to a Company, at the option of that Company if shares of the
Series are not reasonably available to meet the requirements of the Variable
Contracts issued by that Company, as determined by that Company, and upon prompt
notice by that Company to the other parties; or
(c) as to a Company, at the option of the Fund or the Distributor
upon institution of formal proceedings against that Company or its agent by the
NASD, the SEC, or any state securities or insurance department or any other
regulatory body regarding that Company's duties under this Agreement or related
to the sale of the Variable Contracts issued by that Company, the operation of
the Separate Accounts, or the purchase of the Fund shares; or
(d) as to a Company, at the option of that 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) as to a Company, upon requisite vote of the Variable Contract
Owners having an interest in its Separate Accounts (or any subaccounts thereof)
to substitute the shares of another investment company for the corresponding
shares of the Fund or a Series in
27
<PAGE>
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 Series are not registered,
issued or sold in accordance with the 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 a 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) as to any Company, at the option of that Company if the Fund or a
Series 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 8.1(c) and (d) hereof. Each Company shall
give 60 days prior written notice to the Fund of the date of any proposed vote
of its Variable Contract Owners to replace the Fund's shares as described in
Section 9.1(e) hereof.
9.3. 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.
28
<PAGE>
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: If to PL&A:
Pacific Select Fund Pacific Life and Annuity Company
Attn: Variable Regulatory Attn: Variable Regulatory Compliance
Compliance Department Department
700 Newport Center Drive 700 Newport Center Drive
P.O. Box 7500 P.O. Box 7500
Newport Beach, CA 92660 Newport Beach, CA 92660
If to the Distributor: If to Pacific Life:
Pacific Mutual Distributors Pacific Life Insurance Company
Attn: Compliance Officer Attn: Variable Regulatory Compliance
700 Newport Center Drive, NB-4 Department
Newport Beach, CA 92660 700 Newport Center Drive
P.O. Box 7500
Newport Beach, CA 92660
ARTICLE XI. Miscellaneous
-------------
11.1. The Fund and the Company agree that if and to the extent Rule 6e-2 or
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 those Rules, as may be applicable, 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
29
<PAGE>
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 Series 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 Life", "Pacific
Select" or any derivative thereof or logo associated with that name is the
valuable property of Pacific Life, and that the Fund 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 Companies 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.
30
<PAGE>
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.
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: /s/ AUDREY L. MILFS BY: /s/ THOMAS C. SUTTON
----------------------- -----------------------
Name: Audrey L. Milfs Name: Thomas C. Sutton
Title: Secretary Title: Chairman of the Board & Trustee
PACIFIC MUTUAL DISTRIBUTORS, INC.
ATTEST: /s/ AUDREY L. MILFS BY: /s/ GERALD W. ROBINSON
----------------------- -----------------------
Name: Audrey L. Milfs Name: Gerald W. Robinson
Title: Secretary Title: Chairman & Chief Exec. Officer
31
<PAGE>
PACIFIC LIFE INSURANCE COMPANY
ATTEST: /s/ AUDREY L. MILFS BY: /s/ THOMAS C. SUTTON
----------------------- ----------------------
Name: Audrey L. Milfs Name: Thomas C. Sutton
Title: Secretary Title: Chairman of the Board & Chief
Exec. Officer
ATTEST: /s/ AUDREY L. MILFS BY /s/ GLENN S. SCHAFER
----------------------- -----------------------
Name: Audrey L. Milfs Name: Glenn S. Schafer
Title: Secretary Title: President
PACIFIC LIFE & ANNUITY COMPANY
ATTEST: /s/ AUDREY L. MILFS BY: /s/ LYNN C. MILLER
----------------------- ----------------------
Name: Audrey L. Milfs Name: Lynn C. Miller
Title: Secretary Title: Executive Vice President
32
<PAGE>
Exhibit A
Separate Accounts of Pacific Life Insurance Company:
Pacific Select Separate Account
Pacific Select Exec Separate Account
Pacific Select COLI Separate Account
Pacific Select Variable Annuity Separate Account
Separate Account A
Separate Account B
Pacific Select Value Separate Account
Pacific Corinthian Variable Separate Account
Pacific COLI Separate Account II
Pacific COLI Separate Account III
Separate Accounts of Pacific Life and Annuity Company:
Pacific Select Exec Separate Account
Separate Account A
33
<PAGE>
Exhibit B
Money Market Portfolio
High Yield Bond Portfolio
Managed Bond Portfolio
Government Securities Portfolio
Small-Cap Equity Portfolio
Aggressive Equity Portfolio
Growth LT Portfolio
Equity Income Portfolio
Multi-Strategy Portfolio
Large-Cap Value Portfolio
Mid-Cap Value Portfolio
Equity Portfolio
Bond and Income Portfolio
Equity Index Portfolio
Small-Cap Index Portfolio
REIT Portfolio
International Value Portfolio
Emerging Markets Portfolio
International Large-Cap Portfolio
Diversified Research Portfolio
I-Net Tollkeeper Portfolio*
*Effective 05/01/2000
34
<PAGE>
EXHIBIT 1.(9).(b)
M FUND, INC.
------------
PARTICIPATION AGREEMENT
With
PACIFIC LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into this 7th day of February, 2000,
by and among M Fund, Inc., a corporation organized and existing under the laws
of the State of Maryland (the "Fund"), M Financial Investment Advisers, Inc., a
corporation organized and existing under the laws of the State of Colorado (the
"Adviser"), M Holdings Securities, Inc., a corporation organized and existing
under the laws of the State of Oregon (the "Distributor"), M Life Insurance
Company, a life insurance company organized and existing under the laws of the
State of California and Pacific Life Insurance Company, a life insurance company
organized and existing under the laws of the State of California (the
"Company"), on its own behalf and on behalf of each separate account of the
Company identified herein.
WHEREAS, the Fund is a series-type mutual fund offering shares of
beneficial interest (the "Fund shares") consisting of one or more series
("Series") of shares ("Series shares"), each such Series share representing an
interest in a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund was established for the purpose of serving as an
investment vehicle for insurance company separate accounts supporting variable
annuity contracts and variable life insurance policies to be offered by
insurance companies; and
WHEREAS, the Company desires that the Fund serve as an investment
vehicle for certain separate account(s) of the Company;
WHEREAS, the Adviser is duly registered as an investment adviser
pursuant to the Investment Advisers Act of 1940;
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, and is a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD").
NOW, THEREFORE, in consideration of their mutual promises, the Fund,
the Adviser, the Distributor and the Company agree as follows:
ARTICLE I. Additional Definitions
----------------------
1.1. "Account" -- each separate account of the Company described
more specifically in Schedule 1 to this Agreement (as may be amended from time
to time).
<PAGE>
1.2. "Business Day" -- each day that the Fund is open for business as
provided in the Fund Prospectus.
1.3. "Code" -- the Internal Revenue Code of 1986, as amended.
1.4. "Contracts" -- the class or classes of variable annuity
contracts and variable life insurance policies issued by the Company and
described more specifically on Schedule 2 to this Agreement (as may be amended
from time to time).
1.5. "Contract Owners" -- the owners of the Contracts, as
distinguished from all Product Owners.
1.6. "NASD" -- National Association of Securities Dealers, Inc.
1.7. "Participating Account" -- a separate account investing all or a
portion of its assets in the Fund, including the Account.
1.8. "Participating Insurance Company" -- any insurance company
investing in the Fund on its behalf or on behalf of a Participating Account,
including the Company.
1.9. "Products" -- variable annuity contracts and variable life
insurance policies supported by Participating Accounts investing assets
attributable thereto in the Fund, including the Contracts.
1.10. "Product Owners" -- owners of Products, including Contract
Owners.
1.11. "Prospectus" -- with respect to the Fund shares or a class of
Contracts or interests in the Contracts or Accounts, each version of the
definitive prospectus therefor or supplement thereto filed with the SEC pursuant
to Rule 497 under the 1933 Act. With respect to any provision of this Agreement
requiring a party to take action in accordance with a Prospectus, such reference
thereto shall be deemed to be to the version last so filed prior to the taking
of such action. For purposes of Section 4.6 and Article VIII, the term
"Prospectus" shall include any statement of additional information incorporated
therein.
1.12. "Registration Statement" -- with respect to the Fund shares or
a class of Contracts or interests in the Contracts or Accounts, the registration
statement filed with the SEC to register the securities issued thereby under the
1933 Act, or the most recently filed amendment thereto, in either case in the
form in which it was declared or became effective. The Contracts Registration
Statement (if any) is described more specifically on Schedule 2 to this
Agreement. The Fund Registration Statement was filed on Form N-1A (File No. 33-
95472).
1.13. "1940 Act Registration Statement" -- with respect to the Fund
or the Account, the registration statement filed with the SEC to register such
person as an investment
-2-
<PAGE>
company under the 1940 Act, or the most recently filed amendment thereto. The
Account 1940 Act Registration Statement (if any) is described more specifically
on Schedule 2 to this Agreement. The Fund's 1940 Act Registration Statement was
filed on Form N-1A (File No. 811-9082).
1.14. "Statement of Additional Information" -- with respect to the
Fund or a class of Contracts, each version of the definitive statement of
additional information or supplement thereto filed with the SEC pursuant to Rule
497 under the 1933 Act.
1.15. "SEC" -- the Securities and Exchange Commission.
1.16. "1933 Act" -- the Securities Act of 1933, as amended.
1.17. "1940 Act" -- the Investment Company Act of 1940, as amended.
1.18. "1934 Act"--The Securities Exchange Act of 1934, as amended.
ARTICLE II. Sale of Fund Shares
-------------------
2.1. The Fund shall make shares of those Series listed on Schedule 3
to this Agreement available for purchase by the Company on its own behalf or on
behalf of the Account, such purchases to be effected at net asset value in
accordance with Section 2.3 of this Agreement. Notwithstanding the foregoing,
(i) Fund Series in existence now or that may be established in the future and
not listed on Schedule 3 will be made available to the Company only as the
Adviser may so provide, and (ii) the Board of Directors of the Fund (the "Fund
Board") may suspend or terminate the offering of Fund shares of any Series or
class thereof, if such action is required by law or by regulatory authorities
having jurisdiction or if, in the sole discretion of the Fund Board acting in
good faith and in light of its fiduciary duties under federal and any applicable
state laws, suspension or termination is necessary or in the best interests of
the shareholders of any Series (it being understood that "shareholders" for this
purpose shall mean Product Owners).
