Exhibit (h)(14)
FUND PARTICIPATION AGREEMENT EFFECTIVE AS OF APRIL 3, 2003, BY AND AMONG THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, ONE GROUP(R) INVESTMENT TRUST,
BANC ONE INVESTMENT ADVISORS CORPORATION, AND ONE GROUP ADMINISTRATIVE
SERVICES, INC.
FUND PARTICIPATION AGREEMENT
This Fund Participation Agreement (the "Agreement"), effective as of
April 3, 2003, is made by and among The Prudential Insurance Company of America
("Company"), One Group(R) Investment Trust (the "Trust"), the Trust's investment
advisor, Banc One Investment Advisors Corporation (the "Adviser"), and the
Trust's administrator, One Group Administrative Services, 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 offers certain Variable
Insurance Products pursuant to a private placement exemption
from registration under the 1933 Act;
WHEREAS, the Company utilizes the applicable COLI
contract as the Offering Memorandum for the purposes of
offering Variable Insurance Products (herein referred to
individually as an "Offering Memorandum"; collectively, the
"Offering Memoranda"); 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
1. The Company represents that it has established each
of the Accounts specified on Schedule A as a separate account under New
Jersey law. The Company further represents that each such Account is
exempt from registration pursuant to Section 3(c)(1) or Section 3(c)(7)
of the 1940 Act and that each such Account may legally serve, without
registration, as an investment vehicle for variable annuity contracts
and/ or variable life 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
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 9:00 a.m.
Eastern Time on the next following Business Day ("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. The Company will
give the Trust and the Adviser concurrent written notice of its
intention to make available in the future, as a funding vehicle under
the Contracts, any other investment company.
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.
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.
Article 3
Prospectuses, Reports to Shareholders and Proxy Statements, Voting
3.1. The Trust shall provide the Company with as many
printed copies of the Trust's current prospectus 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 electronic files
containing the Trust's prospectus and statement of additional
information in order for the Company once each year (or more frequently
if the prospectus and/or statement of additional information for the
Trust is amended during the year) to have the Offering Memorandum for
the Contracts and the Trust's prospectus printed together in one
document or separately. The Company may elect to print the Trust's
prospectus and/or its statement of additional information in
combination with other investment companies' prospectuses and
statements of additional information.
3.2(a). 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 electronic files 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 Offering Memoranda. 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 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). The Trust shall pay no fee or other compensation to
the Company under this Agreement, except that if the Trust or any
Portfolio adopts and implements a plan pursuant to Rule
12b-1 to finance distribution expenses, then the Trust may make
payments to the Company or to the underwriter for the Contracts if and
in amounts agreed to by the Trust in writing.
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.
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.
Article 4
Sales Material and Information
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' Offering Memoranda 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 an Offering
Memorandum for the Contracts, as such Offering Memorandum 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 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 Offering Memoranda,
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, contemporaneously with the
filing of such documents with the Securities and Exchange Commission or
other regulatory authorities or with the first use of such documents to
the extent that filing with the Securities and Exchange Commission or
regulatory authority is not required.
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
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 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
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 life
insurance 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 ("Section 1.817-5(b)"),
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
Portfolio has ceased to so qualify or that a Portfolio might not so
qualify in the future. The Trust agrees to provide the Company with
written proof of compliance with Section 1.817-5(b) by the 15/th/
calendar day after the end of each calendar quarter.
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 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 New Jersey 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.
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, 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 to the extent that it
decides to finance distribution expenses pursuant to Rule 12b-1 under
the 1940 Act, the Trust undertakes to have a majority of
the disinterested members of the Board formulate and approve any plan
under Rule 12b-1 to finance distribution expenses.
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.
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 separate 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 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)
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.
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 Offering Memorandum 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 Offering Memorandum
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
(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 an Offering Memorandum or sales literature for 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 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 officers or directors 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 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 an Offering Memorandum 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 than 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
its respective officers or directors 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 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 an Offering Memorandum 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 than 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 its
respective officers or directors 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.
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 State
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
(g) termination by the Company by written notice to the
Trust, the Adviser, and the 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 the Trust, the Adviser, or the
Administrator by written notice to the Company, if the
Company gives the Trust, the Adviser, and the
Administrator the written notice specified in Section
2.4 hereof and at the time such notice was given there
was no notice of termination outstanding under any
other provision of this Agreement; provided, however
any termination under this Section 11.1(h) shall be
effective sixty (60) days after the notice specified
in Section 2.4 was given; or
(i) termination by any party upon the other party's breach
of any representation in Article 6 or any material
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
(j) 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 shall at the option of the Company,
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. Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to direct reallocation of
investments in the Trust, redemption of investments in the Trust and/or
investment in the Trust upon the making of additional purchase payments
under the Existing Contracts. 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(c) 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:
One Group Investment Trust
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Attn: Fund President
If to the Administrator:
One Group Administrative Services, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
If to the Adviser:
Banc One Investment Advisors Corporation
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Attn:▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Company:
Chief Tax Officer
The Prudential Insurance Company of America
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ATTN: Section 817 Diversification Testing
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
The Prudential Insurance Company of America
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Attention: ▇▇▇▇ ▇▇▇▇▇▇, Manager
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 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.
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.
13.11. The names "One Group(R) Investment Trust" and
"Trustees of One Group(R) Investment 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 `One
Group Investment 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.
13.13. Each party to this Agreement (and each employee,
representative, or other agent of each party to this Agreement) may
disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure of the transaction and all materials of
any kind (including opinions or other tax analyses) that are provided
to each party to this Agreement relating to such tax treatment and tax
structure.
[SIGNATURE PAGES FOLLOW]
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/▇▇▇▇▇▇▇ ▇.
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Title: VP
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ONE GROUP INVESTMENT TRUST
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Treasurer
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BANC ONE INVESTMENT ADVISORS CORPORATION
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Managing Director
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ONE GROUP ADMINISTRATIVE SERVICES, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Title: Secretary
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SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
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Name of Separate Account and Date Established by Board of Form Number
Directors Funded by Separate Account
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VCA-GI-OneGroup-MCG, March 31, 2003 (under DOA dated Form 87102 AL 2004 single client separate
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December 12, 1978) account under Group Flexible Premium
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Variable Life Insurance Contracts G-96531
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and G-96549
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Schedule B
Portfolios of the Trust
One Group Investment Trust Mid Cap Growth Portfolio
