EXHIBIT 8D
FUND PARTICIPATION AGREEMENT
The Prudential Series Fund, Inc.
TABLE OF CONTENTS
ARTICLE I. Sale of Fund Shares........................................... 4
ARTICLE II. Representations and Warranties................................ 8
ARTICLE III. Prospectuses and Proxy Statements; Voting..................... 11
ARTICLE IV. Sales Material and Information................................ 13
ARTICLE V. Fees and Expenses............................................. 15
ARTICLE VI. Diversification and Qualification............................. 16
ARTICLE VII. Potential Conflicts and Compliance With
Mixed and Shared Funding Exemptive Order...................... 18
ARTICLE VIII. Indemnification............................................... 21
ARTICLE IX. Applicable Law................................................ 30
ARTICLE X. Termination................................................... 31
ARTICLE XI. Notices....................................................... 34
ARTICLE XII. Miscellaneous................................................. 35
SCHEDULE A Contracts..................................................... 38
SCHEDULE B Designated Portfolios......................................... 39
SCHEDULE C Expenses...................................................... 40
PARTICIPATION AGREEMENT
-----------------------
Among
PACIFIC LIFE INSURANCE COMPANY,
THE PRUDENTIAL SERIES FUND, INC.,
PRUDENTIAL INVESTMENTS FUND MANAGEMENT LLC,
and
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC
THIS AGREEMENT, made and entered into as of this 1st day of May, 2001, by and
among Pacific Life Insurance Company (hereinafter "PLIC"), a California life
insurance company, on its own behalf and on behalf of its SEPARATE ACCOUNT
PACIFIC VALUE (the "Account"); THE PRUDENTIAL SERIES FUND, INC., an open-end
management investment company organized under the laws of Maryland (hereinafter
the "Fund"); PRUDENTIAL INVESTMENTS FUND MANAGEMENT LLC (hereinafter the
"Adviser"), a New York limited liability company; and PRUDENTIAL INVESTMENT
MANAGEMENT SERVICES LLC (hereinafter the "Distributor"), a Delaware limited
liability company.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and/or variable annuity
contracts (collectively, the "Variable Insurance Products") to be offered by
insurance companies, including PLIC, which have entered into participation
agreements similar to this Agreement (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several series of
shares, each designated a "Portfolio" and representing the interest in a
particular managed portfolio of securities and other assets; and
2
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (hereinafter the "SEC"), dated March 5, 1999 (File No. IC-23728),
granting Participating Insurance Companies and variable annuity and variable
life insurance separate accounts 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 Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans") (hereinafter the
"Mixed and Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and shares of the Portfolio(s) are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
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; and
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, (the "1934 Act") and is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD"); and
WHEREAS, PLIC has registered certain variable annuity contracts supported
wholly or partially by the Account (the "Contracts") under the 1933 Act and said
Contracts are listed in Schedule A attached hereto and incorporated herein by
reference, as such Schedule may be amended from time to time by mutual written
agreement; and
3
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of PLIC under the
insurance laws of the State of California, to set aside and invest assets
attributable to the Contracts; and
WHEREAS, PLIC has registered the Account as a unit investment trust under the
1940 Act and has registered the securities deemed to be issued by the Account
under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
PLIC intends to purchase shares in the Portfolio(s) listed in Schedule B
attached hereto and incorporated herein by reference, as such Schedule may be
amended from time to time by mutual written agreement (the "Designated
Portfolio(s)"), on behalf of the Account to fund the Contracts, and the Fund is
authorized to sell such shares to unit investment trusts such as the Account at
net asset value; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Account also intends to purchase shares in other open-end investment
companies or series thereof not affiliated with the Fund (the "Unaffiliated
Funds") on behalf of the Account to fund the Contracts;
NOW, THEREFORE, in consideration of their mutual promises, PLIC, the Fund, the
Distributor and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares.
-------------------
1.1. The Fund agrees to sell to PLIC those shares of the Designated
Portfolio(s) which the Account orders, executing such orders on each Business
Day at the net asset value next computed after receipt by the Fund or its
designee of the order for the shares of the Designated Portfolios. For purposes
of this Section 1.1, PLIC shall be the designee of the Fund for receipt of such
orders and receipt by such designee shall constitute receipt by the Fund,
provided that the Fund receives notice of any such order by 9:00 a.m. Eastern
time on the next following Business
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Day. "Business Day" shall mean any day on which the New York Stock Exchange is
open for trading and on which the Designated Portfolio calculates its net asset
value pursuant to the rules of the SEC.
1.2. The Fund agrees to make shares of the Designated Portfolio(s) available
for purchase at the applicable net asset value per share by PLIC and the Account
on those days on which the Fund calculates its Designated Portfolio(s)' net
asset value pursuant to rules of the SEC, and the Fund shall calculate such net
asset value on each day which the New York Stock Exchange is open for trading.
Notwithstanding the foregoing, the Board of Directors of the Fund (hereinafter
the "Board") may refuse to sell shares of any Designated Portfolio to any
person, or suspend or terminate the offering of shares of any Designated
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 its fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Designated
Portfolio.
1.3. The Fund will not sell shares of the Designated Portfolio(s) to any
other Participating Insurance Company separate account unless an agreement
containing provisions the substance of which are the same as Sections 2.1
(except with respect to California law), 3.5, 3.6, 3.7, and Article VII of this
Agreement is in effect to govern such sales.
1.4. The Fund agrees to redeem for cash, on PLIC's request, any full or
fractional shares of the Fund held by PLIC, executing such requests on each
Business Day at the net asset value next computed after receipt by the Fund or
its designee of the request for redemption. Requests for redemption identified
by PLIC, or its agent, as being in connection with surrenders, annuitizations,
or death benefits under the Contracts, upon prior written notice, may be
executed within seven (7) calendar days after receipt by the Fund or its
designee of the requests for redemption. This Section 1.4 may be amended, in
writing, by the parties consistent with the requirements of the 1940 Act and
interpretations thereof. For purposes of this Section 1.4, PLIC shall be the
designee of the Fund for receipt of requests for redemption and receipt by such
5
designee shall constitute receipt by the Fund, provided that the Fund receives
notice of any such request for redemption by 9:00 a.m. Eastern time on the next
following Business Day.
1.5. The Parties hereto acknowledge that the arrangement contemplated by this
Agreement is not exclusive; the Fund's shares may be sold to other Participating
Insurance Companies (subject to Section 1.3) and the cash value of the Contracts
may be invested in other investment companies.
