FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 27th day July of 2000 (the
"Agreement") by and among Pruco Life Insurance Company, organized under the laws
of the State of Arizona (the "Company"), on behalf of itself and each separate
account of the Company named in Schedule A to this Agreement, as may be amended
from time to time (each account referred to as the "Account" and collectively as
the "Accounts"); INVESCO Variable Investment Funds, Inc., an open-end management
investment company organized under the laws of the State of Maryland (the
"Fund"); INVESCO Funds Group, Inc., a corporation organized under the laws of
the State of Delaware and investment adviser to the Fund (the "Adviser"); and
INVESCO Distributors, Inc., a corporation organized under the laws of the State
of Delaware and principal underwriter/distributor of the Fund.
WHEREAS, the Fund engages in business as an open-end management investment
company and was established for the purpose of serving as the investment vehicle
for separate accounts established for variable life insurance contracts and
variable annuity contracts to be offered by insurance companies which have
entered into participation agreements substantially similar to this Agreement
(the "Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Company, as depositor, has established the Accounts to serve as
investment vehicles for certain variable annuity contracts and variable life
insurance policies and funding agreements offered by the Company set forth on
Schedule A (the "Contracts"); and
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolutions of the Board of Directors of the Company
under the insurance laws of the State of Arizona, to set aside and invest assets
attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios named in
Schedule B, as such schedule may be amended from time to time (the "Designated
Portfolios") on behalf of the Accounts to fund the Contracts;
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NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Adviser and the Distributor agree as follows:
ARTICLE I - SALE OF FUND SHARES
1.1 The Fund agrees to sell to the Company those shares of the Designated
Portfolios which each Account orders, executing such orders on a daily
basis at the net asset value (and with no sales charges) next computed
after receipt and acceptance by the Fund or its designee of the order for
the shares of the Fund. For purposes of this Section 1.1, the Company
will be the designee of the Fund for receipt of such orders from each
Account and receipt by such designee will constitute receipt by the Fund;
provided that the Fund receives notice of such order by 11:00 a.m.
Eastern Time on the next following business day. "Business Day" will mean
any day on which the New York Stock Exchange is open for trading and on
which the Fund calculates its net asset value pursuant to the rules of
the Securities and Exchange Commission (the "Commission"). The Fund may
net the notice of redemptions it receives from the Company under Section
1.3 of this Agreement against the notice of purchases it receives from
the Company under this Section 1.1.
1.2 The Company will pay for Fund shares on the next Business Day after an
order to purchase Fund shares is made in accordance with Section 1.1.
Payment will be made in federal funds transmitted by wire. Upon receipt
by the Fund of the payment, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the
Fund.
1.3 The Fund agrees to redeem for cash, upon the Company's request, any full
or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after
receipt and acceptance by the Fund or its agent of the request for
redemption. For purposes of this Section 1.3, the Company will be the
designee of the Fund for receipt of requests for redemption from each
Account and receipt by such designee will constitute receipt by the Fund;
provided the Fund receives notice of such requests for redemption by
11:00 a.m. Eastern Time on the next following Business Day. Payment will
be made in federal funds transmitted by wire to the Company's account as
designated by the Company in writing from time to time, on the same
Business Day the Fund receives notice of the redemption order from the
Company. After consulting with the Company, the Fund reserves the right
to delay payment of redemption proceeds, but in no event may such
payment be delayed longer than the period permitted under Section 22(e)
of the Investment Company Act of 1940 (the "1940 Act"). The Fund will
not bear any responsibility whatsoever for
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the proper disbursement or crediting of redemption proceeds; the
Company alone will be responsible for such action. If notification of
redemption is received after 11:00 Eastern Time, payment for redeemed
shares will be made on the next following Business Day. The Fund may
net the notice of purchases it receives from the Company under Section
1.1 of this Agreement against the notice of redemptions it receives
from the Company under this Section 1.3.
1.4 The Fund agrees to make shares of the Designated Portfolios available
continuously for purchase at the applicable net asset value per share by
Participating Insurance Companies and their separate accounts on those
days on which the Fund calculates its Designated Portfolio net asset
value pursuant to rules of the Commission; provided, however, that the
Board of Directors of the Fund (the "Fund Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the
offering of shares of any Portfolio if such action is required by law or
by regulatory authorities having jurisdiction or is, in the sole
discretion of the Fund Board, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, necessary
in the best interests of the shareholders of such Portfolio.
1.5 The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts, qualified
pension and retirement plans or such other persons as are permitted under
applicable provisions of the Internal Revenue Code of 1986, as amended,
(the "Code"), and regulations promulgated thereunder, the sale to which
will not impair the tax treatment currently afforded the Contracts. No
shares of any Portfolio will be sold directly to the general public.
1.6 The Fund will not sell Fund shares to any insurance company or separate
account unless an agreement containing provisions substantially the same
as Articles I, III, V, and VI of this Agreement are IN effect to govern
such sales.
1.7 The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund in
accordance with the provisions of such prospectus.
1.8 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or to any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate sub-account of each
Account.
1.9 The Fund will furnish same day notice (by facsimile) to the Company of
the declaration of any income, dividends or capital gain distributions
payable on each Designated Portfolio's shares. The Company hereby elects
to receive all such dividends and distributions as are payable on the
Portfolio shares in the form of additional shares of that Portfolio at
the ex-dividend date net asset values. The Company reserves the right to
revoke this election and to receive all such dividends and distributions
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in cash. The Fund will notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.10 The Fund will make the net asset value per share for each Designated
Portfolio available to the Company via electronic means on a daily basis
as soon as reasonably practical after the net asset value per share is
calculated and will use its best efforts to make such net asset value per
share available by 7:00 p.m., Eastern Time, each business day. If the
Fund provides the Company materially incorrect net asset value per share
information (as determined under SEC guidelines), the Company shall be
entitled to an adjustment to the number of shares purchased or redeemed
to reflect the correct net asset value per share. Any material error in
the calculation or reporting of net asset value per share, dividend or
capital gain information shall be reported to the Company upon discovery
by the Fund.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that the Contracts are or will be
registered under the Securities Act of 1933 (the "1933 Act"), or are
exempt from registration thereunder, and that the Contracts will be
issued and sold in compliance with all applicable federal and state laws.
