SELLING AGREEMENT
This Agreement, including all schedules attached hereto and made a part
hereof ("Agreement"), is made as of February 28, 2006 ("Effective Date"), by and
among METLIFE INVESTORS DISTRIBUTION COMPANY ("Distributor"), a Delaware
corporation, Citicorp Investment Services ("CIS") a Delaware corporation, its
affiliate Citicorp Insurance Agency, Inc., a Delaware corporation, and CIS
insurance-licensed affiliates on Schedule A to the Selling Agreement
(collectively, "Agency") (CIS and Agency, collectively, "Selling Entities").
A. Distributor and its affiliates listed on Schedule B ("MetLife
Affiliates" and collectively with Distributor, "MetLife") issue or provide
access to the life insurance, annuity contracts and other products identified on
Schedule C ("Contracts"), some of which are deemed to be securities under the
Securities Act of 1933, as amended, ("Variable Contracts") and some of which arc
not so registered ("Fixed Contracts").
B. Distributor and CIS are both broker-dealers registered with the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended ("1934 Act"), and members of NASD, Inc. ("NASD") in good standing.
C. Agency, an affiliate of CIS, whose employees are also employees of CIS,
is an insurance agency duly licensed to sell the Contracts in any state or other
jurisdiction in which Agency intends to perform hereunder.
D. Distributor, on behalf of itself and the MetLife Affiliates, is
authorized to enter into a written agreement with Selling Entities appointing
CIS and Agency as agent of MetLife for the solicitation and sale of the
Contracts.
The parties agree as follows:
1. APPOINTMENT AND AUTHORIZATION OF SELLING ENTITIES; PERFORMANCE
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a) MetLife appoints Selling Entities as agents and authorizes Selling
Entities to solicit sales of the Contracts, through their Registered
Representatives, in all states where MetLife has separately notified Selling
Entities in writing that MetLife is authorized to do business and that the
Contracts are qualified for sale or exempt from qualification under all
applicable securities and insurance laws. Selling Entities accept this
appointment on the terms set forth in this Agreement.
b) A "Registered Representative" is an individual who is (i) an associated
person of CIS within the meaning of section 3(a)(18) of the 1934 Act, (ii) a
general securities representative registered with the NASD with respect to whom
CIS has on file a Form U-4 and has completed a background investigation that has
been filed with the NASD, (iii) duly registered with all applicable state
securities regulatory authorities as a registered person of CIS, (iv) duly
licensed under the insurance laws of all states in which such individual is
required to be licensed in order to solicit and sell the Contracts and (v) duly
appointed by MetLife with state insurance departments to act as an agent to
solicit and sell the Contracts.
c) The parties, and their respective employees, agents and representatives,
will each perform their respective obligations hereunder in a manner reasonably
satisfactory to the others, in conformance with the customary practices of the
insurance and securities industries and in compliance With applicable law,
including any rule or regulation of any agency, governmental, regulatory or
self-regulatory authority ("Law").
d) The parties will make commercially reasonable good faith efforts to
comply with each other's policies and procedures with respect to the sales,
administration and servicing of the Contracts as may be issued in writing from
time to time.
2. NON-EXCLUSIVITY; INDEPENDENT CONTRACTOR STATUS
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a) This Agreement is not an exclusive agreement between the parties. Any
party (or their respective affiliates) may enter into any agreement or
arrangement that is identical to or different from this Agreement with any other
person or entity.
b) In the performance of this Agreement, the relationship of CIS to MetLife
is that of an independent contractor. Neither party shall be deemed to be an
employee, partner or joint venture of or with the other party for any purpose.
3. REPRESENTATIONS AND WARRANTIES OF SELLING ENTITIES
--------------------------------------------------
a) CIS and Agency represent and warrant that each is, and will remain, duly
and validly organized, validly existing and in good standing under the laws of
the state in which it is organized, with full and proper power and authority to
enter into and perform the terms of this Agreement.
b) CIS represents and warrants that it is registered as a broker-dealer
under the 1934 Act and a member in good standing of NASD and under the
securities laws of each jurisdiction in which such registration is required for
the sale of the Contracts. CIS will promptly advise MetLife of any termination
or suspension of its broker-dealer registration or NASD membership.
c) Agency represents and warrants that it is duly licensed as an insurance
agent in each jurisdiction in which licensure is required for the sale of the
Contracts. Agency will promptly advise MetLife of any termination or suspension
of its insurance license in any such jurisdiction.
d) CIS and Agency each represent and warrant that the person signing on
their behalf is properly authorized to execute this Agreement and that this
Agreement constitutes a valid and binding contract between it and MetLife,
enforceable in accordance with its terms.
