EXHIBIT (h)(19)
Servicing Agreement by and between One Group Investment Trust and
The Prudential Insurance Company of America
SERVICING AGREEMENT
THIS AGREEMENT is made as of the 3rd day of April, 2003 by and between One
Group(R) Investment Trust, a Massachusetts business trust (the "Trust") and The
Prudential Insurance Company of America (the "Company").
WHEREAS, the Company and the Trust intend to enter into a Fund
Participation Agreement ("Participation Agreement") in order for certain
separate accounts of the Company ("Separate Accounts") to purchase shares
("Shares") of the Portfolios of the Trust (each, a "Portfolio": collectively,
the "Portfolios"). The Portfolios will serve as investment vehicles under
certain variable annuity or life contracts offered by the Company as listed in
Appendix A, which may be amended from time to time ("Variable Contracts").
WHEREAS, the Trust recognizes that the Company will perform certain
administrative services valuable to the Portfolios in the course of soliciting
applications for the Variable Contracts and in servicing owners of the Variable
Contracts.
NOW, THEREFORE, the parties agree as follows:
Section 1. The Company agrees to provide administrative services
("Services") with respect to the Portfolios listed on Appendix A attached hereto
as such Appendix may be amended from time to time. Services provided may include
some or all of the following: (i) teleservicing support in connection with the
Portfolios; (ii) facilitation of delivery of current prospectuses, reports,
notices, proxies and proxy statements and other informational materials; (iii)
facilitation of the tabulation of Variable Contract owners' votes in the event
of a meeting of Portfolio shareholders; (iv) providing information relating to
the Variable Contracts and Share balances under such Variable Contracts to the
Trust as may be reasonably requested; (v) provision of communication support
services including providing information about the Portfolios and answering
questions concerning the Portfolios, including questions respecting Variable
Contract owners' interests in one or more Portfolios; (vi) administration of
funds transfers, dollar cost averaging, asset allocation, portfolio rebalancing,
earnings sweep, and pre-authorized deposits and withdrawals involving the
Portfolios; and (vii) provisions of such other services as may be agreed upon
from time to time.
Section 2. The Company will provide such office space and equipment,
telephone facilities and personnel (which may be any part of the space,
equipment and facilities currently used in the Company's business, or any
personnel employed by the Company) as may be reasonably necessary or beneficial
in order to provide the aforementioned services to customers.
Section 3. Neither the Company nor any of its officers, employees or
agents are authorized to make any representations concerning the Portfolio or
their Shares except those contained in the Trust's then-current prospectus or
then-current Statement of Additional Information for such Shares or in such
supplemental literature or advertising as may be authorized by the Portfolios in
writing.
Section 4. For all purposes of this Agreement, the Company will be deemed
to be an independent contractor, and will have no authority to act as limited
agent for the Portfolios in any matter or in any respect. By written acceptance
of this Agreement, the Company agrees to and does release, indemnify and hold
the Portfolios harmless from and against any and all direct or indirect
liabilities or losses resulting from requests, directions, actions or inactions
of or by the Company or its officers, employees or agents regarding its
responsibilities hereunder. The Company and its employees will, upon request, be
available during normal business hours to consult with the Portfolios or their
designees concerning the performance of the Company's responsibilities under
this Agreement.
Section 5. In consideration for the services and facilities provided by
the Company hereunder, the Portfolios will pay to the Company, and the Company
will accept as full payment therefor, a fee at the
annual rate designated in Appendix A of the average daily net assets of a
Portfolio's Shares owned beneficially by the Company's customers from time to
time for which the Company provides services hereunder, which fee will be
computed daily and payable monthly. Further, the Portfolios may, in their
discretion and without notice, suspend or withdraw the sale of such Shares,
including the sale of such Shares to the Company for the account of any
customer(s).