2.2. The Distributor agrees to sell to the Company those shares of
the Series offered and made available by the Fund and identified on Schedule 3
that the Company orders on its own behalf and on behalf of its Account and
agrees to execute such orders on each day on which the Fund calculated its net
asset value in accordance with Section 2.5 of this Agreement.
2.3. The Fund shall redeem, at the Company's request, any full or
fractional shares of the Fund held by the Company on behalf of the Account, such
redemptions to be effected at net asset value in accordance with Section 2.4 of
this Agreement. Notwithstanding the foregoing, the Fund may delay redemption of
Fund shares of any Series to the extent permitted by the 1940 Act or any rules,
regulations or orders thereunder.
-3-
<PAGE>
2.4. Purchase and Redemption Procedures
----------------------------------
(a) For purposes of Section 2.1, 2.2, and 2.3, the Fund hereby
appoints the Company as designee of the Fund for the limited purpose of
receiving purchase and redemption requests for shares of the Fund based on
allocations of amounts to the Account or subaccounts thereof under the
Contracts and other transactions arising out of the Contracts. Receipt of
any such request (or relevant transactional information therefor) on any
Business Day by the Company as such designee of the Fund prior to the Fund's
close of business as defined from time to time in the Fund Prospectus (which
as of the date of execution of this Agreement is 4 p.m. Eastern Time) shall
constitute receipt by the Fund on that same Business Day, provided that the
Fund receives notice of such request by 10:00 a.m. Eastern Time on the next
following Business Day.
(b) The Company shall pay for shares of each Series on the same
day that it notifies the Fund of a purchase request for such shares. Payment
for Series shares shall be made in federal funds transmitted to the Fund by
wire to be received by the Fund by 11:00 a.m. Eastern Time on the day the
Fund is notified of the purchase request for Series shares (unless the Fund
determines and so advises the Company that sufficient proceeds are available
from redemption of shares of other Series effected pursuant to redemption
requests tendered by the Company on behalf of the Account). If federal funds
are not received on time, such funds will be invested, and Series shares
purchased thereby will be issued, as soon as practicable.
(c) Payment for Series shares redeemed by the Account or the
Company shall be made in federal funds transmitted by wire to the Company or
any other designated person on the next Business Day after the Fund is
properly notified of the redemption order of Series shares (unless
redemption proceeds are to be applied to the purchase of Fund shares of
other Series in accordance with Section 2.4(b) of this Agreement), except
that the Fund reserves the right to delay payment of redemption proceeds to
the extent permitted under Section 22(e) of the 1940 Act. The Fund shall not
bear any responsibility whatsoever for the proper disbursement or crediting
of redemption proceeds; the Company alone shall be responsible for such
action.
(d) Any purchase or redemption requests for Fund shares that do
not result directly from transactions relating to the Contracts or the
Account shall be effected at the net asset value per share next determined
after the Fund's receipt of such request, provided that, in the case of a
purchase request, payment for Fund shares so requested is received by the
Fund in federal funds prior to close of business for determination of such
value, as defined from time to time in the Fund Prospectus.
2.5. The Fund shall use its best efforts to calculate and make the
net asset value per share for each Series available to the Company by 6:00 p.m.
Eastern Time each Business Day, and in any event, as soon as reasonably
practicable after the net asset value per share for
-4-
<PAGE>
such Series is calculated, and shall calculate such net asset value in
accordance with the Fund Prospectus. Neither the Fund, any Series, the Adviser,
the Distributor, nor any of their affiliates shall be liable for any information
provided to the Company pursuant to this Agreement to the extent such
information is based on incorrect information supplied by the Company or any
other Participating Insurance Company or Qualified Person (as defined in Section
2.9 of this Agreement) to the Fund, the Distributor or the Adviser.
2.6. The Fund shall furnish notice to the Company (by fax, or
telephone followed by written confirmation) as soon as reasonably practicable,
and no later than the same day, of any income dividends or capital gain
distributions payable on any Series shares. The Company, on its behalf and on
behalf of the Account, hereby elects to receive all such dividends and
distributions as are payable on any Series shares in the form of additional
shares of that Series. The Company reserves the right, on its behalf and on
behalf of the Account, to revoke this election and to receive all such dividends
and distributions in cash. The Fund shall notify the Company promptly of the
number of Series shares so issued as payment of such dividends and
distributions.
2.7. Issuance and transfer of Fund shares shall be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Purchase and redemption orders for Fund shares shall be recorded in an
appropriate ledger for the Account or the appropriate subaccount of the Account.
2.8. (a) The Company may withdraw the Account's investment in the
Fund or a Series of the Fund only: (i) as necessary to facilitate Contract
Owner requests; (ii) upon a determination by a majority of the Fund Board,
or a majority of disinterested Fund Board members, that an irreconcilable
material conflict exists among (x) the interests of all Product Owners or
(y) the interests of the Participating Insurance Companies investing in the
Fund; (iii) upon requisite vote of the Contract Owners having an interest
in the affected Series; (iv) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general implication;
(v) upon sixty (60) days advance written notice; (vi) from a Series, upon a
change in the Portfolio Manager for that Series; or (vii) as permitted by
an order of the SEC pursuant to Section 26(b) of the 1940 Act.
(b) The Company shall not, without the prior written consent of
the Adviser (unless otherwise required by applicable law), solicit, induce
or encourage Contract Owners to change or modify the Fund or change the
Fund's investment adviser.
2.9. The Fund and the Distributor shall sell Fund shares only to
Participating Insurance Companies and their separate accounts and to persons or
plans ("Qualified Persons") that qualify to purchase and hold shares of the Fund
under Section 817(h) of the Code. The Fund and the Distributor shall not sell
Fund shares to any insurance company, separate account or Qualified Person
unless an agreement containing provisions substantially similar to Articles II,
-5-
<PAGE>
V, and VII of this Agreement is in effect to govern such sales (to the extent
required in order to comply with the "Exemptive Order" referred to in Section
7.1 below).
ARTICLE III. Representations and Warranties
------------------------------
3.1. The Company represents and warrants that: (i) the Company is an
insurance company duly organized, validly existing and in good standing under
California insurance law; (ii) the Account is (or will be prior to the purchase
by the Company of Fund shares for the Account) a validly existing separate
account, duly established and maintained in accordance with applicable law;
(iii) the Contracts will be issued in compliance in all material respects with
all applicable federal and state laws; (iv) the Contracts currently are and at
the time of issuance will be treated as annuity contracts or life insurance
policies (including modified endowment contracts), whichever is appropriate,
under applicable provisions of the Code; and (v) the Company and the Account
qualify (or will qualify prior to the purchase by the Company of Fund shares for
the Account) to purchase and hold shares of the Fund under Section 817(h) of the
Code.
3.2. The Fund represents and warrants that: (i) the Fund is a
corporation duly organized, validly existing and in good standing under Maryland
law; (ii) the Fund's 1940 Act Registration Statement has been filed with the SEC
in accordance with the provisions of the 1940 Act and the Fund is and shall
remain duly registered as an open-end management investment company thereunder;
(iii) the Fund Registration Statement has been declared effective by the SEC (or
will be declared effective before the sale by the Fund of its shares pursuant to
this Agreement); (iv) Fund shares sold pursuant to this Agreement have been duly
authorized for issuance in accordance with applicable law; (v) the Fund
currently qualifies as a "regulated investment company" under Subchapter M of
the Code and is and shall remain in compliance with Section 817(h) of the Code;
(vi) the Fund's investment policies are in material compliance with any
investment restrictions set forth on Schedule 4 to this Agreement; and (vii) the
Fund does and will comply in all material respects with the 1940 Act. The Fund,
however, makes no representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies)
otherwise complies with the insurance laws or regulations of any state.
3.3. The Adviser represents and warrants that it is and will remain
registered in all material respects as an investment adviser under federal and
all applicable state securities laws, and shall perform its obligations
hereunder in compliance in all material respects with any such applicable state
and federal laws. The Adviser represents that it will manage the Fund
consistent with the Fund's investment objectives, policies, and restrictions.
3.4. 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.
-6-
<PAGE>
3.5. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate action, by such party, and, when so
executed and delivered, this Agreement will be the valid and binding obligation
of such party enforceable in accordance with its terms.
3.6. The Fund represents and warrants that all of its directors,
officers, and employees dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid Bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
3.7 The Company represents and warrants that all of its directors,
officers, and employees dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
ARTICLE IV. Filings, Information and Expenses
---------------------------------
4.1. The Fund shall amend the Fund Registration Statement and the
Fund's 1940 Act Registration Statement from time to time as required in order to
effect the continuous offering of Fund shares and to maintain the Fund's
registration under the 1940 Act for so long as Fund shares are sold. The Fund
shall file, register, qualify and obtain approval of the Fund shares for sale
under state securities laws to the extent necessary to remain in compliance with
state law.
4.2. Unless other arrangements are made, the Fund shall provide the
Company with: (i) a copy, in camera-ready form or otherwise suitable for
printing or duplication, of each Fund Prospectus and any supplement thereto and
each Fund Statement of Additional Information and any supplement thereto; and
(ii) copies of the Fund's proxy materials, reports to shareholders, and other
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract Owners.
4.3. The Company shall amend the Contracts Registration Statement (if
any) and the Account's 1940 Act Registration Statement (if any) from time to
time as required in order to effect the continuous offering of the Contracts or
as may otherwise be required by applicable law. The Company shall file,
register, qualify and obtain approval of the Contracts for sale to the extent
required by applicable insurance and securities laws of the various states.