4. REPRESENTATIONS AND WARRANTIES OF DISTRIBUTOR AND METLIFE AFFILIATES
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a) Distributor and MetLife Affiliates represent and warrant that each is,
and will remain, duly and validly organized, validly existing and in good
standing under the laws of the state in which it is organized, with full and
proper power and authority to enter into and perform the terms of this
Agreement. MetLife Affiliates represents that it is licensed to do an insurance
business in all jurisdictions in which it conducts business. Distributor
represents that it is licensed to do business in all jurisdictions in which it
conducts business.
b) Distributor represents and warrants that it is registered as a
broker-dealer under the 1934 Act and a member in good standing of NASD and under
the securities laws of each jurisdiction in which such registration is required
for the sale of the Contracts. Distributor will promptly advise Selling Entities
of any termination or suspension of its broker-dealer registration or NASD
membership.
c) Distributor represents and warrants that the person signing on its
behalf, and on behalf of the MetLife Affiliates, is properly authorized to
execute this Agreement and that this Agreement constitutes a valid and binding
contract between it and Selling Entities, enforceable in accordance with its
terms.
d) MetLife represents and warrants that the Variable Contracts issued by
MetLife Affiliates have been duly filed and approved by the state insurance
departments in each state where it is authorized to transact business, unless
otherwise stated in writing to Selling Entities.
e) MetLife represents and warrants that the Contracts, including related
separate accounts, will comply with the registration and all other applicable
requirements of the 1933 Act and the Investment Company Act of 1940 ("1940
Act"), and the rules and regulations thereunder, including the terms of any
order of the SEC with respect thereto.
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f) MetLife represents and warrants that the prospectuses, registration
statements and any post-effective amendments and any supplements thereto for the
Variable Contracts, as filed or to be filed with the SEC, as of their respective
dates (i) contain or will contain, all statements and information which are
required to be stated therein by the 1933 Act and the 1940 Act and in all
respects conform or will conform, to the requirements thereof, and (ii) contain
no untrue statements of material fact and do not omit to state material facts,
the omission of which makes any statement therein misleading.
g) MetLife represents and warrants that all sales, promotion, advertising,
marketing, education or training materials relating to the Contracts. MetLife,
or Selling Entities, and approved by MetLife for use by Selling Entities ("Sales
Material") comply with all applicable Law.
h) MetLife represents and warrants that all compensation payable to Selling
Entities hereunder complies with Law.
i) MetLife will, during the term of this Agreement, provide Selling
Entities with prompt written notice of the issuance by the SEC of any stop order
with respect to the registration statement or any amendments thereto or the
initiation of any proceedings for that purpose or for any other purpose relating
to the registration and offering of the Contracts and of any other action or
circumstance that may prevent the lawful sale of the Contracts in any state.
5. RIGHTS AND RESPONSIBILITIES OF SELLING ENTITIES
-----------------------------------------------
a) QUALIFIED AGENTS. Selling Entities will ensure that each Registered
Representative recommended for appointment as agent of MetLife is licensed under
the applicable state insurance laws when proposed for appointment, has completed
any educational program required by applicable Law and is otherwise in good
standing with all agencies regulating the sale of the Contracts. Upon request,
Selling Entities will furnish MetLife with proof reasonably acceptable to both
parties that the Registered Representative has satisfied licensing requirements.