1.6. PLIC shall pay for Fund shares by 3:00 p.m. Eastern time on the next
Business Day after an order to purchase Fund shares is made in accordance with
the provisions of Section 1.1 hereof. Payment shall be in federal funds
transmitted by wire and/or by a credit for any shares redeemed the same day as
the purchase.
1.7. The Fund shall pay and transmit the proceeds of redemptions of Fund
shares by 11:00 a.m. Eastern Time on the next Business Day after a redemption
order is received in accordance with Section 1.4 hereof. Payment shall be in
federal funds transmitted by wire and/or a credit for any shares purchased the
same day as the redemption.
1.8. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to PLIC or the Account. Shares purchased
from the Fund will be recorded in an appropriate title for the Account or the
appropriate sub-account of the Account.
1.9. The Fund shall furnish same day notice (by wire or telephone, followed
by written confirmation) to PLIC of any income, dividends or capital gain
distributions payable on the Designated Portfolio(s)' shares. PLIC hereby
elects to receive all such income dividends and capital gain distributions as
are payable on the Designated Portfolio shares in additional shares of that
Designated Portfolio. PLIC reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Fund shall notify PLIC by the end of the next following Business Day of the
number of shares so issued as payment of such dividends and distributions.
6
1.10. The Fund shall make the net asset value per share for each Designated
Portfolio available to PLIC on each Business Day 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 6:00 p.m. Eastern time. In
the event of an error in the computation of a Designated Portfolio's net asset
value per share ("NAV") or any dividend or capital gain distribution (each, a
"pricing error"), the Adviser or the Fund shall immediately notify PLIC as soon
as possible after discovery of the error. Such notification may be verbal, but
shall be confirmed promptly in writing in accordance with Article XI of this
Agreement. A pricing error shall be corrected as follows: (a) if the pricing
error results in a difference between the erroneous NAV and the correct NAV of
less than $0.01 per share, then no corrective action need be taken; (b) if the
pricing error results in a difference between the erroneous NAV and the correct
NAV equal to or greater than $0.01 per share, but less than 1/2 of 1% of the
Designated Portfolio's NAV at the time of the error, then the Adviser shall
reimburse the Designated Portfolio for any loss, after taking into consideration
any positive effect of such error; however, no adjustments to Contractowner
accounts need be made; and (c) if the pricing error results in a difference
between the erroneous NAV and the correct NAV equal to or greater than 1/2 of 1%
of the Designated Portfolio's NAV at the time of the error, then the Adviser
shall reimburse the Designated Portfolio for any loss (without taking into
consideration any positive effect of such error) and shall reimburse PLIC for
the costs of adjustments made to correct Contractowner accounts in accordance
with the provisions of Schedule C. If an adjustment is necessary to correct a
material error which has caused Contractowners to receive less than the amount
to which they are entitled, the number of shares of the applicable sub-account
of such Contractowners will be adjusted and the amount of any underpayments
shall be credited by the Adviser to PLIC for crediting of such amounts to the
applicable Contractowners accounts. Upon notification by the Adviser of any
overpayment due to a material error, PLIC shall promptly remit to Adviser any
overpayment that has not been paid to Contractowners. In no event shall PLIC be
liable to Contractowners for any such adjustments or underpayment amounts. A
pricing error within categories (b) or (c) above shall be deemed to be
"materially incorrect" or constitute a "material error" for purposes of this
Agreement.
7
The standards set forth in this Section 1.10 are based on the Parties'
understanding of the views expressed by the staff of the SEC as of the date of
this Agreement. In the event the views of the SEC staff are later modified or
superseded by SEC or judicial interpretation, the parties shall amend the
foregoing provisions of this Agreement to comport with the appropriate
applicable standards, on terms mutually satisfactory to all Parties.
ARTICLE II. Representations and Warranties
------------------------------
2.1. PLIC represents and warrants that the Contracts and the securities
deemed to be issued by the Account under the Contracts are or will be registered
under the 1933 Act; that the Contracts will be issued and sold in compliance in
all material respects with all applicable federal and state laws and that the
sale of the Contracts shall comply in all material respects with state insurance
requirements. PLIC 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 the Account prior to any issuance or sale of
units thereof as a segregated asset account under California law, and has
registered the Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for the
Contracts and that it will maintain such registration for so long as any
Contracts are outstanding as required by applicable law.
2.2. The Fund represents and warrants that Designated Portfolio(s) shares
sold pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with all applicable federal
securities laws including without limitation the 1933 Act, the 1934 Act, and the
1940 Act and that the Fund is and shall remain registered under the 0000 Xxx.
The Fund shall 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.
2.3. The Fund reserves the right to adopt a plan pursuant to Rule 12b-1 under
the 1940 Act and to impose an asset-based or other charge to finance
distribution expenses as permitted by
8
applicable law and regulation. In any event, the Fund and Adviser agree to
comply with applicable provisions and SEC staff interpretations of the 1940 Act
to assure that the investment advisory or management fees paid to the Adviser by
the Fund are in accordance with the requirements of the 1940 Act. To the extent
that the Fund decides to finance distribution expenses pursuant to Rule 12b-1,
the Fund undertakes to have its Board, a majority of whom are not interested
persons of the Fund, formulate and approve any plan pursuant to Rule 12b-1 under
the 1940 Act to finance distribution expenses.
2.4. The Fund represents and warrants that it will make every effort to
ensure that Designated Portfolio(s) shares will be sold in compliance with the
insurance laws of the State of California and all applicable state insurance and
securities laws. The Fund shall register and qualify the shares for sale in
accordance with the laws of the various states if and to the extent required by
applicable law. PLIC and the Fund will endeavor to mutually cooperate with
respect to the implementation of any modifications necessitated by any change in
state insurance laws, regulations or interpretations of the foregoing that
affect the Designated Portfolio(s) (a "Law Change"), and to keep each other
informed of any Law Change that becomes known to either party. In the event of
a Law Change, the Fund agrees that, except in those circumstances where the Fund
has advised PLIC that its Board of Directors has determined that implementation
of a particular Law Change is not in the best interest of all of the Fund's
shareholders with an explanation regarding why such action is lawful, any action
required by a Law Change will be taken.
