APPOINTMENT OF DISTRIBUTOR
FOR
IN-FORCE MONY VARIABLE LIFE AND ANNUITY CONTRACTS
Pursuant to this AGREEMENT, dated this 24/rd/ day of October, 2013, by and
between MONY LIFE INSURANCE COMPANY ("MONY"), a life insurance company
organized and existing under the laws of the State of New York, on its behalf
and on behalf of each separate account identified in Schedule A hereto, and
INVESTMENT DISTRIBUTORS, INC. ("IDI"), a corporation organized and existing
under the laws of the State of Tennessee, MONY hereby appoints IDI as the
distributor of the Variable Contracts, as defined below, effective as of the
1st day of November, 2013.
WITNESSETH:
WHEREAS, IDI is a broker-dealer that engages in the distribution of
investment products including variable insurance products that are registered
with the Securities and Exchange Commission;
WHEREAS, MONY, on its behalf and on behalf of each separate account listed
on Schedule A hereto, and AXA Distributors LLC and AXA Advisors, LLC
(collectively, "Previous Distributors") entered into one or more agreements
(collectively, the "Previous Agreement"), pursuant to which the Previous
Distributors acted as principal underwriter and wholesaler for various
offerings of the In-Force Contracts;
WHEREAS, MONY has discontinued the offerings of such variable insurance
contracts for new issue, except in the case of variable insurance contracts
that may be issued in connection with the reinstatement of a variable insurance
contract that at one time was in force or in connection with conversions;
WHEREAS, a substantial portion of such variable insurance contracts issued
in connection with such offerings will remain in force as of the effective date
of this Agreement and, under the terms of such variable insurance contracts,
contract owners may continue to pay premiums, reallocate contract value and
effect other transactions;
WHEREAS, the Previous Distributors terminated their services as principal
underwriters under the Previous Agreement contemporaneous with the acquisition
of MONY by Protective Life Insurance Company ("Protective") on October 1, 2013
(the "Acquisition") pursuant to that certain Master Agreement, dated as of
April 10, 2013 (the "Master Agreement"), by and among AXA Equitable Financial
Services, LLC, AXA Financial, Inc. (together "Seller"), and Protective,
pursuant to which Seller sold to Protective and Protective purchased, all of
the issued and outstanding shares of common stock of MONY; and
WHEREAS, the Acquisition was approved by the New York Department of
Financial Services (the "NY DFS") by letter dated September 12, 2013; and
WHEREAS, MONY and AXA Distributors, LLC entered into an Interim Principal
Underwriter Agreement dated as of October 1, 2013, pursuant to which XXXX
retained AXA Distributors, LLC to serve as the distributor and principal
underwriter of the Variable Contracts until such time as IDI has obtained all
regulatory approvals necessary for IDI to serve as the distributor and
principal underwriter of the Variable Contracts; and
WHEREAS, IDI has obtained all regulatory approvals necessary to assume the
duties of distributor of the Variable Contracts; and
WHEREAS, pursuant to the Master Agreement and in furtherance of the
Acquisition approved by the NY DFS on September 12, 2013, MONY now desires to
appoint IDI as the distributor of the Variable Contracts, and IDI desires to
act as the distributor and principal underwriter of the Variable Contracts;
NOW, THEREFORE, in consideration of their mutual promises, XXXX and XXX
xxxxxx agree as follows:
1. Definitions
a. Contracts - The class or classes of variable insurance contracts that
were issued by MONY prior to the effective date of this Agreement
utilizing the policy forms listed on Schedule A to this Agreement. For
this purpose and under this Agreement generally, a "class of Contracts"
shall mean those Contracts issued by MONY on the same policy form or
forms and covered by the same Registration Statement.
b. Registration Statement - At any time that this Agreement is in effect,
the currently effective registration statement filed with the SEC under
the 1933 Act on a prescribed form, or currently effective (or
last-filed) post-effective amendment thereto, as the case may be,
relating to a class of Contracts, including financial statements
included in, and all exhibits to, such registration statement or
post-effective amendment. The term "Registration Statement," when it
appears in singular form, shall refer to each Registration Statement for
a class of Contracts under this Agreement. For purposes of Section 9 of
this Agreement, the term "Registration Statement" means any document
which is or at any time was a Registration Statement within the meaning
of this Section 1.b.
c. Prospectus - The prospectus included within a Registration Statement,
except that, if the most recently filed version of the prospectus
(including any supplements thereto) filed pursuant to Rule 497 under the
1933 Act subsequent to the date on which a Registration Statement became
effective differs from the prospectus included within such Registration
Statement at the time it became effective, the term "Prospectus" shall
refer to the most recently filed prospectus filed under Rule 497 under
the 1933 Act, from and after the date on which it shall have been filed.
