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General Agent and Broker-Dealer
Selling Agreement
[LOGO OF ▇▇▇▇ ▇▇▇▇▇▇▇] General Agent and Broker-Dealer Selling Agreement
AGREEMENT, dated as of the effective date as provided below, by and among
the undersigned general agent ("General Agent"); the undersigned broker-dealer
(in the case of Securities Contracts) ("Broker-Dealer"); ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC (in the case of Securities Contracts); and 'The Company' which
is defined herein as either of the following Contract issuers: ▇▇▇▇ ▇▇▇▇▇▇▇
Life Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company, ▇▇▇▇
▇▇▇▇▇▇▇ Life Insurance Company (U.S.A.), or ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
of New York. The Company under this agreement shall be determined based upon
which of the above Contract issuers' products are being or have been sold
pursuant to this Agreement.
WHEREAS, The Company issues life insurance, long term care insurance, and
annuity contracts, some of which are exempted securities pursuant to Section 3
of the Securities Act of 1933 (the "1933 Act") and therefore not subject to
registration under the 1933 Act ("Insurance Contracts"), and some of which are
not exempted securities pursuant to Section 3 of the 1933 Act and therefore
subject to registration under the 1933 Act unless sold in exempt transactions
("Securities Contracts"); and
WHEREAS, The Company has appointed ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC as the
principal underwriter for the Securities Contracts; and
WHEREAS, General Agent and Broker-Dealer desire to sell certain Securities
Contracts and Insurance Contracts (collectively, the "Contracts") in accordance
with the provisions set forth in the Contracts, Commissions and Fees Schedule
(the "Contracts Schedule") which is Exhibit A to this Agreement; and
WHEREAS, General Agent desires to have its sub-agents who are not also
registered representatives of Broker-Dealer appointed as agents of The Company
for the purpose of selling some or all of the Insurance Contracts ("Insurance
Agents"), and General Agent and Broker-Dealer desire to have General Agent's
sub-agents who are also registered representatives of Broker-Dealer appointed
as agents of The Company for the purpose of selling some or all of the
Contracts ("Securities Agents")(Insurance Agents and Securities Agents are
hereinafter collectively referred to as "Agents"); and
WHEREAS, if General Agent and Broker-Dealer are the same person, the term
"General Agent" in this Agreement shall refer to Broker-Dealer, which shall
undertake all the duties, responsibilities and privileges of General Agent
under this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT AND AUTHORIZATION
a. The Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC appoint and authorize, on a
non-exclusive basis, General Agent and Broker-Dealer to solicit sales of the
Contracts in those jurisdictions in which The Company is admitted to do
business, the Contracts have been approved for sale by the appropriate
regulatory authorities and General Agent and Broker-Dealer are properly
licensed to conduct business. General Agent and Broker-Dealer accept such
appointment and authorization, and each agrees to use its best efforts to find
purchasers of the Contracts acceptable to The Company and to provide ongoing
services to those purchasers with respect to the Contracts.
b. Each of General Agent and Broker-Dealer is performing the acts covered by
this Agreement in the capacity of an independent contractor and not as an
employee or partner of or a joint venturer with The Company or ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC and is authorized to represent The Company and ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC only to the extent expressly authorized by this Agreement. No
further authority is granted or implied.
2. LICENSING AND APPOINTMENT OF AGENTS
a. General Agent is authorized to designate persons for appointment by The
Company as Agents to solicit applications for the Contracts, to deliver the
Contracts and to collect the premium (as used herein, the term "premium" shall
refer to any premium payment, deposit or contribution, as applicable, paid or
payable in connection with a Contract) thereon in conformance with applicable
state laws and The Company's rules and procedures. General Agent shall not
propose an Agent for appointment unless such Agent is duly licensed as an
insurance agent in the state(s) in which it is proposed that such Agent solicit
applications for the Contracts and, if the Agent is to sell Securities
Contracts, unless the Agent is a registered representative of Broker-Dealer.
General Agent shall be responsible for such Agents' continuing compliance with
applicable licensing requirements under state insurance laws, and Broker-Dealer
shall be responsible for such Agents' continuing compliance with applicable
registration requirements under federal and state securities laws.
b. General Agent shall assist The Company in the appointment of Agents under
applicable insurance laws and, in that connection, shall prepare and transmit
to The Company appropriate licensing and appointment forms, shall fulfill all
requirements set forth in the General Letter of Recommendation attached as
Exhibit B to this Agreement and shall comply with such other related policies
and procedures as The Company from time to time may establish or amend in its
sole discretion.
c. The Company shall pay the initial appointment fees and renewal fees
required under state insurance laws to appoint each previously licensed person
as an insurance producer of The Company for the sale of Contracts. General
Agent shall be responsible for all other state insurance appointment and
licensing fees with respect to the Agents, including license issue, transfer
and termination fees. Broker-Dealer shall be responsible for all fees,
including registration and examination fees, necessary to maintain Securities
Agents' continuing compliance with applicable registration requirements under
federal and state securities laws and the rule of self-regulatory organizations.
d. The Company, in its discretion, may refuse to appoint any Agent
designated by General Agent or, after it has appointed an Agent, may terminate
or refuse to renew such Agent's appointment or may withdraw the Agent's right
to solicit applications for some or all of the Contracts, in which case General
Agent shall cause such Agent to cease solicitations.
e. With the frequency reasonably requested by The Company, General Agent
shall provide The Company with a list of all Agents, indicating which of them
are Securities Agents, and the jurisdictions where such Agents are licensed to
solicit sales of the Contracts. With the frequency reasonably requested by
General Agent, The Company shall provide General Agent with a list which shows
the jurisdictions in which The Company is admitted to do business and the
Contracts that have been approved for sale in each of those jurisdictions.