Selling Entities will not knowingly designate anyone for appointment to MetLife
to conduct insurance business who has been convicted of a felony involving
dishonesty or breach of trust intended to be covered under 18 USC (S) 1033
(Federal Crime ▇▇▇▇) or who has not otherwise received consent and/or waiver of
an authorized insurance regulator to engage in the insurance business in spite
of such felony conviction.
b) BACKGROUND INVESTIGATIONS. Selling Entities represent that they have
conducted a background investigation on each of their Registered Representatives
as required by applicable Law. To the extent permitted by applicable law,
Selling Entities will provide, or make reasonable effort to cause Registered
Representatives to provide, MetLife with appropriate authorization to allow
MetLife to conduct such background and credit investigations of Registered
Representatives as may be necessary or appropriate under applicable Law. Selling
Entities will promptly notify MetLife if any Registered Representative is
terminated with an electronic notification through National Securities Clearing
Corporation.
c) LICENSING. Selling Entities, at their sole expense, will ensure that
their Registered Representatives are properly licensed and/or registered with
the appropriate governmental agency or authority to solicit, sell and service
the Contracts.
d) CONTRACT SOLICITATION. Selling Entities will ensure that Registered
Representatives solicit applications for Contracts in accordance with applicable
Law including, NASD Conduct Rules, insurance replacement regulations and
regulations prohibiting the rebating of commissions. Selling Entities will train
their Registered Representatives in the solicitation of applications for the
Contracts. Selling Entities will ensure that their Registered Representatives
(i) do not make any representations inconsistent with any applicable product
prospectus, Contract provision, or Sales Material that has been approved by the
parties, and (ii) do not solicit applications for the Variable Contracts unless
accompanied or preceded by the applicable prospectus. Selling Entities will be
solely responsible for their Registered Representatives in the solicitation and
sale of Contracts, except for acts or omissions taken in reliance upon
information provided by MetLife, unless the information is actually known by the
Registered Representative to be (i)
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in violation of applicable [illegible] (ii) materially inconsistent with the
[illegible] applicable prospectus, supplemental or marketing material that has
been approved by the parties.
e) SUPERVISION. Selling Entities will supervise the conduct of their
Registered Representatives in their solicitation activities in connection with
the Contracts, and will supervise Registered Representatives' compliance with
applicable Law.
f) SUITABILITY. Selling Entities will be solely responsible for determining
suitability of sales transactions.
g) Selling Entities will be solely responsible for the accuracy and
propriety of any instruction given or action taken by a Registered
Representative on behalf of a Contract owner or applicant for a Contract.
MetLife will have no responsibility or liability for any action taken or omitted
by it in good faith in reliance on or by acceptance of such an instruction or
action.
h) INSURANCE COVERAGE.
(i) Fidelity Bond. Selling Entities shall secure and maintain a
fidelity bond including coverage for employee fidelity, forgery,
theft, and similar offenses covering all of its directors, officers,
agents, Registered Representatives, associated persons and employees
who have access to funds of MetLife. This bond shall be maintained at
Selling Entities' expense in at least the amount prescribed under Rule
3020 of the NASD Conduct Rules and future amendments thereto.
(ii) Professional Liability. Selling Entities will maintain coverage
for errors and omissions by CIS, Agency, representatives and agents,
including Registered Representatives, to claimants such as MetLife.
(iii) Loss of coverage. The authority of any Registered Representative
to solicit and procure Contracts will terminate automatically upon the
termination of such Registered Representative's coverage under Selling
Entities' fidelity bond or plan of insurance referred to in
subsections (i) and (ii) above.
(iv) Right to Self-insure. Selling Entities shall have the option,
either alone or in conjunction with Citigroup Inc. ("Citigroup"),
Selling Entities' ultimate parent corporation, or any subsidiaries or
affiliates of Citigroup, to maintain self insurance and/or provide or
maintain any insurance required by this Agreement under blanket
insurance policies maintained by Selling Entities or Citigroup, or
provide or maintain insurance through such alternative risk management
programs as Citigroup may provide or participate in from time to time
(such types of insurance programs being herein collectively and
severally referred to as "self insurance"), provided the same does not
thereby decrease the limits set forth in this Agreement. Any self
insurance shall be deemed to contain all of the terms and conditions
applicable to such insurance as required in this Agreement. If Selling
Entities elect to self-insure, then, with respect to any claims which
may result from incidents occurring during the Term, such self
insurance obligation shall survive the expiration or earlier
termination of this Agreement to the same extent as the insurance
required would survive.
(v) MetLife's interest. Selling Entities shall upon the request of
MetLife at any time furnish to MetLife updated certificates or other
evidence of insurance (unless Selling Entities have already elected to
self-insure such exposures).
