Exhibit (8)(d)
FUND PARTICIPATION AGREEMENT
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This Fund Participation Agreement (the "Agreement"), effective as of
December 31, 2007, is made by and among Pruco Life Insurance Company
("Company"), JPMorgan Insurance Trust (the "Trust"), the Trust's investment
advisor, JPMorgan Investment Advisors Inc. (the "Adviser"), and the Trust's
administrator, JPMorgan Funds Management, Inc. (the "Administrator").
WHEREAS, the Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established by insurance companies for individual and group life insurance
policies and annuity contracts with variable accumulation and/or pay-out
provisions (hereinafter referred to individually and/or collectively as
"Variable Insurance Products");
WHEREAS, insurance companies desiring to utilize the Trust as an investment
vehicle under their Variable Insurance Products are required to enter into
participation agreements with the Trust and the Administrator (the
"Participating Insurance Companies");
WHEREAS, shares of the Trust are divided into several series of shares, each
representing the interest in a particular managed portfolio of securities and
other assets, any one or more of which may be made available for Variable
Insurance Products of Participating Insurance Companies;
WHEREAS, the Trust intends to offer shares of the series set forth on
Schedule B (each such series hereinafter referred to as a "Portfolio") as may
be amended from time to time by mutual agreement of the parties hereto under
this Agreement to the accounts of the Company specified on Schedule A
(hereinafter referred to individually as an "Account," collectively, the
"Accounts");
WHEREAS, the Trust has obtained an order from the Securities and Exchange
Commission, granting the Trust exemptions from the provisions of Sections 9(a),
13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended
(hereinafter the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Trust to be sold to
and held by Variable Insurance Product separate accounts of both affiliated and
unaffiliated insurance companies (hereinafter the "Shared Funding Exemptive
Order");
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act");
WHEREAS, the Adviser is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and any applicable state
securities laws;
WHEREAS, the Adviser is the investment adviser of the Portfolios of the
Trust;
WHEREAS, the Company has registered certain Variable Insurance Products
under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, each Account intends to purchase shares of the Portfolios to fund
certain of the aforesaid Variable Insurance Products and the Trust is
authorized to sell such shares to each such Account at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, the Adviser, and the Administrator agree as follows:
Article 1
The Contracts
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1. The Company represents that it has established each of the Accounts
specified on Schedule A as a separate account under Arizona law, and has
registered each such Account as a unit investment trust under the 1940 Act
to serve as an investment vehicle for variable annuity contracts and/ or
variable life
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contracts offered by the Company (the "Contracts"). The Contracts provide
for the allocation of net amounts received by the Company to separate
divisions of the Account for investment in the shares of the Portfolios.
Selection of a particular division is made by the Contract owner who may
change such selection from time to time in accordance with the terms of the
applicable Contract. The Company agrees to make every reasonable effort to
market its Contracts. In marketing its Contracts, the Company will comply
with all applicable state or Federal laws.
Article 2
Trust Shares
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2.1. The Trust agrees to make available for purchase by the Company
shares of the Portfolios and shall execute orders placed for each Account on
a daily basis at the net asset value next computed after receipt by the
Trust or its designee of such order. For purposes of this Section 2.1, the
Company shall be the designee of the Trust for receipt of such orders from
the Account and receipt by such designee shall constitute receipt by the
Trust; provided that the Trust's designated transfer agent receives notice
of such order by 10:00 a.m. Eastern Time on the next following Business Day
("Trade Date plus 1"). Notwithstanding the foregoing, the Company shall use
its best efforts to provide the Trust's designated transfer agent with
notice of such orders by 9:30 a.m. Eastern Time on Trade Date plus 1.
"Business Day" shall mean any day on which the New York Stock Exchange is
open for trading and on which the Trust calculates its net asset value
pursuant to the rules of the Securities and Exchange Commission, as set
forth in the Trust's prospectus and statement of additional information.
Notwithstanding the foregoing, the Board of Trustees of the Trust
(hereinafter the "Board") may refuse to permit the Trust to sell shares of
any Portfolio to any person, or suspend or terminate the offering of shares
of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of their fiduciary duties under federal
and any applicable state laws, necessary in the best interests of the
shareholders of such Portfolio.
2.2. The Trust agrees that shares of the Trust will be sold only to
Participating Insurance Companies for their Variable Insurance Products and,
in the Trust's discretion, to qualified pension and retirement plans. No
shares of any Portfolio will be sold to the general public.
2.3. The Trust agrees to redeem for cash, on the Company's request, any
full or fractional shares of the Trust held by an Account, executing such
requests on a daily basis at the net asset value next computed after receipt
by the Trust or its designee of the request for redemption. For purposes of
this Section 2.3, the Company shall be the designee of the Trust for receipt
of requests for redemption from each Account and receipt by such designee
shall constitute receipt by the Trust; provided that the Trust's designated
transfer agent receives notice of such request for redemption on Trade Date
plus 1 in accordance with the timing rules described in Section 2.1.
2.4. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Trust shall be made in
accordance with the provisions of such prospectus. The Accounts of the
Company, under which amounts may be invested in the Trust are listed on
Schedule A attached hereto and incorporated herein by reference, as such
Schedule A may be amended from time to time by mutual written agreement of
all of the parties hereto.
2.5. The Company will place separate orders to purchase or redeem shares
of each Portfolio. Each order shall describe the net amount of shares and
dollar amount of each Portfolio to be purchased or redeemed. In the event of
net purchases, the Company shall pay for Portfolio shares on Trade Date plus
1. Payment shall be in federal funds transmitted by wire. In the event of
net redemptions, the Portfolio shall pay the redemption proceeds in federal
funds transmitted by wire by 2:00 p.m. Eastern Time on Trade Date plus 1.
Notwithstanding the foregoing, if the payment of redemption proceeds on the
next Business Day would require the Portfolio to dispose of Portfolio
securities or otherwise incur substantial additional costs, and if the
Portfolio has determined to settle redemption transactions for all
shareholders on a delayed basis, proceeds shall be wired to the Company
within seven (7) days and the Portfolio shall notify in writing the person
designated by the Company as the recipient for such notice of such delay by
3:00 p.m. Eastern Time on Trade Date plus 1.