2.5. The Fund represents and warrants 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 the 1940 Act.
2.6. The Adviser represents and warrants that it is and shall remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for the Fund in compliance in all material
respects with any applicable state and federal securities laws.
9
2.7. The Distributor represents and warrants that it is and shall remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for the Fund in compliance in all material
respects with the laws of any applicable state and federal securities laws.
2.8. The Fund and the Adviser represent and warrant that all of their
respective officers, employees, investment advisers, and other individuals or
entities dealing with the money and/or securities of the Fund are, and shall
continue to be at all times, covered by one or more blanket fidelity bonds or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage required by Rule 17g-1 under the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid bonds shall include
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company.
2.9. The Fund will provide PLIC with as much advance notice as is reasonably
practicable of any material change affecting the Designated Portfolio(s)
(including, but not limited to, any material change in the registration
statement or prospectus affecting the Designated Portfolio(s)) and any proxy
solicitation affecting the Designated Portfolio(s) and consult with PLIC in
order to implement any such change in an orderly manner, recognizing the
expenses of changes and attempting to minimize such expenses by implementing
them in conjunction with regular annual updates of the prospectus for the
Contracts. The Fund agrees to share equitably in expenses incurred by PLIC as a
result of actions taken by the Fund, consistent with the allocation of expenses
contained in Schedule C attached hereto and incorporated herein by reference.
2.10. PLIC represents and warrants, for purposes other than diversification
under Section 817 of the Internal Revenue Code of 1986 as amended ("the Code"),
that the Contracts are currently and at the time of issuance will be treated as
annuity contracts under applicable provisions of the Code, and that it will make
every effort to maintain such treatment and that it will notify the Fund, the
Distributor and the Adviser immediately upon having a reasonable basis
10
for believing that the Contracts have ceased to be so treated or that they might
not be so treated in the future. In addition, PLIC represents and warrants that
the Account is a "segregated asset account" and that interests in the Account
are offered exclusively through the purchase of or transfer into a "variable
contract" within the meaning of such terms under Section 817 of the Code and the
regulations thereunder. PLIC will use every effort to continue to meet such
definitional requirements, and it will notify the Fund, the Distributor and the
Adviser 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.
PLIC represents and warrants that it will not purchase Fund shares with assets
derived from tax-qualified retirement plans except, indirectly, through
Contracts purchased in connection with such plans.
ARTICLE III. Prospectuses and Proxy Statements; Voting.
-----------------------------------------
3.1. At least annually, the Adviser or Distributor shall provide PLIC with as
many copies of the Fund's current prospectus for the Designated Portfolio(s) as
PLIC may reasonably request for marketing purposes (including distribution to
Contractowners with respect to new sales of a Contract), with expenses to be
borne in accordance with Schedule C hereof. If requested by PLIC in lieu
thereof, the Adviser, Distributor or Fund shall provide such documentation
(including a camera-ready copy and computer diskette of the current prospectus
for the Designated Portfolio(s)) and other assistance as is reasonably necessary
in order for PLIC once each year (or more frequently if the prospectuses for the
Designated Portfolio(s) are amended) to have the prospectus for the Contracts
and the Fund's prospectus for the Designated Portfolio(s) printed together in
one document. The Fund and Adviser agree that the prospectus (and semi-annual
and annual reports) for the Designated Portfolio(s) will describe only the
Designated Portfolio(s) and will not name or describe any other portfolios or
series that may be in the Fund unless required by law.
3.2. If applicable state or federal laws or regulations require that the
Statement of Additional Information ("SAI") for the Fund be distributed to all
Contractowners, then the Fund, Distributor and/or the Adviser shall provide PLIC
with copies of the Fund's SAI or documenta-
11
tion thereof for the Designated Portfolio(s) in such quantities, with expenses
to be borne in accordance with Schedule C hereof, as PLIC may reasonably require
to permit timely distribution thereof to Contractowners. The Adviser,
Distributor and/or the Fund shall also provide SAIs to any Contractowner or
prospective owner who requests such SAI from the Fund (although it is
anticipated that such requests will be made to PLIC).
3.3. The Fund, Distributor and/or Adviser shall provide PLIC with copies of
the Fund's proxy material, reports to stockholders and other communications to
stockholders for the Designated Portfolio(s) in such quantity, with expenses to
be borne in accordance with Schedule C hereof, as PLIC may reasonably require to
permit timely distribution thereof to Contractowners.
3.4. It is understood and agreed that, except with respect to information
regarding PLIC provided in writing by that party, PLIC shall not be responsible
for the content of the prospectus or SAI for the Designated Portfolio(s). It is
also understood and agreed that, except with respect to information regarding
the Fund, the Distributor, the Adviser or the Designated Portfolio(s) provided
in writing by the Fund, the Distributor or the Adviser, neither the Fund, the
Distributor nor Adviser are responsible for the content of the prospectus or SAI
for the Contracts.
3.5. If and to the extent required by law PLIC shall:
(i) solicit voting instructions from Contractowners;
(ii) vote the Designated Portfolio(s) shares held in the Account in
accordance with instructions received from Contractowners: and
(iii) vote Designated Portfolio shares held in the Account for which
no instructions have been received in the same proportion as
Designated Portfolio(s) shares for which instructions have been
received from Contractowners, so long as and to the extent that
the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners.
PLIC reserves the right to vote Fund shares held
12
in any segregated asset account in its own right, to the extent
permitted by law.
3.6. PLIC shall be responsible for assuring that each of its separate
accounts holding shares of a Designated Portfolio calculates voting privileges
as directed by the Fund and agreed to by PLIC and the Fund. The Fund agrees to
promptly notify PLIC of any changes of interpretations or amendments of the
Mixed and Shared Funding Exemptive Order.
3.7. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, comply with
Section 16(c) of the 1940 Act (although the Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b). Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors or trustees and with whatever rules the SEC may
promulgate with respect thereto.
ARTICLE IV. Sales Material and Information.
------------------------------
4.1. PLIC shall furnish, or shall cause to be furnished, to the Fund or its
designee, a copy of each piece of sales literature or other promotional material
that PLIC develops or proposes to use and in which the Fund (or a Portfolio
thereof), its Adviser or one of its sub-advisers or the Distributor is named in
connection with the Contracts, at least ten (10) Business Days prior to its use.
No such material shall be used if the Fund objects to such use within five (5)
Business Days after receipt of such material.