6. RIGHTS AND RESPONSIBILITIES OF DISTRIBUTOR AND METLIFE AFFILIATES
-----------------------------------------------------------------
a) APPOINTMENT/TRAINING. MetLife will appoint, at its own expense, all
Registered Representatives designated by Selling Entities prior to, or
concurrently with, any solicitation of the Contracts as required by Law and
agreed to by the parties. MetLife may, with reasonable cause, decline to
4
appoint any Registered Representative or terminate any such appointment MetLife
will not terminate the appointment of any Registered Representative without
prior notice to Selling Entities, and will ensure that any such termination will
not impair the Registered Representative's ability to service outstanding
Contracts, provided the termination was not on account of malfeasance or
misfeasance. MetLife will provide training to Registered Representatives as to
the features and costs of the Contracts.
b) SALE OF CONTRACTS. MetLife has the right to modify any of the Contracts,
modify or alter the conditions or terms under which any Contract may be sold,
discontinue or withdraw any Contract from any geographic area or market segment
without prejudice to continuation of such form in any other area or market
segment, suspend the sale of any of the Contracts, or cease doing business in
any area in whole or in part, at any time with prior written notice to Selling
Entities, unless the obligation to provide written notice will cause irreparable
harm to MetLife. MetLife may remove any Contract from Schedule C, thereby
terminating the solicitation and sale of such Contract under this Agreement,
with advance written notice to Selling Entities, but may not add new Contracts
to Schedule C without the written consent of Selling Entities.
c) SOURCE OF COMPENSATION. MetLife covenants, represents and warrants that
all sales compensation payable to Selling Entities under this Agreement will be
paid from the general assets of MetLife, however derived, and not assessed as a
separately identifiable charge to Contract owners except to the extent disclosed
in the applicable prospectus.
d) FEE DISCLOSURE. To the extent required by applicable Law. MetLife will
disclose to purchasers, all fees, costs and expenses, whether direct or
indirect, associated with the purchase of any Contract.
e) ELECTRONIC DATA FEEDS AND REPORTS. MC1Life will provide Selling Entities
with all mutually agreed upon electronic data feeds and reports, including but
not limited to the following files: surrenders and cancellations, fund
(subaccount) transfers, account values, Commissions, Registered Representative
licensing and appointment, case-management, sales reporting and such other data
transmissions, in whatever format or medium, as Selling Entities may reasonably
request, in a manner that Selling Entities believe will enable Selling Entities
to (i) comply with applicable Law and (ii) process and service business
efficiently.
f) PROSPECTUSES. MetLife will provide Selling Entities, without charge,
with as many copies of Contract prospectuses. current underlying subaccount
prospectuses, statements of additional information and applications for the
Contracts, as Selling Entities may reasonably request. If any event occurs as a
result of which it is necessary to amend or supplement a prospectus for any
Variable Contract in order to make the statements therein, in light of the
circumstances under which they were or are made, true, complete or not
misleading, MetLife will promptly notify and furnish or make available to
Selling Entities. without charge, any amendments or supplements to the
prospectuses sufficient to make the statements made in the prospectus as so
amended or supplemented true, complete and not misleading. MetLife will deliver
to Variable Contract owners updated prospectuses and supplements as they arc
issued as required by Law.
g) MONITORING OF ACCOUNT ACTIVITY. MetLife will monitor account activity
and inform Selling Entities if it observes unusual, questionable or
inappropriate patterns in transactions involving Registered Representatives or
Selling Entities clients. Such transactions include exchanges, free looks,
surrenders, lapses, and significant transactions that will result in assets
being transferred to or from MetLife.
h) OWNER AUTHORIZATION. MetLife will ensure that a Registered
Representative does not execute on behalf of a Contract owner any subaccount
transfer within a Contract unless MetLife has on file a written authorization
from the Contract owner that the Registered Representative may execute such
transfers.
i) CERTIFICATION OF COMPLIANCE. On an annual basis beginning March 1, 2006,
MetLife will provide [0 Selling Entities a Certificate of Compliance
("Certificate") the form of which is contained in Schedule D. Selling Entities
may require MetLife to provide factual support for one or more certifications
contained in the Certificate. In the event that MetLife does not provide the
Certificate on a timely basis, is unable to certify performance with the matters
stated m the Certificate, or does not
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provide sufficient factual [illegible] (in the sole discretion of Selling Entity
[illegible] one or more of the certifications, Selling Entities shall notify
MetLife In writing and provide MetLife an additional sixty (60) calendar days to
remedy the failure. If the failure has not been remedied within the 60-day
period, Selling Entities will be entitled to terminate this Agreement.