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2.6. Issuance and transfer of the Trust's shares will be by book entry
only. Share certificates will not be issued to the Company or any Account.
Shares ordered from the Trust will be recorded in an appropriate title for
each Account or the appropriate subaccount of each Account.
2.7. On each record date, the Administrator shall use its best efforts to
furnish same day notice by 6:30 p.m. Eastern Time (by wire, telephone,
electronic media or by fax) to the Company of any dividends or capital gain
distributions payable on the Trust's shares. The Company hereby elects to
receive all such dividends and capital gain distributions as are payable on
the Portfolio shares in additional shares of that Portfolio. The Company
reserves the right to revoke this election and to receive all such dividends
and capital gain distributions in cash. The Trust shall notify the Company
of the number of shares so issued as payment of such dividends and
distributions.
2.8. The Administrator shall make the net asset value per share of each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use
its best efforts to make such net asset value per share available by 6:30
p.m. Eastern Time. In the event that the Administrator is unable to meet the
6:30 p.m. time stated immediately above, then the Administrator shall
provide the Company with additional time to notify the Administrator of
purchase or redemption orders pursuant to Sections 2.1 and 2.3,
respectively, above. Such additional time shall be equal to the additional
time that the Administrator takes to make the net asset values available to
the Company.
2.9. If the Administrator provides materially incorrect share net asset
value information through no fault of the Company, the Company shall be
entitled to an adjustment with respect to the Trust shares purchased or
redeemed to reflect the correct net asset value per share as subsequently
determined by the Administrator. The determination of the materiality of any
net asset value pricing error shall be based on the Trust's policy for
correction of pricing errors (the "Pricing Policy"). The Company shall
correct such error in its records and in the records prepared by it for
Contract owners in accordance with information provided by the
Administrator. Any material error in the calculation or reporting of net
asset value per share, dividend or capital gain information shall be
reported promptly upon discovery to the Company.
2.10 The Administrator shall provide information to the Company of the
amount of shares traded and the associated cost per share (NAV) total trade
amount and the outstanding share balances held by the Account in each
Portfolio as of the end of each Business Day. Such information will be
furnished (electronically or by fax) by 1:00 p.m. Eastern time on the next
Business Day.
2.11 Contract Owner Information
2.11(a) Agreement to Provide Information. Company agrees to provide the
Fund, or its designee, upon written request, the taxpayer identification
number ("TIN"), the Individual/International Taxpayer Identification Number
("ITIN"), or other government-issued identifier ("GII"), and the Contract
owner number or participant account number associated with the Shareholder,
if known, of any or all Shareholder(s) of the account, and the amount, date
and transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an
Insurance Company Fund Account maintained by the Company during the period
covered by the request. Unless otherwise specifically requested by the Fund,
the Intermediary shall only be required to provide information relating to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions.
(i) Period Covered by Request. Requests must set forth a specific
period, not to exceed one year from the date of the request, for which
transaction information is sought. A request may be ongoing and
continuous (e.g., for each trading day throughout the year) or for
specified periods of time. A Portfolio may request transaction
information older than one year from the date of the request as it deems
necessary to investigate compliance with policies established by the
Portfolio for the purpose of eliminating or reducing market timing and
abusive trading practices.
(ii) Form and Timing of Response. Company agrees to provide, promptly
upon request of the Fund or its designee, the requested information
specified in 3(a). If requested by the Fund, or its
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designee, Company agrees to use best efforts to determine promptly
whether any specific person about whom it has received the
identification and transaction information specified in 3(a) is itself a
financial intermediary ("indirect intermediary") and, upon further
request of the Fund, or its designee, promptly either (i) provide (or
arrange to have provided) the information set forth in 3(a) for those
shareholders who hold an account with an indirect intermediary or
(ii) restrict or prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued by the Fund.
Company additionally agrees to inform the Fund whether it plans to
perform (i) or (ii). (b) Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the Fund
or its designee and the Company; and (c) To the extent practicable, the
format for any transaction information provided to the Fund should be
consistent with the NSCC Standardized Data Reporting Format.
(iii) Limitations on Use of Information. The Fund agrees not to use the
information received pursuant to this Amendment for any purpose other
than as necessary to comply with the provisions of Rule 22c-2 or to
fulfill other regulatory or legal requirements subject to the privacy
provisions of Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (Public Law 106-102)
and comparable state laws.
2.11(b) Agreement to Restrict Trading. Company agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the Fund as
having engaged in transactions of the Fund's Shares (directly or indirectly
through the Insurance Company Fund Account) that violate policies
established by the Fund for the purpose of eliminating or reducing market
timing and abusive trading practices. Unless otherwise directed by the Fund,
any such restrictions or prohibitions shall only apply to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions that are effected directly or indirectly through Company.
Instructions must be received by us at the following address, or such other
address that Company may communicate to you in writing from time to time,
including, if applicable, an e-mail and/or facsimile telephone number:
(i)Form of Instructions. Instructions to restrict or prohibit trading
must include the TIN, ITIN, or GII and the specific individual
Contract owner number or participant account number associated with
the Shareholder, if known, and the specific restriction(s) to be
executed, including how long the restriction(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual contract
owner number or participant account number associated with the
Shareholder is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or other
agreed upon information to which the instruction relates.
(ii)Timing of Response. Company agrees to execute instructions as soon as
reasonably practicable, but not later than five Business Days after
receipt of the instructions by the Company.
iii)Confirmation by Intermediary. Company must provide written
confirmation to the Fund that instructions have been executed.
Company agrees to provide confirmation as soon as reasonably
practicable, but not later than ten business days after the
instructions have been executed.
2.11 (c) Definitions. For purposes of this Section 2.11:
(i) The term "Insurance Company Fund Account" means an omnibus account
with the Fund maintained by Company.
