DISTRIBUTION AGREEMENT
AGREEMENT made this 23rd day of June, 1997, by and between The Prudential
Insurance Company of America (the "Company"), a New Jersey corporation on its
own behalf and on behalf of Prudential Discovery Select Group Variable Contract
Account (the "Account") and Prudential Investment Management Services LLC (the
"Distributor"), a Delaware limited liability company.
WITNESSETH:
WHEREAS, the Company has established and maintains the Account, a separate
investment accounts, pursuant to the laws of New Jersey for the purpose of
providing a choice of variable investment options under group annuity contracts
(the "Contracts"), to commence after the effectiveness of Registration
Statements filed with the Securities and Exchange Commission on Form N-4
pursuant to the Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, the Account is registered as a unit investment trust under the
Investment Company Act of 1940 (the "Investment Company Act");
WHEREAS, The Distributor is a broker-dealer registered with the
Securities and Exchange Commission (the "Commission") under Section 15(b) of
the Securities Exchange Act of 1934 (the "Exchange Act") and is a member of
the National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Company and the Distributor wish to enter into an agreement
to have the Distributor act as the Company's principal underwriter for the
sale of Contracts and the distribution of certificates of participation (the
"Certificates") in the Contracts:
NOW THEREFORE, the parties agree as follows:
1. APPOINTMENT OF THE DISTRIBUTOR
The Company agrees that during the term of this Agreement it will take all
action required to cause the Contracts to comply with all applicable federal and
state laws and regulations. During the term of this Agreement, the Company
appoints the Distributor and the Distributor agrees to act as the principal
underwriter for the sale of Contracts, as well as the Certificates issued
thereunder, in each state and other jurisdictions in which such Contracts may
lawfully be sold. Distributor shall offer the Contracts for sale and distribute
Certificates at premium rates set by the Company. Applications for the
Contracts and the underlying Certificates shall be solicited only by
representatives of Distributor duly qualified and appropriately licensed in each
state or other jurisdiction where they solicit such applications. Company shall
appoint Distributor's qualified representatives as life insurance agents of
Company. Completed applications for Contracts and the underlying Certificates
shall be transmitted directly to the Company for acceptance or rejection in
accordance with underwriting rules established by the Company. Initial premium
payments for the Certificates under the Contracts shall be made by check payable
to the Company and shall be held at all times by Distributor or its
representatives in a fiduciary capacity and remitted promptly to the Company.
Anything in this Agreement to the contrary notwithstanding, the Company retains
the ultimate
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right to control the sale of the Contracts, as well as the Certificates issued
thereunder, and to appoint and discharge life insurance agents of the Company.
The Distributor shall be held to the exercise of reasonable care in carrying out
the provisions of this Agreement.
2. SALES AGREEMENTS
Distributor is hereby authorized to enter into separate written agreements,
on such terms and conditions as Distributor may determine not inconsistent with
this Agreement, with one or more organizations which agree to participate in the
distribution of the Contracts and Certificates under the Contracts. Such
organization (hereafter "Broker") shall be registered with the Commission under
Section 15(b) of the Exchange Act and with the NASD as a member firm. Broker
and its representatives soliciting applications for Contracts and Certificates
shall be duly and appropriately licensed, registered, or otherwise qualified
for the sale of such Contracts and Certificates (and the riders and other
policies offered in connection therewith) under the insurance laws and any
applicable blue-sky laws of each state or other jurisdiction in which the Broker
or its representatives solicit such sales.
Broker shall assume any legal responsibilities of Company for the acts,
commissions or defalcations of such representatives insofar as they relate to
the sale of the Contracts and Certificates. Applications for Contracts and
Certificates solicited by such Broker through its representatives shall be
transmitted directly to the Company, and if received by Distributor, shall be
forwarded to Company. All premium payments under the Contracts shall be made by
check to Company and, if received by Broker, shall be held at all times in a
fiduciary capacity and remitted promptly to Company.
3. LIFE INSURANCE LICENSING
Company shall be responsible for insuring that Brokers are duly qualified,
under the insurance laws of the applicable jurisdictions, to sell the Contracts
and Certificates.
4. SUITABILITY
Parties to this Agreement are prohibited from recommending the purchase of
investment options or interests in the Account to prospective Contract holders
and Certificates purchasers. Such prohibition also shall extend to
contributions, transfers, exchanges, and redemptions by Certificate purchasers
of investment options or interests in the Account. Parties shall take
reasonable steps to ensure that their representatives and associates refrain
from making the aforementioned recommendations.
Parties to this Agreement shall take reasonable steps to ensure that they
will offer Certificates that are appropriate to the needs of the prospective
Certificate purchasers. While not limited to the following, a determination of
appropriateness shall be based on information furnished to the parties after
reasonable inquiry of such applicants concerning the applicants' insurance and
investment objectives, financial situations and needs, and the likelihood that
the applicants will continue to make the premium payments contemplated by the
Certificates under the Contracts.