3. SUPERVISION OF AGENTS
a. Except to the extent that Broker-Dealer is responsible therefor, General
Agent shall supervise all Agents and be responsible for their training and
compliance with applicable insurance laws and regulations, and if any act or
omission of an Agent or employee of General Agent is the proximate cause of any
loss, claim, damage, liability or expense (including reasonable attorneys'
fees) to The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC, General Agent shall be
liable therefor. Broker-Dealer shall supervise Securities Agents and be
responsible for their training and compliance with the rules of the National
Association of Securities Dealers, Inc. ("NASD") and with applicable federal
and state securities laws and regulations including but not limited to adequate
Anti-Money Laundering (AML) training with respect to 'covered products', as
required by 31 C.F.R. 103.137, and upon request of the Company, satisfactory
verification that Agents have received such adequate training, and if any act
or omission of a Securities Agent or employee of Broker-Dealer is the proximate
cause of any loss, claim, damage, liability or expense (including reasonable
attorneys' fees) to The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC, Broker-Dealer
shall be liable therefor. General Agent and Broker-Dealer shall insure that
only Securities Agents solicit applications for Securities Contracts. The
Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC shall not have any responsibility for
the supervision, training or compliance with any law or regulation of any Agent
or any employee of General Agent or Broker-Dealer, and nothing in this
Agreement shall be deemed to make such an Agent or employee an agent or
employee of The Company (except that Agents may be appointed insurance
producers) or of ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC.
b. General Agent shall (i) supervise Agents' compliance with all applicable
suitability requirements under state insurance laws and regulations and
(ii) provide adequate training to insure that Agents have thorough knowledge of
each Insurance Contract and the ability to make appropriate product
presentations and suitability determinations in compliance with applicable law.
Broker-Dealer shall (i) supervise Securities Agents' compliance with all
applicable suitability requirements under federal and state securities laws and
regulations and NASD rules and (ii) provide adequate training to insure that
Securities Agents have thorough knowledge of each Securities Contract and the
ability to make appropriate product presentations and suitability
determinations in compliance with applicable law. Each of General Agent and
Broker-Dealer shall not, and shall cause the Agents not to, recommend the
purchase of a Contract to a prospective purchaser unless it has reasonable
grounds to believe that such purchase is suitable for the prospective purchaser
and is in accordance with applicable rules and regulations of any regulatory
authority, including, in the case of Securities Contracts, the Securities and
Exchange Commission ("SEC") and the NASD. General Agent, in submitting an
application for an Insurance Contract, and Broker-Dealer, in submitting an
application for a Securities Contract, will be deemed to have warranted to The
Company, and to ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC in the case of a Securities
Contract, that it has made a determination of suitability based on information
concerning the prospective purchaser's insurance and investment objectives,
risk tolerance, need for liquidity, and financial and insurance situation and
needs, or on such other factors that General Agent or Broker-Dealer deems to be
appropriate under the circumstances and in compliance with applicable law.
c. If an Agent performs any unauthorized transaction with respect to a
Contract, fails to submit to the supervision of or otherwise meet the rules and
standards of General Agent or Broker-Dealer, or fails to hold any required
license, appointment, registration or association with Broker-Dealer, General
Agent and Broker-Dealer immediately shall notify The Company in writing and act
to terminate the sales activities of such Agent relating to the Contracts.
d. Upon request by The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC, General
Agent and Broker-Dealer shall furnish appropriate records or other
documentation to evidence the diligent supervision of Agents by General Agent
and Broker-Dealer.
4. OBLIGATIONS OF GENERAL AGENT AND BROKER-DEALER
a. General Agent and Broker-Dealer shall permit Agents to solicit
applications for Contracts only if they (i) are duly licensed insurance
producers and appointed by The Company and (ii) in the case of Securities
Contracts, are also registered representatives of Broker-Dealer.
b. All applications for Contracts shall be made on application forms
supplied by The Company; shall be reviewed by General Agent, in the case of
Insurance Contracts, and by Broker-Dealer, in the case of Securities Contracts,
for completeness and correctness, as well as compliance with applicable
suitability standards; in the case of Securities Contracts, shall be approved
by an appropriate principal of Broker-Dealer as to suitability; when completed,
shall, before the Contract is issued, be forwarded promptly to The Company, but
in no case later than the end of the next business day following receipt by
General Agent, Broker-Dealer or an Agent, to The Company or as otherwise
provided in The Company's administrative procedures; shall be sent to The
Company at the address shown on the application or such other address as The
Company may specify from time to time; and shall be accompanied by any premium
payment received with such applications, without any deduction or offset for
any reason, including but not limited to compensation payable to General Agent
or Broker-Dealer, unless The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC and
General Agent or Broker-Dealer have previously agreed to an arrangement for
deduction or offset. Checks or money orders for the payment of premiums shall
be drawn to the order of The Company or as The Company shall otherwise
authorize or direct from time to time. General Agent and Broker-Dealer do not
have authority to deposit or endorse checks payable to The Company without the
prior written approval of The Company. The Company has the right in its sole
discretion to reject any application for a Contract and return any premium
payment made in connection with the sale of the Contract.