(ii) The term "Fund" includes JPMorgan Distribution Services, Inc., which
is the Trust's principal underwriter; the Trust's transfer agent and the
series of the Trust listed in the Agreement.
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(iii) The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by the Fund under the
Investment Company Act that are held by or through an Insurance Company Fund
Account.
(iv) The term "Shareholder" means the holder of interests in a variable
annuity or variable life insurance contract issued by the Company
("Contract"), or a participant in an employee benefit plan with a beneficial
interest in a Contract.
(v) The term "Shareholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Shareholder that results in a
transfer of assets within a Contract to a Fund, but does not include
transactions that are executed: (a) automatically pursuant to a contractual
or systematic program or enrollment such as transfer of assets within a
Contract to a Fund as a result of "dollar cost averaging" programs,
insurance company approved asset allocation programs, or automatic
rebalancing programs; (b) pursuant to a Contract death benefit; (c) one-time
step-up in Contract value pursuant to a Contract death benefit;
(d) allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, retirement plan
salary reduction contributions, or planned premium payments to the Contract;
or (e) pre- arranged transfers at the conclusion of a required free look
period.
(vi) The term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that results in a
transfer of assets within a Contract out of a Fund, but does not include
transactions that are executed: (a) automatically pursuant to a contractual
or systematic program or enrollments such as transfers of assets within a
Contract out of a Fund as a result of annuity payouts, loans, systematic
withdrawal programs, insurance company approved asset allocation programs
and automatic rebalancing programs; (b) as a result of any deduction of
charges or fees under a Contract; (c) within a Contract out of a Fund as a
result of scheduled withdrawals or surrenders from a Contract; or (d) as a
result of payment of a death benefit from a Contract.
(vii) The term "written" and/or "in writing" within this Section 2.11 or
any Section of this Agreement includes electronic writings and facsimile
transmissions.
(viii) The term "Financial Intermediary" shall mean a "financial
intermediary" as defined in 22c-2 of the Investment Company Act.
(ix) The term "purchase" does not include the automatic reinvestment of
dividends.
(x) The term "promptly" as used in 3(a)(ii) shall mean as soon as
practicable but in no event later than 10 business days from the Company's
receipt of the request for information from the Fund or its designee.
Article 3
Prospectuses, Reports to Shareholders and Proxy Statements, Voting
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3.1. The Trust shall provide the Company with as many printed copies of
the Trust's current prospectuses as the Company may reasonably request. The
Administrator will provide the Company with a copy of the statement of
additional information suitable for duplication. If requested by the
Company, in lieu of providing printed copies, the Trust shall provide
camera-ready film or computer diskettes containing the Trust's prospectuses
and statement of additional information in order for the Company once each
year (or more frequently if the prospectuses and/or statement of additional
information for the Trust is amended during the year) to have the
prospectuses for the Contracts and the applicable Trust prospectuses printed
together in one document or separately. The Company may elect to print the
Trust's prospectuses and/or its statement of additional information in
combination with other investment companies' prospectuses and statements of
additional information.
3.2(a). The Company will deliver or cause to be delivered to each of its
Contract owners, at or prior to the time of purchase of any Portfolio
shares, a copy of such Portfolio's prospectus and, upon request, a copy
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of its statement of additional information. Except as otherwise provided in
this Section 3.2, all expenses of preparing, setting in type and printing
and distributing Trust prospectuses and statements of additional information
shall be the expense of the Company. For prospectuses and statements of
additional information provided by the Company to its existing owners of
Contracts in order to update disclosure as required by the 1933 Act and/or
the 1940 Act, the cost of setting in type, printing and distributing shall
be borne by the Trust. If the Company chooses to receive camera-ready film
or computer diskettes in lieu of receiving printed copies of the Trust's
prospectus and/or statement of additional information, the Trust shall bear
the cost of typesetting to provide the Trust's prospectus and/or statement
of additional information to the Company in the format in which the Trust is
accustomed to formatting prospectuses and statements of additional
information, respectively, and the Company shall bear the expense of
adjusting or changing the format to conform with any of its prospectuses
and/or statements of additional information. In such event, the Trust will
reimburse the Company in an amount equal to the product of x and y where x
is the number of such prospectuses distributed to owners of the Contracts,
and y is the Trust's per unit cost of printing the Trust's prospectuses. The
same procedures shall be followed with respect to the Trust's statement of
additional information. The Trust shall not pay any costs of typesetting,
printing and distributing the Trust's prospectus and/or statement of
additional information to prospective Contract owners.
3.2(b). The Trust, at the Company's expense, shall provide the Company
with copies of Annual and Semi-Annual Reports (the "Reports") in such
quantity as the Company shall reasonably require for distributing to
Contract owners. The Trust, at its expense, shall provide the Contract
owners designated by the Company with copies of its proxy statements and
other communications to shareholders (except for prospectuses and statements
of additional information, which are covered in Section 3.2(a) above, and
Reports). The Trust is responsible for the costs of distributing its proxy
statements to Contract owners designated by the Company to whom voting
privileges are required to be extended. The Trust shall not pay any costs of
distributing Reports and other communications to prospective Contract owners.
3.2(c). The Company agrees to provide the Trust or its designee with such
information as may be reasonably requested by the Trust to assure that the
Trust's expenses do not include the cost of typesetting, printing or
distributing any of the foregoing documents other than those actually
distributed to existing Contract owners.
3.2(d). Except as otherwise provided in this Agreement, the Trust shall
pay no fee, other compensation or other expenses under this Agreement. The
Trust may, however, pay the Company servicing fees under a written servicing
agreement for certain Portfolios pursuant to the services plan it has
adopted. In addition, the Trust has adopted a plan pursuant to Rule 12b-1 to
finance distribution expenses for certain Portfolios, and the Trust's
distributor may pay fees under such plan to the Company or to a designated
affiliate under a separate written agreement between such parties.
