Exhibit 3(i)
UNDERWRITING AND
SERVICING AGREEMENT
This UNDERWRITING AND SERVICING AGREEMENT is made this day of
July, 1998, by and between MML Distributors, LLC ("MML Distributors") and
Massachusetts Mutual Life Insurance Company ("MassMutual"), on its own behalf
and on behalf of Massachusetts Mutual Variable Annuity Separate Account 4 (the
"Separate Account"), a separate account of MassMutual, as follows:
WHEREAS, the Separate Account was established under authority of
resolutions of the Board of Directors of MassMutual in order to set aside and
invest assets attributable to certain variable annuity contracts (the
"Contracts") issued by MassMutual; and
WHEREAS, MassMutual has registered the Separate Account under the
Investment Company Act of 1940, as amended, (the "1940 Act") and has registered
the Contracts under the Securities Act of 1933, as amended, (the "1933 Act");
and
WHEREAS, MassMutual will continue the effectiveness of the
registration of the Separate Account under the 1940 Act and the Contracts under
the 1933 Act; and
WHEREAS, MassMutual intends for the Contracts to be sold by agents
and brokers who are required to be registered representatives of a broker-dealer
that is registered with the Securities and Exchange Commission (the "SEC") under
the Securities Exchange Act of 1934 ("1934 Act") and a member of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, MassMutual desires to engage MML Distributors, a
broker-dealer registered with the SEC under the 1934 Act and a member of the
NASD, to act as the principal underwriter ("Underwriter") of the Contracts, and
to otherwise perform certain duties and functions that are necessary and proper
for the distribution of the Contracts as required under applicable federal and
state securities laws and NASD regulations, and MML Distributors desires to act
as Underwriter for the sale of the Contracts and to assume such
responsibilities;
NOW, THEREFORE, the parties hereto agree as follows:
1. Underwriter. MassMutual hereby appoints MML Distributors as, and MML
Distributors agrees to serve as, Underwriter of the Contracts during the term of
this Agreement for purposes of federal and state securities laws. MassMutual
reserves the right, however, to refuse at any time or times to sell any
Contracts hereunder for any reason, and MassMutual maintains ultimate
responsibility for the sales of the Contracts.
MML Distributors shall use reasonable efforts to sell the Contracts but does not
agree hereby to sell any specific number of Contracts and shall be free to act
as underwriter of other securities. MML Distributors agrees to offer the
Contracts for sale in accordance with the prospectus then in effect for the
Contracts.
2. Services. MML Distributors agrees, on behalf of MassMutual and the Separate
Account, and in its capacity as Underwriter, to undertake at its own expense
except as otherwise provided herein, to provide certain sales, administrative
and supervisory services relative to the Contracts as described below, and
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otherwise to perform all duties that are necessary and proper for the
distribution of the Contracts as required under applicable federal and state
securities laws and NASD regulations.
3. Selling Group. MML Distributors may enter into sales agreements for the sale
of the Contracts with independent broker-dealer firms ("Independent Brokers")
whose registered representatives have been or shall be licensed and appointed as
life insurance agents of MassMutual. All such agreements shall be in a form
agreed to by MassMutual. All such agreements shall provide that the Independent
Brokers must assume full responsibility for continued compliance by itself and
its associated persons with the NASD Rules (the "Rules") and all applicable
federal and state securities and insurance laws. All associated persons of such
Independent Brokers soliciting applications for the Contracts shall be duly and
appropriately licensed and appointed for the sale of the Contracts under the
Rules and applicable federal and state securities and insurance laws.
4. Compliance and Supervision. All persons who are engaged directly or
indirectly in the operations of MML Distributors and MassMutual in connection
with the offer or sale of the Contracts shall be considered a "person
associated" with MML Distributors as defined in Section 3(a)(18) of the 1934
Act. MML Distributors shall have full responsibility for the securities
activities of each such person as contemplated by Section 15 of the 1934 Act.