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c. The Company may require that any medical examination made in conjunction
with an application for a Contract be made by a medical examiner approved by
The Company and shall pay only those fees in connection with medical
examinations that have been expressly authorized by it.
d. Contracts issued on accepted applications shall be delivered to the
contract owners according to administrative procedures established by The
Company.
e. General Agent and Broker-Dealer shall not, directly or indirectly, expend
or contract for the expenditure of any funds of The Company or ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC. The Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC shall not be
obligated to pay any expense incurred by General Agent or Broker-Dealer in the
performance of this Agreement, unless otherwise specifically provided for in
this Agreement or agreed to in advance in writing by The Company or ▇▇▇▇
▇▇▇▇▇▇▇ Distributors LLC.
f. General Agent and Broker-Dealer are not authorized: to incur indebtedness
or make contracts on behalf of The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC; to
alter or amend any of the provisions of the Contracts or the forms prescribed
by The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC; to discharge, waive any
forfeitures under or extend the time for making payments under the Contracts;
to pay any premium or other payment on behalf of a Contract applicant; to enter
into any court or regulatory proceeding in the name of or on behalf of The
Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC; or to bind The Company or ▇▇▇▇
▇▇▇▇▇▇▇ Distributors LLC in any way not specifically authorized in writing by
the party to be bound.
g. General Agent and Broker-Dealer shall not induce any employee or agent of
The Company to terminate that relationship, persuade owners of insurance or
annuity contracts issued by The Company to discontinue their contracts or
otherwise do anything prejudicial to the interests of The Company or the owners
of contracts issued by it.
h. General Agent and Broker-Dealer agree to comply with, and to cause the
Agents to comply with, the administrative procedures of The Company relating to
the Contracts and the policies and procedures adopted by The Company relating
to privacy, agent conduct and similar matters and identified in the Policies
and Procedures Schedule which is Exhibit C to this Agreement, to the extent
such policies and procedures are applicable to the offer, sale and servicing of
the Contracts, as those administrative procedures and other policies and
procedures are now in effect or may be amended or established in the future by
The Company in its sole discretion and communicated to General Agent and
Broker-Dealer, as appropriate. General Agent and Broker-Dealer acknowledge
receipt of those policies of The Company set forth in the Policies and
Procedures Schedule.
i. Each of General Agent and Broker-Dealer agrees to carry out its
activities and obligations under this Agreement, and to cause each Agent for
which it has primary supervisory responsibility to carry out the Agent's
activities and obligations in connection with the offer, sale and servicing of
the Contracts, in continuous compliance with applicable laws, rules and
regulations of applicable federal and state regulatory authorities (including
the rules of the NASD), including those governing securities and
insurance-related activities or transactions, and to notify The Company and
▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC immediately in writing if it or any such Agent
fails to comply with any of those laws and regulations.
j. Broker-Dealer shall execute any electronic or telephone orders only in
accordance with the current prospectus applicable to the Securities Contracts
and agrees that, in consideration for electronic and telephone transfer
privileges, The Company will not be liable for any loss incurred as a result of
acting upon electronic or telephone instructions containing unauthorized,
incorrect or incomplete information received from Broker-Dealer or its
representatives.
5. COMPENSATION
a. The Company shall pay General Agent compensation for the sale of
Insurance Contracts and, on behalf of ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC, shall pay
Broker-Dealer for the sale of Securities Contracts as set forth in the
Contracts Schedule. Unless otherwise provided in the Contracts Schedule, The
Company will make these payments within 15 days after the end of the calendar
month in which it accepts the premiums and purchase payments on which the
payments are based. Notwithstanding any other provision of this Agreement,
Broker-Dealer shall return to The Company all compensation paid to it with
respect to a Securities Contract if the Securities Contract is tendered for
redemption within seven business days after The Company's acceptance of the
application for the Securities Contract.
b. Except as otherwise set forth in this Agreement including the Contracts
Schedule, General Agent shall be exclusively responsible for setting the
compensation of and promptly paying Agents for sales of Insurance Contracts,
and Broker-Dealer shall be exclusively responsible for setting the compensation
of and promptly paying Agents for Securities Contracts, in each case in a
manner and percentage consistent with applicable law.