4.2. PLIC shall not give any information or make any representations or
statements on behalf of the Fund in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement, including the prospectus or SAI for the Fund shares, as the same may
be amended or supplemented from time to time, or in sales
13
literature or other promotional material approved by the Fund, Distributor or
Adviser, except with the permission of the Fund, Distributor or Adviser.
4.3. The Fund or the Adviser shall furnish, or shall cause to be furnished,
to PLIC, a copy of each piece of sales literature or other promotional material
in which PLIC and/or its separate account(s) is named at least ten (10) Business
Days prior to its use. No such material shall be used if PLIC objects to such
use within five (5) Business Days after receipt of such material.
4.4. The Fund, the Distributor and the Adviser shall not give any information
or make any representations on behalf of PLIC or concerning PLIC, the Account,
or the Contracts other than the information or representations contained in a
registration statement, including the prospectus or SAI for the Contracts, as
the same may be amended or supplemented from time to time, or in sales
literature or other promotional material approved by PLIC or its designee,
except with the permission of PLIC.
4.5. The Fund will provide to PLIC at least one complete copy of all
registration statements, prospectuses, SAIs, 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 Designated
Portfolio(s) within a reasonable period of time following the filing of such
document(s) with the SEC or NASD or other regulatory authorities.
4.6. PLIC will provide to the Fund at least one complete copy of all
registration statements, prospectuses, SAIs, 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 the Account, contemporaneously with the
filing of such document(s) with the SEC, NASD, or other regulatory authority.
4.7. For purposes of Articles IV and VIII, the phrase "sales literature and
other promotional material" includes, but is not limited to, advertisements
(such as material published,
14
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; e.g., on-line networks such as the
----
Internet or other electronic media), sales literature (i.e., any written
----
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees, and shareholder reports, and proxy materials (including solicitations
for voting instructions) and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the 0000 Xxx.
4.8. At the request of any party to this Agreement, each other party will
make available to the other party's independent auditors and/or representative
of the appropriate regulatory agencies, all records, data and access to
operating procedures that may be reasonably requested in connection with
compliance and regulatory requirements related to this Agreement or any party's
obligations under this Agreement.
ARTICLE V. Fees and Expenses
-----------------
5.1. The Fund and the Adviser shall pay no fee or other compensation to PLIC
under this Agreement, and PLIC shall pay no fee or other compensation to the
Fund or Adviser under this Agreement, although the parties hereto will bear
certain expenses in accordance with Schedule C, Articles III, V, and other
provisions of this Agreement.
5.2. All expenses incident to performance by the Fund, the Distributor and
the Adviser under this Agreement shall be paid by the appropriate party, as
further provided in Schedule C. The Fund shall see to it that all shares of the
Designated Portfolio(s) are registered and authorized for issuance in accordance
with applicable federal law and, if and to the extent required, in accordance
with applicable state laws prior to their sale.
15
5.3. The parties shall bear the expenses of routine annual distribution
(mailing costs) of the Fund's prospectus and distribution (mailing costs) of the
Fund's proxy materials and reports to owners of Contracts offered by PLIC, in
accordance with Schedule C.
ARTICLE VI. Diversification and Qualification.
---------------------------------
6.1. The Fund, the Distributor and the Adviser represent and warrant that the
Fund will at all times sell its shares and invest its assets in such a manner as
to ensure that the Contracts will be treated as annuity contracts under the
Code, and the regulations issued thereunder. Without limiting the scope of the
foregoing, the Fund, Distributor and Adviser represent and warrant that the Fund
and each Designated Portfolio thereof will at all times comply with Section
817(h) of the Code and Treasury Regulation (S)1.817-5, as amended from time to
time, and any Treasury interpretations thereof, relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts and
any amendments or other modifications or successor provisions to such Section or
Regulations. The Fund, the Distributor and the Adviser agree that shares of the
Designated Portfolio(s) will be sold only to Participating Insurance Companies
and their separate accounts and to Qualified Plans.
6.2. No shares of any Designated Portfolio of the Fund will be sold to the
general public.
6.3. The Fund, the Distributor and the Adviser represent and warrant that the
Fund and each Designated Portfolio is currently qualified as a Regulated
Investment Company under Subchapter M of the Code, and that each Designated
Portfolio will maintain such qualification (under Subchapter M or any successor
or similar provisions) as long as this Agreement is in effect.
6.4. The Fund, Distributor or Adviser will notify PLIC immediately upon
having a reasonable basis for believing that the Fund or any Designated
Portfolio has ceased to comply
16
with the aforesaid Section 817(h) diversification or Subchapter M qualification
requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2, 8.3 and 8.4
hereof and without in any way limiting or restricting any other remedies
available to PLIC, the Adviser or Distributor will pay all costs associated with
or arising out of any failure, or any anticipated or reasonably foreseeable
failure, of the Fund or any Designated Portfolio to comply with Sections 6.1,
6.2, or 6.3 hereof, including all costs associated with reasonable and
appropriate corrections or responses 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 regulatory authorizations are required to
substitute shares of another investment company for those of the failed
Portfolio (including but not limited to an order pursuant to Section 26(b) of
the 1940 Act).
6.6. PLIC agrees that if the Internal Revenue Service ("IRS") asserts in
writing in connection with any governmental audit or review of PLIC or, to
PLIC's knowledge, of any Contractowner that any Designated Portfolio has failed
to comply with the diversification requirements of Section 817(h) of the Code or
PLIC otherwise becomes aware of any facts that could give rise to any claim
against the Fund, Distributor or Adviser as a result of such a failure or
alleged failure:
(a) PLIC shall promptly notify the Fund, the Distributor and the Adviser of
such assertion or potential claim;
(b) PLIC shall consult with the Fund, the Distributor and the Adviser as to
how to minimize any liability that may arise as a result of such failure or
alleged failure;
(c) PLIC shall use its best efforts to minimize any liability of the Fund,
the Distributor and the Adviser resulting from such failure, including,
without limitation, demonstrating,
17
pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner
of the IRS that such failure was inadvertent;
(d) any written materials to be submitted by PLIC to the IRS, any
Contractowner or any other claimant in connection with any of the foregoing
proceedings or contests (including, without limitation, any such materials to
be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-
5(a)(2)) shall be provided by PLIC to the Fund, the Distributor and the
Adviser (together with any supporting information or analysis) within at
least two (2) business days prior to submission;
(e) PLIC shall provide the Fund, the Distributor and the Adviser with such
cooperation as the Fund, the Distributor and the Adviser shall reasonably
request (including, without limitation, by permitting the Fund, the
Distributor and the Adviser to review the relevant books and records of PLIC)
in order to facilitate review by the Fund, the Distributor and the Adviser of
any written submissions provided to it or its assessment of the validity or
amount of any claim against it arising from such failure or alleged failure;
(f) PLIC shall not with respect to any claim of the IRS or any Contractowner
that would give rise to a claim against the Fund, the Distributor and the
Adviser (i) compromise or settle any claim, (ii) accept any adjustment on
audit, or (iii) forego any allowable administrative or judicial appeals,
without the express written consent of the Fund, the Distributor and the
Adviser, which shall not be unreasonably withheld; provided that, PLIC shall
not be required to appeal any adverse judicial decision unless the Fund and
the Adviser shall have provided an opinion of independent counsel to the
effect that a reasonable basis exists for taking such appeal; and further
provided that the Fund, the Distributor and the Adviser shall bear the costs
and expenses, including reasonable attorney's fees, incurred by PLIC in
complying with this clause (f).