j) CONTRACT SERVICE AND SUPPORT. MetLife will issue and deliver client
account statements with copies to the client's Registered Representative; will,
consistent with applicable Law and its Contract rights/obligations, promptly
process withdrawal requests, beneficiary designations, insurance claims; perform
required annual tax-reporting; and supply Selling Entities (or its insurance
service centers, as appropriate) with current illustration software for the
purpose of illustrating life and long term care products to prospective clients.
7. LIMITATIONS OF AUTHORITY
------------------------
a) No party has the authority to incur any obligations or debts for or on
behalf of the other or to make, modify, or discharge any contract on behalf of
the other by any statement, promise, representation or transaction, without the
other party's express written consent.
b) Selling Entities have no authority to (i) waive, alter, modify or change
any of the terms, rates, or conditions of the Contracts, (ii) approve evidence
of insurability, or (iii) collect or receive any premiums after the initial
premium, extend the time for any premium payment or reinstate any terminated
coverage ..
c) No party may (i) provide or offer to provide to a Contract applicant or
owner any inducement not specified in the Contract, or any rebate of a premium,
consideration or purchase payment ("Purchase Payment") as an inducement to
purchase a Contract in violation of applicable Law, (ii) enter into any court or
regulatory proceeding in the name of, or on behalf of the other party, (iii)
adjust or settle any claim or enter into any legal proceedings on behalf of the
other party or (iv) bind the other party in any way not specifically authorized
in writing by the party to be bound.
d) No party may induce any employee or agent of the other party to
terminate that relationship without the prior written consent of the other
party.
e) Selling Entities will not engage in a systematic program of contacting
Contract owners for the purpose of inducing them to cancel or replace their
Contracts unless it is determined in Selling Entities' sole discretion to be in
the best interest of each Contract owner, based upon their Individual facts and
circumstances.
f) MetLife will ensure that their wholesalers and/or Contract
representatives do not promote to CIS or distribute Sales Material for life
insurance or annuity products (other than the Contracts) to CIS' sales force
without the written consent of CIS. MetLife will ensure that its wholesalers
and/or Contract representatives (i) do not make any representations inconsistent
with any applicable product prospectus, Contract provision, or Sales Material
that has been approved by the parties.
g) MetLife may not contact by mail or any other method of communication any
person known by MetLife, as a result of this Agreement or other in-force
agreements between the parties or their predecessors, to be a Selling Entities
customer, Registered Representative or other employee, agent, or other
individual acting in a similar capacity, except to the extent permitted by Law,
in the performance of this or any other in force Agreement or in connection with
the administration, servicing or maintenance of the Contracts. Any other contact
must be authorized by Selling Entities in advance, in writing
8. APPLICATION/CONTRACT DELIVERY
-----------------------------
a) Selling Entities will promptly forward, or cause to have forwarded, to
MetLife all Contract applications, including electronic data applications, found
acceptable and in good order, together with any payments received with the
applications in the form of checks made payable to the order of the applicable
6
insurer, or by such other [illegible] e.g., wire or electronic transfer) as the
[illegible] mutually agree in writing. MetLife will promptly process
applications for Contracts, reject any application and/or related paperwork that
does not meet MetLife's good order requirements or comply with Law (including
New York State Regulation 60 or any similar replacement statute) that is
applicable to MetLife and notify Selling Entities of any such rejection.
b) MetLife has the right, based on its current underwriting guidelines, to
refuse to accept applications and purchase orders submitted by Selling Entities.