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 as a separate account
under the General Statutes of Arizona and that each Account is or will be
registered as a unit investment trust in accordance with the provisions
of the 1940 Act to serve as a segregated investment account for the
Contracts, or is exempt from registration thereunder, and that it will
maintain such registration for so long as any Contracts are outstanding,
as applicable. The Company will amend the registration statement under
the 1933 Act for the Contracts and the registration statement under the
1940 Act for the Account from time to time as required in order to effect
the continuous offering of the Contracts or as may otherwise be required
by applicable law. The Company will register and qualify the Contracts
for sale in accordance with the securities laws of the various states
only if and to the extent deemed necessary by the Company.
2.2 The Company represents that the Contracts are currently and at the time
of issuance will be treated as annuity contracts and/or life insurance
policies (as applicable) under applicable provisions of the Code, and
that it will make every effort to maintain such treatment and that it
will notify the Fund and the Adviser immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or
that they might not be so treated in the future.
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2.3 The Company represents and warrants that it will not purchase shares of
the Designated Portfolio(s) with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in
connection with such plans.
2.4 The Fund represents and warrants that shares of the Designated
Portfolio(s) sold pursuant to this Agreement will be registered under the
1933 Act and duly authorized for issuance in accordance with applicable
law and that the Fund is and will remain registered as an open-end
management investment company under the 1940 Act for as long as such
shares of the Designated Portfolio(s) are sold. The Fund will amend the
registration statement for its shares under the 1933 Act and the 1940 Act
from time to time as required in order to effect the continuous offering
of its shares. The Fund will register and qualify the shares of the
Designated Portfolio(s) for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund.
2.5 The Fund represents that it will use its best efforts to comply with any
applicable state insurance laws or regulations as they may apply to the
investment objectives, policies and restrictions of the Portfolios, as
they may apply to the Fund, to the extent specifically requested in
writing by the Company. If the Fund cannot comply with such state
insurance laws or regulations, it will so notify the Company in writing.
The Fund makes no other representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses, and
investment policies) complies with the insurance laws or regulations of
any state. The Company represents that it will use its best efforts to
notify the Fund of any restrictions imposed by state insurance laws that
may become applicable to the Fund as a result of the Accounts'
investments therein. The Fund and the Adviser agree that they will
furnish the information required by state insurance laws to assist the
Company in obtaining the authority needed to issue the Contracts in
various states.
2.6 The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it reserves the right to make such payments in the
future. To the extent that it decides to finance distribution expenses
pursuant to Rule 12b-1, the Fund undertakes to have the directors of its
Fund Board, a majority of whom are not "interested" persons of the Fund,
formulate and approve any plan under Rule 12b-1 to finance distribution
expenses.
2.7 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Maryland and that it does and will comply
in all material respects with applicable provisions of the 1940 Act.
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2.8 The Fund represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Fund are and continue to be
at all times covered by a blanket fidelity bond or similar coverage for
the benefit of the Fund in an amount not less than the minimal coverage
as required currently by Rule 17g-(1) of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is issued by a
reputable bonding company.
2.9 The Adviser represents and warrants that it is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as amended,
and will remain duly registered under all applicable federal and state
securities laws and that it will perform its obligations for the Fund in
accordance in all material respects with the laws of the State of
Delaware and any applicable state and federal securities laws.
2.10 The Distributor represents and warrants that it is registered as a
broker-dealer under the Securities and Exchange Act of 1934, as amended
(the "1934 Act") and will remain duly registered under all applicable
federal and state securities laws, and is a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD") and serves
as principal underwriter/distributor of the Funds and that it will
perform its obligations for the Fund in accordance in all material
respects with the laws of the State of Delaware and any applicable state
and federal securities laws.
2.11 The Fund, the Adviser and the Distributor represents and warrants to the
Company that each has a Year 2000 compliance program in existence and
that each reasonably intends to be Year 2000 compliant so as to be able
perform all of the services and/or obligations contemplated by or under
this Agreement without interruption. The Fund, the Adviser, and the
Distributor shall immediately notify the Company if it determines that it
will be unable perform all of the services and/or obligations
contemplated by or under this Agreement in a manner that is Year 2000
compliant.
ARTICLE III - FUND COMPLIANCE
3.1 The Fund and the Adviser acknowledge that any failure (whether
intentional or in good faith or otherwise's to comply with the
requirements of Subchapter M of the Code or the diversification
requirements of Section 817(h) of the Code may result in the Contracts
not being treated as variable contracts for federal income tax purposes,
which would have adverse tax consequences for Contract owners and could
also adversely affect the Company's corporate tax liability. The Fund and
the Adviser further acknowledge that any such failure may result in
costs and expenses being incurred by the Company in obtaining whatever
regulatory authorizations are required to substitute shares of another
investment company for those of the
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failed Fund or as well as fees and expenses of legal counsel and other
advisors to the Company and any federal income taxes, interest or tax
penalties incurred by the Company in connection with any such failure.
3.2 The Fund represents and warrants that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Code, and that it
will maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify the Company immediately upon
having a reasonable basis for believing that it has ceased to so qualify
or that it might not so qualify in the future.
3.3 The Fund represents that it will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be
treated as variable contracts under the Code and the regulations issued
thereunder; including, but not limited to, that the Fund will at all
times comply with Section 817(h) of the Code and Treasury Regulation
1.817-5, as amended from time to time, relating to the diversification
requirements for variable annuity, endowment. or life insurance
contracts, and with Section 817(d) of the Code, relating to the
definition of a variable contract, and any amendments or other
modifications to such Section or Regulation. The Fund will notify the
Company immediately upon having a reasonable basis for believing that
the Fund or a Portfolio thereunder has ceased to comply with the
diversification requirements or that the Fund or Portfolio might not
comply with the diversification requirements in the future. In the event
of a breach of this representation by the Fund, it will take all
reasonable steps to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Treasury Regulation
1.817-5.
3.4 The Adviser agrees to provide the Company with a certificate or statement
indicating compliance by each Portfolio of the Fund with Section 817(h)
of the Code, such certificate or statement to be sent to the Company no
later than thirty (30) days following the end of each calendar quarter.