6. ASSOCIATED INSURANCE AGENCY
a. If they are not the same person, General Agent and Broker-Dealer
represent and warrant that they are in compliance with the terms and conditions
of no-action letters issued by the staff of the SEC with respect to
non-registration as a broker-dealer of an insurance agency associated with a
registered broker-dealer. If Broker-Dealer has entered into an agreement with
one or more insurance agencies other than General Agent (each, an "Associated
Agency") for purposes of selling Securities Contracts in those states in which
neither Broker-Dealer nor General Agent can obtain an insurance license
necessary to sell the Contracts, Broker-Dealer represents and warrants that it
and each such Associated Agency are in compliance with the terms and conditions
of no-action letters issued by the staff of the SEC with respect to
non-registration as a broker-dealer of an insurance agency associated with a
registered broker-dealer. The Broker-Dealer will supervise agents of an
Associated Agency in the same manner as it is required to supervise Agents
under this Agreement, as applicable. General Agent and Broker-Dealer shall
notify The Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC immediately in writing if
General Agent, Broker-Dealer or any Associated Agency fails to comply with any
such terms and conditions and shall take such measures as may be necessary to
comply with any such terms and conditions.
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b. In reliance on such representations and warranties, The Company, on
behalf of ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC, agrees to pay any compensation
otherwise due to Broker-Dealer for sales of Securities Contracts to General
Agent or Associated Agencies as authorized in writing by Broker-Dealer.
c. Broker-Dealer shall have the same obligations under this Agreement with
respect to sales of Securities Contracts for which compensation is paid to
General Agent or an Associated Agency as it has for sales of Securities
Contracts for which it receives compensation directly from ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC or The Company. In addition, Broker-Dealer shall insure that
compensation paid to General Agent or an Associated Agency is distributed only
to duly licensed Securities Agents.
7. REPRESENTATIONS AND WARRANTIES
a. Each of The Company, ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC, Broker-Dealer and
General Agent represents to the others that it and its officers signing below
have full power and authority to enter into this Agreement, that this Agreement
has been duly and validly executed by it and that this Agreement, assuming due
and valid execution by the other parties, constitutes a legal, valid and
binding agreement.
b. General Agent represents and warrants to The Company and ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC that General Agent is, and at all times when performing its
functions and fulfilling its obligations under this Agreement will be, a
properly licensed insurance agency in each jurisdiction in which such licensing
is required for the sale of the Contracts.
c. Broker-Dealer represents and warrants to The Company and ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC that Broker-Dealer is, and at all times when performing its
functions and fulfilling its obligations under this Agreement will be,
registered as a broker-dealer with the SEC under the Securities Exchange Act of
1934 (the "1934 Act") and under the securities laws of each state in which such
registration is required for the sale of the Securities Contracts and a member
of the NASD. Broker-Dealer will notify ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC promptly
in writing if any such registration or membership is terminated or suspended.
d. John ▇▇▇▇▇▇▇ Distributors LLC represents and warrants to Broker-Dealer
that ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC is, and at all times when performing its
functions and fulfilling its obligations under this Agreement will be,
registered as a broker-dealer with the SEC under the 1934 Act and under the
securities laws of each state in which such registration is required for
underwriting the Securities Contracts and a member of the NASD.
e. The Company represents and warrants to General Agent and Broker-Dealer
that the Securities Contracts, including any variable account(s) supporting the
Securities Contracts, shall comply in all material respects with applicable
registration and other requirements of the 1933 Act and the Investment Company
Act of 1940 (the "1940 Act"), and the rules and regulations thereunder,
including the terms of any order of the SEC with respect thereto.
f. The Company represents and warrants to General Agent and Broker-Dealer
that the prospectuses included in The Company's registration statements for the
Contracts, and in post-effective amendments thereto, and any supplements
thereto, as filed or to be filed with the SEC, as of their respective effective
dates, contain or will contain in all material respects all statements and
information which are required to be contained therein by the 1933 Act.
8. SALES LITERATURE, ADVERTISEMENTS AND OTHER PROMOTION MATERIAL
a. General Agent and Broker-Dealer shall not use, and shall cause the Agents
not to use, any sales literature, advertisements or other promotional material
("Sales Material") in connection with the offer and sale of the Contracts
unless the Sales Material has been approved in writing prior to use by The
Company, in the case of Insurance Contracts, or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC,
in the case of Securities Contracts. For purposes of this Agreement, Sales
Material shall include but not be limited to:
i. material published, or designed for use in, a newspaper, magazine
or other periodical, radio, television, telephone or tape
recording, video-tape display, signs or billboards, motion
pictures, telephone directories (other than routine listings),
electronic or other public media, or direct mail;
ii. descriptive literature and sales aids of all kinds, including, but
not limited to, circulars, leaflets, booklets, marketing guides,
seminar material, audiovisual material, computer print-outs,
depictions, illustrations and form letters;
iii. material used for training and education which is designed to be
used or is used to induce the public to purchase or retain a
Contract; and
iv. prepared sales talks and other presentations and material prepared
for use with prospective purchasers of the Contracts or with the
public generally.
b. The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC will provide Broker-Dealer,
without charge, with as many copies of the prospectuses and statements of
additional information for the Securities Contracts and the underlying
investment funds as may be reasonably requested ("Registration Material"). Upon
receipt of updated Registration Material, Broker-Dealer will promptly discard
or destroy all copies of Registration Material previously provided to it,
except as needed to maintain proper records.