4.4. The Company shall inform the Fund of any investment restrictions
imposed by state insurance law that may become applicable to the Fund from time
to time as a result of the Account's investment therein (including, but not
limited to, restrictions with respect to fees
-7-
<PAGE>
and expenses and investment policies), other than those set forth on Schedule 4
to this Agreement. Upon receipt of such information from the Company, the Fund
shall determine whether it is in the best interests of shareholders to comply
with any such restrictions. If the Fund determines that it is not in the best
interests of shareholders (it being understood that "shareholders" for this
purpose shall mean Product Owners), the Fund shall so inform the Company, and
the Fund and the Company shall discuss alternative accommodations in the
circumstances. If the Fund determines that it is in the best interests of
shareholders to comply with such restrictions, the Fund and the Company shall
amend Schedule 4 to this Agreement to reflect such restrictions.
4.5. The Company shall provide Contracts, Contracts and Fund
Prospectuses, Contracts and Fund Statements of Additional Information, reports,
solicitations for voting instructions including any related Fund proxy
solicitation materials, and all amendments or supplements to any of the
foregoing, to Contract Owners and prospective Contract Owners, all in accordance
with the federal and any applicable state securities laws.
4.6. The Distributor shall sell and distribute the shares of the
Series of the Fund in accordance with the applicable provisions of the 1933 Act,
the 1934 Act, the 1940 Act, the NASD Rule of Fair Practice, and state law.
4.7. All expenses incident to each party's performance under this
Agreement (including expenses expressly assumed by such party pursuant to this
Agreement) shall be paid by such party to the extent permitted by law.
(a) Expenses assumed by the Fund include, but are not limited to,
the costs of: (i) registration and qualification of the Fund shares under
the federal securities laws; (ii) preparation and filing with the SEC of
the Fund Prospectus, Fund Statement of Additional Information ("SAI"), Fund
Registration Statement, Fund proxy materials and shareholder reports, and
supplements thereto, and preparation of a camera-ready copy thereof; (iii)
preparation of all statements and notices required for the Fund by any
federal or state securities law; (iv) printing and mailing to Contract
Owners of all Prospectuses, SAI's, proxy materials and reports, and
supplements thereto, required to be provided by the Fund to its
shareholders; (v) all taxes on the issuance or transfer of Fund shares; and
(vi) any expenses permitted to be paid or assumed by the Fund pursuant to a
plan, if any, under Rule 12b-1 under the 1940 Act. The Fund otherwise
shall pay no fee or other compensation to the Company under this Agreement,
unless the parties otherwise agree, except that if the Fund or any Series
adopts and implements a plan pursuant to Rule 12b-1 under the 1940 Act to
finance distribution expenses, then payments may be made to the Company in
accordance with such plan. The Fund currently does not intend to make any
payments to finance distribution expenses pursuant to Rule 12b-1 under the
1940 Act or in contravention of such rule, although it may make payments
pursuant to Rule 12b-1 in the future. To the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1, the Fund undertakes
to have a Board of Directors, a majority of whom are not
-8-
<PAGE>
interested persons of the Fund, formulate and approve any plan under Rule
12b-1 to finance distribution expenses.
(b) Expenses assumed by the Company include, but are not limited
to, the costs of: (i) registration and qualification of the Contracts under
the federal and any applicable state securities laws; (ii) preparation and
filing with the SEC of the Contracts Prospectus and Contracts Registration
Statement; and (iii) preparation and dissemination of all statements and
notices to Contract Owners required by any federal or state insurance law
other than those paid for by the Fund.
(c) Expenses assumed by the Distributer include, but are not
limited to the costs of printing the Fund Prospectuses and SAI's for use in
connection with the sale of the Contracts to prospective Contract owners.
4.8. Any piece of advertising or sales literature or other
promotional material prepared by the company in which the Fund is named and
which will be used by the Company shall be furnished by the Company to the Fund
not less than 15 days prior to its use. No such material shall be used without
prior written approval of the Fund. The Fund may delegate its rights and
responsibilities under this provision to the Adviser or Distributer.
4.9. Any piece of advertising or sales literature or other
promotional material in which the Company or the Account is named and which will
be used by the Fund, the Adviser or the Distributer shall be furnished by the
Fund, Adviser or the Distributer, as applicable, to the Company not less than 15
days prior to its use. No such material shall be used without prior written
approval of the Company.
4.10. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund to
the public (including current and prospective Contract owners) in connection
with the sale of the Contracts other than the information or representations
contained in the Fund Registration Statement or Fund Prospectus (as such
Registration Statement or 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 in accordance with Section 4.8 of this
Agreement, except with the prior written consent of the Fund.
4.11. The Fund, the Adviser and the Distributer shall not give any
information or make any representations on behalf of the Company or concerning
the Company, the Account or the Contracts other than the information or
representations contained in the Contracts Registration Statement or Contracts
Prospectus (as such Registration Statement or Prospectus may be amended or
supplemented from time to time) or in published reports of the Account which are
in the public domain or approved in writing by the Company for distribution to
Contract Owners, or in sales literature or other promotional material approved
in accordance with Section 4.9 of this Agreement except with the prior written
consent of the Company.
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<PAGE>
4.12. The Fund and the Company shall provide to the other upon
request at least one complete copy of all Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statements, solicitations of voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the
above, that relate to the Fund, the Contracts or the Account, as the case may
be, promptly after the filing by or on behalf of such party of such document
with the SEC or other regulatory authorities.
4.13. Each party shall provide to the other upon request copies of
draft versions of any Registration Statements, Prospectuses, Statements of
Additional Information, periodic and other shareholder or Contract Owner
reports, proxy statements, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the
above, to the extent that the other party reasonably needs such information for
purposes of preparing a report or other filing to be filed with or submitted to
a regulatory agency. If a party requests any such information before it has been
filed, the other party will provide the requested information if then available
and in the version then available at the time of such request.
4.14. Each party hereto shall cooperate with the other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit each other and 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. However, such access shall not extend to attorney-client
privileged information.
4.15. The Company reserves the right to modify any of the Contracts
in any respect whatsoever. The Company reserves the right in its sole
discretion to suspend the sale of any of the Contracts, in whole or in part, or
to accept or reject any application for the sale of a Contract. The Company
agrees to notify the Fund, the Distributor and the Adviser promptly upon the
occurrence of any event the Company believes might necessitate a material
modification or suspension.
4.16. For purposes of this Article IV, the phrase "sales literature
or other promotional material" includes, but is not limited to, any material
constituting sales literature or advertising under the NASD rules, the 1940 Act
or the 1933 Act.
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<PAGE>
ARTICLE V. Voting of Fund Shares
---------------------
5.1. With respect to any matter put to vote by the holders of Fund
shares or Series shares ("Voting Shares"), to the extent required by law
(including the Exemptive Order referred to in Section 7.1 below) the Company
shall:
(a) solicit voting instructions from Contract Owners to which
Voting Shares are attributable;
(b) vote Voting Shares of each Series attributable to Contract
Owners participating in an account in accordance with instructions or
proxies timely received from such Contract Owners;
(c) vote Voting Shares of each Series attributable to Contract
Owners participating in an account for which no instructions have been
received in the same proportion as Voting Shares of such Series from
Contract Owners participating in an account for which instructions
have been timely received; and
(d) vote Voting Shares of each Series held by the Company on
behalf of the Account that are not attributable to Contract Owners in
the same proportion as Voting Shares of such Series from Contract
Owners paticipating in an account for which instructions have been
timely received;
(e) vote Voting Shares of each series held by the Company on its
behalf that are not attributable to Contract Owners in the same
proportions as Voting shares of such Series held by the Company's
Accounts in the aggregate.
provided, however, that if the SEC changes its interpretations of voting
privileges for variable contracts the Company may vote such shares in its own
right. The Company shall be responsible for assuring that voting privileges for
the Account are calculated in a manner consistent with the provisions set forth
above.
5.2. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either provide
for annual meetings or comply with Section 16(c) of the 1940 Act (although the
Fund is not one of the trusts described in Section 16(c) of that Act) as well as
with Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will
act in accordance with the Securities and Exchange Commission's interpretation
of the requirements of Section 16(a) with respect to periodic elections of
directors and with whatever rules the Commission may promulgate with respect
thereto.
ARTICLE VI. Compliance with Code
--------------------
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<PAGE>
6.1. The Fund shall comply with Section 817(h) of the Code, and all
regulations issued thereunder and shall notify the Company immediately upon
having a reasonable basis for believing that it has ceased to so qualify or that
it might not so qualify in the future.
6.2. The Fund shall maintain its qualification 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 it has ceased to so qualify or that it might not so
qualify in the future.
6.3. The Company shall maintain the treatment of the Contracts as
annuity contracts or life insurance policies, whichever is appropriate, under
applicable provisions of the Code and shall notify the Fund, the Distributor and
the Adviser immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not be so treated in
the future.
ARTICLE VII. Potential Conflicts
-------------------
7.1. The parties to this Agreement acknowledge that the Fund has
obtained an order of exemption from the SEC (the "Exemptive Order," File No.
812-9674) granting relief from various provisions of the 1940 Act and the rules
thereunder to the extent necessary to permit Fund shares to be sold to and held
by variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated Participating Insurance Companies and other
Qualified Persons (as defined in Section 2.9). The Fund hereby notifies the
Company that Contracts Prospectus disclosure regarding potential risks of such
mixed and shared funding may be appropriate.
7.2. The Fund Board shall monitor the existence of any material
irreconcilable conflict between the interests of Product Owners. The Fund Board
shall promptly inform the Company if it determines that a material
irreconcilable conflict exists and the implications thereof.
7.3. (a) The Company shall report any potential or existing
conflicts promptly to the Fund Board, and in particular whenever Contract
Owner voting instructions are disregarded, and recognizes that it shall be
responsible for assisting the Fund Board in carrying out its
responsibilities in connection with the Exemptive Order. The Company agrees
to carry out such responsibilities with a view only to the interests of
Contract Owners.
(b) The Company shall at least annually submit to the Fund
Board such reports, materials or data as the Fund Board may reasonably
request so that the Fund Board and the Fund may fully carry out the
obligations imposed upon them by the
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<PAGE>
conditions of the Exemptive Order, and such reports, material and data
shall be submitted more frequently if deemed appropriate by the Fund Board.
