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EXHIBIT (5)
AGREEMENT RELATING TO THE SALE OF CERTAIN
CONTRACTS ON A VARIABLE BASIS
Statement of Facts
A. On January 12, 1982, the Board of Directors of The Prudential
Insurance Company of America ("Prudential") adopted a resolution establishing
The Prudential Variable Contract Account-11 ("VCA-11") as a funding medium for
such contracts on a variable basis sold and administered by Prudential as may
be designated by it as participating therein.
X. Xxxxxxxxxx will perform administrative and record keeping
functions in connection with the contracts on a variable basis which it may
issue, including enrolling participants, receiving and allocating
contributions, maintaining participants' accumulation accounts, preparing and
distributing confirmations, statements and reports. More particularly,
Prudential will:
(a) maintain such books of account and records of all transactions
relating to VCA-11 as may be necessary to reflect clearly the
assets and liabilities attributable to VCA-11, and in that
connection all investments and liabilities attributable to
VCA-11, at all times, shall be identifiable and
distinguishable from the other investments and liabilities of
Prudential;
(b) prepare and transmit to the VCA-11 Committee for its approval
all notices, proxies, proxy statements and periodic reports
that are required to be, or may be, transmitted to persons
having voting rights in respect of VCA-11, as provided for by
the Rules and Regulations of VCA-11, and upon the Committee's
approval transmit the same to such persons;
(c) prepare and file all reports required by law to be
filed with any state or federal regulatory authority; and
(d) pay all costs, taxes and other expenses attributable
to the operations of VCA-11, including, but not limited to,
salary, rent, postage, telephone, travel, legal, actuarial and
accounting fees, office equipment, stationery, and maintenance
of computer and other systems, but excluding brokers'
commission, taxes or governmental fees attributable to
transactions for VCA-11, and all other applicable taxes
arising out of the investment operations of VCA-11, including
income and capital gains taxes, if any. Such payment shall
not result in any reduction of the value or number of Units
credited to persons who hold participating interests in VCA-11
or in the amounts which they are entitled to receive under
contracts on a variable basis issued by Prudential other than
in a manner set forth in
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each such contract. Each such contract will set forth, either
in terms of dollars or of a percentage, or both, by which the
value of the amounts credited to persons holding participating
interests in VCA-11 will be reduced, the charge that will be
made in order to provide funds intended to defray the expenses
of administering the contracts.
C. Prudential will sell its contracts on a variable basis through
agents employed by it and through independent brokers and will pay certain
sales commissions in that connection as well as other expenses attributable to
the marketing sale, and distribution of such contracts.
X. Xxxxxxxx to the requirements of the 1940 Act, VCA-11 will be
registered thereunder as an investment company.
E. The 1940 Act forbids any person from acting as principal
underwriter to a registered investment company except pursuant
to a written contract and Prudential may be regarded as the
principal underwriter of VCA-11.
Agreement
NOW THEREFORE, Prudential and VCA-11 agree as follows:
1. Prudential will sell contracts on a variable basis that
include participating interests in VCA-11.
2. Each form of contract on a variable basis participating in
VCA-11 sold by Prudential shall set forth explicitly a schedule of deferred
sales charges. The deferred sales charge is imposed on certain withdrawals
from VCA-11. This deferred sales charge will be retained by Prudential and may
be used by it, to the extent necessary, for the payment of commissions to
persons instrumental in the sale of such form of contract and for payment of
other expenses incurred in connection with the marketing, sale and distribution
of such form of contract.
3. Promptly after it issues a form of contract on a variable
basis that includes participating interests in VCA-11, Prudential shall advise
the Prudential Variable Contract Account-11 Committee ("Committee") of the
amount of the deferred sales charge that will be imposed upon withdrawals.
Prudential shall also promptly advise the Committee of any change in the form
of contract that increases or decreases such charge.
4. It is understood that the compensation to Prudential,
resulting from the deferred sales charge imposed upon withdrawals made by
participants under any form of contract on a variable basis, is separate and
apart from the additional compensation, more fully described in
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a separate contract between the parties also executed as of this date,
providing for the performance of investment management, and is also separate
from and additional to the charge or charges made, as described in Paragraph B,
subparagraph (d), of the Statement of Facts preceding this Agreement, for the
purpose of providing funds to defray the expenses of administering the
contracts.
5. This agreement shall remain in force until the first meeting
of the participants in VCA-11 and from year to year thereafter, but only so
long as such continuance is approved at least annually by the affirmative vote
of the Committee, including the specific approval of a majority of the members
of the Committee who are not persons affiliated with Prudential, or by a
majority of the votes cast by those persons having voting rights in respect of
VCA-11, as provided for by the Rules and Regulations of VCA-11.
6. This agreement shall automatically terminate in the event of
its assignment by Prudential.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed this 17th day of March, 1982.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
Attest:
/S/ By /S/
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Secretary Vice President
THE PRUDENTIAL VARIABLE CONTRACT
ACCOUNT-11
Witnessed:
/S/ By /S/
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Secretary to the Committee Chairman of the Committee