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c. Upon notice to General Agent or Broker-Dealer, The Company or ▇▇▇▇
▇▇▇▇▇▇▇ Distributors LLC may terminate at any time and for any reason the use
of any Sales Material previously approved by it or of any Registration
Material, and General Agent and Broker-Dealer shall promptly comply with any
such request and shall not use, or permit an Agent to use, such material
thereafter.
d. General Agent and Broker-Dealer are not authorized, and may not authorize
anyone else, to give any information or to make any representation concerning
The Company, the Contracts, the separate accounts of The Company or the
underlying investment funds for the Contracts other than those contained in the
current Registration Material and Sales Material authorized for use by The
Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC. Broker-Dealer, General Agent and
Agents may not modify or represent that they are authorized to modify any such
material.
e. General Agent shall be responsible for all communications by Agents with
prospective purchasers of, and with the public generally in connection with,
Insurance Contracts. Broker-Dealer shall be responsible for all communications
by Securities Agents with prospective purchasers of, and with the public
generally in connection with, Securities Contracts.
9. GROUP ANNUITY CONTRACTS
For purposes of this Agreement, a group annuity contract which has not been
registered under the 1933 Act and which is to be issued in connection with a
stock bonus, pension, or profit-sharing plan which meets the requirements for
qualification under section 401 of the Internal Revenue Code (or in connection
with another kind of plan specified in Section 3(a)(2) of the 1933 Act)
("Exempt Group Contract") shall be deemed to be an Insurance Contract, but a
sale of an Exempt Group Contract by a Securities Agent shall be subject to any
applicable NASD rules. Broker-Dealer shall supervise and maintain records with
respect to such transactions as may be required by any applicable NASD rules.
▇▇.▇▇▇▇▇▇▇▇ BOND AND OTHER LIABILITY COVERAGE
Each of General Agent and Broker-Dealer represents that it and its
directors, officers and employees and the Insurance Agents, in the case of
General Agent, and the Securities Agents, in the case of Broker-Dealer, are and
shall be covered by a blanket fidelity bond, issued by a reputable bonding
company, and other errors and omissions or liability insurance, acceptable to
The Company ("Liability Coverage"). Each of General Agent and Broker-Dealer
shall maintain its Liability Coverage at its expense. Liability Coverage shall
be in a form, type and amount and issued by a bonding company or other
insurance company satisfactory to The Company. Any fidelity bond maintained by
Broker-Dealer which meets the requirements of the NASD Conduct Rules applicable
to fidelity bonds shall be deemed to be satisfactory. The Company may require
evidence, satisfactory to it, that such coverage is in force, and General Agent
and Broker-Dealer shall give prompt written notice to The Company of any
cancellation or change of coverage. Each of General Agent and Broker-Dealer
assigns any proceeds received from the Liability Coverage to The Company to the
extent of its loss, and to ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC to the extent of its
loss, due to activities covered by the Liability Coverage and agrees to pay
promptly any deficiency whether due to a deductible or otherwise.
11.COMPLAINTS, INVESTIGATIONS AND PROCEEDINGS
Each of General Agent and Broker-Dealer shall promptly notify The Company
and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC if it receives notice of any customer
complaint or of any threatened or pending regulatory investigation or
proceeding, civil action or arbitration (a "Proceeding") involving the
Contracts. The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC will promptly notify
General Agent or Broker-Dealer if it receives notice of any customer complaint
or of any Proceeding involving General Agent or Broker-Dealer and a Contract.
Each party shall cooperate with the other parties in investigating and
responding to any such complaint or Proceeding, and in any settlement or trial
of any actions arising out of the conduct of business under this Agreement. No
response by General Agent or Broker-Dealer to an individual customer complaint
involving a Contract will be sent until it has been approved by The Company or
▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC or dealt with otherwise in accordance with The
Company's administrative procedures.
12.INDEMNIFICATION
a. General Agent and Broker Dealer, jointly and severally, indemnify and
hold harmless The Company, ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC, and their respective
affiliates, officers, directors, employees and agents against any and all loss,
claim, damage, liability or expense (including reasonable attorneys' fees),
joint or several, insofar as such loss, claim, damage, liability or expense
arises out of or is based upon any breach of this Agreement, any applicable law
or regulation, or any applicable rule of any self-regulatory organization, by
General Agent, Broker-Dealer or any of the Agents. This indemnification will be
in addition to any liability which the General Agent and Broker-Dealer may
otherwise have.
b. The Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC, jointly and severally,
indemnify and hold harmless General Agent, Broker-Dealer and their respective
affiliates, officers, directors, employees and Agents against any and all loss,
claim, damage, liability or expense (including reasonable attorneys' fees),
joint or several, insofar as such loss, claim, damage, liability or expense
arises out of or is based upon any breach of this Agreement, any applicable law
or regulation, or any applicable rule of any self-regulatory organization, by
The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC. This indemnification will be in
addition to any liability which The Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC
may otherwise have.