The term "Prospectus," when it appears in singular form, shall refer to
each Prospectus for a class of Contracts under this Agreement. For
purposes of Section 9 of this Agreement, the term "any Prospectus" means
any document which is or at any time was a Prospectus within the meaning
of this Section 1.c.
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e. Separate Account - A separate account supporting a class or classes of
Variable Contracts and specified on Schedule A of this Agreement. The
term "Separate Account," when it appears in singular form, shall refer
to each Separate Account listed on Schedule A.
f. 1933 Act - The Securities Act of 1933, as amended.
g. 1934 Act - The Securities Exchange Act of 1934, as amended.
h. 1940 Act - The Investment Company Act of 1940, as amended.
i. SEC - The Securities and Exchange Commission.
j. FINRA - The Financial Industry Regulatory Authority, Inc.
k. FINRA Rules - The rules adopted by FINRA, including supplementary
material thereto and interpretations thereof.
l. State Insurance Commission - A commission, agency or other governmental
body charged by the legislature of a state or commonwealth of the United
States or the District of Columbia with the regulation of insurance.
m. State Securities Commission - A commission, agency or other governmental
body charged by the legislature of a state or commonwealth of the United
States or the District of Columbia with the regulation of securities.
n. Regulations - The rules and regulations promulgated by the SEC under the
1933 Act, the 1934 Act and the 1940 Act as in effect at the time this
Agreement is executed or thereafter promulgated.
o. Selling Agreement - An agreement with a Selling Broker-Dealer pursuant
to which Selling Broker-Dealer is authorized to engage in retail
activities with respect to the Contracts.
p. Selling Broker-Dealer - A person registered as a broker-dealer and
licensed as an insurance producer or associated with a person so
licensed, and authorized to engage in retail activities with respect to
the Contracts pursuant to a Selling Agreement as provided for in
Section 2 of this Agreement.
q. Wholesaling Agreement - An agreement with a Wholesaling Broker-Dealer
pursuant to which such Wholesaling Broker-Dealer is authorized to engage
in wholesaling activities with respect to the Contracts.
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r. Wholesaling Broker-Dealer - A person registered as a broker-dealer and
licensed as a life insurance producer or associated with a person so
licensed, and authorized to engage in wholesaling activities with
respect to the Contracts pursuant to a Wholesaling Agreement as provided
for in Section 2 of this Agreement.
s. Representative - When used with reference to IDI, Selling Broker-Dealer
or Wholesaling Broker-Dealer, an individual who is an associated person
thereof, as the term "person associated with a broker or dealer" is
defined in the 1934 Act.
t. State - A state, commonwealth or other jurisdiction or territory of the
United States, including the District of Columbia.
u. Variable Contracts - Contracts that are variable annuity contracts or
variable life insurance contracts issued by MONY and supported by the
Separate Accounts.
2. Authorization and Appointment
a. Scope of Authority. The parties acknowledge and agree that MONY has
discontinued the offering of Contracts in the case of all classes of the
Contracts listed on Schedule A to this Agreement, except in the case of
a Contract issued in connection with a reinstatement of a Contract that
was once in force or a conversion, but that MONY continues to accept
premium payments, reallocation requests and other contract owner
transaction requests with respect to Contracts that remain in force and
to that limited extent, and solely to that limited extent, the offering
of the Contracts is continuing. The parties further acknowledge and
agree that IDI's responsibilities under this Agreement shall be limited
to acting as principal underwriter and distributor for the Contracts
with respect to transactions permitted under the terms of the Contracts
for the term of this Agreement. In addition, the parties acknowledge and
agree that IDI's responsibilities hereunder commence as of the effective
date of this Agreement, and that IDI has no responsibility with respect
to any activities or transactions occurring or effected prior to the
effective date of this Agreement.
b. Authorization of Selling Broker-Dealers. The parties acknowledge and
agree that the Contracts have been offered and sold, and continue to be
serviced, by Selling Broker-Dealers who were authorized by a Selling
Agreement to solicit applications and premiums for the Contracts on a
retail basis directly from purchasers who are or were their customers.
Neither MONY nor IDI shall amend, modify or terminate any executed
Selling Agreement without the consent and approval of the other. MONY
alone shall be responsible for appointing Selling Broker-Dealers and all
Representatives of Selling Broker-Dealers selling or servicing the
Contracts on their behalf as producers of MONY in accordance with
applicable State insurance law, and for communicating to all Selling
Broker-Dealers and their personnel, all policies and procedures
applicable to them as such appointed producers of MONY.