ARTICLE IV - PROSPECTUS AND PROXY STATEMENTS/VOTING
4.1 The Fund will provide the Company with as many copies of the current Fund
prospectus and any supplements thereto for the Designated Portfolio(s) as
the Company may reasonably request for distribution, at the Fund's
expense, to Contract owners at the time of Contract fulfillment and
confirmation. To the extent that the Designated Portfolio(s) are one or
more of several Portfolios of the Fund, the Fund shall bear the cost of
providing the Company only with disclosure related to the Designated
Portfolio(s). The Fund will provide, at the Fund's expense, as many
copies of said prospectus as necessary for distribution, at the Fund's
expense, to existing Contract owners. The
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Fund will provide the copies of said prospectus to the Company or to its
mailing agent. The Company will distribute the prospectus to existing
Contract owners and will bill the Fund for the reasonable cost of such
distribution. If requested by the Company, in lieu thereof, the Fund will
provide such documentation, including a final copy of a current
prospectus set in type at the Fund's expense, and other assistance as is
reasonably necessary in order for the Company at least annually (or more
frequently if the Fund prospectus is amended more frequently) to have the
new prospectus for the Contracts and the Fund's new prospectus printed
together, in which case the Fund agrees to pay its proportionate share of
reasonable expenses directly related to the required disclosure of
information concerning the Fund. The Fund will, upon request, provide the
Company with a copy of the Fund's prospectus through electronic means to
facilitate the Company's efforts to provide Fund prospectuses via
electronic delivery, in which case the Fund agrees to pay its
proportionate share of reasonable expenses related to the required
disclosure of information concerning the Fund.
4.2 The Fund's prospectus will state that the Statement of Additional
Information (the "SAI") for the Fund is available from the Company. The
Fund will provide the Company, at the Fund's expense, with as many copies
of the SAI and any supplements thereto as the Company may reasonably
request for distribution, at the Fund's expense, to prospective Contract
owners and applicants. To the extent that the Designated Portfolio(s) are
one or more of several Portfolios of the Fund, the Fund shall bear the
cost of providing the Company only with disclosure related to the
Designated Portfolio(s). The Fund will provide, at the Fund's expense, as
many copies of said SAI as necessary for distribution, at the Fund's
expense, to any existing Contract owner who requests such statement or
whenever state or federal law requires that such statement be provided.
The Fund will provide the copies of said SAI to the Company or to its
mailing agent. The Company will distribute the SAI as requested or
required and will bill the Fund for the reasonable cost of such
distribution.
4.3 The Fund, at its expense, will provide the Company or its mailing agent
with copies of its proxy material, if any, reports to
shareholders/Contract owners and other permissible communications to
shareholders/Contract owners in such quantity as the Company will
reasonably require. The Company will distribute this proxy material,
reports and other communications to existing Contract owners and will
bill the Fund for the reasonable cost of such distribution.
4.4 If and to the extent required by law, the Company will:
(a) solicit voting instructions from Contract owners;
(b) vote the shares of the Designated Portfolios held in the Account in
accordance with instructions received from Contract owners; and
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(c) vote shares of the Designated Portfolios held in the Account for
which no timely instructions have been received, in the same
proportion as shares of such Designated Portfolio for which
instructions have been received from the Company's Contract owners.
so long as and to the extent that the Commission continues to interpret
the 1940 Act to require pass-through voting privileges for variable
Contract owners. The Company reserves the right to vote Fund shares held
in any segregated asset account in its own right, to the extent permitted
by law. The Company will be responsible for assuring that the Accounts
participating in the Fund calculates voting privileges in a manner
consistent with all legal requirements, including the Proxy Voting
Procedures set forth in Schedule C and the Mixed and Shared Funding
Exemptive Order, as described in Section 7.1.
4.5 The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Fund either will provide for
annual meetings (except insofar as the Commission may interpret Section
16 of the 1940 Act not to require such meetings) or, as the Fund
currently intends, to comply with Section 16(c) of the 1940 Act (although
the Fund is not one of the trusts described in Section 16(c) of the 1940
Act) as well as with Sections 16(a) and, if and when applicable, 16(b).
Further, the Fund will act in accordance with the Commission's
interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors and with whatever rules the Commission
may promulgate with respect thereto.
ARTICLE V - SALES MATERIAL AND INFORMATION
5.1 The Company will furnish, or will cause to be furnished, to the Fund or
the Adviser, each piece of sales literature or other promotional material
in which the Fund or the Adviser is named, at least ten (10) Business
Days prior to its use. No such material will be used if the Fund or the
Adviser reasonably objects to such use within five (5) Business Days
after receipt of such material.
5.2 The Company will not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund in connection
with the sale of the Contracts other than the information or
representations contained in the registration statement, prospectus or
SAI for Fund shares, as such registration statement, prospectus and SAI
may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in published reports for the Fund which are
in the public domain or approved by the Fund or the Adviser for
distribution, or in sales literature or other material provided by the
Fund or by the Adviser, except with permission of the
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Fund or the Adviser. The Fund and the Adviser agree to respond to any
request for approval on a prompt and timely basis.
5.3 The Fund or the Adviser will furnish, or will cause to be furnished, to
the Company or its designee, each piece of sales literature or other
promotional material in which the Company or its separate account is
named, at least ten (10) Business Days prior to its use. No such material
will be used if the Company reasonably objects to such use within five
(5) Business Days after receipt of such material.
5.4 The Fund and the Adviser will not give any information or make any
representations or statements 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, prospectus or SAI
for the Contracts, as such registration statement, prospectus and SAI may
be amended or supplemented from time to time, or in published reports for
each Account or the Contracts which are in the public domain or approved
by the Company for distribution to Contract owners, or in sales
literature or other material provided by the Company, except with
permission of the Company. The Company agrees to respond to any request
for approval on a prompt and timely basis.
5.5 The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, SAIS, reports, proxy statements,
sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of
the above, that relate to the Fund or its shares, within a reasonable
time after filing of each such document with the Commission or the NASD.
5.6 The Company will provide to the Fund at least one complete copy of all
definitive prospectuses, definitive SAI, 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 Contracts or each
Account, contemporaneously with the filing of each such document with the
Commission or the NASD (except that with respect to post-effective
amendments to such prospectuses and SAIs and sales literature and
promotional material, only those prospectuses and SAIs and sales
literature and promotional material that relate to or refer to the Fund
will be provided.) In addition, the Company will provide to the Fund at
least one complete copy of (i) a registration statement that relates to
the Contracts or each Account, containing representative and relevant
disclosure concerning the Fund; and (ii) any post-effective amendments to
any registration statements relating to the Contracts or such Account
that refer to or relate to the Fund.
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5.7 For purposes of this Article V, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper.
magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, or
other public media, (i.e., on-line networks such as the Internet or other
electronic messages)), sales literature (i.e., any written communication
distributed or made generally available to customers or the public,
including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training
materials or other communications distributed or made generally available
to some or all agents or employees, registration statements,
prospectuses, SAIs, shareholder reports, and proxy materials and any
other material constituting sales literature or advertising under the
NASD rules, the 1933 Act or the 1940 Act.