3.2(e). All expenses, including expenses to be borne by the Trust
pursuant to Section 3.2 hereof, incident to performance by the Trust under
this Agreement shall be paid by the Trust. The Trust shall see to it that
all its shares are registered and authorized for issuance in accordance with
applicable federal law and, if and to the extent deemed advisable by the
Trust, in accordance with applicable state laws prior to their sale. The
Trust shall bear the expenses for the cost of registration and qualification
of the Trust's shares.
3.3. If and to the extent required by law, the Company shall with respect
to proxy material distributed by the Trust to Contract owners designated by
the Company to whom voting privileges are required to be extended:
(i) solicit voting instructions from Contract owners;
(ii) vote the Trust shares in accordance with instructions received
from Contract owners; and
(iii)vote Trust shares for which no instructions have been received in
the same proportion as Trust shares of such Portfolio for which
instructions have been received, so long as and to the extent
that the Securities and Exchange Commission continues to
interpret the 1940 Act to require pass-through voting privileges
for variable contract owners.
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The Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law. The parties
anticipate that, in the event of a proxy solicitation by the Trust normally
the mailing of the proxy materials and the related tabulation of the results
will be coordinated by the Trust or its designee and, in order to assist the
Trust in this process, the Company will provide to the Trust, at the
Company's own expense, adequate electronic files so that Trust may make
proper solicitations of Contract owners. The electronic files will be in a
mutually acceptable format and will contain Contract owner registration
information, mailing information, and the number of shares of each
applicable Portfolio in which each Contract owner has an interest on the
record date. The Trust will provide reasonable notice to the Company of the
record date so that the Company may provide these electronic files within a
reasonable time after the record date to the Trust. If the electronic files
provided by the Company to the Trust are not adequate, the Company agrees
that it will cooperate fully with the Trust in order to provide adequate
electronic files.
Article 4
Sales Material and Information
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4.1. The Company shall furnish, or shall cause to be furnished, to the
Trust, the Adviser or their designee, drafts of the separate accounts
prospectuses and statements of additional information and each piece of
sales literature or other promotional material prepared by the Company or
any person contracting with the Company to prepare such material in which
the Trust, the Adviser or the Administrator is described, at least ten
Business Days prior to its use. No such material shall be used if the Trust,
the Adviser, the Administrator or their designee reasonably objects to such
use within ten Business Days after receipt of such material.
4.2. Neither the Company nor any person contracting with the Company to
prepare sales literature or other promotional material shall give any
information or make any representations or statements on behalf of the Trust
or concerning the Trust in connection with the sale of the Contracts other
than the information or representations contained in the registration
statement or Trust prospectus, as such registration statement or Trust
prospectus may be amended or supplemented from time to time, or in reports
to shareholders or proxy statements for the Trust, or in sales literature or
other promotional material approved by the Trust or its designee, except
with the permission of the Trust or its designee.
4.3. The Administrator shall furnish, or shall cause to be furnished, to
the Company or its designee, each piece of sales literature or other
promotional material prepared by the Trust in which the Company or its
Accounts, are described at least ten Business Days prior to its use. No such
material shall be used if the Company or its designee reasonably objects to
such use within ten Business Days after receipt of such material.
4.4. Neither the Trust, the Administrator, nor the Adviser shall give any
information or make any representations on behalf of the Company or
concerning the Company, each Account, or the Contracts, other than the
information or representations contained in a registration statement or
prospectus for the Contracts, as such registration statement or prospectus
may be amended or supplemented from time to time, or in published reports or
solicitations for voting instruction for each Account which are in the
public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other promotional material approved by the
Company or its designee, except with the permission of the Company.
4.5. The Trust will provide to the Company, upon its request, at least
one complete copy of all registration statements, prospectuses, statements
of additional information, reports, proxy statements, applications for
exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to the Trust or its shares, promptly after the filing of
such document with the Securities and Exchange Commission or other
regulatory authorities.
4.6. The Company will provide to the Trust, upon the Trust's request, at
least one complete copy of all registration statements, prospectuses,
statements of additional information, reports, solicitations for voting
instructions, sales literature and other promotional materials, applications
for exemptions, requests for no action letters, and all amendments to any of
the above, that relate to the investment in an Account or Contract, prior to
with the filing of such documents with the Securities and Exchange
Commission or other regulatory authorities.
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4.7. For purposes of this Article 4, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following: advertisements (such as material published, or designed for use
in, a newspaper, magazine, or other periodical, radio, television, internet,
telephone or tape recording, videotape, display, signs or billboards, motion
pictures, or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), and educational or
training materials or other communications distributed or made generally
available to some or all agents or employees.
4.8. The Company and its agents shall make no representations concerning
the Trust except those contained in the then-current prospectus and
statement of additional information of the Trust and in current printed
sales literature of the Trust.
Article 5
Administrative Services to Contract Owners
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5. Administrative services to Contract owners shall be the responsibility
of the Company and shall not be the responsibility of the Trust, the Adviser
or the Administrator. The Company, the Trust and the Administrator recognize
that the Account(s) will be the sole shareholder(s) of Trust shares issued
pursuant to the Contracts.
Article 6
Representations and Warranties
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6.1. The Trust represents that it believes, in good faith, that each
Portfolio is currently qualified as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code")
and that it will make every effort to maintain such qualification of the
Trust and that it will notify the Company immediately upon having a
reasonable basis for believing that a Portfolio has ceased to so qualify or
that it might not so qualify in the future.
6.2. The Company represents that it believes, in good faith, that the
Contracts will at all times be treated as annuity contracts under applicable
provisions of the Code, and that it will make every effort to maintain such
treatment and that it will notify the Trust 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.
6.3. The Trust represents that it believes, in good faith, that the
Portfolios will at all times comply with the diversification requirements
set forth in Section 817(h) of the Code and Section 1.817-5(b) of the
regulations under the Code, and that it will make every effort to maintain
the Trust's compliance with such diversification requirements, and that it
will notify the Company immediately upon having a reasonable basis for
believing that a Fund has ceased to so qualify or that a Portfolio might not
so qualify in the future.