7.4. If a majority of the Fund Board, or a majority of its directors
who are not "interested persons" as defined in the 1940 Act ("Disinterested
Directors"), determines that a material irreconcilable conflict exists with
regard to Contract Owner investments in the Fund, the Fund Board shall give
prompt notice to all Participating Insurance Companies. If the Fund Board
determines that the Company is responsible in full or in part for causing or
creating said conflict, the Company (and other responsible Participating
Insurance Companies) shall at no cost and expense to the Fund, and to the extent
reasonably practicable (as determined by a majority of the Disinterested
Directors), take such action as is necessary to remedy or eliminate the
irreconcilable material conflict. Such necessary action may include, but shall
not be limited to:
(a) Withdrawing the assets allocable to the Account from the Fund
or any Series thereof and reinvesting such assets in a different investment
medium, or submitting the question of whether such segregation should be
implemented to a vote of all affected Contract Owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity Contract
Owners, life insurance Contract Owners, or other Product Owners) that votes
in favor of such segregation or offering to the affected Contract Owners the
option of making such a change; and
(b) Establishing a new registered management investment company.
7.5. If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard Contract Owner voting instructions and said
decision represents a minority position or would preclude a majority vote by all
Contract Owners having an interest in the Fund, the Company may be required, at
the Fund Board's election, to withdraw the Account's investment in the Fund and
terminate this Agreement with respect to such Account; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
Disinterested Directors. Any such withdrawal and termination must take place
within six (6) months after the Fund gives written notice that this provision is
being implemented, and until the end of that six month period the Adviser and
Fund shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund (subject to Section 2.1 above).
No charge or penalty will be imposed as a result of such withdrawal.
7.6. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the affected Account's investment in the Fund and terminate this
Agreement with respect to such Account within six months after the Board informs
the Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined
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<PAGE>
by a majority of the Disinterested Directors. Until the end of the foregoing six
month period, the Adviser and Fund shall continue to accept and implement orders
by the Company for the purchase (and redemption) of shares of the Fund (subject
to Section 2.1 above).
7.7. For purposes of this Article, a majority of the Disinterested
Directors shall determine whether or not any proposed action adequately remedies
any irreconcilable material conflict, but in no event shall the Fund be required
to bear the expense of establishing a new funding medium for any Contract. The
Company shall not be required by this Article to establish a new funding medium
for any Contract if an offer to do so has been declined by vote of a majority of
the Contract Owners materially adversely affected by the irreconcilable material
conflict. In the event that the Board determines that any proposed action does
not adequately remedy any irreconcilable material conflict, then the Company
will withdraw the Account's investment in the Fund 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 by any such material irreconcilable
conflict as determined by a majority of the Disinterested Directors.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provisions of the 1940 Act or the rules promulgated thereunder with respect to
mixed and shared funding on terms and conditions materially different from those
contained in the Exemptive Order, then (a) the Fund and/or the Company, as
appropriate, shall take such steps as may be necessary to comply with Rules 6e-2
and 6e-3(T), as amended, or Rule 6e-3, as adopted, as applicable, to the extent
such rules are applicable, and (b) Sections 7.2 through 7.7 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 shall indemnify and
------------------------------
hold harmless the Fund, the Adviser and the Distributer and each person who
controls the Fund, the Adviser or the Distributer within the meaning of such
terms under the 1933 Act (but not any Participating Insurance Companies or
Qualified Plans) and any officer, trustee, director, employee or agent of the
foregoing, against any and all losses, claims, damages or liabilities, joint or
several (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amounts paid with the written consent of
the Company in settlement of, any action, suit or proceeding or any claim
asserted), to which they or any of them may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities are related to the sale or acquisition of the Fund's shares or
the Contracts and:
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<PAGE>
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Contracts
Registration Statement, Contracts Prospectus, sales literature or other
promotional material for the Contracts or the Contracts themselves (or any
amendment or supplement to any of the foregoing), or 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 in light
of the circumstances in which they were made; provided that this obligation
to indemnify shall not apply if such statement or omission or such alleged
statement or alleged omission was made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of the
Fund, Distributor or Adviser for use in the Contracts Registration
Statement, Contracts Prospectus or in the Contracts or sales literature or
promotional material for the Contracts (or any amendment or supplement to
any of the foregoing) or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
(b) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the Fund Registration Statement, Fund
Prospectus or sales literature or other promotional material of the Fund (or
any amendment or supplement to any of the foregoing), 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 in light
of the circumstances in which they were made, if such statement or omission
was made in reliance upon and in conformity with information furnished in
writing to the Fund, the Distributor or the Adviser by or on behalf of the
Company; or
(c) arise out of or are based upon any wrongful conduct of the
Company or persons under its control (or subject to its authorization) with
respect to the sale or distribution of the Contracts or Fund shares; or
(d) arise as a result of any failure by the Company to provide
the services and furnish the materials or to make any payments as required
under this Agreement; or
(e) arise out of any material breach by the Company of this
Agreement.
This indemnification will be in addition to any liability that the Company may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.2. Indemnification by the Fund. The Fund shall indemnify and hold
---------------------------
harmless the Company and each person who controls the Company within the meaning
of such terms under the 1933 Act and any officer, director, employee or agent of
the foregoing, against any and all losses, claims, damages or liabilities, joint
or several (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amounts paid with the written
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<PAGE>
consent of the Fund in settlement of, any action, suit or proceeding or any
claim asserted), to which they or any of them may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities are related to the sale or acquisition of the
Fund's shares or the Contracts and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Fund
Registration Statement, Fund Prospectus or sales literature or other
promotional material of the Fund (or any amendment or supplement to any of
the foregoing), or 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 in light of the circumstances in which
they were made; provided that this obligation to indemnify shall not apply
if such statement or omission or alleged statement or alleged omission was
made in reliance upon and in conformity with information furnished in
writing to the Fund by or on behalf of the Company for use in the Fund
Registration Statement, Fund Prospectus or sales literature or promotional
material for the Fund (or any amendment or supplement to any of the
foregoing); or
(b) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the Contracts Registration Statement,
Contracts Prospectus or sales literature or other promotional material for
the Contracts (or any amendment or supplement to any of the foregoing), 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 in light of the circumstances in which they were made, if such
statement or omission was made in reliance upon information furnished in
writing by or on behalf of the Fund to the Company; or
(c) arise out of or are based upon wrongful conduct of the Fund
or persons under its control (or subject to its authorization) with respect
to the sale of Fund shares; or
(d) arise as a result of any failure by the Fund to provide the
services and furnish the materials required under the terms of this
Agreement; or
(e) arise out of any material breach by the Fund of this
Agreement (including any breach of Article VI of this Agreement).
This indemnification will be in addition to any liability that the Fund may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
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<PAGE>
8.3. Indemnification by the Adviser. The Adviser shall indemnify and
------------------------------
hold harmless the Company and each person who controls the Company within the
meaning of such term under the 1933 Act and any officer, director, employee or
agent of the foregoing, against any and all losses, claims, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid with the
written consent of the Adviser in settlement of, any action, suit or proceeding
or any claim asserted), to which they or any of them may become subject under
any statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities are related to the sale or acquisition of the
Fund's shares or the Contract and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Fund
Registration Statement, Fund Prospectus or sales literature or other
promotional material of the Fund (or any amendment or supplement to any of
the foregoing), or 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 in light of the circumstances in which
they were made; provided that this obligation to indemnify shall not apply
if such statement or omission or alleged statement or alleged omission was
made in reliance upon and in conformity with information furnished in
writing by or on behalf of the Company to the Fund or the Adviser for use in
the Fund Registration Statement, Fund Prospectus or sales literature or
promotional material for the Fund (or any amendment or supplement to any of
the foregoing); or
(b) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the Contracts Registration Statement,
Contracts Prospectus or sales literature or other promotional material for
the Contracts (or any amendment or supplement to any of the foregoing), 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 in light of the circumstances in which they were made, if such
statement or omission was made in reliance upon information furnished in
writing by or on behalf of the Adviser to the Company; or
(c) arise out of or are based upon wrongful conduct of the Fund
or the Adviser with respect to the sale of Fund shares; or
(d) arise as a result of any failure by the Fund or the Adviser
to provide the services and furnish the materials required under the terms
of this Agreement; or
(e) arise out of any material breach by the Fund or the Adviser
of this Agreement (including any breach of Article VI of this Agreement).
This indemnification will be in addition to any liability that the Adviser may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage
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<PAGE>
or liability is due to the willful misfeasance, bad faith, gross negligence or
reckless disregard of duty by the party seeking indemnification.
8.4. Indemnification by the Distributor. The Distributer shall
----------------------------------
indemnify and hold harmless the Company and each person who controls the Company
within the meaning of such term under the 1933 Act and any officer, director,
employee or agent of the foregoing, against any and all losses, claims, damages
or liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid with the
written consent of the Distributer in settlement of, any action, suit or
proceeding or any claim asserted), to which they or any of them may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities are related to the sale or
acquisition of the Fund's shares or the Contract and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Fund
Registration Statement, Fund Prospectus or sales literature or other
promotional material of the Fund (or any amendment or supplement to any of
the foregoing), or 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 in light of the circumstances in which
they were made; provided that this obligation to indemnify shall not apply
if such statement or omission or alleged statement or alleged omission was
made in reliance upon and in conformity with information furnished in
writing by or on behalf of the Company to the Fund, the Adviser or the
Distributor for use in the Fund Registration Statement, Fund Prospectus or
sales literature or promotional material for the Fund (or any amendment or
supplement to any of the foregoing); or
(b) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the Contracts Registration Statement,
Contracts Prospectus or sales literature or other promotional material for
the Contracts (or any amendment or supplement to any of the foregoing), 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 in light of the circumstances in which they were made, if such
statement or omission was made in reliance upon information furnished in
writing by or on behalf of the Distributor to the Company; or
(c) arise out of or are based upon wrongful conduct of the Fund
or the Distributer with respect to the sale of Fund shares; or
(d) arise as a result of any failure by the Distributor to
provide the services and furnish the materials required under the terms of
this Agreement; or
(e) arise out of any material breach by the Distributor of this
Agreement (including any breach of Article VI of this Agreement).