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5. PROMOTIONAL MATERIALS
Company shall have the responsibility for furnishing to Distributor and its
representatives sales promotion materials and individual sales proposals
relating to the sale of the Contracts and Certificates. Distributor shall not
use any such materials that have not been approved by Company. Distributor
shall be responsible for obtaining NASD review of all promotional materials.
6. COMPENSATION
Company shall arrange for the payment of commissions directly to those
representatives of Distributor who are entitled thereto in connection with the
sale of the Contracts on behalf of Distributor, in the amounts and on such terms
and conditions as Company and Distributor shall determine; provided that such
terms, conditions and commissions shall be as are set forth in or as are not
inconsistent with the Prospectus included as part of the Registration Statement
for the Contracts and effective under the Securities Act.
Company shall arrange for the payment of commissions directly to those
Brokers who sell Contracts and Certificates under agreements entered into
pursuant to paragraph 2 hereof, in amounts as may be agreed to by the Company
and specified in such written agreements between Distributor and Brokers.
Company shall reimburse Distributor for the costs and expenses incurred by
Distributor in furnishing or obtaining the services, materials, and supplies
required by the terms of this Agreement in the initial sales efforts and the
continuing obligations hereunder. Reimbursement shall be a portion of
Distributor's yearly expenses based on Company's share of relevant activity. In
addition, Company shall pay Distributor a surcharge of one (1) to three (3)
percent of the commissions Company pays to Brokers and to representatives of
Distributor.
7. RECORDS
Distributor shall have the responsibility for maintaining the records of
its representatives that are licensed, registered and otherwise qualified to
sell the Contracts and the underlying Certificates. Distributor shall
maintain such other records as are required of it by applicable laws and
regulations. The books, accounts, and records of the Company, the Account
and Distributor shall be maintained so as to disclose clearly and accurately
the nature and details of the transactions. Copies of all records maintained
by the Distributor in connection with this Agreement shall be made available
to and become the property of the Company upon its request. The Distributor
shall keep confidential any information obtained pursuant to this Agreement
and shall disclose such information only if the Company has authorized such
disclosure, or if such disclosure is expressly required by applicable federal
or state regulatory authorities.
8. INVESTIGATION AND PROCEEDING
Distributor and Company agree to cooperate fully in any insurance
regulatory investigation or proceeding or judicial proceeding arising in
connection with the Contracts and Certificates distributed under this
Agreement. Distributor and Company further agree to
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cooperate fully in any securities regulatory investigation or proceeding with
respect to Company, Distributor, their affiliates and their representatives
to the extent that such investigation or proceeding is in connection with the
Contracts and Certificates distributed under this Agreement. The Distributor
shall furnish applicable federal and state regulatory authorities with any
information or reports in connection with its services under this Agreement
which such authorities may request to ascertain whether the Company's
operations are being conducted in a manner consistent with any applicable law
or regulation.
In the case of a substantive customer complaint, Distributor and Company
will cooperate in investigating such complaint and any response to such
complaint will be sent to the other party to this Agreement for approval not
less than five business days before being sent to the customer or regulatory
authority, except that if a more prompt response is required, the proposed
response shall be communicated by telephone or telegraph.
9. TERMINATION
This Agreement shall terminate automatically upon its assignment within
the meaning of such term in the Investment Company Act. This Agreement,
however, may be transferred by the Distributor without the prior written
consent of the Company in the circumstances set forth in Rule 2a-6 under the
Investment Company Act. The Agreement may be terminated at any time by
either party on 60 days written notice to the other party, without the
payment of any penalty. Upon termination of this Agreement all
authorizations, rights and obligations shall cease except the obligation to
settle accounts hereunder, including commissions on premiums subsequently
received for Contracts in effect at a time of termination, and the agreements
contained in paragraph 8 hereof.
10. REGULATION
This Agreement shall be subject to the provisions of the Investment Company
Act and the Exchange Act and of the rules, regulations, and rulings thereunder
and the applicable rules and regulations of the NASD, from time to time in
effect, and the terms hereof shall be interpreted and construed in accordance
therewith.
11. SEVERABILITY
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
12. WARRANTIES
Each party to this Agreement warrants to the other party as follows:
(a) it has full power and authority to execute and deliver this
Agreement and to perform and observe the provisions herein;
(b) the execution, delivery, and performance of this Agreement have
been duly authorized by all necessary corporate actions and do not and will
not contravene any requirement of law or any contractual restrictions or
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agreement binding on or affecting such party or its assets; and
(c) this Agreement has been duly and properly executed and delivered
by such party and constitutes a legal, valid, and binding obligation of
such party enforceable in accordance with its terms.
13. APPLICABLE LAW
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:
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Name: Xxxx X. Xxxxxxx
Title: President, Retirement Services
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC
By:
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Name: E. Xxxxxxx Xxxxxxxxx
Title: President
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