6.4. The Company represents and warrants that the interests of the
Contracts are or will be registered unless exempt and that it will maintain
such registration under the 1933 Act and the regulations thereunder to the
extent required by the 1933 Act and that the Contracts will be issued and
sold in compliance with all applicable federal and state laws and
regulations. The Company also represents and warrants that the Portfolios
will be sold in accordance with such Portfolio's current prospectus. The
Company further represents and warrants that it is an insurance company duly
organized and in good standing under applicable law and that it has legally
and validly established each Account prior to any issuance or sale thereof
as a segregated asset account under the Arizona Insurance Code and the
regulations thereunder and has registered or, prior to any issuance or sale
of the Contracts, will maintain the registration of each Account as a unit
investment trust in accordance with and to the extent required by the
provisions of the 1940 Act and the regulations thereunder, unless exempt
therefrom, to serve as a segregated investment account for the Contracts.
The Company shall amend its registration statement for its Contracts under
the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts.
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6.5. The Company represents that it believes, in good faith, that the
Account is a "segregated asset account" and that interests in the Account
are offered exclusively through the purchase of a "variable contract,"
within the meaning of such terms under Section 1.817-5(f)(2) of the
regulations under the Code, and that it will make every effort to continue
to meet such definitional requirements, and that it will notify the Trust
immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they might not be met in the
future.
6.6. The Trust represents and warrants that it is and shall continue to
be at all times covered by a blanket fidelity bond or similar coverage for
the benefit of the Trust in an amount no 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. Such bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company.
The Trust will notify the Company immediately upon having a reasonable basis
for believing that the Trust no longer has the coverage required by this
Section 6.6.
6.7. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other entities dealing with
the money or securities of the Trust are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit
of the Trust, in an amount not less than five million dollars ($5,000,000).
Such bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company. The Company agrees to make all
reasonable efforts to see that this bond or another bond containing these
provisions is always in effect and agrees to notify the Trust immediately
upon having a reasonable basis for believing that the Company no longer has
the coverage required by this Section 6.7.
6.8. The Trust represents that a majority of its disinterest trustees
have approved the Trust's distribution plan adopted pursuant to Rule 12b-1
under the ▇▇▇▇ ▇▇▇.
6.9. The Adviser and the Administrator each represents and warrants that
it complies with all applicable federal and state laws and regulations and
that it will perform its obligations for the Trust and the Company in
compliance with the laws and regulations of its state of domicile and any
applicable state and federal laws and regulations.
Article 7
Statements and Reports
----------------------
7.1. The Administrator or its designee will make available electronically
to the Company within five (5) Business Days after the end of each month a
monthly statement of account confirming all transactions made during that
month in the Account.
7.2. The Trust and Administrator agree to provide the Company no later
than March 1 of each year with the investment advisory and other expenses of
the Trust incurred during the Trust's most recently completed fiscal year,
to permit the Company to fulfill its prospectus disclosure obligations under
the SEC's variable annuity fee table requirements.
Article 8
Potential Conflicts
-------------------
8.1. The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the Contract owners of all
Accounts investing in the Trust. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in
- 9 -
which the investments of any Portfolio are being managed; (e) a difference
in voting instructions given by variable annuity contract owners and
variable life insurance Contract owners; or (f) a decision by a
Participating Insurance Company to disregard the voting instructions of
contract owners. The Board shall promptly inform the Company if it
determines that an irreconcilable material conflict exists and the
implications thereof.
8.2. The Company will report in writing any potential or existing
material irreconcilable conflict of which it is aware to the Administrator.
Upon receipt of such report, the Administrator shall report the potential or
existing material irreconcilable conflict to the Board. The Administrator
shall also report to the Board on a quarterly basis whether the Company has
reported any potential or existing material irreconcilable conflicts during
the previous calendar quarter. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever Contract owner voting
instructions are disregarded.
8.3. If it is determined by a majority of the Board, or a majority of its
disinterested trustees, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense
and to the extent reasonably practicable (as determined by a majority of the
disinterested trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including:
(1) withdrawing the assets allocable to some or all of the separate accounts
from the Trust or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Trust, or submitting the question 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 policy owners, or variable contract owners of one or
more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of
making such a change; and (2) establishing a new registered management
investment company or managed separate account. No charge or penalty will be
imposed as a result of such withdrawal. The Company agrees that it bears the
responsibility to take remedial action in the event of a Board determination
of an irreconcilable material conflict and the cost of such remedial action,
and these responsibilities will be carried out with a view only to the
interests of Contract owners.
8.4. If a material irreconcilable conflict arises because of a decision
by the Company to disregard Contract owner voting instructions and that
decision represents a minority position or would preclude a majority vote,
the Company may be required, at the Trust's election, to withdraw the
affected Account's investment in the Trust and terminate this Agreement with
respect to such Account (at the Company's expense); 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 members of the Board. No charge or penalty will be
imposed as a result of such withdrawal. The Company agrees that it bears the
responsibility to take remedial action in the event of a Board determination
of an irreconcilable material conflict and the cost of such remedial action,
and these responsibilities will be carried out with a view only to the
interests of Contract owners.
8.5. For purposes of Sections 8.3 through 8.4 of this Agreement, a
majority of the disinterested members of the Board shall determine whether
any proposed action adequately remedies any irreconcilable material
conflict, but in no event will the Trust be required to establish a new
funding medium for the Contracts. The Company shall not be required by
Section 8.3 through 8.4 to establish a new funding medium for the Contracts
if an offer to do so has been declined by vote of a majority of Contract
owners materially adversely affected by the irreconcilable material conflict.
8.6. If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940
Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from
any provision of the 1940 Act or the rules promulgated thereunder with
respect to mixed or shared funding (as defined in the Shared Funding
Exemptive Order) on terms and conditions materially different from those
contained in the Shared Funding Exemptive Order, then the Trust and/or the
Participating Insurance Companies, as appropriate, shall take such steps as
may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule
6e-3, as adopted, to the extent such rules are applicable.
