FORM OF
UNDERWRITING AND
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made this ____ day of ______________ between and among
Allmerica Financial Life Insurance and Annuity Company, a Delaware
corporation (the "Company"), its Separate Account Fulcrum Variable Life
Separate Account (the "Account"), a separate investment account of the
Company and registered investment company under the Investment Company Act of
1940 (the "1940 Act"), and Allmerica Investments, Inc., a Massachusetts
corporation (the "Distributor").
WITNESSETH:
WHEREAS, the Company and the Account will issue certain variable
insurance policies (the "contracts") which may be deemed to be securities
under the Securities Act of 1933 (the "1933 Act"), and the laws of some
states;
WHEREAS, the Distributor, an affiliate of the 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 a principal
underwriter for the Account and assume full responsibility for the securities
activities of all "persons associated" (as that term is defined in
Section 3(a)(18) of the ▇▇▇▇ ▇▇▇) with the Distributor and engaged directly or
indirectly in the variable insurance operation ("associated persons");
WHEREAS, the parties desire to have the Company perform certain
administrative services in connection with the sale of the contracts.
NOW, THEREFORE, in consideration of the covenants and mutual promises of
the parties made to each other, it is hereby covenanted and agreed as
follows:
1. The Distributor will act as the exclusive principal underwriter for the
Account and as such will assume full responsibility for the securities
activities of all its associated persons in connection with the sale of the
contracts. The Distributor will train the associated persons, use its best
efforts to prepare them to complete satisfactorily the applicable NASD and
state examinations so that they may be qualified, register the associated
persons as its registered representatives before they engage in the sale of
the contracts, and supervise and control them in the performance of such
activities. Notwithstanding anything in this Agreement to the contrary, the
Distributor and the Company may enter into sales agreements with independent
broker-dealers for the sale of the contracts. All such sales agreements
entered into by the Distributor
and the Company with independent broker-dealers shall provide that each
independent broker-dealer will assume full responsibility for continued
compliance by itself and its associated persons with the NASD Rules of Fair
Practice and Federal and state securities laws.
2. The Distributor will assume full responsibility for the continued
compliance by itself and its associated persons with the NASD Rules of Fair
Practice and Federal and state securities laws, to the extent applicable in
connection with the sale of the contracts. The Distributor, directly or
through the Company as its agent, will make timely filings with the SEC,
NASD, and any other securities regulatory authorities of all reports and any
sales literature relating to the Account required by law to be filed by the
Distributor.
3. The Company will prepare and submit to the Account (a) all registration
statements and prospectuses (including amendments) and all reports required
by law to be filed by the Account with Federal and state securities
regulatory authorities, and (b) all notices, proxies, proxy statements, and
periodic reports that are to be transmitted to persons having voting rights
with respect to the Account.
4. The Company will, except as otherwise provided in this Agreement, bear the
cost of all services and expenses, including legal services and expenses,
filing fees, and other fees incurred in connection with (a) registering and
qualifying the Account and the contracts, and (b) preparing, printing, and
distributing all registration statements and prospectuses (including
amendments), contracts, notices, periodic reports, proxy solicitation
material, sales literature, and advertising filed or distributed in
connection with the sale of the contracts.
All cost associated with the variable insurance compliance function
including, but not limited to, fees and expenses associated with qualifying
and licensing associated persons with Federal and state regulatory
authorities and the NASD and with performing compliance-related
administrative services, shall be allocated to the Company. To the extent
that the Distributor incurs out-of-pocket expenses in connection with the
variable insurance compliance function, the Company shall reimburse the
Distributor for such expenses. To the extent that such costs are in
connection with services provided by employees of the Company, they shall
be charged to the Company. The determination and allocation of all such
costs shall be pursuant to the terms of the Company's Cost Policy, as
utilized in connection with the Company's respective Service Agreements
with the Company and the Distributor.
5. All purchase payments made under the contracts will be forwarded by or on
behalf of Contract Owners directly to the Company and shall become the
exclusive property of the Company. The Company agrees to pay all sales
commissions and any other remuneration due in connection with the sale of
the contracts by associated persons of the Distributor and any independent
broker-dealers having a sales agreement with the Distributor and the
Company. The Distributor or the Company as agent for the Distributor shall
pay all other remuneration due any other person for activities relating to
the sale of the contracts. The Company shall reimburse the Distributor fully
and completely for all amounts paid by the Distributor to any person
pursuant to this Section.
6. The Company will, as the Distributor's agent, (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 by the Distributor in connection with the
offer and sale of the contracts being offered for sale pursuant to this
Agreement, which books and records shall remain the property of the
Distributor, and shall at all times be subject to inspection by the SEC in
accordance with Section 17(a) of the 1934 Act, and all other regulatory
bodies having jurisdiction, and (b) send a written confirmation for each
such transaction reflecting the facts of the transaction and showing that it
is being sent on behalf of the Distributor acting in the capacity of agent
for the Account, in conformance with the requirements of Rule 10b-10 of the
1934 Act.
7. Each party hereto shall advise the others 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
contracts, or the right to offer the contracts 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.
8. The Company agrees to be responsible to the Account for all sales and
administrative expenses incurred in connection with the administration of
the contracts and the Account other than applicable taxes arising from
income and capital gains of the Account and any other taxes arising from
the existence and operation of the Account.
9. As compensation for services performed and expenses incurred under this
Agreement, the Company will receive the charges and deductions as provided
in each outstanding series of the Company's contracts. Distributor will
receive no compensation under this Agreement, except as provided in
Section 4.
10. Each party hereto agrees to furnish any other state insurance
commissioner or regulatory authority with jurisdiction over the contracts
with any information or reports in connection with services provided under
this Agreement which may be requested in order to ascertain whether the
variable
insurance product operations of the Company are being conducted in a
manner consistent with applicable statutes, rules and regulations.
11. This Agreement shall upon execution become effective as of the date first
above written, and
(a) Unless otherwise terminated, this Agreement shall continue in effect
from year-to-year;
(b) This Agreement may be terminated by any party at any time upon giving
60 days' written notice to the other parties hereto; and
(c) This Agreement shall automatically terminate in the event of its
assignment.
12. This Agreement may be amended at any time by mutual consent of the
parties.
13. This Agreement shall be governed by and construed in accordance with the
laws of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
FULCRUM VARIABLE LIFE SEPARATE ACCOUNT OF
ALLMERICA FINANCIAL
LIFE INSURANCE AND ANNUITY COMPANY
Witness: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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V.P. Title: Vice President and Asst. Secretary
ALLMERICA FINANCIAL
LIFE INSURANCE AND ANNUITY COMPANY
Witness: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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V.P. Title: Vice President and Asst. Secretary
ALLMERICA INVESTMENTS, INC.
Witness: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Secretary and Counsel Title: Vice President &
Chief Financial Officer
and Controller