ARTICLE VII. Potential Conflicts and Compliance With Mixed and Shared Funding
----------------------------------------------------------------
Exemptive Order
---------------
18
7.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict between 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: (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 Designated Portfolio are being managed; (e) a difference in
voting instructions given by variable annuity contract and variable life
insurance contract owners or by contract owners of different Participating
Insurance Companies; or (f) a decision by a Participating Insurance Company to
disregard the voting instructions of contract owners. The Board shall promptly
inform PLIC if it determines that an irreconcilable material conflict exists and
the implications thereof.
7.2. PLIC will report any potential or existing conflicts of which it is
aware to the Board. PLIC will assist the Board in carrying out its
responsibilities under the Mixed and 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 PLIC to inform the Board whenever contract owner voting instructions are to
be disregarded. Such responsibilities shall be carried out by PLIC with a view
only to the interests of its Contractowners.
7.3. If it is determined by a majority of the Board, or a majority of its
directors who are not interested persons of the Fund, the Distributor, the
Adviser or any sub-adviser to any of the Designated Portfolios (the "Independent
Directors"), that a material irreconcilable conflict exists, PLIC and other
Participating Insurance Companies shall, at their expense and to the extent
reasonably practicable (as determined by a majority of the Independent
Directors), 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 Fund or any
Designated Portfolio and reinvesting such assets in a different investment
medium,
19
including (but not limited to) another portfolio of the Fund, 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 contract
----
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.
7.4. If a material irreconcilable conflict arises because of a decision by
PLIC to disregard Contractowner voting instructions and that decision represents
a minority position or would preclude a majority vote, PLIC may be required, at
the Fund's election, to withdraw the Account's investment in the Fund and
terminate this Agreement; 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 Independent Directors. Any such
withdrawal and termination must take place within six (6) months after the Fund
gives written notice that this provision is being implemented, and until the end
of that six month period the Adviser, the Distributor and the Fund shall
continue to accept and implement orders by PLIC for the purchase (and
redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to PLIC conflicts with the majority of
other state regulators, then PLIC will withdraw the Account's investment in the
Fund and terminate this Agreement within six months after the Board informs PLIC
in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested members
of the Board. Until the end of the foregoing six month period, the Fund shall
continue to accept and implement orders by PLIC for the purchase (and
redemption) of shares of the Fund.
20
7.6. For purposes of Sections 7.3 through 7.5 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 Fund be required to establish a new funding medium for the
Contracts. PLIC shall not be required by Section 7.3 to establish a new funding
medium for the Contracts if an offer to do so has been declined by vote of a
majority of Contractowners affected by the irreconcilable material conflict. In
the event that the Board determines that any proposed action does not adequately
remedy any irreconcilable material conflict, then PLIC will withdraw the
Account's investment in the Fund and terminate this Agreement within six (6)
months after the Board informs PLIC in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the Independent Directors.
7.7. 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, 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: and (b) Sections 3.5, 3.6, 3.7, 7.1, 7.2, 7.3,
7.4, and 7.5 of this Agreement shall continue in effect only to the extent that
terms and conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
---------------
8.1. Indemnification By PLIC
-----------------------
8.1(a). PLIC agrees to indemnify and hold harmless the Fund, the
Distributor and the Adviser and each of their respective officers and directors
or trustees and each person, if any, who controls the Fund, Distributor or
Adviser within the meaning of Section 15 of the 1933 Act
21
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, expenses, damages and liabilities (including
amounts paid in settlement with the written consent of PLIC) or litigation
(including reasonable legal and other expenses) to which the Indemnified Parties
may become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, expenses, damages or liabilities (or actions in
respect thereof) or settlements are related to the sale or acquisition of the
Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration
statement or prospectus or SAI covering 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 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 in writing to PLIC by or on
behalf of the Adviser, Distributor or Fund for use in the
registration statement or prospectus for the Contracts or in the
Contracts or sales literature or other promotional material (or any
amendment or supplement to any of the foregoing) or otherwise for use
in connection with the sale of the Contracts or Fund shares; or
(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 or other promotional
material of the Fund not supplied by PLIC or persons under its
control) or wrongful conduct of PLIC or persons under its control,
with respect to the sale or distribution of the Contracts or Fund
Shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI,
or sales literature or other promotional material of the Fund, or any
amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
if such a statement or omission was made in reliance upon information
furnished in writing to the Fund by or on behalf of PLIC; or
(iv) arise as a result of any failure by PLIC 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 PLIC in this Agreement or arise out of or
result from any other
22
material breach of this Agreement by PLIC, including without
limitation Section 2.10 and Section 6.6 hereof,
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). PLIC shall not be liable under this indemnification provision with
respect to any losses, claims, expenses, damages, liabilities or litigation to
which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or 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 or to
any of the Indemnified Parties.
8.1(c). PLIC 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 PLIC 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 PLIC of any such claim shall not relieve PLIC 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,
except to the extent that PLIC has been prejudiced by such failure to give
notice. In case any such action is brought against the Indemnified Parties,
PLIC shall be entitled to participate, at its own expense, in the defense of
such action. PLIC also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from PLIC
to such party of PLIC's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and PLIC will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
23
8.1(d). The Indemnified Parties will promptly notify PLIC of the
commencement of any litigation or proceedings 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.