-18-
<PAGE>
This indemnification will be in addition to any liability that the Distributor
may otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
8.5. Indemnification Procedures. After receipt by a party entitled
--------------------------
to indemnification ("indemnified party") under this Article VIII of notice of
the commencement of any action, if a claim in respect thereof is to be made by
the indemnified party against any person obligated to provide indemnification
under this Article VIII ("indemnifying party"), such indemnified party will
notify the indemnifying party in writing of the commencement thereof as soon as
practicable thereafter, provided that the omission to so notify the indemnifying
party will not relieve it from any liability under this Article VIII, except to
the extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
the failure to give such notice. The indemnifying party, upon the request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel
and to participate in the defense of such proceeding, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment against the indemnified party, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment.
The amount of any indemnification due the Company by the Adviser or
the Distributor that is not satisfied by the Adviser or Distributor,
respectively, shall be satisfied by making adjustments to one or more of the
reinsurance treaties that exist between Life Insurance Company and M Life
Insurance Company. The manner in which such adjustments are made shall be
reasonably agreed to by Life Insurance Company and M Life Insurance Company.
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
--------------
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<PAGE>
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Maryland,
without giving effect to the principles of conflicts of law.
9.2. This Agreement shall be subject to the provisions of the 1933
Act, 1940 Act and Securities Exchange Act of 1934, as amended, and the rules and
regulations and rulings thereunder, including such exemptions from those
statutes, rules and regulations as the SEC may grant, and the terms hereof shall
be limited, interpreted and construed in accordance therewith.
ARTICLE X. Termination
-----------
10.1 This Agreement shall not terminate until the Fund is dissolved,
liquidated, or merged into another entity, or, as to any Series of the Fund, the
Account no longer invests in that Series. However, certain obligations of, or
restrictions on, the parties to this Agreement may terminate as provided in
Sections 10.2 and 10.3, and the Company may be required to redeem shares
pursuant to Section 10.4 or in the circumstances contemplated by Article VII.
10.2. Termination of the Fund's Obligation to Sell. The obligation
--------------------------------------------
of the Fund and the Distributor to sell shares to the Company pursuant to
Article II of this Agreement shall terminate at the option of the Fund or the
Distributor upon notice to the Company as provided below:
(a) the Fund Board has terminated the offering of Fund shares or
Series shares pursuant to Section 2.1 of this Agreement; or
(b) upon institution of formal proceedings against the Company by
the NASD, the SEC, the insurance commission of any state or any other
regulatory body regarding the Company's duties under this Agreement or
related to the sale of the Contracts, the operation of the Account, the
administration of the Contracts or the purchase of Fund shares, or an
expected or anticipated ruling, judgment or outcome which would, in the
Fund's reasonable judgment, materially impair the Company's ability to meet
and perform the Company's obligations and duties hereunder; or
(c) in the event any of the Contracts or interests in the
Contracts or Account, as applicable, are not registered, issued or sold in
accordance with applicable federal and/or state law; or
(d) if the Fund, the Adviser, or the Distributor respectively,
shall determine, in their sole judgment exercised in good faith, that either
(1) the Company shall have suffered a material adverse change in its
business or financial condition since the date of this Agreement or (2) the
Company shall have been the subject of material
-20-
<PAGE>
adverse publicity which is likely to have a material adverse impact upon
the business and operations of either the Fund, the Adviser or the
Distributor; or
(e) upon the Company's assignment of this Agreement (including,
without limitation, any transfer of any Contract or the Account to another
insurance company pursuant to an assumption reinsurance agreement) unless
the Fund consents thereto; or
(f) upon termination pursuant to Section 10.1 or notice from the
Company pursuant to Section 10.3.
Termination of the Fund's and Distributor's obligation shall take effect
immediately upon the giving of such notice upon the occurrence of an event
described in clauses (b) or (c) above, and 10 (ten) days after the giving of
such notice in all other cases. In exercising its option to terminate its
obligation to sell shares to the Company, the Fund and Distributor will continue
to make Fund shares available to the extent necessary to permit owners of
Contracts in effect on the effective date of such termination (hereinafter
referred to as "Existing Contracts") to reallocate investments in the Fund,
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts, unless the Existing
Contracts are the basis for the termination. In that case, the Fund may
nonetheless elect to continue to make Fund shares available for Existing
Contracts and if it so elects, shall promptly notify the Company whether the
Fund is electing to make Fund shares available after termination.
10.3. As to the Company. The restrictions on the Company under
-----------------
Section 2.8(a) of this Agreement shall terminate at the option of the Company
upon 10 days' notice to the Fund:
(a) if shares of any Series are not reasonably available to meet
the requirements of the Contracts as determined by the Company, and the
Distributor or the Fund, after receiving written notice from the Company of
such non-availability, fails to make available a sufficient number of Fund
shares to meet the requirements of the Contracts within 10 days after
receipt thereof; or
(b) upon institution of formal proceedings against the Fund or
the Distributor by the NASD, the SEC or any state securities or insurance
commission or any other regulatory body; or
(c) if the Fund ceases to qualify as a regulated investment
company under Subchapter M of the Code, or under any successor or similar
provision, or if the Company reasonably believes the Fund may fail to so
qualify, and the Fund, upon written request, fails to provide reasonable
assurance that it will take action to cure or correct such failure; or
-21-
<PAGE>
(d) if the Fund fails to meet the diversification requirements
specified in Section 817(h) of the Code and any regulations thereunder, and
the Fund, upon written request, fails to provide reasonable assurance that
it will take action to cure or correct such failure; or
(e) if the Fund informs the Company pursuant to Section 4.4 that
the Fund will not comply with investment restrictions as requested by the
Company, and the Fund and the Company are unable to agree upon any
reasonable alternative accommodations; or
(f) upon receipt by the Company of any necessary regulatory
approvals and any necessary vote of the Contract Owners having an interest
in the Account (or any subaccount) to substitute the shares of another
investment company for the corresponding Series shares of the Fund in
accordance with the terms of the Contracts for which those Series shares had
been selected to serve as the underlying investment media. The Company will
give 30 days' prior written notice to the Fund of the date of any proposed
vote or other action taken to replace the Fund's shares; or
(g) upon a material breach of any provision of this Agreement by
either the Fund, the Adviser or the Distributor; or
(h) if the Company determines in its sole judgment exercised in
good faith, that either the Fund, the Adviser or the Distributor has
suffered a material adverse change in its business, operations, or financial
conditions since the date of this Agreement or is the subject of material
adverse publicity which is likely to have a material adverse impact upon the
business and operations of the Company.
10.4. Company Required to Redeem. The parties understand and
--------------------------
acknowledge that it is essential for compliance with Section 817(h) of the Code
that the Contracts qualify as annuity contracts or life insurance policies, as
applicable, under the Code. Accordingly, if any of the Contracts cease to
qualify as annuity contracts or life insurance policies, as applicable, under
the Code, or if the Fund reasonably believes that any such Contracts may fail to
so qualify, the Fund shall have the right to require the Company to redeem
Shares attributable to such Contracts upon ten (10) days written notice to the
Company and the Company shall so redeem such Shares in order to ensure that the
Fund complies with the provisions of Section 817(h) of the Code applicable to
ownership of Fund Shares. Notice to the Company shall specify the period of
time the Company has to redeem the Shares or to make other arrangements
satisfactory to the Fund and its counsel, such period of time to be determined
with reference to the requirements of Section 817(h) of the Code. In addition,
the Company may be required to redeem Shares pursuant to action taken or request
made by the Fund Board in accordance with an order of the SEC as described in
Article VII, or other SEC rule, regulation or order that may be adopted after
the date hereof. The Company agrees to redeem Shares in such circumstances and
to comply with applicable terms and provisions.
-22-
<PAGE>
ARTICLE XI. Applicability to New Accounts and New Contracts
-----------------------------------------------
The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect, as appropriate, changes in or relating
to the Contracts, or Series or funding vehicles thereof, additions of new
classes of Contracts to be issued by the Company and separate accounts therefor
investing in the Fund. The provisions of this Agreement shall be equally
applicable to each such class of Contracts, Series and Accounts, effective as of
the date of amendment of such Schedule, unless the context otherwise requires.
ARTICLE XII. Notice, Request or Consent
--------------------------
Any notice, request or consent to be provided pursuant to this
Agreement is to be made in writing and shall be given:
If to the Fund:
M Fund, Inc.
River Park Center
205 S.E. Spokane Street
Portland, Oregon 97202
Attn: President
If to the Adviser:
M Financial Investment Advisers, Inc.
River Park Center
205 S.E. Spokane Street
Portland, Oregon 97202
Attn: President
If to the Company:
Pacific Life Insurance Company
700 Newport Center Drive
Newport Beach, California 92660
Attn: Variable Regulatory Compliance
If to the Distributor:
M Holdings Securities, Inc
River Park Center
205 SE Spokane Street
Portland, OR 97202
-23-
<PAGE>
Attn: President
or at such other address as such party may from time to time specify in writing
to the other party. Each such notice, request or consent to a party shall be
sent by registered or certified United States mail with return receipt
requested, by overnight delivery with a nationally recognized courier or by
electronically transmitted facsimile, and shall be effective upon receipt or
three days after mailing.
ARTICLE XIII. Miscellaneous
-------------
13.1. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
13.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which together shall constitute one and the same
instrument.
13.3. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
13.4. Subject to the requirement of legal process and regulatory
authority, each party hereto shall treat as if confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement shall not disclose, disseminate, or utilize such
names and addresses and other confidential information until such time as it may
come into the public domain without the express written consent of the affected
party.
13.5. 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.
-24-
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized officer
on the date specified below.
PACIFIC LIFE INSURANCE COMPANY
(Company)
By: /s/ GLENN S. SCHAFER
Name: Glenn S. Schafer
Title: President
By: /s/ JAMES T. MORRIS
Name: James T. Morris
Title: Senior Vice President
M FUND, INC.
(Fund)
By: /s/ DANIEL F. BYRNE
Name: Daniel F. Byrne
Title: President
M FINANCIAL INVESTMENT ADVISERS, INC.
(Adviser)
By: /s/ DANIEL F. BYRNE
Name: Daniel F. Byrne
Title: President
M HOLDINGS SECURITIES, INC.