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c. Servicing Agreements with Previous Distributors. MONY represents, and
IDI acknowledges, that MONY has entered into two agreements ("Servicing
Agreements") with the Previous Distributors pursuant to which AXA
Distributors, LLC ( "AXA Distributors") has been retained to pay the
compensation, if any, due and payable to Selling Broker-Dealers with
respect to the Variable Contracts pursuant to Selling Agreements with
such Selling Broker-Dealers, and to provide the other wholesale level
services with respect to the Variable Contracts more particularly
described in those Selling Agreements; and that AXA Advisors, LLC ("AXA
Advisors") continues to be the Broker-of-Record of the Variable
Contracts sold by registered representatives of AXA Advisors and will
continue to service the Variable Contracts.
d. Authorization of Wholesaling Broker-Dealers. MONY and IDI may authorize
one or more Wholesaling Broker-Dealers (including the Previous
Distributors) to engage in wholesaling activities on their behalf for
the purpose of supporting Selling Broker-Dealers and their
Representatives in connection with the retail servicing of the
Contracts. IDI may provide information and marketing assistance to any
Wholesaling Broker-Dealer. MONY alone shall be responsible for
appointing Wholesaling Broker-Dealer and its Representatives as
producers of MONY in accordance with applicable State insurance law, and
for communicating to Wholesaling Broker-Dealer and its personnel, all
policies and procedures applicable to them as such appointed producers
of MONY.
e. Limits on Authority. IDI shall act as an independent contractor and
nothing herein contained shall constitute IDI or its agents, officers or
employees as agents, officers or employees of MONY solely by virtue of
their activities in connection with the distribution of the Contracts
hereunder. IDI and its Representatives shall not have authority, on
behalf of MONY: to make, alter or discharge any Contract or other
insurance policy or annuity contract entered into pursuant to a
Contract; to waive any Contract forfeiture provision; to extend the time
of paying any premium; or to receive any monies or premiums (except for
the sole purpose of forwarding monies or premiums to MONY). IDI shall
not expend, nor contract for the expenditure of, the funds of MONY. IDI
shall not possess or exercise any authority on behalf of MONY other than
that expressly conferred on IDI by this Agreement. Neither IDI nor any
IDI Representative shall give any information or make any representation
in regard to the Contracts in connection with the offer or sale of such
Contracts that is not in accordance with the Prospectus or statement of
additional information for such Contracts, or in the then-currently
effective prospectus or statement of additional information for an
investment vehicle for the Contracts, or in current advertising
materials for such class of Contracts authorized by MONY.
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f. Collection of Premiums. Given the scope of IDI's activities hereunder,
it is not anticipated that IDI would collect or receive premiums for the
Contracts. However, to the extent that IDI or a IDI Representative
receives a Premium, such Premium shall be remitted promptly, and in any
event not later than two business days, in full, together with any
Applications, forms and any other required documentation, to MONY.
Checks or money orders in payment of Premiums shall be drawn to the
order of "MONY Life Insurance Company." If any Premium is held at any
time by IDI, IDI shall hold such Premium in a fiduciary capacity until
remitted. IDI acknowledges that all such Premiums, whether by check,
money order or wire, shall be the property of MONY. IDI acknowledges
that MONY shall have the unconditional right to reject, in whole or in
part, any Application or Premium.
3. IDI's Representations, Warranties and Undertakings. IDI represents and
warrants to MONY that:
a. IDI is registered as a broker-dealer under the 1934 Act, is a member of
FINRA, and is duly registered under applicable State securities laws,
and that IDI is in compliance in all material respects with the
requirements of the 1934 Act, Section 9(a) of the 1940 Act, FINRA Rules
and State securities laws applicable to IDI as a registered
broker-dealer.
b. Any IDI Representatives required to be registered with FINRA and any
State Securities Commission as representatives or principals of IDI are
so registered.
c. IDI shall continue to comply, and shall undertake to cause its
Representatives to comply, in all material respects, during the term of
this Agreement, with applicable requirements of the 1934 Act,
Section 9(a) of the 1940 Act, FINRA Rules, and any State securities laws.