5.8 The Investment Company, the Adviser and the Distributor hereby consent to
the Insurance Company's use of the names of the INVESCO, AMVESCAP and
INVESCO Funds Group, Inc. as well as the names of the Designated Funds
set forth in Schedule B of this Agreement, in connection with marketing
the Contracts, subject to the terms of Sections 5.1 of this Agreement.
Insurance Company acknowledges and agrees that Adviser and Distributor
and/or their affiliates own all right, title and interest in an to the
name INVESCO and the INVESCO open circle design, and covenants not, at
any time, to challenge the rights of Adviser and Distributor and/or their
affiliates to such name or design, or the validity or distinctiveness
thereof. The Investment Company, the Adviser and the Distributor hereby
consent to the use of any trademark, trade name, service mark or logo
used by the Investment Company, the Adviser and the Distributor, subject
to the Investment Company's, the Adviser's and/or the Distributor's
approval of such use and in accordance with reasonable requirements of
the Investment Company, the Adviser or the Distributor. Such consent will
terminate with the termination of this Agreement. Adviser or Distributor
may withdraw this consent as to any particular use of any such name or
identifying marks at any time (i) upon Adviser's or Distributor's
reasonable determination that such use would have a material adverse
effect on the reputation or marketing efforts of Adviser, Distributor or
such Funds or (ii) if no investment company, or series or class of shares
of any investment company advised by Adviser or distributed by
Distributor continues to be offered through variable insurance contracts
issued by Insurance Company; provided however, that adviser or
Distributor may, in eithers individual discretion, continue to use
materials prepared or printed prior to the withdrawal of such
authorization. The Insurance Company agrees and acknowledges that all use
of any designation comprised in whole or in
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part of the name, trademark, trade name, service mark and logo under this
Agreement shall inure to the benefit of the Investment Company, Adviser
and/or the Distributor.
5.9 The Fund, the Adviser, the Distributor and the Companv agree to adopt
and implement procedures reasonably designed to ensure that information
concerning the Company, the Fund, the Adviser or the Distributor,
respectively, and their respective affiliated companies, that is intended
for use only by brokers or agents selling the Contracts is properly
marked as "Not For Use With The Public" and that such information is only
so used.
ARTICLES VI -- FEES, COSTS AND EXPENSES
6.1 The Fund will pay no fee or other compensation to the Company under this
Agreement, except as provided below: (a) if the Fund or any Designated
Portfolio adopts and implements a plan pursuant to Rule 12b-1 under the
1940 Act to finance distribution expenses, then, subject to obtaining any
required exemptive orders or other regulatory approvals, the Fund may
make payments to the Company or to the underwriter for the Contracts if
and in such amounts agreed to by the Fund in writing; (b) the Fund may
pay fees to the Company for administrative services provided to Contract
owners that are not primarily intended to result in the sale of shares of
the Designated Portfolio or of underlying Contracts.
6.2 All expenses incident to performance by the Fund of this Agreement will
be paid by the Fund to the extent permitted by law. All shares of the
Designated Portfolios will be duly authorized for issuance and registered
in accordance with applicable federal law and, to the extent deemed
advisable by the Fund, in accordance with applicable state law, prior to
sale. The Fund will bear the expenses for the cost of registration and
qualification of the Fund's shares, including without limitation, the
preparation of and filing with the SEC of Forms N-SAR and Rule 24f-2
Notices and payment of all applicable registration or filing fees with
respect to shares of the Fund; preparation and filing of the Fund's
prospectus, SAI and registration statement, proxy materials and reports;
typesetting the Fund's prospectus; typesetting and printing proxy
materials and reports to Contract owners (including the costs of printing
a Fund prospectus that constitutes an annual report); the preparation of
all statements and notices required by any federal or state law; all
taxes on the issuance or transfer of the Fund's shares; any expenses
permitted to be paid or assumed by the Fund pursuant to a plan, if any,
under Rule 12b-1 under the 1940 Act; and other costs associated with
preparation of prospectuses and SAIs for the Designated Portfolios in
electronic or typeset format, as well as any distribution expenses as set
forth in Article III of this Agreement.
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ARTICLE VII -- MIXED & SHARED FUNDING RELIEF
7.1 The Fund represents and warrants that it has received an order from the
Commission granting Participating Insurance Companies and variable
annuity separate accounts and variable life insurance separate accounts
relief from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of
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 Fund to be sold to and held by
variable annuity separate accounts and variable life insurance separate
accounts of both affiliated and unaffiliated Participating Insurance
Companies and qualified pension and retirement plans outside of the
separate account context (the "Mixed and Shared Funding Exemptive
Order"). The parties to this Agreement agree that the conditions or
undertakings specified in the Mixed and Shared Funding Exemptive Order
and that may be imposed on the Company, the Fund and/or the Adviser by
virtue of the receipt of such order by the Commission, will be
incorporated herein by reference, and such parties agree to comply with
such conditions and undertakings to the extent applicable to each such
party.
7.2 The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the Contract
owners of all separate accounts investing in the Fund. An irreconcilable
material conflict may arise for a variety of reasons, including, but not
limited to: (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 Participating Insurance Companies or by
variable annuity and variable life insurance Contract owners; or (f) a
decision by an insurer to disregard the voting instructions of Contract
owners. The Fund Board will promptly inform the Company if it determines
that an irreconcilable material conflict exists and the implications
thereof. A majority of the Fund Board will consist of persons who are not
"interested" persons of the Fund.
7.3 The Company will report any potential or existing conflicts of which it
is aware to the Fund Board. The Company agrees to assist the Fund Board
in carrying out its responsibilities, as delineated in the Mixed and
Shared Funding Exemptive Order, by providing the Fund Board with all
information reasonably necessary for the Fund Board to consider any
issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Fund Board whenever Contract owner voting
13
<PAGE>
instructions are to be disregarded. The Fund Board will record in its
minutes, or other appropriate records, all reports received by it and all
action with regard to a conflict.
7.4 If it is determined by a majority of the Fund Board, or a majority of its
disinterested directors, that an irreconcilable material conflict exists,
the Company and other Participating Insurance Companies will, at their
expense and to the extent reasonably practicable (as determined by a
majority of the disinterested directors), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, up
to and including: (a) withdrawing the assets allocable to some or all of
the Accounts from the Fund or any Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such
segregation should be submitted to a vote of all affected Contract owners
and, as appropriate, segregating the assets of any appropriate group
(i.e., variable annuity Contract owners or variable life insurance
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 (b) establishing a new
registered management investment company or managed separate account.