- 10 -
8.7. Each of the Company and the Adviser shall at least annually submit
to the Board such reports, materials or data as the Board may reasonably
request so that the Board may fully carry out the obligations imposed upon
them by the provisions hereof and in the Shared Funding Exemptive Order, and
said reports, materials and data shall be submitted more frequently if
deemed appropriate by the Board. Without limiting the generality of the
foregoing or the Company's obligations under Section 8.2, the Company shall
provide to the Administrator a written report to the Board no later than
January 15 /th/ of each year indicating whether any material irreconcilable
conflicts have arisen during the prior fiscal year of the Trust. All reports
received by the Board of potential or existing conflicts, and all Board
action with regard to determining the existence of a conflict, notifying
Participating Insurance Companies of a conflict, and determining whether any
proposed action adequately remedies a conflict, shall be properly recorded
in the minutes of the Board or other appropriate records, and such minutes
or other records shall be made available to the Securities and Exchange
Commission upon request.
Article 9
Indemnification
---------------
9.1. Indemnification By The Company
9.1 (a). The Company agrees to indemnify and hold harmless the Trust, the
Administrator, the Adviser, and each member of their respective Boards and
officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 9.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Company) or litigation (including legal and other expenses), to which
the Indemnified Parties may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the Trust's shares or the Contracts
and:
(i)arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration
statement or prospectus for the Contracts or contained in the
Contracts or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished to the
Company by or on behalf of the Trust for use in the registration
statement or prospectus for the Contracts or in the Contracts or
sales literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Trust shares; or
(ii)arise out of or as a result of statements or representations (other
than statements or representations contained in the registration
statement, prospectus or sales literature of the Trust not supplied
by the Company, or persons under its control and other than
statements or representations authorized by the Trust) or unlawful
conduct of the Company or persons under its control, with respect to
the sale or distribution of the Contracts or Trust shares; or
(iii)arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or sales literature of the Trust or any amendment thereof
or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading if such a statement or
omission was made in reliance upon and in conformity with information
furnished to the Trust by or on behalf of the Company; or
(iv)arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this Agreement;
or
- 11 -
(v)arise out of or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Company; as limited by and in accordance with the provisions of
Section 9.1(b) and 9.1(c) hereof.
9.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement.
9.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Company of any such claim shall not relieve the Company from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the Company
shall be entitled to participate, at as own expense, in the defense of such
action. The Company also shall be entitled to assume the defense thereof,
with counsel satisfactory to the Indemnified Party named in the action.
After notice from the Company to such Indemnified Party of the Company's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Company
shall not be liable to such Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other than reasonable
costs of investigation.
9.1(d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Trust shares or the Contracts or the
operation of the Trust.
9.2. Indemnification by Administrator
9.2(a). The Administrator agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 9.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Administrator) or
litigation (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 expenses (or actions
in respect thereof) or settlements:
(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 Trust (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the 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
Trust or the Administrator by or on behalf of the Company, the
Adviser, Counsel for the Trust, the independent public accountant to
the Trust, or any person or entity that is not acting as agent for or
controlled by the Administrator for use in the registration statement
or prospectus for the Trust or in sales literature (or any amendment
or supplement) or otherwise for use in connection with the sale of
the Contracts or Portfolio shares; or
(ii)arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or sales literature covering the
- 12 -
Contracts, or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission was
made in reliance upon information furnished to the Company by or on
behalf of the Administrator; or
(iii)arise as a result of any failure by the Administrator to provide the
services and furnish the materials under the terms of this Agreement;
or
(iv)arise out of or result from any material breach of any representation
and/or warranty made by the Administrator in this Agreement or arise
out of or result from any other material breach of this Agreement by
the Administrator; as limited by and in accordance with the
provisions of Section 9.2(b) and 9.2(c) hereof.
9.2(b). The Administrator shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement.
9.2(c). The Administrator shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Administrator 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 Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Administrator of any such claim shall not relieve the Administrator from any
liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified
Parties, the Administrator will be entitled to participate, at its own
expense, in the defense thereof. The Administrator also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified
Party named in the action. After notice from the Administrator to such
Indemnified Party of the Administrator'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 Administrator will not be liable
to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof other than reasonable costs of
investigation.
9.2(d). The Company agrees promptly to notify the Administrator of the
commencement of any litigation or proceedings against it or any of its
Indemnified Parties in connection with the issuance or sale of the Contracts
or the operation of each Account in which the Portfolios are made available.
9.3. Indemnification by the Adviser
9.3(a). The Adviser agrees to indemnify and hold harmless the Company and
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (hereinafter collectively,
the "Indemnified Parties" and individually, "Indemnified Party," for
purposes of this Section 9.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Adviser) or litigation (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
expenses (or actions in respect thereof) or settlements:
(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 Trust (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified Party if such
statement or
- 13 -
omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Adviser or
the Trust by or on behalf of the Company, the Administrator, Counsel
for the Trust, the independent public accountant to the Trust, or any
person or entity that is not acting as agent for or controlled by the
Adviser for use in the registration statement or prospectus for the
Trust or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Portfolio shares; or
(ii)arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or sales literature covering the Contracts, or any
amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of the Adviser;
or
(iii)arise as a result of any failure by the Adviser to provide the
services and furnish the materials under the terms of this Agreement;
or
(iv)arise out of or result from any material breach of any representation
and/or warranty made by the Adviser in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Adviser; as limited by and in accordance with the provisions of
Section 9.3(b) and 9.3(c) hereof.
9.3(b). The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement.
9.3(c). The Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Adviser 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 Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Adviser of any such claim shall not relieve the Adviser from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the Adviser will
be entitled to participate, at its own expense, in the defense thereof. The
Adviser also shall be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnified Party named in the action. After notice from
the Adviser to such Indemnified Party of the Adviser'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 Adviser will not be liable
to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof other then reasonable costs of
investigation.
9.3(d). The Company agrees to promptly notify the Adviser of the
commencement of any litigation or proceedings against it or any of
Indemnified Parties in connection with this Agreement, the issuance or sale
of the Contracts, with respect to the operation of each Account, or the sale
or acquisition of shares of the Trust.
