Exhibit 1.A.(3)(a)
DISTRIBUTION AGREEMENT
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AGREEMENT made this ____ day of July, 1983 by and between NEL Equity
Services Corporation, a Massachusetts Corporation (the "Distributor") and New
England Variable Life Insurance Company, a Delaware Corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company and New England Variable Life Separate Account (the
"Account"), a separate investment account established pursuant to Section 2932
of the Delaware Insurance Code and a registered investment company under the
Investment Company Act of 1940 (the "1940 Act"), propose to offer for sale
certain variable life insurance policies (the "Policies") which may be deemed to
be securities under the Securities Act of 1933 ("1933 Act") and the laws of some
states;
WHEREAS, the Distributor, a wholly-owned subsidiary of New England Mutual
Life Insurance Company, is registered as a broker-dealer with the Securities and
Exchange Commission ("SEC") under the Securities Exchange Act of 1934 (the "1934
Act") and is a member of the National Association of Securities Dealers, Inc.
("NASD");
WHEREAS, the parties desire to have the Distributor act as principal
underwriter for the Account and assume full responsibility for the securities
activities of any "person associated" (as that term is defined in Section 3(a)
(18) of the 0000 Xxx) with the Distributor and engaged directly or indirectly in
the variable life insurance operation (the "associated persons");
WHEREAS, the parties desire to have the Company perform certain services in
connection with the sale of the Policies;
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, the Distributor and the Company agree as follows:
1. The Distributor will act as the exclusive principal underwriter during
the term of this Agreement in each state or other jurisdiction where the
Policies may legally be sold. The Distributor will be under no obligation to
effectuate any particular amount of sales of Policies or to promote or make
sales, except to the extent the Distributor deems advisable.
2. The Distributor will assume full responsibility for the securities
activities of, and for securities law compliance by, the associated persons,
including, as applicable, compliance with the NASD Rules of Fair Practice and
Federal and state laws and regulations. The Distributor, directly or through
the Company as its agent, will (a) make timely filings with the SEC, NASD, and
any other regulatory authorities of any sales literature or materials relating
to the Account, as required by law to be filed, (b) make available to the
Company copies of any agreements or plans intended for use in connection with
the sale of the Policies in sufficient number and in adequate time for clearance
by the appropriate regulatory authorities before they are used, and it is agreed
that the parties will use their best efforts to obtain such clearance by the
appropriate regulatory authorities before they are used, and it is agreed that
the parties will use their best efforts to obtain such clearance as
expeditiously as reasonably possible, and (c) train the associated persons, use
its best efforts to prepare them to complete satisfactorily any and all
applicable NASD and state qualification examinations, register the associated
persons as its registered representatives before they engage in securities
activities, and supervise and control them in the performance of such
activities.
3. As between the Company and the Distributor, the Company will, except
as otherwise provided in this Agreement, bear the cost of all services and
expenses, including legal services and expenses and registration, filing and
other fees, in connection with (a) registering and qualifying the Account, the
Policies, and (to the extent requested by the Distributor) the associated
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persons with Federal and state regulatory authorities and the NASD and
(b) printing and distributing all registration statements and prospectuses
(including amendments), Policies, notices, periodic reports, proxy solicitation
material, sales literature and advertising filed or distributed in connection
with the sale of the Policies (but not the cost of any such items for the NEL
Series Fund, Inc.).
4. The Company will, in connection with the sale of the Policies, pay all
amounts (including sales commissions described in the prospectus for the
Policies) due to the sales representatives or to broker-dealers who have entered
into sales agreements with the Distributor.
5. The Distributor, directly or through the Company as its agent, will
(a) maintain and preserve in accordance with Rules 17a-3 and 17a-4 under the
1934 Act all books and records required to be maintained in connection with the
offer and sale of the Policies being distributed pursuant to this Agreement,
which books and records shall remain the property of the Distributor and shall
be subject to inspection by the Securities and Exchange Commission in accordance
with Section 17(a) of the Act, and (b) upon or prior to completion of each
transaction for which a confirmation is legally required, send a written
confirmation for each such transaction reflecting the facts of the transaction.
6. The Distributor will execute such papers and do such acts and things
as shall from time to time be reasonably requested by the Company for the
purpose of (a) maintaining the registration of the Policies under the 1933 Act
and the Account under the 1940 Act, and (b) qualifying and maintaining
qualification of the Policies for sale under the applicable laws of any state.
7. The Company undertakes to guarantee the performance of all of the
Distributor's obligations, imposed by Section 27(f) of
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the 1940 Act and paragraph (b) of Rule 27d-2 adopted by the SEC under that Act,
to make refunds of charges required of the principal underwriter of the Policies
issued in connection with the Account.
8. Each party hereto shall advise the other promptly of (a) any action of
the SEC or any authorities of any state or territory, of which it has knowledge,
affecting registration or qualification of the Account or the Policies, or the
right to offer the Policies for sale, and (b) the happening of any event which
makes untrue any statement, or which requires the making of any change, in the
registration statement or prospectus in order to make the statements therein not
misleading.
9. Neither party hereto shall be liable to the other for any action taken
or omitted by it, or any of its officers, agents or employees, in performing
their responsibilities under this Agreement in good faith and without gross
negligence, willful misfeasance or reckless disregard of such responsibilities.
10. As compensation for the Distributor's assuming the expenses and
performing the services to be assumed and performed by it pursuant to this
Agreement, the Distributor shall receive from the Company such amounts and at
such times as may from time to time be agreed upon by the Distributor and the
Company.
11. As compensation for its services performed and expenses incurred under
this Agreement, the Company will receive all amounts charged as "Sales Charges"
under the Policies. It is understood that the Company assumes the risk that the
above compensation for its services may not prove sufficient to cover its actual
expenses in connection therewith.
12. The services of the Distributor and the Company under this Agreement
are not deemed to be exclusive and the Distributor and the Company shall be free
to render similar services to
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others, including without implied limitation, such other separate investment
accounts as are now or hereafter established by the Company, so long as the
services of the Distributor and the Company hereunder are not impaired or
interfered with thereby.
13. It is understood that any Policyholder or agent of the Account may be
a policyholder, shareholder, director, officer, employee or agent of, or be
otherwise interested in, the Distributor, any affiliated person of the
Distributor, any organization in which the Distributor may have an interest or
any organization which may have an interest in the Distributor; that the
Distributor, any such affiliated person or any such organization may have an
interest in the Account; and that the existence of any such dual interest shall
not affect the validity hereof or of any transaction hereunder except as may
otherwise be provided in the articles of organization or by-laws of the
Distributor or by specific provisions of applicable law.
14. This Agreement shall become effective as of the date of its execution,
shall continue in full force and effect until terminated, may be amended at any
time by mutual agreement of the parties hereto, and may be terminated at any
time without penalty on sixty days' written notice by either party to the other.
15. The Distributor will not assign its responsibilities under this
Agreement, except with the written consent of the Company.
16. For the purpose of this Agreement, the term "affiliated persons" shall
have its respective meaning defined in the 1940 Act subject, however, to such
exemptions as may be granted by the SEC under the 1940 Act.
17. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
NEL EQUITY SERVICES CORPORATION
By:
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NEW ENGLAND VARIABLE LIFE INSURANCE
COMPANY
By:
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