4. XXXX's Representations and Warranties Regarding SEC Filings. MONY represents
and warrants to IDI on the date that each Registration Statement becomes
effective that:
a. SEC Filings. MONY has filed with the SEC all statements, notices, and
other documents required for registration of the Contracts covered by
such Registration Statement under the provisions of the 1933 Act and
Regulations thereunder, and, if such Registration Statement covers
Variable Contracts, registration of the related Separate Account under
the provisions of the 1940 Act and Regulations thereunder, and has
obtained all necessary or customary orders of exemption or approval from
the SEC to permit the distribution of the Contracts pursuant to this
Agreement and, if such Registration Statement covers Variable Contracts,
to permit the establishment and operation of the related Separate
Account as contemplated in such Registration Statement and in conformity
with the 1940 Act and Regulations thereunder, which orders, to the
extent required, apply to IDI, as principal underwriter for the public
offering of the Contracts and for the Separate Account.
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b. Effectiveness. Such Registration Statement has been declared effective
by the SEC or has become effective in accordance with applicable
Regulations. MONY has not received any notice from the SEC with respect
to such Registration Statement pursuant to Section 8(e) of the 1940 Act,
and no stop order under the 1933 Act has been issued, and no proceeding
therefor has been instituted or threatened by the SEC.
c. Compliance with 1933 Act and 1940 Act. Such Registration Statement and
related Prospectus comply in all material respects with applicable
provisions of the 1933 Act and Regulations thereunder and, if such
Registration Statement covers Variable Contracts, also comply in all
material respects with applicable provisions of the 1940 Act and
Regulations thereunder, and neither such Registration Statement nor
Prospectus contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, in light of the circumstances in
which they were made; provided, however, that none of the
representations and warranties in this Section 4.c shall apply to
statements or omissions from such Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to
MONY in writing by IDI expressly for use therein.
d. Contracts Duly Authorized. The Contracts covered by such Registration
Statement have been duly authorized by MONY and conform to the
descriptions thereof in such Registration Statement and related
Prospectus and, when issued as contemplated by such Registration
Statement and related Prospectus, shall constitute legal, validly issued
and binding obligations of MONY in accordance with their terms. The form
of the Contracts and, where applicable, the Separate Account have each
been duly approved to the extent required by the New York Insurance
Department.
e. Separate Account. If such Registration Statement covers Variable
Contracts, the related Separate Account has been duly established by
MONY and conforms to the description thereof in the Registration
Statement and related Prospectus.
f. Tax Compliance. The Contracts qualify as annuity contracts or life
insurance contracts, as applicable, under applicable federal tax laws.
g. Duly Authorized. XXXX is duly organized as a life insurance company
under the laws of the State of New York and is duly authorized to
conduct a life insurance business in New York and in all other States in
which the Contracts have been or may be issued.
5. XXXX's Undertakings. For so long as the Contracts remain outstanding, MONY
undertakes as follows:
a. Securities Law Compliance. XXXX shall be responsible for preparing the
Prospectuses and Registration Statements for each class of Contracts and
filing them with the SEC and State Securities Commissions, to the extent
required.
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MONY shall use its best efforts to maintain the registration of the
Contracts and, in the case of Variable Contracts, the related Separate
Accounts with the SEC and any applicable State Securities Commission,
such efforts to include, without limitation, best efforts to prevent a
stop order from being issued by the SEC or any such State Securities
Commission or, if a stop order has been issued, to cause such stop order
to be withdrawn. In the case of Variable Contracts, MONY shall take all
action required to cause the related Separate Accounts to continue to
comply, in all material respects, with the provisions of the 1940 Act
and regulations and exemptions thereunder applicable to the Separate
Accounts as a registered investment company under the 1940 Act. MONY
shall not deduct any amounts from the assets of any Separate Account,
enter into a transaction or arrangement involving the Variable Contracts
or the related Separate Account, or cause any Separate Account to enter
into any such transaction or arrangement, without obtaining any
necessary or customary approvals or exemptions from the SEC or no-action
assurance from the SEC staff, and without ensuring that such approval,
exemption or assurance applies to IDI as the principal underwriter for
such Separate Account and Contracts. MONY shall timely file each
post-effective amendment to a Registration Statement, Prospectus,
statement of additional information, Rule 24f-2 notice, annual report on
Form N-SAR, and all other reports, notices, statements, and amendments
required to be filed by or for MONY and/or a Separate Account with the
SEC under the 1933 Act, the 1934 Act and/or the 1940 Act or any
Regulations, and shall pay all filing or registration fees payable in
connection therewith, it being understood that MONY may rely on SEC
staff no-action relief or guidance permitting an insurer to cease
updating a Registration Statement in appropriate circumstances. To the
extent there occurs an event or development (including, without
limitation, a change of applicable law, regulation or administrative
interpretation) warranting an amendment to either the Registration
Statement or supplement to the Prospectus, MONY shall endeavor to
prepare, subject to IDI's right to review such material provided in
Section 5.b, and file such amendment or supplement with the SEC with all
deliberate speed.