MML Distributors shall be fully responsible for carrying out all
compliance, supervisory and other obligations hereunder with respect to the
activities of its registered representatives as required by the Rules and
applicable federal and state securities laws. Without limiting the generality of
the foregoing, MML Distributors agrees that it shall be fully responsible for:
(a) ensuring that no representative of MML Distributors shall offer
or sell the Contracts until such person is appropriately licensed, registered,
or otherwise qualified to offer and sell such Contracts under the federal
securities laws and any applicable securities laws of each state or other
jurisdiction in which such Contracts may be lawfully sold, in which MassMutual
is licensed to sell the Contracts, and in which such person shall offer or sell
the Contracts; and
(b) training and supervising MassMutual's agents and brokers who are
also registered representatives of MML Distributors for purposes of complying on
a continuous basis with the Rules and with federal and state securities laws
applicable in connection with the offering and sale of the Contracts. In this
connection, MML Distributors shall:
(i) jointly conduct with MassMutual such training (including the
preparation and utilization of training materials) as in the opinion of MML
Distributors and MassMutual is necessary to accomplish the purposes of this
Agreement;
(ii) establish and implement reasonable written procedures for
supervision of sales practices of registered representatives of MML Distributors
who sell the Contracts;
(iii) provide a sufficient number of registered principals and an
adequately staffed compliance department to carry out the responsibilities as
set forth herein;
(iv) take reasonable steps to ensure that MassMutual agents and
brokers who are also registered representatives of MML Distributors recommend
the purchase of the Contracts only upon reasonable grounds to believe that the
purchase of the Contracts is suitable for such applicant; and
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(v) impose disciplinary measures on agents of MassMutual who are
also registered representatives of MML Distributors as required.
The parties hereto recognize that any registered representative of
MML Distributors or Independent Broker selling the Contracts as contemplated by
this Agreement shall also be acting as an insurance agent of MassMutual or as an
insurance broker, and that the rights of MML Distributors and Independent Broker
to supervise such persons shall be limited to the extent specifically described
herein or required under applicable federal or state securities laws or NASD
regulations.
5. Registration and Qualification of Contracts. MassMutual has prepared or
caused to be prepared a registration statement describing the Contracts,
together with exhibits thereto (hereinafter referred to as the "Registration
Statement"). The Registration Statement includes a prospectus (the "Prospectus")
for the Contracts.
MassMutual agrees to execute such papers and to do such acts and things as shall
from time-to-time be reasonably requested by MML Distributors for the purpose of
qualifying and maintaining qualification of the Contracts for sale under
applicable state law and for maintaining the registration of the Separate
Account and interests therein under the 1933 Act and the 1940 Act, to the end
that there will be available for sale from time-to-time such amounts of the
Contracts as MML Distributors may reasonably request. MassMutual shall advise
MML Distributors promptly of any action of the SEC or any authorities of any
state or territory, of which it is aware, affecting registration or
qualification of the Separate Account, or rights to offer the Contracts for
sale.
If any event shall occur as a result of which it is necessary to
amend or supplement the Registration Statement in order to make the statements
therein, in light of the circumstances under which they were or are made, true,
complete or not misleading, MassMutual will forthwith prepare and furnish to MML
Distributors, without charge, amendments or supplements to the Registration
Statement sufficient to make the statements made in the Registration Statement
as so amended or supplemented true, complete and not misleading in light of the
circumstances under which they were made.
6. Representations of MassMutual. MassMutual represents and warrants to MML
Distributors and to the Independent Brokers as follows:
(a) MassMutual is an insurance company duly organized under the
laws of the Commonwealth of Massachusetts and is in good standing and is
authorized to conduct business under the laws of each state in which the
Contracts are sold, that the Separate Account was legally and validly
established as a segregated asset account under the Insurance Code of
Massachusetts, and that the Separate Account has been properly registered as a
unit investment trust in accordance with the provisions of the 1940 Act to serve
as segregated investment accounts for the Contracts.
(b) All persons that will be engaging in the offer or sale of the Contracts will
be authorized insurance agents of MassMutual.
(c) The Registration Statement does not and will not contain any misstatements
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were or are made, not materially misleading.
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(d) MassMutual shall make available to MML Distributors copies of all financial
statements that MML Distributors reasonably requests for use in connection with
the offer and sale of the Contracts.
(e) No federal or state agency or bureau has issued an order preventing or
suspending the offer of the Contracts or the use of the Registration Statement,
or of any part thereof, with respect to the sale of the Contracts.
(f) The offer and sale of the Contracts is not subject to registration, or if
necessary, is registered, under the Blue Sky laws of the states in which the
Contracts will be offered and sold.
(g) The Contracts are qualified for offer and sale under the applicable state
insurance laws in those states in which the Contracts shall be offered for sale.
In each state where such qualification is effected, MassMutual shall file and
make such statements or reports as are or may be required by the laws of such
state.