If MetLife rejects an application, MetLife will return any Purchase Payment paid
by the applicant to such applicant, or Selling Entities (which will promptly
return the Purchase Payment to the applicant), and will promptly notify Selling
Entities of such action. If a purchaser exercises his or her free-look right for
a Contract, any amount to be refunded as provided in the Contract will be so
refunded to the purchaser by or on behalf of MetLife, and MetLife will promptly
notify Selling Entities of such action.
c) MetLife will promptly deliver life insurance Contracts and applicable
subaccount prospectuses to Selling Entities or, at the direction of Selling
Entities, to the applicable insurance service center, which will review and
promptly forward the life insurance Contract and subaccount prospectuses to the
Registered Representative for prompt delivery to the Contract owner. Selling
Entities will obtain and retain a written receipt for each Contract that it
delivers. MetLife will promptly deliver annuity Contracts issued to the Contract
owner. MetLife will confirm to Selling Entities, in a manner acceptable to the
parties, that the annuity Contract, and applicable subaccount prospectuses, have
been delivered. This confirmation shall also include, at a minimum, a "policy
specification page" detailing the features and particulars of the Contract, as
issued.
d) MetLife will issue and Selling Entities will deliver policies for Long
term care ("LTC") products and Disability Income Contracts ("DI Contracts") to
Contract owners in accordance with this paragraph and Law:
i) Selling Entities agree to deliver LTC policies to purchasers
within ten (10) days of receipt by Selling Entities from the
issuing MetLife Affiliate.
ii) MetLife will be responsible for preparing a proposal for a DI
Contract and delivering it to the appropriate Registered
Representative who will deliver to the prospective client. A
"Proposal" for a DI Contract means (i) benefit summary pages that
describe the insurance coverage; and (ii) cost and benefit pages
that are consistent with the benefit summary pages. Selling
Entities will transmit to MetLife all applications for DI
Contracts and the initial premiums, if any, received by it within
five (5) business days of receipt.
(iii) Selling Entities will deliver newly-issued DI, Contracts to the
Contract owner within five (5) business days of receipt from
MetLife. Selling Entities will make reasonable effort to ensure
that the first modal premium is remitted to MetLife within sixty
(60) days of a policy's issue date. The Registered Representative
will deliver the DI Contract only if the insured, to the best of
the Registered Representative's knowledge, is in as good a
condition of health and insurability as is stated in the original
application for the policy. If the Registered Representative
becomes aware of any change in condition of health and
insurability, the policy must be returned to MetLife.
e) Selling Entities agree that it will not, nor will it permit Registered
Representatives to use or disclose information obtained about an individual in
connection with an application for or issuance of a Contract that is an LTC
product, including the fact that an individual is an insured under an LTC
product, in connection with the marketing or solicitation of other products.
9. COMPENSATION
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a) MetLife will pay Selling Entities, as compensation for the sale and
ongoing service of the Contracts, the commissions, expense reimbursement
allowances, marketing allowances and overrides, if
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any ("Commissions") in a [illegible] with the Schedule C in effect at
[illegible] the Contract applications are received by MetLife, in the case of
life insurance, or at the time the Purchase Payments are received, in the case
of annuities. Selling Entities will not pay any portion of Commissions to any
person or entity that is not duly licensed and appointed by MetLife as required
by applicable Law.
b) For each Commission payment, MetLife agrees to identify for Selling
Entities, at a minimum, (i) the name of the Registered Representative who
solicited the Contract covered by the payment, (ii) the name of the Contract
owner and (iii) the Contract number.
c) Selling Entities have the right to net Commissions due on the sale of
annuity Contracts against Purchase Payments collected.
d) Selling Entities will pay MetLife in full for any indebtedness to
MetLife arising under this Agreement within thirty (30) days of demand. In
calculating the amount of Commissions payable, MetLife may at any time offset
against any compensation payable to CIS or Agency or their respective successors
or assigns, any compensation-related indebtedness due MetLife from CIS under
this Agreement.
e) MetLife may, upon thirty days advance written notice to, and written
consent by Selling Entities, revise any Commissions or chargebacks payable on
Contracts issued, renewed, converted, or exchanged after the effective date of
the revisions stated in the notice. MetLife will not revise Commissions payable
on additions to Contracts that have already been sold without thirty (30) days
prior written notice to, and written consent by, Selling Entities.
f) Selling Entities are responsible for all amounts payable to their
Registered Representatives, employees or agents in connection with the sale of
Contracts. Selling Entities will be responsible for issuing checks, statements
and forms for tax purposes and other administrative duties connected with
compensation of such Registered Representatives.
g) MetLife will pay Selling Entities Commissions due and coming due on
Contracts that are in force for so long as Selling Entities arc designated as
broker-of-record at the time the Commissions become due.