b. Provision of Copies. IDI shall have the right to review any Registration
Statement or Prospectus. Upon IDI's request, MONY shall provide IDI with
a preliminary draft of any exemptive application or no-action request to
be filed with the SEC in connection with the Contracts and/or, in the
case of Variable Contracts, the related Separate Account. MONY shall
xxxxxxx XXX with copies of any such material or amendment thereto, as
filed with the SEC, promptly after the filing thereof, and any SEC
communication or order with respect thereto, promptly after receipt
thereof. MONY shall maintain and keep on file in its principal executive
office any file memoranda or any supplemental materials referred to in
any such Registration Statement, Prospectus, exemptive application and
no-action request and shall, as necessary, amend such memoranda or
materials and shall provide or otherwise make available copies of such
memoranda and materials to IDI.
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c. Due Diligence. MONY shall provide IDI access to such records, officers
and employees of MONY at reasonable times as is necessary to enable IDI
to fulfill its obligation, as the underwriter under the 1933 Act for the
Contracts and, in the case of Variable Contracts, as principal
underwriter for the related Separate Account under the 1940 Act, to
perform due diligence and to use reasonable care.
d. State Insurance Law Compliance. MONY shall be responsible for preparing
the Contract forms and any amendments thereto, and filing them with
State Insurance Commissions, to the extent required. MONY shall maintain
approvals of the Contracts and the Separate Account (including for
purposes of this Section 5.d only any separate account established with
respect to Contracts that are not Variable Contracts) from such State
Insurance Commissions, to the extent required, in order to carry out the
purposes of this Agreement. MONY shall take all action required to cause
the Contracts to continue to comply, in all material respects, as
annuity contracts or life insurance contracts, as applicable, under the
insurance laws of the States, to the extent required. MONY shall file
promotional, sales and advertising material for the Contracts and
Separate Account, to the extent required, with State Insurance
Commissions.
e. Federal Tax Law Compliance. MONY shall take all action required to cause
the Contracts to continue to comply, in all material respects, as
annuity contracts or life insurance contracts, as applicable, under
applicable federal tax laws.
f. Issuance and Administration of Contracts. MONY shall be responsible for
issuing the Contracts and administering the Contracts and the Separate
Accounts, provided, however, that IDI shall have full responsibility for
the securities activities of all persons employed by MONY, who are
engaged directly or indirectly in the Contract operations and are
identified as associated persons of IDI, and shall have full
responsibility for the training, supervision and control of such persons
to the extent of such activities.
g. Marketing Materials. MONY shall be responsible for furnishing IDI,
Wholesaling Broker-Dealers and Selling Broker-Dealers with such
applications, Prospectuses and other materials for use in their
activities with respect to the Contracts. MONY shall notify IDI,
Wholesaling Broker-Dealers and any Selling Broker-Dealers of those
States which require delivery of a statement of additional information
with a prospectus.
h. Confirmations. MONY, as agent for Selling Broker-Dealers, shall confirm
to each applicant for and purchaser of a Contract in accordance with
Rule 10b-10 under the 1934 Act acceptance of premiums and such other
transactions as are required to be confirmed by Rule 10b-10 or
administrative interpretations thereunder.
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i. Books and Records. MONY shall maintain and preserve the books and
records in connection with the offer and sale of the Contracts,
including without limitation the compensation records provided for in
Section 8.a of this Agreement, in conformity with the requirements of
Rule 17a-3 and 17a-4 under the 1934 Act, to the extent that such
requirements are applicable to the Contracts. XXXX acknowledges and
agrees that all such books and records are maintained and held by XXXX
on behalf of and as agent for IDI whose property they are and shall
remain, and that such books and records are at all times subject to
inspection by the SEC in accordance with Section 17(a) of the 1934 Act.
6. Other Obligations of the Parties
a. Anti-Money Laundering. The parties shall comply with applicable
anti-money laundering laws, regulations, rules and government guidance,
including the reporting, record keeping and compliance requirements of
the Bank Secrecy Act ("BSA"), as amended by The International Money
Laundering Abatement and Financial Anti-Terrorism Act of 2002, Title III
of the USA PATRIOT Act (the "Patriot Act"), its implementing
regulations, and related SEC rules, including without limitations,
Customer Identification Program ("CIP") rules. Further, the parties
shall comply with the economic sanctions programs administered by the
U.S. Treasury Department's Office of Foreign Assets Control ("OFAC"). To
the extent required by applicable law, the Parties will promptly notify
one another whenever suspicious activity or OFAC matches are detected.