(h) This Agreement has been duly authorized, executed and delivered by
MassMutual and constitutes the valid and legally binding obligation of
MassMutual. Neither the execution and delivery of this Agreement by MassMutual
nor the consummation of the transactions contemplated herein will result in a
breach or violation of any provision of the state insurance laws applicable to
MassMutual, any judicial or administrative orders in which it is named or any
material agreement or instrument to which it is a party or by which it is bound.
7. Representations of MML Distributors. MML Distributors represents and warrants
to MassMutual as follows:
(a) MML Distributors is duly registered as a broker-dealer under the 1934 Act
and is a member in good standing of the NASD and, to the extent necessary to
perform the activities contemplated hereunder, is duly registered, or otherwise
qualified, under the applicable securities laws of every state or other
jurisdiction in which the Contracts are available for sale.
(b) This Agreement has been duly authorized, executed and delivered by MML
Distributors and constitutes the valid and legally binding obligation of MML
Distributors. Neither the execution and delivery of this Agreement by MML
Distributors nor the consummation of the transactions contemplated herein will
result in a breach or violation of any provision of the federal or state
securities laws or the Rules, applicable to MML Distributors, or any judicial or
administrative orders in which it is named or any material agreement or
instrument to which it is a party or by which it is bound.
(c) MML Distributors shall comply with the Rules and the securities laws of any
jurisdiction in which it sells, directly or indirectly, any Contracts.
8. Expenses. MML Distributors shall be responsible for all expenses incurred in
connection with its provision of services and the performance of its obligations
hereunder, except as otherwise provided herein.
MassMutual shall be responsible for all expenses of printing and
distributing the Prospectuses, and all other expenses of preparing, printing and
distributing all other sales literature or material for use in connection with
offering the Contracts for sale.
9. Sales Literature and Advertising. MML Distributors will use and distribute
only the Prospectus, statements of additional information, or other applicable
and authorized sales literature then in effect in selling the Contracts. MML
Distributors is not authorized to give any information or to make any
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representations concerning the Contracts other than those contained in the
current Registration Statement filed with the SEC or in such sales literature as
may be authorized by MassMutual.
MML Distributors agrees to make timely filings with the SEC, the NASD, and such
other regulatory authorities as may be required of any sales literature or
advertising materials relating to the Contracts and intended for distribution to
prospective investors. MassMutual shall review and approve all advertising and
sales literature concerning the Contracts utilized by MML Distributors. MML
Distributors also agrees to furnish to MassMutual copies of all agreements and
plans it intends to use in connection with any sales of the Contracts.
10. Applications. All applications for Contracts shall be made on application
forms supplied by MassMutual, and shall be remitted by MML Distributors or
Independent Brokers promptly, together with such forms and any other required
documentation, directly to MassMutual at the address indicated on such
application or to such other address as MassMutual may, from time to time,
designate in writing. All applications are subject to acceptance or rejection by
MassMutual at its sole discretion.
11. Payments. All money payable in connection with any of the Contracts, whether
as premiums, purchase payments or otherwise, and whether paid by, or on behalf
of any applicant or Contract owner, is the property of MassMutual and shall be
transmitted immediately in accordance with the administrative procedures of
MassMutual without any deduction or offset for any reason, including by example
but not limitation, any deduction or offset for compensation claimed by MML
Distributors. Checks or money orders as payment on any Contract shall be drawn
to the order of "Massachusetts Mutual Life Insurance Company." No cash payments
shall be accepted by MML Distributors in connection with the Contracts. Unless
otherwise agreed to by MassMutual in writing, neither MML Distributors nor any
of MassMutual's agents nor any broker shall have an interest in any surrender
charges, deductions or other fees payable to MassMutual as set forth herein.
12. Insurance Licenses. MassMutual shall apply for and maintain the proper
insurance licenses and appointments for each of the agents and brokers selling
the Contracts in all states or jurisdictions in which the Contracts are offered
for sale by such person. MassMutual reserves the right to refuse to appoint any
proposed agent or broker, and to terminate an agent or broker once appointed.
MassMutual agrees to be responsible for all licensing or other fees required
under pertinent state insurance laws to properly authorize agents or brokers for
the sale of the Contracts; however, the foregoing shall not limit MassMutual's
right to collect such amount from any person or entity other than MML
Distributors.