By: /s/ BRIDGET MCNAMARA
Name: Bridget McNamara
Title: President
M LIFE INSURANCE COMPANY
By: /s/ DANIEL F. BYRNE
Name: Daniel F. Byrne
Title: Senior VP
-25-
<PAGE>
Schedule 1
----------
Accounts of the Company
Investing in the Fund
Effective as of the date the Agreement was executed, the following separate
accounts of the Company are subject to the Agreement:
<TABLE>
<CAPTION>
=======================================================================================================================
Name of Account and Date Established by SEC 1940 Act Type of Product
Subaccounts Board of Directors of Registration Number Supported by Account
the Company (if applicable)
=======================================================================================================================
<S> <C> <C> <C>
Pacific Select Exec May 12, 1988 811-05563 Variable Life Policies
- -----------------------------------------------------------------------------------------------------------------------
Brandes International
Equity Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Turner Core Growth
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Enhanced U.S. Equity
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Pacific COLI July 17, 1992 Variable Life Policies
- -----------------------------------------------------------------------------------------------------------------------
Brandes International
Equity Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Turner Core Growth
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Enhanced U.S. Equity
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Pacific COLI II October 12, 1998 Variable Life Policies
- -----------------------------------------------------------------------------------------------------------------------
Brandes International
Equity Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Turner Core Growth
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Enhanced U.S. Equity
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Pacific COLI III October 12, 1998 Variable Life Policies
- -----------------------------------------------------------------------------------------------------------------------
Brandes International
Equity Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Turner Core Growth
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Frontier Capital Appreciation
Variable Account
- -----------------------------------------------------------------------------------------------------------------------
Enhanced U.S. Equity
Variable Account
=======================================================================================================================
</TABLE>
<PAGE>
Schedule 2
----------
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Effective as of the date the Agreement was executed, the following classes of
Contracts are subject to the Agreement:
<TABLE>
<CAPTION>
Policy Marketing Name SEC 1933 Act Name of Supporting Annuity or Life
Registration Number Account
(if applicable)
=======================================================================================================================
<S> <C> <C> <C>
Pacific Select Exec 33-21754 Pacific Select Exec Life
- -----------------------------------------------------------------------------------------------------------------------
Pacific Select Choice 33-57908 Pacific Select Exec Life
- -----------------------------------------------------------------------------------------------------------------------
Pacific Select Estate Preserver 333-01717 Pacific Select Exec Life
- -----------------------------------------------------------------------------------------------------------------------
Pacific Select Estate Preserver II 333-20355 Pacific Select Exec Life
- -----------------------------------------------------------------------------------------------------------------------
Pacific Select Estate Maximizer 333-14005 Pacific Select Exec Life
- -----------------------------------------------------------------------------------------------------------------------
M's Versatile Product 333-61135 Pacific Select Exec Life
- -----------------------------------------------------------------------------------------------------------------------
Custom COLI Pacific COLI Life
- -----------------------------------------------------------------------------------------------------------------------
Custom COLI Rider Pacific COLI Life
- -----------------------------------------------------------------------------------------------------------------------
Custom COLI II Pacific COLI II Life
- -----------------------------------------------------------------------------------------------------------------------
Custom COLI III Pacific COLI III Life
=======================================================================================================================
</TABLE>
<PAGE>
Schedule 3
----------
Fund Series and Other Funding
Vehicles Available Under
Each Class of Contracts
Effective as of the date the Agreement was executed, the following Fund Series
and other Funding Vehicles are available under the Contracts:
<TABLE>
<CAPTION>
=====================================================================================================================
Contract Marketing Name Fund Series Other Funding Vehicles
=====================================================================================================================
<S> <C> <C>
M Fund Brandes International Equity Fund Pacific Select Fund
- ---------------------------------------------------------------------------------------------------------------------
M Fund Turner Core Growth Fund Pacific Select Fund
- ---------------------------------------------------------------------------------------------------------------------
M Fund Frontier Capital Appreciation Fund Pacific Select Fund
- ---------------------------------------------------------------------------------------------------------------------
M Fund Enhanced U.S. Equity Fund Pacific Select Fund
=====================================================================================================================
</TABLE>
<PAGE>
Schedule 4
----------
Investment Restrictions
Applicable to the Fund
Effective as of the date the Agreement was executed, the following investment
restrictions are applicable to the Fund:
Foreign Country Diversification Guidelines to be followed by each portfolio of a
Separate Account are as follows:
An International or Global Portfolio will invest in the securities of issuers
domiciled or primarily traded in at least three different foreign countries at
all times, and may not invest more than 50% of the Portfolio's assets in any one
second tier country or more than 25% of the Portfolio's assets in any one third
tier country. First tier countries are: Australia, Canada, France, Germany,
Japan, the United Kingdom, and the United States. Second tier countries are all
countries not in the first or third tier. Third tier countries are countries
identified as "emerging" or "developing" by the International Bank for
Reconstruction and Development ("World Bank") or International Finance
Corporation. The Portfolio is not subject to any limit upon investment in
issuers domiciled or primarily traded in the United States.
Borrowing Guidelines to be followed by each portfolio of a Separate Account are
as follows:
A Portfolio may leverage its assets by borrowing amounts equivalent to no more
than 33 1/3% of its total assets. For purposes of this limitation, entering
into a reverse repurchase agreement shall be considered a "borrowing".
<PAGE>
EXHIBIT 7.(a)
[LETTERHEAD OF PACIFIC LIFE]
March 1, 2000
PACIFIC LIFE INSURANCE COMPANY
700 Newport Center Drive
Newport Beach, CA 92660
RE: Pacific Select Estate Preserver Last Survivor Flexible Premium Variable
Life Insurance Policy
To whom it may concern:
In my capacity as Assistant Vice President of the Product Design Department of
Pacific Life Insurance Company, I have provided actuarial advice concerning:
The preparation of the Post-Effective Amendment No. 6 of the Registration
Statement on Form S-6 filed by Pacific Life Insurance Company with the
Securities and Exchange Commission under the Securities Act of 1933 with respect
to variable life insurance policies (the "Registration Statement") and the
preparation of the policy forms for the variable life insurance policies
described in the Registration Statement (the "Policies").
It is my professional opinion that:
The illustration of death benefits, cash values and accumulated premiums shown
in this Post-Effective Amendment No. 6 to the Registration Statement on Form S-6
as Exhibit 7(b), based on the assumptions used in the illustrations, are
consistent with the provisions of the Policies. The rate structure of the
Policies has not been designed so as to make the relationship between premiums
and benefits, as shown in the illustrations, appear to be correspondingly more
favorable to the prospective Insureds of the policies at ages 55 in the
underwriting classes illustrated than to prospective Insureds of Policies at
other ages or underwriting classes.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/ LAWRENCE M. HERSH
- ----------------------------
Lawrence M. Hersh, FSA, MAAA
Assistant Vice President
<PAGE>
EXHIBIT 7.(b)
<TABLE>
<CAPTION>
ILLUSTRATIONS
<S> <C>
--------------------------------------------------------------------------------
SEP Illustration 1 Illustration 1
Option A Death benefit Option A at current cost of insurance rates
Male 55, Female 55 Select Non-Smoker Based on average annual advisory fees and expenses of the portfolios
Current at 87bp
DEATH BENEFIT OPTION:A
FACE AMOUNT:$1,500,000
MALE SELECT NONSMOKER ISSUE AGE 55
FEMALE SELECT NONSMOKER ISSUE AGE 55
GUIDELINE PREMIUM TEST
ANNUAL PREMIUM:$32,132
--------------------------------------------------------------------------------
Flexible premium survivorship Total
variable universal life premiums
Illustration of death benefits, accumulated End of paid plus End of year DEATH BENEFIT assuming
values and net cash surrender values. policy interest at hypothetical gross annual investment return of
year 5% 0% 6% 12%
All premium payments are illustrated as if -------------------------------------------------------------------------------
made at the beginning of the policy year. 1 $33,738 $1,500,000 $1,500,000 $1,500,000
2 $69,163 $1,500,000 $1,500,000 $1,500,000
This illustration assumes no policy loans or 3 $106,360 $1,500,000 $1,500,000 $1,500,000
partial withdrawals have been made. 4 $145,416 $1,500,000 $1,500,000 $1,500,000
5 $186,425 $1,500,000 $1,500,000 $1,500,000
The death benefits, accumulated values and 6 $229,485 $1,500,000 $1,500,000 $1,500,000
cash surrender values will differ if 7 $274,697 $1,500,000 $1,500,000 $1,500,000