b. Trading Practices. Each party represents that it has and maintains an
internal control structure for the processing and transmission of orders
suitably designed (a) to prevent orders received after the close of
trading on the New York Stock Exchange from being aggregated with orders
received before such close of trading and (b) to minimize errors that
could result in late transmission of orders to MONY. The parties further
represent, warrant and covenant that they have adopted reasonable
procedures to prevent customers from providing false or otherwise
inaccurate information with respect to the source of the trading
activity for any customer account or engaging in market timing activity
in any account. The parties shall cooperate with one another to reject
future purchases by customers who engage in any of the trading
activities described in this paragraph.
c. Privacy. The parties each affirm that they have procedures in place
reasonably designed to protect the privacy of non-public customer
information and will maintain such information they acquire pursuant to
this Agreement in confidence and in accordance with all applicable
privacy laws. "Confidential Information" includes, by way of example and
not limitation, all client-related information (including the names,
addresses, telephone numbers, social security numbers and account
numbers of such referred clients, as well as non-public personal
information of such clients) that the parties receive. Notwithstanding
the foregoing, each Party shall have the right to use or disclose
Confidential Information: (i) to the full extent required to comply with
applicable laws or requests of regulators; (ii) as necessary in
connection with the Party's audit, legal, compliance or accounting
procedures; (iii) as necessary or permitted by applicable
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laws in the ordinary course of business under this Agreement; (iv) as
authorized by a customer; and (v) to protect against or prevent fraud.
Confidential Information does not include (i) information which is now
generally available in the public domain or which in the future enters
the public domain through no fault of the receiving party;
(ii) information that is disclosed to the receiving party by a third
party without violation by such third party of an independent obligation
of confidentiality of which the receiving party is aware; or
(iii) information that the disclosing party consents in writing that the
receiving party may disclose.
7. Notification of Contractholder Complaints and Developments
a. Contractholder Complaints. MONY and IDI shall notify the other promptly
of any substantive complaint received by either party with respect to
MONY, IDI, any IDI Representative or employee or with respect to any
Contract. The parties hereto shall cooperate in investigating such
complaint and any response by either party to such complaint shall be
sent to the other party for written approval not less than five business
days prior to its being sent to the customer or any regulatory
authority, except that if a more prompt response is required, the
proposed response shall be communicated by telephone or facsimile. In
any event, neither party shall release any such response without the
other party's prior written approval.
b. Developments. MONY and IDI shall notify the other upon the happening of
any material event, if known by such notifying party, which makes untrue
any material statement made in the Registration Statement or Prospectus
or which requires the making of a change therein in order to make any
statement made therein not materially misleading. In addition, MONY
shall notify IDI immediately or in any event as soon as possible under
the circumstances of the following:
(1)If MONY becomes aware that any Prospectus, sales literature or other
printed matter or material used in marketing and distributing any
Contract contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements made
therein, in light of the circumstances in which they were made, not
misleading;
(2)Of any request by the SEC for any amendment to a Registration
Statement, for any supplement to the Prospectus, or for additional
information;
(3)Of the issuance by the SEC of any "stop order" with respect to a
Registration Statement or any amendment thereto, or the initiation of
any proceedings for that purpose or for any other purpose relating to
the registration and/or offering of the Contracts;
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(4)Of any event of the Contracts' or a Separate Account's noncompliance
with the applicable requirements of federal tax law or regulations,
rulings, or interpretations thereunder that could jeopardize the
Contracts' status as annuity or life insurance contracts, as
applicable;
(5)Of any change in applicable insurance laws or regulations of any
State materially adversely affecting the insurance status of the
Contracts or IDI's obligations with respect to the distribution of
the Contracts; and
(6)Of any loss or suspension of the approval of the Contracts or
distribution thereof by a State Securities Commission or State
Insurance Commission, any loss or suspension of MONY's certificate of
authority to do business or to issue variable insurance products in
any State, or of the lapse or termination of the Contracts' or a
Separate Account's registration, approval or clearance in any State.
c. Regulatory Actions. XXXX and IDI shall notify the other in writing upon
being apprised of the institution of any proceeding, investigation or
hearing involving the offer or sale of the Contracts. IDI and MONY shall
cooperate fully in any securities or insurance regulatory investigation
or proceeding or judicial proceeding arising in connection with the
offering, sale or distribution of the Contracts distributed under this
Agreement.