------------------------------
8.2(a). The Adviser agrees to indemnify and hold harmless PLIC and its
directors and officers and each person, if any, who controls PLIC within the
meaning of Section 15 of the 1933 Act (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) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or 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 Fund's shares or the Contracts
and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement
or prospectus or SAI or sales literature or other promotional material
of the Fund prepared by the Fund, the Distributor or the Adviser (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 in
writing to the Adviser, the Distributor or the Fund by or on behalf of
PLIC for use in the registration statement, prospectus or SAI for the
Fund or in sales literature or other promotional material (or any
amendment or supplement to any of the foregoing) or otherwise for use
in connection with the sale of the Contracts or the Fund 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, SAI or sales literature or other promotional
material for the Contracts not supplied by the Adviser or persons
under its control) or wrongful conduct of the Fund, the Distributor or
the Adviser or persons under their control, with respect to the sale
or distribution of the Contracts or Fund shares; or
24
(iii) 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 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 in writing to PLIC by or
on behalf of the Adviser, the Distributor or the Fund; or
(iv) arise as a result of any failure by the Fund, the Distributor or the
Adviser to provide the services and furnish the materials under the
terms of this Agreement (including a failure, whether unintentional
or in good faith or otherwise, to comply with the diversification and
other qualification requirements specified in Article VI of this
Agreement); or
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Fund, the Distributor or the Adviser in
this Agreement or arise out of or result from any other material
breach of this Agreement by the Adviser, the Distributor or the Fund;
or
(vi) arise out of or result from the incorrect or untimely calculation or
reporting by the Fund, the Distributor or the Adviser of the daily
net asset value per share (subject to Section 1.10 of this Agreement)
or dividend or capital gain distribution rate;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Adviser specified in Article VI hereof.
8.2(b). The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or 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 or to
any of the Indemnified Parties.
8.2(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
25
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, except to
the extent that the Adviser has been prejudiced by such failure to give notice.
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 party named in the action. After notice from the Adviser to
such 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 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.
8.2(d). PLIC agrees promptly to notify the Adviser 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 the
Account.
8.3. Indemnification By the Fund.
---------------------------
8.3(a). The Fund agrees to indemnify and hold harmless PLIC and its
directors and officers and each person, if any, who controls PLIC within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 8.3) against any and all losses, claims, expenses,
damages and liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may be required to pay or become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, expenses, damages, liabilities or expenses (or actions in
respect thereof) or settlements, are related to the operations of the Fund and:
26
(i) arise as a result of any failure by the Fund to provide the services
and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification and other qualification
requirements specified in Article VI of this Agreement); or
(ii) 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;
or
(iii) arise out of or result from the incorrect or untimely calculation or
reporting of the daily net asset value per share (subject to Section
1.10 of this Agreement) or dividend or capital gain distribution
rate;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Fund shall not be liable under this indemnification provision
with respect to any losses, claims, expenses, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or 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 or to
any of the Indemnified Parties.
8.3(c). The Fund 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 Fund 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 Fund of any such claim shall not
relieve it 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, except to the extent that the Fund has been prejudiced by such
failure to give notice. In case any such action is brought against the
Indemnified Parties, the Fund will be entitled to participate, at its own
expense, in the defense thereof. The Fund shall also be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the
27
action. After notice from the Fund to such party of the Fund'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 Fund 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.
8.3(d). PLIC agrees promptly to notify the Fund of the commencement of any
litigation or proceeding against itself or any of its respective officers or
directors in connection with the Agreement, the issuance or sale of the
Contracts, the operation of the Account, or the sale or acquisition of shares of
the Fund.
8.4. Indemnification by the Distributor.
----------------------------------
8.4(a). The Distributor agrees to indemnify and hold harmless PLIC and its
directors and officers and each person, if any, who controls PLIC within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 8.4) against any and all losses, claims, expenses,
damages and liabilities (including amounts paid in settlement with the written
consent of the Distributor) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or 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 Fund's shares or the Contracts
and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration
statement or prospectus or SAI or sales literature or other
promotional material of the Fund prepared by the Fund, Adviser or
Distributor (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 in writing to the Adviser, the Distributor
or Fund by or on behalf of
28
PLIC for use in the registration statement or SAI or prospectus for
the Fund or in sales literature or other promotional material (or any
amendment or supplement to any of the foregoing) or otherwise for use
in connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the registration
statement, prospectus, SAI, sales literature or other promotional
material for the Contracts not supplied by the Distributor or persons
under its control) or wrongful conduct of the Fund, the Distributor
or Adviser or persons under their control, with respect to the sale
or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI,
sales literature or other promotional material 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 in writing to PLIC by or
on behalf of the Adviser, the Distributor or Fund; or
(iv) arise as a result of any failure by the Fund, Adviser or Distributor
to provide the services and furnish the materials under the terms of
this Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification and other
qualification requirements specified in Article VI of this
Agreement); or
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Fund, Adviser or Distributor in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Fund, Adviser or Distributor; or
(vi) arise out of or result from the incorrect or untimely calculation or
reporting of the daily net asset value per share (subject to Section
1.10 of this Agreement) or dividend or capital gain distribution
rate;
as limited by and in accordance with the provisions of Sections 8.4(b) and
8.4(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Distributor specified in Article VI
hereof.
8.4(b). The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified
29
Party would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, bad faith, or negligence in the performance or such Indemnified
Party's duties or by reason of such Indemnified Party's reckless disregard of
obligations or duties under this Agreement or to any of the Indemnified Parties.
8.4(c) The Distributor 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 Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision, except to the extent that the
Distributor has been prejudiced by such failure to give notice. In case any
such action is brought against the Indemnified Parties, the Distributor will be
entitled to participate, at its own expense, in the defense thereof. The
Distributor also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Distributor to such party of the Distributor's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Distributor will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
8.4(d) PLIC agrees to promptly notify the Distributor of the commencement
of any litigation or proceedings against it or any of its officers or directors
in connection with the issuance or sale of the Contracts or the operation of the
Account.
ARTICLE IX. Applicable Law.
--------------
30
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New Jersey,
without regard to the New Jersey Conflict of Laws provisions.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination.