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13.TERMINATION
a. Any party may terminate this Agreement in its discretion without cause
upon thirty (30) days written notice to the other parties.
b. The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC may terminate this Agreement
effective with the mailing of a notice of termination to General Agent or
Broker-Dealer if the reasons for the termination include (i) conversion, fraud,
embezzlement or similar activity, (ii) failure to maintain Liability Coverage
as required by Section 10 or (iii) a rebate of, offer to rebate or withholding
of any payment due on a Contract by General Agent or Broker-Dealer.
c. This Agreement will terminate automatically without notice, effective as
of the immediately preceding date, if: General Agent or Broker-Dealer ceases to
have the requisite registrations and regulatory licenses (but only as to the
jurisdictions and Contracts affected by the absence of such registrations and
licenses); applicable laws or regulations otherwise prohibit General Agent or
Broker-Dealer from continuing to market the Contracts; or General Agent or
Broker-Dealer files for bankruptcy or financial or corporate reorganization
under federal or state insolvency law.
d. No provision of this Agreement shall continue in force after any
termination, other than Sections 11, 12, 14, 15, 18, 19, 20 and 21, and the
Exhibits and Contracts Schedule.
14.CONFIDENTIALITY
Each party to this Agreement shall maintain the confidentiality of any
customer list and any material designated as confidential and/or proprietary by
another party ("Confidential Information"), and shall not use or disclose such
information without the prior written consent of the party designating such
material as confidential and/or proprietary. Each party to this Agreement shall
take reasonable steps to protect such Confidential Information, applying at
least the same security measures and level of care as it employs to protect its
own Confidential Information. If any party to this Agreement is compelled by
applicable law to disclose any Confidential Information, it shall promptly
notify the party designating such material as confidential and/or proprietary
in writing. The General Agent and Broker-Dealer shall cause Agents to comply
with this provision.
15.AMENDMENTS
This Agreement may be amended in a writing signed by all the parties. If The
Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC send written notice of a proposed
amendment to this Agreement to General Agent and Broker-Dealer, General Agent
and Broker-Dealer shall be deemed to have agreed to the amendment if either
submits an application for a Contract on or after the fifth business day after
the date on which the notice was sent. The Company may also unilaterally
suspend distribution of any of the Contracts and amend the Exhibits and
Schedules to this Agreement in any and all respects, from time to time in its
sole discretion, with prior or concurrent written notice to General Agent and
Broker-Dealer. Any change in compensation shall apply to compensation due on
applications received by The Company after the effective date of the notice.
The Company may also amend the Contracts from time to time, in its sole
discretion, and nothing in this Agreement shall be deemed to affect its right
to so amend the Contracts.
16.BOOKS AND RECORDS
a. General Agent and Broker-Dealer shall maintain such books and records
concerning the activities of the Agents as may be required under applicable
insurance and securities laws and regulations and the rules of the NASD, and as
may be reasonably required by The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC to
reflect adequately the Contracts business processed through General Agent or
Broker-Dealer. General Agent and Broker-Dealer shall maintain such books and
records at their respective principal places of business in good and legible
condition for a period of six calendar years following the year in which this
Agreement is terminated (the "Post-Termination Period") and shall make them
available during normal business hours to The Company or ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC from time to time while this Agreement is in effect and during
the Post-Termination Period upon 10 days' written request.
b. The parties shall promptly furnish each other any reports and information
that another party may reasonably request for the purpose of meeting its
reporting and recordkeeping requirements under the insurance laws of any state
or under any applicable federal or state securities laws or regulations or NASD
rules.
17.NOTICES
a. All notices under this Agreement shall be given in writing and sent to
the address of a party shown on the signature page or to such other address as
the party may designate in writing.
b. Each of General Agent and Broker-Dealer shall provide written notice to
The Company no less than thirty days prior to the closing date of its proposed
merger into or consolidation with another entity, a sale of substantially all
its assets or a sale, transfer or assignment of a controlling interest in it.
7
18. EFFECTIVE DATE
This Agreement supersedes in its entirety any prior effective selling
agreement between the General Agent or Broker-Dealer and The Company, or ▇▇▇▇
▇▇▇▇▇▇▇ Distributors LLC. If this Agreement is executed by General Agent and
Broker-Dealer and returned to The Company, it shall be effective as of the date
of its execution by The Company.
19. REGULATORY REQUIREMENTS
a. All parties agree to observe and comply with all existing laws, rules and
regulations of all applicable local, state or federal regulatory authorities
(including the rules of the NASD), and with all existing rules and regulations
of any self-regulatory organization, and to observe and comply with those laws,
rules and regulations which may be enacted, adopted or promulgated during the
term of this Agreement, which relate to the business contemplated hereby in any
jurisdiction in which the business described herein is to be transacted.
b. John ▇▇▇▇▇▇▇ Distributors LLC and Broker-Dealer each agree to comply with
all 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 Act"), its implementing regulations, and related SEC,
SRO, and NASD rules. Broker/Dealer agrees to comply with the economic sanctions
programs administered by the U.S. Treasury Department's Office of Foreign
Assets Control ("OFAC"). Further, Broker-Dealer and General Agent each agree to
comply with requirements of The Company relating to any of the foregoing that
have been communicated to them.