Section 6. Any person authorized to direct the disposition of monies paid
or payable by the Portfolios pursuant to this Agreement will provide to the
Board of Trustees of the Trust, and the Trustees will review, at least
quarterly, a written report of the amounts so expended and the entities to whom
such expenditures were made. In addition, the Company will furnish the
Portfolios or their designees with such information as the Portfolios or their
designees may reasonably request (including, without limitation, periodic
certifications confirming the provision to customers of some or all of the
services described herein), and will otherwise cooperate with the Portfolios and
their designees (including, without limitation, any auditors designated by the
Portfolios), in connection with the preparation of reports to the Portfolios'
Board of Trustees concerning this Agreement and the monies paid or payable by
the Portfolios pursuant hereto, as well as any other reports or filings that may
be required by law.
Section 7. Both parties may enter into other similar Servicing Agreements
with any other person or persons without the other's consent.
Section 8. By the Company's written acceptance of this Agreement, the
Company represents, warrants and agrees that: (i) in no event will any of the
services provided by the Company hereunder be primarily intended to result in
the sale of any shares issued by the Trust; (ii) the compensation payable to the
Company hereunder, together with any other compensation the Company receives
from customers for services contemplated by this Agreement, will to the extent
required by law, be disclosed to the Company's customers, and will not be
excessive or unreasonable under the laws and instruments governing the Company's
relationships with the Company's customers; and (iii) if the Company is subject
to the provisions of the Xxxxx-Xxxxxxxx Act and other laws governing, among
other things, the conduct of activities by federally chartered and supervised
banks and other affiliated banking organizations, the Company will perform only
those activities which are consistent with the Company's statutory and
regulatory obligations and will act solely as agent for, upon the order of, and
for the account of, the Company's customers.
Section 9. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by the Portfolios or their designee.
This Agreement may be terminated at any time, without the payment of any
penalty, with respect to the Portfolios by the vote of a majority of the members
of the Board of Trustees and who have no direct or indirect financial interest
in the operation of the Services Plan or in any related agreements to the
Services Plan ("Disinterested Trustees") or by a majority of the outstanding
voting securities of the Portfolios on not more than sixty (60) days written
notice to the parties to this Agreement, or upon material breach of this
Agreement or by either party on not more than ninety (90) days written notice to
the other party.
Section 10. All notices and other communications to either party hereto
will be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address shown below:
One Group Investment Trust
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: President
The Prudential Insurance Company of America
000 Xxxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx, Manager
Section 11. This Agreement will be construed in accordance with the laws
of the Commonwealth of Massachusetts and is assignable upon written consent by
all the parties hereto. Amendments will be made only upon written consent by
both parties and subject to the approval of the Board of Trustees of the Trust
when applicable.
Section 12. This Agreement, or form thereof, has been approved by vote of
a majority of (i) the Board of Trustees and (ii) the disinterested Trustees,
cast in person at a meeting called for the purpose of voting on such approval.
Section 13. The names "One Group(R) Investment Trust" and "Trustees of One
Group(R) Investment Trust" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under a Declaration of Trust dated June 7, 1993 to which reference is
hereby made and a copy of which is on file at the office of the Secretary of the
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of `One
Group Investment Trust' entered into in the name or on behalf thereof by any of
the Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, shareholders or
representatives of the Trust personally, but bind only the assets of the Trust,
and all persons dealing with any series of shares of the Trust must look solely
to the assets of the Trust belonging to such series for the enforcement of any
claims against the Trust.
ONE GROUP INVESTMENT TRUST THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
(Company)
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X.
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Its: Vice President and Treasurer Its: VP
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Appendix A
Portfolios
One Group Investment Trust Mid Cap Growth Portfolio
Servicing Fees
For each Portfolio: 0.25% of the average daily net assets of Shares of the
Portfolio held by Separate Accounts for the Variable Contracts' owners.
Variable Contracts
VCA-GI-OneGroup-MCG, March 31, 2003 (under DOA dated December 12, 1978)
Agreed to this 3rd day of April, 2003.
ONE GROUP INVESTMENT TRUST THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
(Company)
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X.
-------------------------------- --------------------------------
Its: Vice President and Treasurer Its: VP
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