7.5 If a material irreconcilable conflict arises because of a decision by the
Company to disregard Contract owner voting instructions, and such
disregard of voting instructions could conflict with the majority of
Contract owner voting instructions, and the Company's judgment represents
a minority position or would preclude a majority vote, the Company may be
required, at the Fund's election, to withdraw the affected sub-account of
the Account's investment in the Fund and terminate this Agreement with
respect to such sub-account; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
disinterested directors of the Fund Board. No charge or penalty will be
imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the Fund gives
written notice to the Company that this provision is being implemented.
Until the end of such six-month period the Adviser and Fund will, to the
extent permitted by law and any exemptive relief previously granted to
the Fund, continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.6 If an irreconcilable conflict arises because a particular state insurance
regulator's decision applicable to the Company conflicts with the
majority of other state insurance regulators, then the Company will
withdraw the affected sub-account of the Account's investment in the Fund
and terminate this Agreement with respect to such sub-account; provided,
however, that such withdrawal and
14
<PAGE>
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
disinterested directors of the Fund Board. No charge or penalty will he
imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the Fund gives
written notice to the Company that this provision is being implemented.
Until the end of such six-month period the Advisor and Fund will, to the
extent permitted by law and any exemptive relief previously granted to
the Fund, continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.7 For purposes of Sections 7.4 through 7.7 of this Agreement, a majority of
the disinterested members of the Fund Board will determine whether any
proposed action adequately remedies any irreconcilable material conflict,
but in no event, other than as specified in Section 7.4, will the Fund be
required to establish a new funding medium for the Contracts. The Company
will not be required by Section 7.4 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 affected by the irreconcilable material
conflict.
7.7 The Company will at least annually submit to the Fund Board such reports,
materials or data as the Fund Board may reasonably request so that the
Fund Board may fully carry out the duties imposed upon it as delineated
in the Mixed and Shared Funding Exemptive Order, and said reports,
materials and data will be submitted more frequently if deemed
appropriate by the Fund Board.
7.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Exemptive
Order) on terms and conditions materially different from those contained
in the Mixed and Shared Funding Exemptive Order, then: (a) the Fund
and/or the Participating Insurance Companies, as appropriate, will 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; and (b) Sections 4.4, 4.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of
this Agreement will continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
ARTICLE VIII - INDEMNIFICATION
8.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Adviser, the Distributor, and each person, if any, who controls or
is associated with the Fund, the Adviser, or the Distributor within
the meaning of such terms under the federal securities laws and any
15
<PAGE>
director, trustee, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this Section
8.1) against any and all losses. claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the
Company) or actions in respect thereof (including reasonable 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:
(1) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration
statement, prospectus or SAI for the Contracts or contained in the
Contracts or sales literature or other promotional material 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 or
necessary to make such statements not misleading in light of the
circumstances in which they were made; provided that this agreement
to indemnify will not apply as to any Indemnified Party if such
statement or omission of such alleged statement or omission was made
in reliance upon and in conformity with information furnished to the
Company by or on behalf of the Fund, the Adviser, of the Distributor
for use in the registration statement, prospectus or SAI 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 Fund shares; or
(2) arise out of or as a result of statements or representations by or
on behalf of the Company (other than statements or representations
contained in the Fund registration statement, prospectus, SAI or
sales literature or other promotional material of the Fund, or any
amendment or supplement to the foregoing, not supplied by the
Company or persons under its control) or wrongful conduct of the
Company or persons under its control, with respect to the sale or
distribution of the Contracts or Fund shares; or
(3) arise out of untrue statement or alleged untrue statement of a
material fact contained in the Fund registration statement,
prospectus, SAI or sales literature or other promotional material of
the Fund (or amendment or supplement) or the omission or alleged
omission to state therein a material fact required to be stated
therein or
16
<PAGE>
necessary to make such statements not misleading in light of the
circumstances in which they were made, if such a statement or omission
was made in reliance upon and in conformity with information furnished to
the Fund by or on behalf of the Company or persons under its control; or
(4) 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
(5) arise out of 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 by the Company of this
Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification will be in addition to any liability that the Company
otherwise may have.
(b) No party will be entitled to indemnification under Section 8.1(a)
if such loss, claim, damage, liability or action is due to the
willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by
reason of such party's reckless disregard of its obligations or
duties under this Agreement.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or actions
by regulatory authorities against them in connection with the
issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
8.2 Indemnification by the Adviser & Distributor
(a) The Adviser and Distributor agree to indemnify and hold harmless
the Company and each person, if any, who controls or is associated
with the Company within the meaning of such terms under the federal
securities laws and any director, officer, employee or agent of the
foregoing (collectively, the "Indemnified Parties" for purposes of
this Section 8.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the
written consent of the Adviser and Distributor) or actions in
respect thereof (including reasonable 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:
17
<PAGE>
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or SAI for the Fund or sales literature or
other promotional material of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated or necessary to make such
statements not misleading in light of the circumstances in which
they were made; provided that this agreement to indemnify will not
apply as to any Indemnified Party if such statement or omission of
such alleged statement or omission was made in reliance upon and in
conformity with information furnished to the Adviser or Fund by or
on behalf of the Company for use in the registration statement,
prospectus or SAI for the Fund or in sales literature of the Fund
(or any amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations (other
than statements or representations contained in the Contracts or in
the Contract or Fund registration statements, prospectuses or
statements of additional information or sales literature or other
promotional material for the Contracts or of the Fund, or any
amendment or supplement to the foregoing, not supplied by the
Adviser or the Fund or persons under the control of the Adviser or
the Fund respectively) or wrongful conduct of the Adviser or the
Fund or persons under the control of the Adviser or the Fund
respectively, with respect to the sale or distribution of the
Contracts or Fund shares; or
(3) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI
or sales literature or other promotional material covering the
Contracts (or any amendment or supplement thereto), or the omission
or alleged omission to state therein a material fact required to be
stated or necessary to make such statement or statements not
misleading in light of the circumstances in which they were made, if
such statement or omission was made in reliance upon and in
conformity with information furnished to the Company by or on behalf
of the Adviser or the c7und or persons under the control of the
Adviser or the Fund; or
18
<PAGE>
(4) arise as a result of any failure by the Fund or the Adviser to
provide the services and furnish the materials under the terms of
this Agreement: or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser or the Fund in
this Agreement, or arise out of or result from any other material
breach of this Agreement by the Adviser or the Fund (including a
failure, whether intentional or in good faith or otherwise, to
comply with the requirements of Subchapter M of the Code specified
in Article III, Section 3.2 of this Agreement and the
diversification requirements specified in Article III, Section 3.3
of this Agreement, as described more fully in Section 8.5 below);
except to the extent provided in Sections 8.2(b) and 8.4 hereof. This
indemnification will be in addition to any liability that the Adviser or
Distributor otherwise may have.