13. Agent/Broker Compensation. Commissions or other fees due all brokers and
agents in connection with the sale of Contracts shall be paid by MassMutual, on
behalf of MML Distributors, to the persons entitled thereto in accordance with
the applicable agreement between each such broker or agent and MassMutual or a
general agent thereof. MML Distributors shall assist MassMutual in the payment
of such amounts as MassMutual shall reasonably request, provided that MML
Distributors shall not be required to perform any acts that would subject it to
registration under the insurance laws of any state. The responsibility of MML
Distributors shall include the performance of all activities by MML Distributors
necessary in order that the payment of such amounts fully complies with all
applicable federal and state securities laws. Unless applicable federal or state
securities law shall require, MassMutual retains the ultimate right to determine
the commission rate paid to its agents.
14. MML Distributors' Compensation. As payment for its services hereunder, MML
Distributors shall receive an annual fee in the amount of $ per year.
Payments shall commence and be made no later than December 31 of each year.
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15. Books and Records. MML Distributors and MassMutual shall each cause to be
maintained and preserved for the period prescribed such accounts, books, and
other documents as are required of it by the 1934 Act and any other applicable
laws and regulations. In particular, without limiting the foregoing, MML
Distributors shall cause all the books and records in connection with the offer
and sale of the Contracts by its registered representatives to be maintained and
preserved in conformity with the requirements of Rules 17a-3 and 17a-4 under the
1934 Act, to the extent that such requirements are applicable to the Contracts.
The books, accounts, and records of MML Distributors and MassMutual as to all
transactions hereunder shall be maintained so as to disclose clearly and
accurately the nature and details of the transactions. The payment of premiums,
purchase payments, commissions and other fees and payments in connection with
the Contracts by its registered representatives shall be reflected on the books
and records of MML Distributors as required under applicable NASD regulations
and federal and state securities laws requirements.
MML Distributors and MassMutual, from time to time during the term
of this Agreement, shall divide the administrative responsibility for
maintaining and preserving the books, records and accounts kept in connection
with the Contracts; provided, however, in the case of books, records and
accounts kept pursuant to a requirement of applicable law or regulation, the
ultimate and legal responsibility for maintaining and preserving such books,
records and accounts shall be that of the party which is required to maintain or
preserve such books, records and accounts under the applicable law or
regulation, and such books, records and accounts shall be maintained and
preserved under the supervision of that party. MML Distributors and MassMutual
shall each cause the other to be furnished with such reports as it may
reasonably request for the purpose of meeting its reporting and recordkeeping
requirements under such regulations and laws, and under the insurance laws of
the Commonwealth of Massachusetts and any other applicable states or
jurisdictions.
MML Distributors and MassMutual each agree and understand that all
documents, reports, records, books, files and other materials required under
applicable Rules and federal and state securities laws shall be the property of
MML Distributors, unless such documents, reports, records, books, files and
other materials are required by applicable regulation or law to be also
maintained by MassMutual, in which case such material shall be the joint
property of MML Distributors and MassMutual. All other documents, reports,
records, books, files and other materials maintained relative to this Agreement
shall be the property of MassMutual. Upon termination of this Agreement, all
said material shall be returned to the applicable party.
MML Distributors and MassMutual shall establish and maintain
facilities and procedures for the safekeeping of all books, accounts, records,
files, and other materials related to this Agreement. Such books, accounts,
records, files, and other materials shall remain confidential and shall not be
voluntarily disclosed to any other person or entity except as described below in
section 16.
16. Availability of Records. MML Distributors and MassMutual shall each submit
to all regulatory and administrative bodies having jurisdiction over the sales
of the Contracts, present or future, any information, reports, or other material
that any such body by reason of this Agreement may request or require pursuant
to applicable laws or regulations. In particular, without limiting the
foregoing, MassMutual agrees that any books and records it maintains pursuant to
paragraph 15 of this Agreement which are required to be maintained under Rule
17a-3 or 17a-4 of the 1934 Act shall be subject to inspection by the SEC in
accordance with Section 17(a) of the 1934 Act and Sections 30 and 31 of the 1940
Act.
17. Confirmations. MassMutual agrees to prepare and mail a confirmation for each
transaction in connection with the Contracts at or before the completion thereof
as required by the 1934 Act and applicable interpretations thereof, including
Rule 10b-10 thereunder. Each such confirmation shall reflect the facts of
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the transaction, and the form thereof will show that it is being sent on behalf
of MML Distributors or Independent Broker acting in the capacity of agent for
MassMutual.