-----------
10.1. This Agreement shall terminate:
(a) at the option of any party, with or without cause, with respect
to some or all Designated Portfolios, upon sixty (60) days advance
written notice delivered to the other parties; provided, however,
that such notice shall not be given earlier than six (6) months
following the date of this Agreement; or
(b) at the option of PLIC by written notice to the other parties
with respect to any Designated Portfolio based upon PLIC's
determination that shares of such Designated Portfolio are not
reasonably available to meet the requirements of the Contracts; or
(c) at the option of PLIC by written notice to the other parties
with respect to any Designated Portfolio in the event any of the
Designated 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 PLIC; or
(d) at the option of the Fund, Distributor or Adviser in the event
that formal administrative proceedings are instituted against PLIC by
the NASD, the SEC, the Insurance Commissioner or like official of any
state or any other regulatory body regarding PLIC's duties under this
Agreement or related to the sale of the Contracts, the operation of
any Account, or the purchase of the Fund shares, if, in each case,
the Fund, Distributor or Adviser, as the case may be, reasonably
determines in its sole judgment exercised in good faith, that any
such administrative proceedings will have a material adverse effect
upon the ability of PLIC to perform its obligations under this
Agreement; or
31
(e) at the option of PLIC in the event that formal administrative
proceedings are instituted against the Fund, the Distributor or the
Adviser by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body, if PLIC reasonably determines
in its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon
the ability of the Fund, the Distributor or the Adviser to perform
their obligations under this Agreement; or
(f) at the option of PLIC by written notice to the Fund with respect
to any Designated Portfolio if PLIC reasonably believes that the
Designated Portfolio will fail to meet the Section 817(h)
diversification requirements or Subchapter M qualifications specified
in Article VI hereof; or
(g) at the option of either the Fund, the Distributor or the Adviser,
if (i) the Fund, Distributor or Adviser, respectively, shall
determine, in its sole judgment reasonably exercised in good faith,
that PLIC has suffered a material adverse change in its business or
financial condition or is the subject of material adverse publicity
and that material adverse change or publicity will have a material
adverse impact on PLIC's ability to perform its obligations under this
Agreement, (ii) the Fund, Distributor or Adviser notifies PLIC of that
determination and its intent to terminate this Agreement, and (iii)
---
after considering the actions taken by PLIC and any other changes in
circumstances since the giving of such a notice, the determination of
the Fund, Distributor or Adviser shall continue to apply on the
sixtieth (60th) day following the giving of that notice, which
sixtieth day shall be the effective date of termination; or
(h) at the option of PLIC, if (i) PLIC shall determine, in its sole
judgment reasonably exercised in good faith, that the Fund,
Distributor or Adviser has suffered a material adverse change in its
business or financial condition or is the subject of material adverse
publicity and that material adverse change or publicity will have a
material adverse impact on the Fund's, Distributor's or Adviser's
ability to perform its obligations under this Agreement, (ii) PLIC
notifies the Fund, Distributor or Adviser, as appropriate, of that
determination and its intent to terminate this Agreement, and (iii)
---
after considering the actions taken by the Fund, Distributor or
Adviser and any other changes in circumstances since the giving of
such a notice, the determination of PLIC shall continue to apply on
the sixtieth (60th) day following the giving of that notice, which
sixtieth day shall be the effective date of termination; or
(i) at the option of any non-defaulting party hereto in the event of
a material breach of this Agreement by any party hereto (the
"defaulting party") other than as described in Section 10.1(a)-(j);
provided, that the non-defaulting party gives written notice thereof
to the defaulting party, with copies of such notice to all
32
other non-defaulting parties, and if such breach shall not have been
remedied within thirty (30) days after such written notice is given,
then the non-defaulting party giving such written notice may
terminate this Agreement by giving thirty (30) days written notice of
termination to the defaulting party; or
(j) at any time upon written agreement of all parties to this
Agreement.
10.2. Notice Requirement.
------------------
No termination of this Agreement shall 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 shall set forth the basis for the
termination. Furthermore,
(a) in the event any termination is based upon the provisions of Article
VII, or the provisions of Section 10.1(a), 10.1(g) or 10.1(h) of this
Agreement, the prior written notice shall be given in advance of the
effective date of termination as required by those provisions unless such
notice period is shortened by mutual written agreement of the parties;
(b) in the event any termination is based upon the provisions of Section
10.1(d), 10.1(e) or 10.1(i) of this Agreement, the prior written notice
shall be given at least sixty (60) days before the effective date of
termination; and
(c) in the event any termination is based upon the provisions of Section
10.1(b), 10.1(c) or 10.1(f), the prior written notice shall be given in
advance of the effective date of termination, which date shall be
determined by the party sending the notice.
10.3. Effect of Termination.
---------------------
Notwithstanding any termination of this Agreement, other than as a result of a
failure by either the Fund or PLIC to meet Section 817(h) of the Code
diversification requirements, the Fund, the Distributor and the Adviser shall,
at the option of PLIC, continue to make available additional shares of the
Designated Portfolio(s) pursuant to the terms and conditions of this Agreement,
33
for all Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts"). Specifically,
without limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Designated Portfolio(s), redeem investments in the
Designated Portfolio(s) and/or invest in the Designated Portfolio(s) upon the
making of additional purchase payments under the Existing Contracts. The
parties agree that this Section 10.3 shall not apply to any terminations under
Article VII and the effect of such Article VII terminations shall 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 shall survive and not be affected by any termination of this Agreement.
In addition, with respect to Existing Contracts, all provisions of this
Agreement shall also survive and not be affected by any termination of this
Agreement.
ARTICLE XI. 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 parties.
If to the Fund:
The Prudential Series Fund, Inc.
Gateway Center Three
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Secretary
34
If to the Adviser:
Prudential Investments Fund Management LLC
Gateway Center Three
000 Xxxxxxxx Xxxxxx, 0xx xxxxx
Xxxxxx, XX 00000
Attention: Secretary
If to the Distributor:
Prudential Investment Management Services LLC
Gateway Center Three
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Secretary
If to PLIC:
Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: General Counsel
ARTICLE XII. Miscellaneous.
-------------
12.1. 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 without the express written consent
of the affected party until such time as such information may come into the
public domain. Without limiting the foregoing, no party hereto shall disclose
any information that another party has designated as proprietary.
12.2. 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.
35
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the California Commissioner of Insurance with any information
or reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity
operations of PLIC are being conducted in a manner consistent with the
California Variable Annuity Regulations and any other applicable law or
regulations.
12.6. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
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 laws.
12.8. 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.