8. Compensation and Expenses
a. Compensation for the principal underwriter services provided by
Distributor under this Agreement shall be comprised of the compensation
payable under the terms of the Selling Agreements, Servicing Agreements
and Wholesaling Agreements. MONY shall pay such compensation directly to
Selling Broker-Dealers, Previous Distributors and Wholesaling
Broker-Dealers, respectively, as applicable, or their designees, on
behalf of IDI, as a purely ministerial service and shall maintain
records in respect thereof for IDI in compliance with applicable
requirements under the 1934 Act and FINRA rules. No other compensation
shall be payable to Distributor for the principal underwriter services
hereunder.
b. XXXX shall be responsible for all expenses in connection with:
(1)the preparation and filing of each Registration Statement (including
each pre-effective and post-effective amendment thereto) and the
preparation and filing of each Prospectus (including any preliminary
and each definitive Prospectus);
(2)the preparation, underwriting, issuance and administration of the
Contracts and the payment of benefits thereunder;
(3)any registration, qualification or approval or other filing of the
Contracts or Contract forms required under the securities or
insurance laws of the States in which the Contracts will be or have
been issued.
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(4)all registration fees for the Contracts payable to the SEC and any
State Securities Commission; and
(5)the printing of all promotional materials, definitive Prospectuses
for the Contracts and any supplements thereto for distribution to
prospective and existing owners of Contracts.
9. Indemnification
a. By MONY. MONY shall indemnify and hold harmless IDI and any of its
officers, directors, employees or agents, against any and all losses,
claims, damages or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action, suit
or proceeding or any claim asserted), to which IDI and/or any such
person may become subject, under any statute or regulation, any FINRA
Rule or interpretation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities:
(1)arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, in light of the circumstances
in which they were made, contained in any (i) Registration Statement
or in any Prospectus or (ii) blue-sky application or other document
executed by MONY specifically for the purpose of qualifying any or
all of the Contracts for sale under the securities laws of any State;
provided that MONY shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or is based
upon, an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon information furnished in
writing to MONY by IDI specifically for use in the preparation of any
such Registration Statement or any such blue-sky application or any
amendment thereof or supplement thereto; or
(2)result from any material breach by MONY of any provision of this
Agreement.
This indemnification agreement shall be in addition to any liability
that MONY may otherwise have; provided, however, that no person shall be
entitled to indemnification pursuant to this provision if such loss,
claim, damage or liability is due to the willful misfeasance, bad faith,
gross negligence or reckless disregard of duty by the person seeking
indemnification.
13
b. By IDI. IDI shall indemnify and hold harmless MONY and any of its
officers, directors, employees or agents, against any and all losses,
claims, damages or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action, suit
or proceeding or any claim asserted), to which MONY and/or any such
person may become subject under any statute or regulation, any FINRA
Rule or interpretation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities:
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact or omission or alleged omission
to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, in light of
the circumstances in which they were made, contained in any
(i) Registration Statement or in any Prospectus, or (ii) blue-sky
application or other document executed by MONY specifically for the
purpose of qualifying any or all of the Contracts for sale under the
securities laws of any State; in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
information furnished in writing by IDI to MONY specifically for use
in the preparation of any such Registration Statement or any such
blue-sky application or any amendment thereof or supplement thereto;
(2) result because of any use by IDI or any IDI Representative of
promotional, sales or advertising material not authorized by MONY or
any verbal or written misrepresentations by IDI or any IDI
Representative or any unlawful sales practices concerning the
Contracts by IDI or any IDI Representative under federal securities
laws or FINRA Rules; or
(3) result from any material breach by IDI of any provision of this
Agreement.
This indemnification shall be in addition to any liability that IDI may
otherwise have; provided, however, that no person shall be entitled to
indemnification pursuant to this provision if such loss, claim, damage
or liability is due to the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the person seeking
indemnification.
c. General. Promptly after receipt by a party entitled to indemnification
("indemnified person") under this Section 9 of notice of the
commencement of any action as to which a claim will be made against any
person obligated to provide indemnification under this Section 9
("indemnifying party"), such indemnified person shall notify the
indemnifying party in writing of the commencement thereof as soon as
practicable thereafter, but failure to so notify the indemnifying party
shall not relieve the indemnifying party from any liability which it may
have to the indemnified person otherwise than on account of this
Section 9. The indemnifying party will be entitled to participate in the
defense of the indemnified person but such participation will not
relieve such indemnifying party of the obligation to reimburse the
indemnified person for reasonable legal and other expenses incurred by
such indemnified person in defending himself or itself.
14
The indemnification provisions contained in this Section 9 shall remain
operative in full force and effect, regardless of any termination of
this Agreement. A successor by law of IDI or MONY, as the case may be,
shall be entitled to the benefits of the indemnification provisions
contained in this Section 9.