(b) No party will be entitled to indemnification under Section 8.2(a) if
such loss, claim, damage, liability or action is due to the willful
misfeasance, bad faith, or gross negligence in the performance of
such party's duties under this Agreement, or by reason of such
party's reckless disregard or its obligations or duties under this
Agreement.
(c) The Indemnified Parties will promptly notify the Adviser and the
Fund of the commencement of any litigation, proceedings, complaints
or actions by regulatory authorities against them in connection with
the issuance or sale of the Contracts or the operation of the
Account.
8.3 INDEMNIFICATION BY THE FUND
(a) The Fund agrees to indemnify and hold harmless the Company and each
person, if any, who controls or is associated with the Company
within the meaning of such terms under the federal securities laws
and any director, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this
Section 8.3) against any and all losses, claims, expenses, damages,
liabilities (including amounts paid in settlement with the written
consent of the Fund) or action in respect thereof (including
reasonable 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 operations of the Fund and:
(1) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement; or
19
<PAGE>
(2) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Fund (including a failure,
whether intentional or in good faith or otherwise, to comply
with the requirements of Subchapter M of the Code specified in
Article III, Section 3.2 of this Agreement and the
diversification requirements specified in Article III, Section
3.3 of this Agreement as described more fully in Section 8.5
below); or
(3) arise out of or result from the incorrect or untimely
calculation or reporting of daily net asset value per share or
dividend or capital gain distribution rate;
except to the extent provided in Sections 8.3(b) and 8.4 hereof.
This indemnification will be in addition to any liability that the
Fund otherwise may have.
(b) No party will be entitled to indemnification under Section 8.3(a) if
such loss, claim, damage, liability or action is due to the willful
misfeasance, bad faith, or gross negligence in the performance of
such party's duties under this Agreement, or by reason of such
party's reckless disregard of its obligations and duties under this
Agreement.
(c) The Indemnified Parties will promptly notify the Fund of the
commencement of any litigation, proceedings, complaints or actions
by regulatory authorities against them in connection with the
issuance or sale of the Contracts or the operation of the Account.
8.4 Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.4) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.4) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the
claim will have been served upon such Indemnified Party (or after such
party will have received notice of such service on any designated agent),
but failure to notify the Indemnifying Party of any such claim will not
relieve the Indemnifying Party from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than
on account of the indemnification provision of this Article VIII, except
to the extent that the failure to notify results in the failure of actual
notice to the Indemnifying
20
<PAGE>
Party and such Indemnifying Party is damaged soley as a result of
failure to give such notice. In case any such action is brought against
the Indemnified Party, the Indemnifying Party will be entitled to
participate, at its own expense, in the defense thereof. The Indemnifying
Party also will be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Indemnifying Party to the Indemnified Party of the Indemnifying Party's
election to assume the defense thereof, the Indemnified Party will bear
the fees and expenses of any additional counsel retained by it, and the
Indemnifying Party will not be liable to such party under this Agreement
for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than
reasonable costs of investigation, unless: (a) the Indemnifying Party and
the Indemnified Party will have mutually agreed to the retention of such
counsel; or (b) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the
Indemnified Party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. The Indemnifying Party will not be liable for any
settlement of any proceeding effected without its written consent but if
settled with such consent or if there is a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such settlement
or judgment. A successor by law of the parties to this Agreement will be
entitled to the benefits of the indemnification contained in this Article
VIII. The indemnification provisions contained in this Article VIII will
survive any termination of this Agreement.
8.5 Indemnification for Failure to Comply with Diversification Requirements
The Fund and the Adviser acknowledge that any failure (whether
intentional or in good faith or otherwise) to comply with the
diversification requirements specified in Article III, Section 3.3 of
this Agreement may result in the Contracts not being treated as variable
contracts for federal income tax purposes, which would have adverse tax
consequences for Contract owners and could also adversely affect the
Company's corporate tax liability. Accordingly, without in any way
limiting the effect of Sections 8.2(a) and 8.3(a) hereof and without in
any way limiting or restricting any other remedies available to the
Company, the Fund, the Adviser and the Distributor will pay on a joint
and several basis all costs associated with or arising out of any
failure, or any anticipated or reasonably foreseeable failure, of the
Fund or any Portfolio to comply with Section 3.3 of this Agreement,
including all costs associated with correcting or responding to any such
failure; such costs may include, but are not limited to, the costs
involved in creating, organizing, and registering a new investment
company as a funding medium for the Contracts and/or the costs of
obtaining whatever
21
<PAGE>
regulatory authorizations are required to substitute shares of another
investment company for those of the failed Fund or Portfolio (including
but not limited to an order pursuant to Section 26(b) of the 1940 Act);
fees and expenses of legal counsel and other advisors to the Company and
any federal income taxes or tax penalties (or "toll charges" or
exactments or amounts paid in settlement) incurred by the Company in
connection with any such failure or anticipated or reasonably foreseeable
failure. Such indemnification and reimbursement obligation shall be in
addition to any other indemnification and reimbursement obligations of
the Fund, the Adviser and/or the Distributor under this Agreement.
ARTICLE IX -- APPLICABLE LAW
9.1 This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware.
9.2 This Agreement will be subject to the provisions of the 1933 Act, the
1934 Act and the 1940 Act, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the Commission may grant (including, but not limited to,
the Mixed and Shared Funding Exemptive Order) and the terms hereof will
be interpreted and construed in accordance therewith.