premiums are paid in different amounts or 8 $322,170 $1,500,000 $1,500,000 $1,500,000
frequencies. 9 $372,017 $1,500,000 $1,500,000 $1,500,000
10 $424,356 $1,500,000 $1,500,000 $1,500,000
The hypothetical investment rates shown 15 $728,023 $1,500,000 $1,500,000 $1,500,000
above and elsewhere in this prospectus 20 $1,115,587 $1,500,000 $1,500,000 $1,985,411
are illustrative only and should not be 25 $1,610,229 $1,500,000 $1,500,000 $3,482,411
interpreted as a representation of past or 30 $2,241,530 $1,500,000 $1,951,747 $6,040,324
future investment results. Actual rates of 35 $3,047,247 $1,500,000 $2,644,610 $10,257,439
return may be more or less than those -------------------------------------------------------------------------------
shown and will depend on a number of End of year End of year
factors, including the investment ACCUMULATED VALUE NET CASH SURRENDER VALUE
allocations made to variable accounts by End of assuming hypothetical gross assuming hypothetical gross
the owner and the experience of the policy annual investment return of annual investment return of
accounts. No representation can be made by year 0% 6% 12% 0% 6% 12%
us, the separate account or the fund that --------------------------------------------------------------------------------
these hypothetical rates of return can be 1 $26,517 $28,175 $29,835 $14,164 $15,823 $17,483
achieved for any one year or sustained 2 $52,518 $57,481 $62,644 $41,538 $46,501 $51,664
over any period of time. 3 $77,978 $87,940 $98,712 $68,371 $78,332 $89,105
4 $102,871 $119,574 $138,360 $94,636 $111,339 $130,125
This is an illustration only. An 5 $127,165 $152,407 $181,942 $120,303 $145,545 $175,079
illustration is not intended to predict 6 $150,943 $186,581 $229,974 $145,453 $181,091 $224,484
actual performance. Interest rates, 7 $174,410 $222,362 $283,143 $170,293 $218,245 $279,025
dividends, and values set forth in the 8 $197,600 $259,862 $342,036 $194,855 $257,117 $339,291
illustration are not guaranteed. 9 $220,517 $299,164 $407,275 $219,145 $297,792 $405,903
10 $243,164 $340,360 $479,551 $243,164 $340,360 $479,551
15 $366,096 $594,135 $994,975 $366,096 $594,135 $994,975
20 $479,417 $914,011 $1,855,524 $479,417 $914,011 $1,855,524
25 $577,141 $1,327,999 $3,316,582 $577,141 $1,327,999 $3,316,582
30 $629,332 $1,858,806 $5,752,690 $629,332 $1,858,806 $5,752,690
35 $569,426 $2,518,676 $9,768,990 $569,426 $2,518,676 $9,768,990
--------------------------------------------------------------------------------
1
</TABLE>
<PAGE>
<TABLE>
<S> <C>
--------------------------------------------------------------------------------
SEP Illustration 2 Illustration 2
Option A Death benefit Option A at guaranteed cost of insurance rates
Male 55, Female 55 Select Non-Smoker Based on average annual advisory fees and expenses of the portfolios
Guar. At 87bp
DEATH BENEFIT OPTION:A
FACE AMOUNT:$1,500,000
MALE SELECT NONSMOKER ISSUE AGE 55
FEMALE SELECT NONSMOKER ISSUE AGE 55
GUIDELINE PREMIUM TEST
ANNUAL PREMIUM:$32,132
--------------------------------------------------------------------------------
Flexible premium survivorship Total
variable universal life premiums
Illustration of death benefits, accumulated End of paid plus End of year DEATH BENEFIT assuming
values and net cash surrender values. policy interest at hypothetical gross annual investment return of
year 5% 0% 6% 12%
All premium payments are illustrated as if --------------------------------------------------------------------------------
made at the beginning of the policy year. 1 $33,738 $1,500,000 $1,500,000 $1,500,000
2 $69,163 $1,500,000 $1,500,000 $1,500,000
This illustration assumes no policy loans 3 $106,360 $1,500,000 $1,500,000 $1,500,000
or partial withdrawals have been made. 4 $145,416 $1,500,000 $1,500,000 $1,500,000
5 $186,425 $1,500,000 $1,500,000 $1,500,000
*Additional payment will be required to 6 $229,485 $1,500,000 $1,500,000 $1,500,000
prevent policy termination. 7 $274,697 $1,500,000 $1,500,000 $1,500,000
8 $322,170 $1,500,000 $1,500,000 $1,500,000
The death benefits, accumulated values and 9 $372,017 $1,500,000 $1,500,000 $1,500,000
cash surrender values will differ if 10 $424,356 $1,500,000 $1,500,000 $1,500,000
premiums are paid in different amounts or 15 $728,023 $1,500,000 $1,500,000 $1,500,000
frequencies. 20 $1,115,587 $1,500,000 $1,500,000 $1,893,209
25 $1,610,229 $1,500,000 $1,500,000 $3,306,356
The hypothetical investment rates shown 30 $2,241,530 $0* $1,532,721 $5,663,361
above and elsewhere in this prospectus are 35 $3,047,247 $0* $2,063,280 $9,387,115
illustrative only and should not be --------------------------------------------------------------------------------
interpreted as a representation of past or End of year End of year
future investment results. Actual rates of ACCUMULATED VALUE NET CASH SURRENDER VALUE
return may be more or less than those shown End of assuming hypothetical gross assuming hypothetical gross
and will depend on a number of factors, policy annual investment return of annual investment return of
including the investment allocations made year 0% 6% 12% 0% 6% 12%
to variable accounts by the owner and --------------------------------------------------------------------------------
the experience of the accounts. No 1 $26,500 $28,158 $29,818 $14,148 $15,806 $17,466
representation can be made by us, the 2 $52,450 $57,410 $62,569 $41,470 $46,430 $51,589
separate account or the fund that these 3 $77,816 $87,767 $98,530 $68,209 $78,160 $88,922
hypothetical rates of return can be 4 $102,568 $119,248 $138,010 $94,333 $111,013 $129,775
achieved for any one year or sustained 5 $126,669 $151,866 $181,351 $119,807 $145,003 $174,489
over any period of time. 6 $150,194 $185,752 $229,058 $144,704 $180,262 $223,568
7 $172,959 $220,784 $281,426 $168,842 $216,666 $277,309
This is an illustration only. An 8 $194,884 $256,939 $338,901 $192,139 $254,194 $336,156
illustration is not intended to predict 9 $215,855 $294,172 $401,969 $214,482 $292,800 $400,597
actual performance. Interest rates, 10 $235,747 $332,430 $471,183 $235,747 $332,430 $471,183
dividends, and values set forth in the 15 $328,250 $553,953 $955,520 $328,250 $553,953 $955,520
illustration are not guaranteed. 20 $366,031 $800,661 $1,769,354 $366,031 $800,661 $1,769,354
25 $283,809 $1,082,454 $3,148,911 $283,809 $1,082,454 $3,148,911
30 $0* $1,459,734 $5,393,677 $0* $1,459,734 $5,393,677
35 $0* $1,965,029 $8,940,110 $0* $1,965,029 $8,940,110
--------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
ILLUSTRATIONS
<S> <C>
--------------------------------------------------------------------------------
SEP Illustration 3 Illustration 3
Option A Death benefit Option A at current cost of insurance rates
Male 55, Female 55 Select Non-Smoker Based on average annual advisory fees and expenses of the portfolios
Current at 69 bp
DEATH BENEFIT OPTION:A
FACE AMOUNT:$1,500,000
MALE SELECT NONSMOKER ISSUE AGE 55
FEMALE SELECT NONSMOKER ISSUE AGE 55
GUIDELINE PREMIUM TEST
ANNUAL PREMIUM:$32,132
--------------------------------------------------------------------------------
Flexible premium survivorship Total
variable universal life premiums
Illustration of death benefits, accumulated End of paid plus End of year DEATH BENEFIT assuming
values and net cash surrender values. policy interest at hypothetical gross annual investment return of
year 5% 0% 6% 12%
All premium payments are illustrated as if --------------------------------------------------------------------------------
made at the beginning of the policy year. 1 $33,738 $1,500,000 $1,500,000 $1,500,000
2 $69,163 $1,500,000 $1,500,000 $1,500,000
This illustration assumes no policy loans 3 $106,360 $1,500,000 $1,500,000 $1,500,000
or partial withdrawals have been made. 4 $145,416 $1,500,000 $1,500,000 $1,500,000
5 $186,425 $1,500,000 $1,500,000 $1,500,000
The death benefits, accumulated values and 6 $229,485 $1,500,000 $1,500,000 $1,500,000
cash surrender values will differ if 7 $274,697 $1,500,000 $1,500,000 $1,500,000
premiums are paid in different amounts or 8 $322,170 $1,500,000 $1,500,000 $1,500,000
frequencies. 9 $372,017 $1,500,000 $1,500,000 $1,500,000
10 $424,356 $1,500,000 $1,500,000 $1,500,000
The hypothetical investment rates shown 15 $728,023 $1,500,000 $1,500,000 $1,500,000
above and elsewhere in this prospectus 20 $1,115,587 $1,500,000 $1,500,000 $2,035,138
are illustrative only and should not be 25 $1,610,229 $1,500,000 $1,500,000 $3,595,990
interpreted as a representation of past or 30 $2,241,530 $1,500,000 $2,021,031 $6,286,356
future investment results. Actual rates of 35 $3,047,247 $1,500,000 $2,756,349 $10,762,976
return may be more or less than those --------------------------------------------------------------------------------
shown and will depend on a number of End of year End of year
factors, including the investment ACCUMULATED VALUE NET CASH SURRENDER VALUE
allocations made to variable accounts by End of assuming hypothetical gross assuming hypothetical gross
the owner and the experience of the policy annual investment return of annual investment return of
accounts. No representation can be made by year 0% 6% 12% 0% 6% 12%
us, the separate account or the fund that --------------------------------------------------------------------------------
these hypothetical rates of return can be 1 $26,567 $28,229 $29,892 $14,214 $15,876 $17,539
achieved for any one year or sustained 2 $52,666 $57,644 $62,822 $41,686 $46,664 $51,842
over any period of time. 3 $78,268 $88,272 $99,092 $68,661 $78,665 $89,484
4 $103,347 $120,143 $139,035 $95,112 $111,908 $130,800
This is an illustration only. An 5 $127,871 $153,285 $183,025 $121,009 $146,423 $176,162
illustration is not intended to predict 6 $151,921 $187,846 $231,598 $146,431 $182,356 $226,108
actual performance. Interest rates, 7 $175,699 $224,098 $285,463 $171,582 $219,981 $281,345
dividends, and values set forth in the 8 $199,240 $262,161 $345,236 $196,495 $259,416 $342,491
illustration are not guaranteed. 9 $222,547 $302,127 $411,571 $221,174 $300,754 $410,198
10 $245,621 $344,094 $485,194 $245,621 $344,094 $485,194
15 $371,296 $603,783 $1,012,945 $371,296 $603,783 $1,012,945
20 $488,321 $934,225 $1,901,998 $488,321 $934,225 $1,901,998
25 $590,855 $1,366,417 $3,424,752 $590,855 $1,366,417 $3,424,752
30 $649,357 $1,924,791 $5,987,006 $649,357 $1,924,791 $5,987,006
35 $599,346 $2,625,094 $10,250,454 $599,346 $2,625,094 $10,250,454
--------------------------------------------------------------------------------
3
</TABLE>
<PAGE>
<TABLE>
<S> <C>
--------------------------------------------------------------------------------
SEP Illustration 4 Illustration 4
Option A Death benefit Option A at guaranteed cost of insurance rates
Male 55, Female 55 Select Non-Smoker Based on average annual advisory fees and expenses of the portfolios