9.4. Indemnification by the Trust
9.4(a). The Trust agrees to indemnify and hold harmless the Company and
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (hereinafter collectively,
the "Indemnified Parties" and individually, "Indemnified Party," for
purposes of this Section 9.4) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Trust) or litigation (including legal and other expenses) to which
the Indemnified
- 14 -
Parties may become subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions
in respect thereof) or settlements:
(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 Trust (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the 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 the
Trust by or on behalf of the Adviser, the Company, or the
Administrator for use in the registration statement or prospectus for
the Trust or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Portfolio shares; or
(ii)arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or sales literature covering the Contracts, or any
amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of the Trust; or
(iii)arise as a result of any failure by the Trust to provide the services
and furnish the materials under the terms of this Agreement; or
(iv)arise out of or result from any material breach of any representation
and/or warranty made by the Trust in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Trust; as limited by and in accordance with the provisions of
Section 9.4(b) and 9.4(c) hereof.
9.4(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement.
9.4(c). The Trust shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust 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 Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Trust of any such claim shall not relieve the Trust from any liability which
it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any
such action is brought against the Indemnified Parties, the Trust will be
entitled to participate, at its own expense, in the defense thereof. The
Trust also shall be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnified Party named in the action. After notice from
the Trust to such Indemnified Party of the Trust'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 Trust will not be liable to
such Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection
with the defense thereof other then reasonable costs of investigation.
9.4(d). The Company agrees to promptly notify the Trust of the
commencement of any litigation or proceedings against it or any of the
Indemnified Parties in connection with this Agreement, the issuance or sale
of the Contracts, with respect to the operation of each Account, or the sale
or acquisition of shares of the Trust.
- 15 -
Article 10
Applicable Law
--------------
10.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
10.2. 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
Securities and Exchange Commission may grant (including, but not limited to,
the Shared Funding Exemptive Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
Article 11
Termination
-----------
11.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason upon ninety days advance
written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Trust, the
Adviser, and the Administrator with respect to any Portfolio based
upon the Company's determination that shares of such Portfolio are
not reasonably available to meet the requirements of the Contracts.
Reasonable advance notice of election to terminate shall be furnished
by the Company, said termination to be effective ten (10) days after
receipt of notice unless the Trust makes available a sufficient
number of shares to reasonably meet the requirements of the Account
within said ten (10) day period; or
(c) termination by the Company upon written notice to the Trust, the
Adviser, and the Administrator with respect to any Portfolio in the
event any of the Portfolio's shares are not registered, issued or
sold in accordance with applicable state and/or federal law or such
law precludes the use of such shares as the underlying investment
medium of the Contracts issued or to be issued by the Company. The
terminating party shall give prompt notice to the other parties of
its decision to terminate; or
(d) termination by the Company upon written notice to the Trust, the
Adviser and the Administrator with respect to any Portfolio in the
event that such portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code or under any successor or
similar provision; or
(e) termination by the Company upon written notice to the Trust, the
Adviser, and the Administrator with respect to any Portfolio in the
event that such Portfolio fails to meet the diversification
requirements specified in Section 6.3 hereof; or
(f) termination by either the Trust, the Adviser, or the Administrator by
written notice to the Company, if either one or more of the Trust,
the Adviser, or the Administrator, shall determine, in its or their
sole judgment exercised in good faith, that the Company and/or their
affiliated companies has suffered a material adverse change in its
business, operations, financial condition or prospects since the date
of this Agreement or is the subject of material adverse publicity,
provided that the Trust, the Adviser, or the Administrator will give
the Company sixty (60) days' advance written notice of such
determination of its intent to terminate this Agreement, and provided
further that after consideration of the actions taken by the Company
and any other changes in circumstances since the giving of such
notice, the determination of the Trust, the Adviser, or the
Administrator shall continue to apply on the 60th day since giving of
such notice, then such 60th day shall be the effective date of
termination; or
- 16 -
(g) termination by the Company by written notice to the Trust, the
Adviser, Administrator, if the Company shall determine, in its sole
judgment exercised in good faith, that either the Trust, the Adviser,
or the Administrator has suffered a material adverse change in its
business, operations, financial condition or prospects since the date
of this Agreement or is the subject of material adverse publicity,
provided that the Company will give the Trust, the Adviser, and the
Administrator sixty (60) days' advance written notice of such
determination of its intent to terminate this Agreement, and provided
further that after consideration of the actions taken by the Trust,
the Adviser, or the Administrator and any other changes in
circumstances since the giving of such notice, the determination of
the Company shall continue to apply on the 60th day since giving of
such notice, then such 60th day shall be the effective date of
termination; or
(h) termination by any party upon the other party's breach of any
representation or any material breach of any provision of this
Agreement, which breach has not been cured to the satisfaction of the
terminating party within ten (10) days after written notice of such
breach is delivered to the Trust or the Company, as the case may be;
or
(i) termination by the Trust, the Adviser, or Administrator by written
notice to the Company in the event an Account or Contract is not
registered (unless exempt from registration) or sold in accordance
with applicable federal or state law or regulation, or the Company
fails to provide pass-through voting privileges as specified in
Section 3.3.
11.2. Effect of Termination. Notwithstanding any termination of this
Agreement, the Trust may continue to make available additional shares of the
Trust pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts") unless such further sale
of Trust shares is proscribed by law, regulation or applicable regulatory
body, or unless the Trust determines that liquidation of the Trust following
termination of this Agreement is in the best interests of the Trust and its
shareholders. The parties agree that this Section 11.2 shall not apply to
any terminations under Article 8 and the effect of such Article 8
terminations shall be governed by Article 8 of this Agreement.