10. Term and Termination. This Agreement shall remain in effect until it is
terminated. This Agreement shall terminate automatically if it is assigned
by a party without the prior written consent of the other party. This
Agreement may be terminated at any time for any reason by either party upon
six months' prior written notice to the other party, without payment of any
penalty. (The term "assigned" shall not include any transaction not
involving an actual change in management or control.) This Agreement may be
terminated at the option of either party to this Agreement upon the other
party's material breach of any provision of this Agreement or of any
representation or warranty made in this Agreement, unless such breach has
been cured within 10 days after receipt by the breaching party of notice of
breach from the non-breaching party. Upon termination of this Agreement all
authorizations, rights and obligations shall cease except the obligation to
settle accounts hereunder.
11. Notices. All notices hereunder are to be made in writing and shall be given:
if to MONY, to:
MONY Life Insurance Company
0000 Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
With a copy to:
Senior Associate Counsel - Variable Products
Protective Life Corporation Company
0000 Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
if to IDI, to:
Chief Executive Officer
Investment Distributors, Inc.
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
15
With a copy to:
Senior Counsel - Variable Insurance Products
Protective Life Corporation
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
or such other address as such party may hereafter specify in writing. Each
such notice to a party shall be either hand delivered or transmitted by
overnight mail by a nationally recognized courier, and shall be effective
upon delivery.
12.General
a. Binding Effect. This Agreement shall be binding on and shall inure to
the benefit of the respective successors and assigns of the parties
hereto provided that neither party shall assign this Agreement or any
rights or obligations hereunder without the prior written consent of the
other party in accordance with Section 10 of this Agreement.
b. Amendments. The parties to this Agreement may amend Schedule A to this
Agreement from time to time to reflect additions of any class of
Contracts and any Separate Accounts. The provisions of this Agreement
shall be equally applicable to each such class of Contracts and each
Separate Account that may be added to the Schedule and the related
Registration Statement and Prospectus, unless the context otherwise
requires. Any other change in the terms or provisions of this Agreement
shall be by written agreement between MONY and IDI.
c. Rights, Remedies, etc, are Cumulative. 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. Failure of either party to insist upon strict compliance with any
of the conditions of this Agreement shall not be construed as a waiver
of any of the conditions, but the same shall remain in full force and
effect. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provisions, whether
or not similar, nor shall any waiver constitute a continuing waiver.
d. Arbitration. Any controversy or claim arising out of relating to this
Agreement, or the breach hereof, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
e. Interpretation; Jurisdiction. This Agreement constitutes the whole
agreement between the parties hereto with respect to the subject matter
hereof, and supersedes all prior oral or written understandings,
agreements or negotiations
16
between the parties with respect to such subject matter. No prior
writings by or between the parties with respect to the subject matter
hereof shall be used by either party in connection with the
interpretation of any provision of this Agreement. This Agreement shall
be construed and its provisions interpreted under and in accordance with
the internal laws of the State of New York without giving effect to
principles of conflict of laws.
f. Severability. This is a severable Agreement. In the event that any
provision of this Agreement would require a party to take action
prohibited by applicable federal or State law or prohibit a party from
taking action required by applicable federal or State law, then it is
the intention of the parties hereto that such provision shall be
enforced to the extent permitted under the law, and, in any event, that
all other provisions of this Agreement shall remain valid and duly
enforceable as if the provision at issue had never been a part hereof.
g. Section and Other Headings; Plurality. The headings 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. Unless otherwise indicated, terms used in the
singular form shall include the plural form and vice versa.
h. Counterparts. This Agreement may be executed in two or more
counterparts, each of which taken together shall constitute one and the
same instrument.
i. Regulation. This Agreement shall be subject to the provisions of the
1933 Act, 1934 Act and 1940 Act and FINRA Rules, from time to time in
effect, including such exemptions from the 1940 Act as the SEC may
grant, and the terms hereof shall be interpreted and construed in
accordance therewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by such authorized officers on the date specified above.
MONY LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
INVESTMENT DISTRIBUTORS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
17
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
COVERED BY AGREEMENT
as of November 1, 2013
SEPARATE ACCOUNT CONTRACTS
---------------- -------------------------------------
MONY VARIABLE ACCOUNT A MONY Variable Annuity
MONY C Variable Annuity
MONY L Variable Annuity
MONY Custom Master
The MONYMaster
The ValueMaster
KEYNOTE SERIES ACCOUNT Keynote Series Account
Keynote Series Account/NY/
MONY VARIABLE ACCOUNT L MONY Variable Universal Life
MONY Survivorship Variable Universal
Life
MONY Custom Equity Master
MONY Custom Estate Master
The MONYEquity Master
The Strategist
A-1