20. OTHER
a. This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof, supersedes all prior agreements and
understandings among the parties regarding the subject matter, and may be
executed in two or more counterparts which together shall constitute a single
agreement.
b. This agreement may not be assigned by any party without the written
consent of the other parties (except that it may be assigned by The Company to
a successor in connection with a merger, consolidation or sale of all or
substantially all of the assets of The Company, and may be assigned by ▇▇▇▇
▇▇▇▇▇▇▇ Distributors LLC to an affiliate or successor) and shall inure to the
benefit of and to be binding upon the parties and their respective successors
and assigns.
c. The provisions of this Agreement shall apply severally and not jointly to
each of the following companies that are parties to this Agreement: ▇▇▇▇
▇▇▇▇▇▇▇ Life Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company,
▇▇▇▇ ▇▇▇▇▇▇▇ Life insurance Company (U.S.A.), and ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance
Company of New York. The Company's obligations, representations, and warranties
under this Agreement shall be enforceable only against the entity named in the
preceding sentence that is the Contract issuer.
d. Forbearance by a party to require performance of any provision hereof
shall not constitute or be deemed a waiver by that party of such provision or
of the right thereafter to enforce the same, and no waiver by a party of any
breach or default hereunder shall constitute or be deemed a waiver of any
subsequent breach or default, whether of the same or similar nature or of any
other nature, or a waiver of the provision or provisions with respect to which
such breach or default occurred.
e. This Agreement shall be governed and construed in all respects by the
laws of the Commonwealth of Massachusetts without reference to the principles
of conflict or choice of law thereof.
21. ARBITRATION
Any and all disputes under this Agreement shall be settled by arbitration in
Massachusetts under the then existing rules of the American Arbitration
Association and judgment may be entered upon the award in any court of
competent jurisdiction. The determination of the arbitrators shall be final and
binding on all parties. The costs of arbitration shall be borne equally by the
parties to the arbitration, provided however, that the arbitrators may assess
one party more heavily than the other for these costs upon a finding that such
party did not make a good faith effort to settle the dispute informally when it
first arose.
[Signatures on Next Page]
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date set forth below.
GENERAL AGENT BROKER-DEALER
-------------------------------------- --------------------------------------
Name Name
-------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------- --------------------------------------
City, State & Zip City, State & Zip
By: ----------------------------- By: -------------------------------
Title: ----------------------------- Title: -------------------------------
Date: ----------------------------- Date: -------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY ▇▇▇▇ ▇▇▇▇▇▇▇ DISTRIBUTORS LLC
(U.S.A.)
By: ----------------------------- By: -------------------------------
Title: ----------------------------- Title: -------------------------------
Date: ----------------------------- Date: -------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY Return two (2) Copies of a
signed agreement to:
Mailing ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC
By: ----------------------------- Address: ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
Title: -----------------------------
Overnight ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC
Date: ----------------------------- Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE Canada
INSURANCE COMPANY
By: -----------------------------
Title: -----------------------------
Date: -----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
OF NEWYORK
By: -----------------------------
Title: -----------------------------
Date: -----------------------------
9
Exhibit A
Contracts, Commissions and Fees Schedule
General Provisions
Compensation. Unless otherwise provided in this Contracts Schedule,
commissions will be paid as a percentage of premiums or purchase payments
(collectively, "Payments") received in cash or other legal tender and accepted
by The Company on applications obtained by Agents. Such Payments will be
payable in respect of the sale of such Contracts, in such amounts, and upon
such terms as are set forth in the applicable commission schedules together
with any accompanying schedules relating to the Payments, (the "Commission
Schedules"), established by The Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC and
covering each Contract, as are in effect from time to time, to which such
Payments relate. The Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC expressly
reserve the right to transfer future compensation on a Contract to another
General Agent or Broker-Dealer if the owner of the Contract so requests. Upon
termination of the Agreement, General Agent and Broker-Dealer shall receive no
further compensation, except for compensation for all Payments which are in
process at the time of termination of the Agreement or are received
subsequently on Contracts in force at the time of termination of the Agreement,
unless otherwise provided in an applicable Commission Schedule. Notwithstanding
the foregoing, no Payments will be made with respect to an increase in the face
amount of a Contract when the Agreement is terminated prior to such increase,
and when the Agreement is terminated, no Payments with respect to any
Securities Contracts shall be made after the Broker-Dealer ceases to be
properly licensed to sell Securities Contracts. General Agent and Broker-Dealer
shall continue to be liable for any chargebacks pursuant to the provisions of
this Contracts Schedule, and for any other amounts advanced by or otherwise due
The Company or ▇▇▇▇ ▇▇▇▇▇▇▇ Distributors LLC under the Agreement.
Joint Business. Any Contract sold by General Agent or Broker-Dealer in
conjunction with any other person authorized to sell the Contracts shall be
considered as joint business and, unless otherwise agreed to by The Company,
the amount of the compensation due on the Payments accepted under that Contract
shall be apportioned equally among each participant in the sale. General Agent
or Broker-Dealer shall provide The Company with written notice of any such
joint business and of the existence of any agreement among participants for
unequal apportionment of compensation.