ARTICLE X -- TERMINATION
10.1 This Agreement will terminate:
(a) at the option of any party, with or without cause, with respect to
one, some or all of the Portfolios, upon six (6) month's advance
written notice to the other parties or, if later, upon receipt of
any required exemptive relief or orders from the SEC, unless
otherwise agreed in a separate written agreement among the parties;
or
(b) at the option of the Company, upon written notice to the other
parties, with respect to any Portfolio if shares of the Portfolio
are not reasonably available to meet the requirements of the
Contracts as determined in good faith by the Company; or
(c) at the option of the Company, upon written notice to the other
parties, 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 media of the
Contracts issued or to be issued by Company; or
22
<PAGE>
(d) at the option of the Fund, upon written notice to the other parties,
upon institution of formal proceedings against the Company by the
NASD, the Commission, the Insurance Commission of any state or any
other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the
administration of the Contracts, the operation of the Account, or
the purchase of the Fund shares, provided that the Fund determines
in its sole judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on the Company's
ability to perform its obligations under this Agreement; or
(e) at the option of the Company, upon written notice to the other
parties, upon institution of formal proceedings against the Fund or
the Adviser by the NASD, the Commission or any state securities or
insurance department or any other regulatory body, provided that the
Company determines in its sole judgment, exercised in good faith,
that any such proceeding would have a material adverse effect on the
Fund's or the Adviser's ability to perform its obligations under
this Agreement; or
(f) at the option of the Company, upon written notice to the other
parties, if the Fund ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code, or under any successor or
similar provision, or if the Company reasonably and in good faith
believes that the Fund may fail to so qualify; or
(g) at the option of the Company, upon written notice to the other
parties, with respect to any Portfolio if the Fund fails to meet the
diversification requirements specified in Section 3.3 hereof or if
the Company reasonably and in good faith believes the Fund may fail
to meet such requirements; or
(h) at the option of any party to this Agreement, upon written notice to
the other parties, upon another party's material breach of any
provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith that either the Fund or the Adviser
has suffered a material adverse change in its business, operations
or financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the
Company, such termination to be effective sixty (60) days' after
receipt by the other parties of written notice of the election to
terminate; or
(j) at the option of the Fund or the Adviser, if the Fund or Adviser
respectively, determines in its sole judgment exercised in good
faith that the Company has suffered a material adverse
23
<PAGE>
change in its business, operations or financial condition since the
date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact upon the
business and operations of the Fund or the Adviser, such termination
to be effective sixty (60) days' after receipt by the other parties
of written notice of the election to terminate: or
(k) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the Contract
owners having an interest in the Account (or any sub-account) to
substitute the shares of another investment company for the
corresponding Portfolio's shares of the Fund in accordance with the
terms of the Contracts for which those Portfolio shares had been
selected to serve as the underlying portfolio. The Company will give
sixty (60) days' prior written notice to the Fund of the date of any
proposed vote or other action taken to replace the Fund's shares or
of the filing of any required regulatory approvals); or
(l) at the option of the Company or the Fund upon a determination by a
majority of the Fund Board, or a majority of the disinterested Fund
Board members, that an irreconcilable material conflict exists among
the interests of: (1) all Contract owners of variable insurance
products of all separate accounts; or (2) the interests of the
Participating Insurance Companies investing in the Fund as set forth
in Article VII of this Agreement; or
(m) at the option of the Fund in the event any of the Contracts are not
issued or sold in accordance with applicable federal and/or state
law. Termination will be effective immediately upon such occurrence
without notice.
10.2 Notice Requirement
(a) No termination of this Agreement, except a termination under Section
10.1 (m) of this Agreement, will be effective unless and until the
party terminating this Agreement gives prior written notice to all
other parties of its intent to terminate, which notice will set
forth the basis for the termination.
(b) In the event that any termination of this Agreement is based upon
the provisions of Article VII, such prior written notice will be
given in advance of the effective date of termination as required by
such provisions.
10.3 Effect of Termination
Notwithstanding any termination of this Agreement, the Fund, the Adviser
and the Distributor will, at the option of the Company, continue to make
available additional shares of the Fund pursuant to the terms and
conditions of this Agreement, for all Contracts in effect on the
effective date of termination
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<PAGE>
of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts
will be permitted to reallocate investments in the Designated Portfolios
(as in effect on such date), redeem investments in the Designated
Portfolios and/or invest in the Designated Portfolios upon the making of
additional purchase payments under the Existing Contracts. The parties
agree that this Section 10.3 will not apply to any terminations under
Article VII and the effect of such Article VII terminations will be
governed by Article VII of this Agreement.
10.4 Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive
and not be affected by any termination of this Agreement. In addition,
with respect to Existing Contracts, all provisions of this Agreement also
will survive and not be affected by any termination of this Agreement.
ARTICLE XI -- NOTICES
Any notice will be deemed duly 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 parties.
If to the Company:
------------------
Pruco Life Insurance Company
If to the Fund:
---------------
INVESCO Variable Investment Funds, Inc.
7800 E. Union Avenue
Denver, Colorado 80217-3706
Attn: Ronald L. Grooms, Senior Vice President
If to the Adviser:
------------------
INVESCO Funds Group, Inc.
7800 E. Union Avenue
Denver, Colorado 80217-3706
Attn: Ronald L. Grooms, Senior Vice President
If to the Distributor:
----------------------
INVESCO Distributors, Inc.
7800 E. Union Avenue
Denver, Colorado 80217-3706
Attn: Ronald L. Grooms, Senior Vice President
25
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ARTICLE XII -- MISCELLANEOUS
12.1 All persons dealing with the Fund must look solely to the property of the
Fund for the enforcement of any claims against the Fund as neither the
directors, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Fund.
12.2 The Fund and the Adviser acknowledge that the identities of the customers
of the Company or any of its affiliates (collectively the "Protected
Parties" for purposes of this Section 12.2), information maintained
regarding those customers, and all computer programs and procedures
developed by the Protected Parties or any of their employees or agents in
connection with the Company's performance of its duties under this
Agreement are the valuable property of the Protected Parties. The Fund
and the Adviser agree that if they come into possession of any list or
compilation of the identities of or other information about the Protected
Parties' customers, or any other property of the Protected Parties, other
than such information as may be independently developed or compiled by
the Fund or the Adviser from information supplied to them by the
Protected Parties' customers who also maintain accounts directly with the
Fund or the Adviser, the Fund and the Adviser will hold such information
or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with
the Company's prior written consent; or (b) as required by law or
judicial process. The Fund and the Adviser acknowledge that any breach of
the agreements in this Section 12.2 would result in immediate and
irreparable harm to the Protected Parties for which there would be no
adequate remedy at law and agree that in the event of such a breach, the
Protected Parties will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
12.3 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.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
12.5 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
12.6 This Agreement will not be assigned by any party hereto without the prior
written consent of all the parties.
26
<PAGE>
12.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights. remedies and
obligations, at law or in equity, which the parties hereto are entitled
to under state and federal law.
12.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
12.9 Each party to this Agreement will cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Commission, the NASD and state insurance regulators) and will permit each
other and such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement
or the transactions contemplated hereby.