11.3. The Company shall not redeem Trust shares attributable to the
Contracts (as distinct from Trust shares attributable to the Company's
assets held in the Account) except (i) as necessary to implement Contract
owner initiated or approved transactions, or (ii) as required by state
and/or federal laws or regulations or judicial or other legal precedent of
general application (hereinafter referred to as a "Legally Required
Redemption") or (iii) as permitted by an order of the SEC pursuant to
Section 26(b) of the 1940 Act. Upon request, the Company will promptly
furnish to the Trust, the Adviser and the Administrator the opinion of
counsel for the Company (which counsel shall be reasonably satisfactory to
the Trust and the Adviser) to the effect that any redemption pursuant to
clause (ii) above is a Legally Required Redemption. Furthermore, except in
cases where permitted under the terms of the Contracts, the Company shall
not prevent Contract owners from allocating payments to a Portfolio that was
otherwise available under the Contracts without first giving the Trust or
the Adviser 30 days notice of its intention to do so.
Article 12
Notices
-------
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify
in writing to the other party.
If to the Trust:
JPMorgan Insurance Trust
Mail Code OH1-1235
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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OH1-1235
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
If to the Administrator:
JPMorgan Funds Management, Inc.
Mail Code OH1-1235
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Contract Administrator
If to the Adviser:
JPMorgan Investment Advisors Inc.
Mail Code OH1-0211
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
If to the Company:
Pruco Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Atm: Chief Legal Officer
Article 13
Miscellaneous
-------------
13.1. All persons dealing with the Trust must look solely to the property
of the Trust for the enforcement of any claims against the Trust as neither
the Board, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Trust. Each of the Company,
the Adviser, and the Administrator acknowledges and agrees that, as provided
by the Trust's Amended and Restated Declaration of Trust, the shareholders,
trustees, officers, employees and other agents of the Trust and the
Portfolios shall not personally be bound by or liable for matters set forth
hereunder, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder. The Trust's Amended and
Restated Declaration of Trust is on file with the Secretary of State The
Commonwealth of Massachusetts.
13.2. The Company will comply with all applicable laws and regulations
aimed at preventing, detecting, and reporting money laundering and
suspicious transactions. Without limiting the generality of the foregoing,
the Company shall take all necessary and appropriate steps, consistent with
applicable regulations and generally accepted industry practices, to:
(i) obtain, verify, and retain information with regard to Contract owner
identification and source of Contract owner funds, and (ii) maintain records
of all Contract owner transactions. The Company will (but only to the extent
consistent with applicable law) take all steps necessary and appropriate to
provide the Trust with any requested information about Contract owners and
their accounts in the event that the Trust shall request such information
due to an inquiry or investigation by any law enforcement, regulatory, or
administrative authority. To the extent permitted by applicable law and
regulations, the Company will notify the Trust of any concerns that the
Company may have in connection with any Contract owner in the context of
relevant anti-money laundering laws or regulations.
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13.3. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as 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.
13.4. 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.
13.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.6. 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.
13.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the National Association of Securities
Dealers and state insurance regulators) and shall permit such authorities
(and other parties hereto) reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
13.8. 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.
13.9. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Adviser may, with advance
written notice to the other parties hereto, assign this Agreement or any
rights or obligations hereunder to any affiliate of or company under common
control with the Adviser if such assignee is duly licensed and registered to
perform the obligations of the Adviser under this Agreement.
13.10. The Company shall furnish, or shall cause to be furnished, to the
Trust or its designee upon request, copies of the following reports:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted accounting
principles ("GAAP"), if any), as soon as practical and in any event within 90
days after the end of each fiscal year;
(b) the Company's June 30th quarterly statements (statutory), as soon as
practical and in any event within 45 days following such period;
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/or policyholders, as soon as practical after
the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial reports
the Company filed with the Securities and Exchange Commission or any state
insurance regulator, as soon as practical after the filing thereof; and
(e) any other public report submitted to the Company by independent
accountants in connection with any annual, interim or special audit made by
them of the books of the Company, as soon as practical after the receipt
thereof.
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13.11. The names "JPMorgan Insurance Trust" and "Trustees of JPMorgan
Insurance Trust" refer respectively to the Trust created and the Trustees,
as trustees but not individually or personally, acting from time to time
under a Declaration of Trust dated June 7, 1993 to which reference is hereby
made and a copy of which is on file at the office of the Secretary of The
Commonwealth of Massachusetts and elsewhere as required by law, and to any
and all amendments thereto so filed or hereafter filed. The obligations of
"JPMorgan Insurance Trust" entered into in the name or on behalf thereof by
any of the Trustees, representatives or agents are made not individually,
but in such capacities, and are not binding upon any of the Trustees,
shareholders or representatives of the Trust personally, but bind only the
assets of the Trust, and all persons dealing with any series of shares of
the Trust must look solely to the assets of the Trust belonging to such
series for the enforcement of any claims against the Trust.
13.12. The Trust and the Administrator agree to consult with the Company
concerning whether any Portfolio of the Trust qualifies to provide a foreign
tax credit pursuant to Section 853 of the Code.
[SIGNATURE PAGES FOLLOW]
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PRUCO INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------------
Title: VP & Actuary
------------------------
JPMORGAN INSURANCE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. House
------------------------
Name: ▇▇▇▇▇▇▇ ▇. House
------------------------
Title: Assistant Treasurer
------------------------
JPMORGAN INVESTMENT ADVISORS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
------------------------
Title: Treasurer & CFO
------------------------
JPMORGAN FUNDS MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: Vice President
------------------------
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SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
-------------------------------
Pruco Life Variable Universal Account Form Numbers:
VUL-2004
VUL-2005
VUL-2008
MP-VUL-2003
MP-VUL-2008
- 22 -
Schedule B
----------
Portfolios of the Trust
-----------------------
JPMorgan Insurance Trust Core Bond Portfolio 1
JPMorgan Insurance Trust Government Bond Portfolio 1
JPMorgan Insurance Trust Balanced Portfolio 1
JPMorgan Insurance Trust Equity Index Portfolio 1
JPMorgan Insurance Trust Diversified Equity Portfolio 1
JPMorgan Insurance Trust Diversified Mid Cap Growth Portfolio 1
JPMorgan Insurance Trust Intrepid Mid Cap Portfolio 1
JPMorgan Insurance Trust Intrepid Growth Portfolio 1
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