h) In the event a chargeback of Commission is warranted, MetLife shall
claim the chargeback within 90 days of the event causing the chargeback. Failure
of MetLife to claim the chargeback during this 90-day period shall discharge
Selling Entities from the obligation to honor the chargeback.
i) Selling Entities agree to repay MetLife any Commissions which may have
been paid to it, if MetLife returns Purchase Payments to a Contract owner
because: (i) a Contract owner exercises any applicable right of "free look,"
(ii) MetLife rejects any Purchase Payment based upon its current underwriting
guidelines, (iii) by order of any regulatory body, (iv) MetLife determines not
to pay a claim during a Contract's contestability period due to a
misrepresentation in the Contract application, (v) the parties agree to return
the Purchase Payment (e.g. as a result of a complaint by applicant that the
parties determine to be well founded).
j) MetLife will pay Commissions on internal replacements in accordance with
MetLife's rules on replacement transactions. MetLife will not pay first year
Commission on a new sale that is in fact a replacement of a Contract with
another Contract, but undisclosed as required by Law or MetLife`s rules on
replacement transactions.
k) Selling Entities will disclose all Commissions they receive in
connection with the sales and service of Contracts to the extent required by
Law. Subject to Section 16 (Confidential Information), this provision shall not
preclude a party from disclosing to customers or potential customers additional
information regarding compensation payable under this Agreement.
10. SAME-DAY PRICING
----------------
Selling Entities may electronically submit orders to MetLife for units of
variable annuity contracts ("Electronic Purchases"). For purposes of Electronic
Purchases, receipt by Selling Entities of applications,
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related Purchase Payments [illegible] other required documents (collectively,
[illegible]") for variable annuity Contracts will be deemed to be receipt by
MetLife, and receive unit pricing on the same day that Selling Entities receive
Applications ("Same Day Pricing") provided that: a) Selling Entities receive
Applications with complete and accurate information according to Selling
Entities' standard good order guidelines ("Good Order") prior to the close of
the New York Stock Exchange ("Market Close"), generally 4:00 PM New York time
and b) MetLife receives the Electronic Purchases in good order according to
MetLife's standard good order guidelines by 6:00 PM New York time on the same
day. Selling Entities will not submit any Electronic Purchase to MetLife for
Same Day Pricing if Selling Entities receive the Application after Market Close.
Any Electronic Purchase received by MetLife from Selling Entities after 6:00 PM
as described above, will not receive Same Day Pricing. MetLife will be
responsible for promptly notifying Selling Entities of any Electronic Purchase
that does not receive Same Day Pricing due to failure of MetLife's standard good
order guidelines. Selling Entities wi1l accompany the transmission of an
Electronic Purchase with a financial reconciliation of each Purchase Payment and
on the next business day after transmission of an Electronic Purchase, Selling
Entities will wire transfer to the account of MetLife the amount of the Purchase
Payment, net of Commissions due Selling Entities according to Schedule C.
11. MARKET TIMING AND LATE TRADING
------------------------------
The parties shall monitor for market-timing and late-trading activity in
the Variable Contracts. If MetLife, in its reasonable discretion, determines
that Selling Entities or any of Selling Entities' clients are engaging in market
timing activities (that is, programmed, large or frequent transfers) or late
trading (that is, submitting any order to purchase or redeem separate account
units in situations where the Selling Entities receive the order after the close
of trading) with respect to any portfolios of the Variable Contracts, or that
Selling Entities are providing advice or assistance to any persons to engage in
such market-timing activities or late trading, MetLife shall promptly notify
Selling Entities in writing. At the request of Selling Entities, MetLife shall
remove Selling Entities as broker-of-record on any specified outstanding
Contract. MetLife has the right to reject any purchase order submitted by a
party whom (or whose clients) MetLife determines to be engaging in market-timing
activity or late trading.