Guaranteed at 69 bp
DEATH BENEFIT OPTION:A
FACE AMOUNT:$1,500,000
MALE SELECT NONSMOKER ISSUE AGE 55
FEMALE SELECT NONSMOKER ISSUE AGE 55
GUIDELINE PREMIUM TEST
ANNUAL PREMIUM:$32,132
--------------------------------------------------------------------------------
Flexible premium survivorship Total
variable universal life premiums
Illustration of death benefits, accumulated End of paid plus End of year DEATH BENEFIT assuming
values and net cash surrender values. policy interest at hypothetical gross annual investment return of
year 5% 0% 6% 12%
All premium payments are illustrated as if --------------------------------------------------------------------------------
made at the beginning of the policy year. 1 $33,738 $1,500,000 $1,500,000 $1,500,000
2 $69,163 $1,500,000 $1,500,000 $1,500,000
This illustration assumes no policy loans 3 $106,360 $1,500,000 $1,500,000 $1,500,000
or partial withdrawals have been made. 4 $145,416 $1,500,000 $1,500,000 $1,500,000
6 $229,485 $1,500,000 $1,500,000 $1,500,000
*Additional payment will be required to 7 $274,697 $1,500,000 $1,500,000 $1,500,000
prevent policy termination. 8 $322,170 $1,500,000 $1,500,000 $1,500,000
9 $372,017 $1,500,000 $1,500,000 $1,500,000
The benefits, accumulated values and 10 $424,356 $1,500,000 $1,500,000 $1,500,000
cash surrender values will differ if 15 $728,023 $1,500,000 $1,500,000 $1,500,000
premiums are paid in different amounts or 20 $1,115,587 $1,500,000 $1,500,000 $1,943,369
frequencies. 25 $1,610,229 $1,500,000 $1,500,000 $3,418,433
30 $2,241,530 $0* $1,625,730 $5,900,680
The hypothetical investment rates shown 35 $3,047,247 $0* $2,196,935 $9,859,972
above and elsewhere in this prospectus --------------------------------------------------------------------------------
are illustrative only and should not be End of year End of year
interpreted as a representation of past or ACCUMULATED VALUE NET CASH SURRENDER VALUE assuming
future investment results. Actual rates of End of assuming hypothetical gross hypothetical gross
return may be more or less than those shown policy annual investment return of annual investment return of
and will depend on a number of factors, year 0% 6% 12% 0% 6% 12%
including the investment allocations made --------------------------------------------------------------------------------
to variable accounts by the owner and 1 $26,550 $28,212 $29,874 $14,198 $15,859 $17,522
the experience of the accounts. No 2 $52,597 $57,572 $62,748 $41,617 $46,592 $51,768
representation can be made by us, the 3 $78,106 $88,100 $98,909 $68,498 $78,492 $89,302
separate account or the fund that these 4 $103,044 $119,817 $138,684 $94,809 $111,582 $130,449
hypothetical rates of return can be 5 $127,374 $152,742 $182,433 $120,512 $145,880 $175,570
achieved for any one year or sustained 6 $151,169 $187,014 $230,678 $145,679 $181,524 $225,188
over any period of time. 7 $174,245 $222,515 $283,741 $170,127 $218,398 $279,623
8 $196,518 $259,232 $342,094 $193,773 $256,487 $339,349
This is an illustration only. An 9 $217,874 $297,124 $406,255 $216,502 $295,752 $404,882
illustration is not intended to predict 10 $238,188 $336,149 $476,814 $238,188 $336,149 $476,814
actual performance. Interest rates, 15 $333,355 $563,563 $973,605 $333,355 $563,563 $973,605
dividends, and values set forth in the 20 $374,696 $821,269 $1,816,232 $374,696 $821,269 $1,816,232
illustration are not guaranteed. 25 $297,341 $1,125,252 $3,255,650 $297,341 $1,125,252 $3,255,650
30 $0* $1,548,314 $5,619,696 $0* $1,548,314 $5,619,696
35 $0* $2,092,319 $9,390,450 $0* $2,092,319 $9,390,450
--------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
EXHIBIT 9
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints David R. Carmichael, Sharon A. Cheever, Diane N.
Ledger, Jeffrey S. Puretz, Jane A. Kanter, Keith T. Robinson and Robin Yonis
Sandlaufer his/her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution for him/her in his/her name, place, and
stead, in any and all Registration Statements applicable to Pacific Select
Separate Account of Pacific Life Insurance Company, Pacific Select Exec Separate
Account of Pacific Life Insurance Company, Pacific Select Variable Annuity
Separate Account of Pacific Life Insurance Company, Separate Account A of
Pacific Life Insurance Company, Separate Account B of Pacific Life Insurance
Company and Pacific Corinthian Variable Separate Account of Pacific Life
Insurance Company and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: February 22, 2000 /s/ TC SUTTON
Thomas C. Sutton
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints David R. Carmichael, Sharon A. Cheever, Diane N.
Ledger, Jeffrey S. Puretz, Jane A. Kanter, Keith T. Robinson and Robin Yonis
Sandlaufer his/her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution for him/her in his/her name, place, and
stead, in any and all Registration Statements applicable to Pacific Select
Separate Account of Pacific Life Insurance Company, Pacific Select Exec Separate
Account of Pacific Life Insurance Company, Pacific Select Variable Annuity
Separate Account of Pacific Life Insurance Company, Separate Account A of
Pacific Life Insurance Company, Separate Account B of Pacific Life Insurance
Company and Pacific Corinthian Variable Separate Account of Pacific Life
Insurance Company and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: February 22, 2000 /s/ GLENN S. SCHAFER
Glenn S. Schafer
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints David R. Carmichael, Sharon A. Cheever, Diane N.
Ledger, Jeffrey S. Puretz, Jane A. Kanter, Keith T. Robinson and Robin Yonis
Sandlaufer his/her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution for him/her in his/her name, place, and
stead, in any and all Registration Statements applicable to Pacific Select
Separate Account of Pacific Life Insurance Company, Pacific Select Exec Separate
Account of Pacific Life Insurance Company, Pacific Select Variable Annuity
Separate Account of Pacific Life Insurance Company, Separate Account A of
Pacific Life Insurance Company, Separate Account B of Pacific Life Insurance
Company and Pacific Corinthian Variable Separate Account of Pacific Life
Insurance Company and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: February 22, 2000 /s/ DAVID R. CARMICHAEL
David R. Carmichael
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints David R. Carmichael, Sharon A. Cheever, Diane N.
Ledger, Jeffrey S. Puretz, Jane A. Kanter, Keith T. Robinson and Robin Yonis
Sandlaufer his/her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution for him/her in his/her name, place, and
stead, in any and all Registration Statements applicable to Pacific Select
Separate Account of Pacific Life Insurance Company, Pacific Select Exec Separate
Account of Pacific Life Insurance Company, Pacific Select Variable Annuity
Separate Account of Pacific Life Insurance Company, Separate Account A of
Pacific Life Insurance Company, Separate Account B of Pacific Life Insurance
Company and Pacific Corinthian Variable Separate Account of Pacific Life
Insurance Company and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: February 22, 2000 /s/ AUDREY L. MILFS
Audrey L. Milfs
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints David R. Carmichael, Sharon A. Cheever, Diane N.
Ledger, Jeffrey S. Puretz, Jane A. Kanter, Keith T. Robinson and Robin Yonis
Sandlaufer his/her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution for him/her in his/her name, place, and
stead, in any and all Registration Statements applicable to Pacific Select
Separate Account of Pacific Life Insurance Company, Pacific Select Exec Separate
Account of Pacific Life Insurance Company, Pacific Select Variable Annuity
Separate Account of Pacific Life Insurance Company, Separate Account A of
Pacific Life Insurance Company, Separate Account B of Pacific Life Insurance
Company and Pacific Corinthian Variable Separate Account of Pacific Life
Insurance Company and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: February 22, 2000 /s/ KHANH T. TRAN
Khanh T. Tran
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints David R. Carmichael, Sharon A. Cheever, Diane N.
Ledger, Jeffrey S. Puretz, Jane A. Kanter, Keith T. Robinson and Robin Yonis
Sandlaufer his/her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution for him/her in his/her name, place, and
stead, in any and all Registration Statements applicable to Pacific Select
Separate Account of Pacific Life Insurance Company, Pacific Select Exec Separate
Account of Pacific Life Insurance Company, Pacific Select Variable Annuity
Separate Account of Pacific Life Insurance Company, Separate Account A of
Pacific Life Insurance Company, Separate Account B of Pacific Life Insurance
Company and Pacific Corinthian Variable Separate Account of Pacific Life
Insurance Company and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: February 22, 2000 /s/ EDWARD R. BYRD
Edward R. Byrd
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints David R. Carmichael, Sharon A. Cheever, Diane N.
Ledger, Jeffrey S. Puretz, Jane A. Kanter, Keith T. Robinson and Robin Yonis
Sandlaufer his/her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution for him/her in his/her name, place, and
stead, in any and all Registration Statements applicable to Pacific Select
Separate Account of Pacific Life Insurance Company, Pacific Select Exec Separate
Account of Pacific Life Insurance Company, Pacific Select Variable Annuity
Separate Account of Pacific Life Insurance Company, Separate Account A of
Pacific Life Insurance Company, Separate Account B of Pacific Life Insurance
Company and Pacific Corinthian Variable Separate Account of Pacific Life
Insurance Company and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: February 22, 2000 /s/ BRIAN D. KLEMENS
Brian D. Klemens
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints David R. Carmichael, Sharon A. Cheever, Diane N.
Ledger, Jeffrey S. Puretz, Jane A. Kanter, Keith T. Robinson and Robin Yonis
Sandlaufer his/her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution for him/her in his/her name, place, and
stead, in any and all Registration Statements applicable to Pacific Select
Separate Account of Pacific Life Insurance Company, Pacific Select Exec Separate
Account of Pacific Life Insurance Company, Pacific Select Variable Annuity
Separate Account of Pacific Life Insurance Company, Separate Account A of
Pacific Life Insurance Company, Separate Account B of Pacific Life Insurance
Company and Pacific Corinthian Variable Separate Account of Pacific Life
Insurance Company and any amendments or supplements thereto, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: February 22, 2000 /s/ LYNN C. MILLER
Lynn C. Miller