18. Indemnification. MassMutual shall indemnify MML Distributors, Independent
Brokers, their registered representatives, officers, directors, employees,
agents and controlling persons and hold such persons harmless, from and against
any and all losses, damages, liabilities, claims, demands, judgments,
settlements, costs and expenses of any nature whatsoever (including reasonable
attorneys' fees and disbursements) resulting or arising out of or based upon an
allegation or finding that: (i) the Registration Statement or any application or
other document or written information provided by or on behalf of MassMutual
includes any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading, unless such statement or omission was
made in reliance upon, and in conformity with, written information furnished to
MassMutual by MML Distributors, Independent Brokers, or their registered
representatives specifically for use in the preparation thereof, or (ii) there
is a misrepresentation, breach of warranty or failure to fulfill any covenant or
warranty made or undertaken by MassMutual hereunder.
MML Distributors will indemnify MassMutual, its officers, directors,
employees, agents and controlling persons and hold such persons harmless, from
and against any and all losses, damages, liabilities, claims, demands,
judgments, settlements, costs and expenses of any nature whatsoever (including
reasonable attorneys' fees and disbursements) resulting or arising out of or
based upon an allegation or finding that: (i) MML Distributors or its registered
representatives offered or sold or engaged in any activity relating to the offer
and sale of the Contracts which was in violation of any provision of the federal
securities laws or, (ii) there is a material misrepresentation, material breach
of warranty or material failure to fulfill any covenant or warranty made or
undertaken by MML Distributors hereunder.
Promptly after receipt by an indemnified party under this paragraph
18 of notice of the commencement of any action by a third party, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this paragraph 18, notify the indemnifying party of the
commencement thereof; but the omission to notify the indemnifying party will not
relieve the indemnifying party from liability which the indemnifying party may
have to any indemnified party otherwise than under this paragraph. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, to assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this paragraph for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
19. Independent Contractor. MML Distributors shall be an independent contractor.
MML Distributors is responsible for its own conduct and the employment, control
and conduct of its agents and employees and for injury to such agents or
employees or to others through its agents or employees. MML Distributors assumes
full responsibility for its agents and employees under applicable statutes and
agrees to pay all employer taxes thereunder.
20. Termination. Subject to termination as hereinafter provided, this Agreement
shall remain in full force and effect for the initial term of the Agreement,
which shall be for a two year period commencing on the date first above written,
and this Agreement shall continue in full force and effect from year to year
thereafter, until terminated as herein provided.
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This Agreement may be terminated by either party hereto upon 30 days
written notice to the other party, or at any time upon the mutual written
consent of the parties hereto. This Agreement shall automatically be terminated
in the event of its assignment. Subject to MassMutual's approval, however, MML
Distributors may delegate any duty or function assigned to it in this agreement
provided that such delegation is permissible under applicable law. Upon
termination of this Agreement, all authorizations, rights and obligations shall
cease except the obligations to settle accounts hereunder, including the
settlement of monies due in connection with the Contracts in effect at the time
of termination or issued pursuant to applications received by MassMutual prior
to termination.
21. Interpretation. This Agreement shall be subject to the provisions of the
1934 Act and the rules, regulations, and rulings thereunder and of the NASD,
from time to time in effect, and the terms hereof shall be interpreted and
construed in accordance therewith. 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. This Agreement shall
be interpreted in accordance with the laws of the Commonwealth of Massachusetts.
22. Non-exclusivity. The services of MML Distributors and MassMutual to the
Separate Account hereunder are not to be deemed exclusive and MML Distributors
and MassMutual shall be free to render similar services to others so long as
their services hereunder are not impaired or interfered with hereby.
23. Amendment. This Agreement constitutes the entire Agreement between the
parties hereto and may not be modified except in a written instrument executed
by all parties hereto.
24. Interests in and of MML Distributors. It is understood that any of the
policyholders, directors, officers, employees and agents of MassMutual may be a
shareholder, director, officer, employee, or agent of, or be otherwise
interested in, MML Distributors, any affiliated person of MML Distributors, any
organization in which MML Distributors may have an interest, or any organization
which may have an interest in MML Distributors; that MML Distributors, any such
affiliated person or any such organization may have an interest in MassMutual;
and that the existence of any such dual interest shall not affect the validity
hereof or of any transaction hereunder except as otherwise provided in the
Charter, Articles of Incorporation, or By-Laws of MassMutual and MML
Distributors, respectively, or by specific provision of applicable law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective officials thereunto duly authorized and seals to
be affixed, as of the day and year first above written.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, on its behalf and on behalf of
MASSACHUSETTS MUTUAL VARIABLE ANNUITY SEPARATE ACCOUNT 4
ATTEST:
MML DISTRIBUTORS, LLC
ATTEST:
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