Prohibition Against Rebates. General Agent and Broker-Dealer shall not, and
shall cause the Agents not to, rebate, offer to rebate or withhold any part of
any payments due on the Contracts. If General Agent, Broker-Dealer or any Agent
shall at any time induce or endeavor to induce any owner of any Contract to
discontinue payments or to relinquish any such Contract, except under
circumstances where there is reasonable grounds for believing the Contract is
not suitable for such person, The Company shall forthwith cease paying any and
all compensation that would otherwise be due General Agent or Broker-Dealer
under this Agreement.
Right of Set Off. Each of General Agent and Broker-Dealer hereby authorizes
The Company to set off its liabilities to The Company and ▇▇▇▇ ▇▇▇▇▇▇▇
Distributors LLC against any and all amounts otherwise payable to General Agent
or Broker-Dealer, including amounts payable under the Agreement or under any
other agreement pursuant to which General Agent or Broker-Dealer receive
compensation directly or indirectly from The Company.
Each of General Agent and Broker-Dealer shall be liable for the portion of
any debit balance equal to advances on unearned compensation which appears in
their respective Advance Accounts. Such portion of the debit balance shall be
payable by General Agent or Broker-Dealer, as applicable, upon demand by The
Company. At the option of The Company, interest at the maximum rate permissible
by state law will accrue on such portion of the debit balance from the time a
debit balance occurs in such account.
Paying Agent for Insurance Contracts. At the request of General Agent, The
Company, at its discretion, may agree to act as General Agent's paying agent
and make payments of compensation directly to such Insurance Agents and such
other appropriate parties who are not employees of General Agent but are
appointed with The Company and are entitled to compensation from General Agent
in connection with the sale of those Insurance Contracts that are not variable
annuity contracts or variable life insurance policies, as General Agent may
designate from time to time.
10
Exhibit B
General Letter of Recommendation
General Agent hereby certifies to The Company that all of the following
requirements will be fulfilled in conjunction with the submission by General
Agent of licensing/appointment papers for all applicants to become Agents
("Applicants"). General Agent will, upon request, forward proof of compliance
with same to The Company in a timely manner.
1. We have made a thorough and diligent inquiry and investigation relative
to each Applicant's identity, residence, business reputation and experience and
declare that each Applicant is personally known to us, has been examined by us,
is known to have a good business reputation, is reliable, is financially
responsible and is worthy of a license and appointment as an Agent. Each
individual is trustworthy, competent and qualified to act as an agent for The
Company and hold himself out in good faith to the general public. We vouch for
each Applicant.
2. We have on file a Form ▇-▇▇▇, ▇-▇▇▇ or U-4 which was completed by each
Applicant. With respect to each Applicant to become a Securities Agent, we have
fulfilled all the necessary investigative requirements for the registration of
each such Applicant as a registered representative through our NASD member
firm, and each such Applicant is presently registered as an NASD registered
representative. The above information in our files indicates no fact or
condition which would disqualify the Applicant from receiving a license, and
all the findings of all investigative information is favorable.
3. We certify that all educational requirements have been met for the
specific state in which each Applicant is requesting a license and that all
such persons have fulfilled the appropriate examination, education and training
requirements.
4. If the Applicant is required to submit his or her picture, signature and
securities registration in the state in which he or she is applying for a
license, we certify that those items forwarded to The Company are those of the
Applicant and the securities registration is a true copy of the original.
5. We hereby warrant that the Applicant is not applying for a license with
The Company in order to place insurance chiefly or solely on his or her life or
property or on the lives, property or liability of his or her relatives or
associates.
6. We certify that each Applicant will receive close and adequate
supervision, and that we will make inspection when needed of any or all risks
written by these Applicants, to the end that the insurance interest of the
public will be properly protected.
7. We will not permit any Applicant to transact insurance as an agent until
duly licensed therefor. No Applicants have been given a contract or furnished
supplies, nor have any Applicants been permitted to write, solicit business or
act as an agent in any capacity, and they will not be so permitted until the
certificate of authority or license applied for is received.
8. We certify that General Agent, Broker-Dealer and Applicant shall have
entered into a written agreement pursuant to which: (a) Applicant is appointed
a Sub-agent of General Agent and a registered representative of Broker-Dealer;
(b) Applicant agrees that his or her selling activities relating to the
Securities Contracts shall be under the supervision and control of
Broker-Dealer and his or her selling activities relating to the Insurance
Contracts shall be under the supervision and control of General Agent; and
(c) that Applicant's right to continue to sell such Contracts is subject to his
or her continued compliance with such agreement and any procedures, rules or
regulations implemented by Broker-Dealer or General Agent.
11
Exhibit C
Policies and Procedures Schedule
In addition to its administrative procedures, The Company has adopted the
following Codes which contain policies and procedures applicable to the offer,
sale and servicing of the Contracts:
Privacy Code
Agent's Code of Conduct
12