12.10 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or board action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
12.11 The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts, the
Accounts or the Portfolios of the Fund or other applicable terms of this
Agreement.
27
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seat to be hereunder affixed hereto as of the date specified below.
PRUCO LIFE INSURANCE COMPANY
By: /s/ ESTHER H. MILNES
-------------------------------
Name: Esther H. Milnes
----------------------------
Title: President
----------------------------
INVESCO VARIABLE INVESTMENT FUNDS, INC.
By: /s/ RONALD L. GROOMS
-------------------------------
Ronald L. Grooms
Treasurer
INVESCO FUNDS GROUP, INC.
By: /s/ RONALD L. GROOMS
-------------------------------
Ronald L. Grooms
Senior Vice President & Treasurer
INVESCO DISTRIBUTORS, INC.
By: /s/ RONALD L. GROOMS
-------------------------------
Ronald L. Grooms
Senior Vice President & Treasurer
28
<PAGE>
PARTICIPATION AGREEMENT
SCHEDULE A
The following Separate Accounts and Associated Contracts of Pruco Life Insurance
Company are permitted in accordance with the provisions of this Agreement to
invest in Portfolios of the Fund shown in Schedule B:
CONTRACTS/PRODUCT FUNDED BY SEPARATE ACCOUNT NAME OF SEPARATE ACCOUNT
-------------------------------------------- -------------------------
PruSelect III Pruco Life Variable Universal
Account
Established April 17, 1989
SEC Registration #811-5826
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<PAGE>
PARTICIPATION AGREEMENT
SCHEDULE B
The Separate Account(s) shown on Schedule A may invest in the following
Portfolios of the Fund.
INVESCO VIF -- UTILITIES FUND
INVESCO VIF -- TECHNOLOGY FUND
9-Jul-98 Page I of I
<PAGE>
PARTICIPATION AGREEMENT
SCHEDULE C
PROXY VOTING PROCEDURES
The following is a list of procedures and corresponding responsibilities for the
handling of proxies and voting instructions relating to the Fund. The defined
terms herein shall have the meanings assigned in the Participation Agreement
except that the term "Company" shall also include the department or third party
assigned by the Company to perform the steps delineated below.
1. The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting to
enable the Company to consider and prepare for the solicitation of voting
instructions from owners of the Contracts and to facilitate the
establishment of tabulation procedures. At this time the Fund will inform
the Companv of the Record, Mailing and Meeting dates. This will be done
verbally approximately two months before meeting.
2. Promptly after the Record Date, the Company will perform a "tape run", or
other activity which will generate the names, addresses and number of units
which are attributed to each contract owner/policyholder (the "Customer")
as of the Record Date. Allowance should be made for account adjustments
made after this date that could affect the status of the Customers'
accounts as of the Record Date.
NOTE: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to call in
the number of Customers to the Fund, as soon as possible, but no later
than two weeks after the Record Date.
3. The Fund's Annual Report must be sent to each Customer by the Company
either before or together with the Customers' receipt of voting,
instruction solicitation material. The Fund will provide the last Annual
Report to the Company pursuant to the terms of Section 6.2 of the Agreement
to which this Schedule relates.
4. The text and format for the Voting Instruction Cards ("Cards" or "Card")
is provided to the Company by the Fund. The Company, at its expense, shall
produce and personalize the Voting Instruction Cards. The Fund or its
affiliate must approve the Card before it is printed. Allow approximately
2-4 business days for printing information on the Cards. Information
commonly found on the Cards includes:
o name (legal name as found on account registration)
o address
o Fund or account number
o coding to state number of units
o individual Card number for use in tracking and verification of votes
(already on Cards as printed bv the Fund).
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
5. During this time, the Fund will develop, produce and pay for the Notice of
Proxy and the Proxy Statement (one document). Printed and folded notices
and statements will be sent to Company for insertion into envelopes
(envelopes and return envelopes are provided and paid for by the Company).
Contents of envelope sent to Customers by the Company will include:
9-July-98 Page 1 of 1
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o Voting Instruction Card(s)
o one proxy notice and statement (one document)
o return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
o "urge buckslip" - optional, but recommended. (This is a small, single
sheet of paper that requests Customers to vote as quickly as possible
and that their vote is important. One copy will be supplied by the
Fund.)
o cover letter - optional, supplied by Company and reviewed and
approved in advance by the Fund
6. The above contents should be received bv the Company approximately 3-5
business days before mail date. Individual in charge at Company reviews
and approves the contents of the mailing package to ensure correctness
and completeness. Copy of this approval sent to the Fund.
7. Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the Company
as the shareowner. (A 5-week period is recommended.) Solicitation time is
calculated as calendar days from (but NOT including,) the meeting,
counting backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An
often used procedure is to sort Cards on arrival by proposal into vote
categories of all yes, no, or mixed replies, and to begin data entry.
NOTE: Postmarks are not generally needed. A need for postmark information
would be due to an insurance company's internal procedure and has not
been required by the Fund in the past.
9. Signatures on Card checked against legal name on account registration
which was printed on the Card.
NOTE: For Example, if the account registration is under "John A. Smith,
Trustee," then that is the exact legal name to be printed on the Card and
is the signature needed on the Card.
10. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter and a
new Card and return envelope. The mutilated or illegible Card is
disregarded and considered to be NOT RECEIVED for purposes of vote
tabulation. Any Cards that have been "kicked out" (e.g. mutilated,
illegible) of the procedure are "hand verified," i.e., examined as to why
they did not complete the system. Any questions on those Cards are
usually remedied individually.
11. There are various control procedures used to ensure proper tabulation
of votes and accuracy of that tabulation. The most prevalent is to sort
the Cards as they first arrive into categories depending upon their vote;
an estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
12. The actual tabulation of votes is done in units which is then converted
to shares. (It is very important that the Fund receives the tabulations
stated in terms of a percentage and the number of SHARES.) The Fund must
review and approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to the Fund
on the morning of the meeting not later than 10:00 a.m. Eastern time. The
Fund may request an earlier deadline if reasonable and if required to
calculate the vote in time for the meeting.
14. Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
The Fund will provide a standard form for each Certification.
9-Jul-98 Page 1 of 1
<PAGE>
15. The Company will be required to box and archive the Cards received
from the Customers. In the event that any vote is challenged or if
otherwise necessary for legal, regulatory, or accounting purposes, the
Fund will be permitted reasonable access to such Cards.
16. All approvals and "signing-off" may be done orally, but must always be
followed up in writing.
9-Jul-98 Page 1 of 1