36
12.9. PLIC agrees that the obligations assumed by the Fund, Distributor
and the Adviser pursuant to this Agreement shall be limited in any case to the
Fund, Distributor and Adviser and their respective assets and PLIC shall not
seek satisfaction of any such obligation from the shareholders of the Fund,
Distributor or the Adviser, the Directors, officers, employees or agents of the
Fund, Distributor or Adviser, or any of them.
12.10. The Fund, the Distributor and the Adviser agree that the
obligations assumed by PLIC pursuant to this Agreement shall be limited in any
case to PLIC and its assets and neither the Fund, Distributor nor Adviser shall
seek satisfaction of any such obligation from the shareholders of PLIC, the
directors, officers, employees or agents of the PLIC, or any of them.
12.11. No provision of this Agreement may be deemed or construed to modify
or supersede any contractual rights, duties, or indemnifications, as between the
Adviser and the Fund, and the Distributor and the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified below.
PACIFIC LIFE INSURANCE COMPANY
By its authorized officer,
By:______________________________
Title:
Date:
THE PRUDENTIAL SERIES FUND, INC.
By its authorized officer,
By:______________________________
Title:
Date: May 1, 2001
37
PRUDENTIAL INVESTMENTS FUND MANAGEMENT LLC
By its authorized officer,
By:____________________________
Title:
Date: May 1, 2001
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC
By its authorized officer,
By:____________________________
Title:
Date: May 1, 2001
38
SCHEDULE A
----------
Contracts
---------
All Deferred Variable Annuity Contracts Issued By PLIC
Separate Account: Pacific Value
39
SCHEDULE B
----------
Designated Portfolio(s)
-----------------------
The Prudential Series Fund, Prudential Xxxxxxxx
Inc.: SP Prudential U.S. Emerging Growth
XX Xxxxxxxx International Growth
Value
40
SCHEDULE C
EXPENSES
--------
The Fund and/or the Distributor and/or Adviser, and PLIC will coordinate the
functions and pay the costs of the completing these functions based upon an
allocation of costs in the tables below. Costs shall be allocated to reflect
the Fund's share of the total costs determined according to the number of pages
of the Fund's respective portions of the documents.
-----------------------------------------------------------------------------------------------
Item Function Party Party
Responsible for Responsible
Coordination for Expense
-----------------------------------------------------------------------------------------------
Mutual Fund Printing of combined prospectuses PLIC PLIC
Prospectus
-----------------------------------------------------------------------------------------------
Fund, Distributor or Adviser shall PLIC Fund,
supply PLIC with such numbers of the Distributor or
Designated Portfolio(s) prospectus(es) Adviser, as
as PLIC shall reasonably request applicable
-----------------------------------------------------------------------------------------------
Distribution (including postage) to PLIC PLIC
New and Inforce Clients
-----------------------------------------------------------------------------------------------
Distribution (including postage) to PLIC PLIC
Prospective Clients
-----------------------------------------------------------------------------------------------
Product Printing and Distribution for Inforce PLIC PLIC
Prospectus and Prospective Clients
-----------------------------------------------------------------------------------------------
Mutual Fund If Required by Fund, Distributor or Fund, Distributor Fund,
Prospectus Adviser or Adviser Distributor or
Update & Adviser
Distribution
-----------------------------------------------------------------------------------------------
If Required by PLIC PLIC (Fund, PLIC
Distributor or
Adviser to
provide PLIC
with document in
PDF format)
-----------------------------------------------------------------------------------------------
Product If Required by Fund, Distributor or PLIC Fund,
Prospectus Adviser Distributor or
Update & Adviser
Distribution
41
-----------------------------------------------------------------------------------------------
Item Function Party Party
Responsible for Responsible
Coordination for Expense
-----------------------------------------------------------------------------------------------
If Required by PLIC PLIC PLIC
-----------------------------------------------------------------------------------------------
Mutual Fund Printing Fund, Distributor Fund,
SAI or Adviser Distributor or
Adviser
-----------------------------------------------------------------------------------------------
Distribution (including postage) PLIC PLIC
-----------------------------------------------------------------------------------------------
Product SAI Printing PLIC PLIC
-----------------------------------------------------------------------------------------------
Distribution PLIC PLIC
-----------------------------------------------------------------------------------------------
Proxy Material Printing if proxy required by Law Fund, Distributor Fund,
for Mutual or Adviser Distributor or
Fund: Adviser
-----------------------------------------------------------------------------------------------
Distribution (including labor) if proxy PLIC Fund,
required by Law Distributor or
Adviser
-----------------------------------------------------------------------------------------------
Printing & distribution if required by PLIC PLIC
PLIC
-----------------------------------------------------------------------------------------------
Mutual Fund Printing of reports Fund, Distributor Fund,
Annual & or Adviser Distributor or
Semi-Annual (Designated Adviser
Report Portfolio only)
-----------------------------------------------------------------------------------------------
Distribution PLIC PLIC
-----------------------------------------------------------------------------------------------
Other If Required by the Fund, Distributor or PLIC Fund,
communication Adviser Distributor or
to New and Adviser
Prospective
clients
-----------------------------------------------------------------------------------------------
If Required by PLIC PLIC PLIC
-----------------------------------------------------------------------------------------------
Other Distribution (including labor and PLIC Fund,
communication printing) if required by the Fund, Distributor or
to inforce Distributor or Adviser Adviser
-----------------------------------------------------------------------------------------------
Distribution (including labor and PLIC PLIC
printing) if required by PLIC
42
-----------------------------------------------------------------------------------------------
Item Function Party Party
Responsible for Responsible
Coordination for Expense
-----------------------------------------------------------------------------------------------
Errors in Share Cost of error to participants PLIC Fund or
Price Adviser
calculation
pursuant to
Section 1.10
-----------------------------------------------------------------------------------------------
Cost of reasonable expenses related to PLIC Fund or
administrative work to correct error Adviser
-----------------------------------------------------------------------------------------------
Operations of All operations and related expenses, Fund, Distributor Fund or
the Fund including the cost of registration and or Adviser Adviser
qualification of shares, taxes on the
issuance or transfer of shares, cost of
management of the business affairs of
the Fund, and expenses paid or
assumed by the fund pursuant to any
Rule 12b-1 plan
-----------------------------------------------------------------------------------------------
Operations of Federal registration of units of PLIC PLIC
the Account separate account (24f-2 fees)
-----------------------------------------------------------------------------------------------
43