12. ANTI-MONEY LAUNDERING
---------------------
a) Each party represents that it complies with all applicable anti-money
laundering laws, regulations, rules and government guidance, including the
reporting, recordkeeping and compliance requirements of, to the extent
applicable, 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 ("Patriot Act"), its implementing regulations, and related SEC
and SRO rules. To the extent required by applicable Law, each party represents
that it has a comprehensive anti-money laundering compliance program that
includes, policies, procedures and internal controls for complying with the BSA;
policies, procedures and internal controls for identifying, evaluating and
reporting suspicious activity; a designated compliance officer or officers;
training for appropriate employees; and an independent audit function.
b) Selling Entities certify, and will certify to Distributor annually, that
they have established and implemented a Customer Identification Program, in
compliance with applicable regulations, as part of their anti-money laundering
compliance programs that, at a minimum, currently require: (i) the verification
of the identity of any customer seeking to open an account after October 1,
2003; (ii) the retention of a record of the information used to verify each such
customer's identity; and (iii) the determination, within a reasonable time
before or after the account is opened, as to whether the customer appears on any
lists of known or suspected terrorists or terrorist organizations as provided to
it by any government agency. Selling Entities agree that, to the extent required
by applicable Law, they will verify the identity of each customer that they
introduce to MetLife, provided the customer has opened an account with
Distributor after October 1, 2003, whether through documentary or non-
documentary means. Distributor will rely upon such verification, as provided in
Section 103.122(b) of the regulations promulgated under Section 326 of the
Patriot Act.
9
c) Each party represents that it will cooperate and share information with
the others pursuant to Sections 312 and 313 of the Patriot Act so as to enable
each party to conduct enhanced due diligence monitoring of customer activity
involving any customer identified as a senior foreign political figure or
maintaining a residence in a jurisdiction deemed non-cooperative in the fight
against international money laundering by the financial Action Task force.
13. SALES MATERIAL
--------------
a) The parties will not use Sales Material unless approved in writing by
MetLife and Selling Entities prior to such use.
b) MetLife shall ensure that all Sales Material provided by MetLife to
Selling Entities, its branch offices, employees or customers, will a) have first
been filed with the appropriate governmental and regulatory bodies, if required,
b) be compliant with their respective requirements and have received all
necessary regulatory approvals, and c) have first been approved hy Selling
Entities and assigned an approval code. Unless otherwise agreed by the parties
it shall be Selling Entities' responsibility to file and obtain NASD approval of
any Sales Materials prepared by Selling Entities.
c) A party's giving of such approval shall apply to each specific request
and shall not be construed to have applied to any subsequent materials or
programs. All materials shall be subject to periodic review after initial
approval to ensure compliance with applicable Law and policies of the parties.
At least one hard copy of each piece of Sales Material in the form used shall be
supplied to the other party at least five business days prior to first use.
Additional copies or longer time period may be required for Sales Materials that
must be filed for approval with any regulatory authorities prior to use.
d) MetLife will use reasonable efforts to provide Selling Entities with
information and marketing assistance, including providing reasonable quantities
of Sales Material, without charge. MetLife is responsible for the content of
Sales Material it provides to Selling Entities, except to the extent it has
relied on information supplied by Selling Entities.
e) No party may use another party's tradenames, trademarks, service marks
or logos, except to the extent explicitly allowed in writing by the providing
party and necessary to carry out the purposes of this Agreement. Nothing in this
provision, however, shall be deemed as requiring such authorization in
connection with the use of a party's name in connection with any valid
regulatory request or court order.
f) Nothing contained in this Agreement shall be construed as conferring
upon Selling Entitles or their Registered Representatives any right to use or
refer to in advertising, publicity, promotion, marketing or other activities,
any Marks, or any other designation or likeness of any of the Peanuts(R)
characters or any other character licensed by United Feature Syndicate
(including any contraction, abbreviation or simulation of any kind of the
foregoing) without prior express permission from United Feature Syndicate, which
Selling Entities and their Registered Representatives must obtain through
MetLife.
14. COMPLAINTS AND INVESTIGATIONS
-----------------------------
The parties agree to cooperate fully in any regulatory investigation,
inquiry, inspection or proceeding or in any judicial proceeding arising in
connection with the Contracts. The parties shall permit federal, state, and
self-regulatory authorities to audit their records and shall furnish them with
any information that they may request in order to ascertain whether the parties
are complying with applicable Law with respect to the sale of the Contracts. The
parties agree to cooperate with each other in resolving all customer complaints
and internal investigations with respect to the Contracts sold under this
Agreement
15. BOOKS AND RECORDS
-----------------
The parties shall maintain and retain all books and records required by
applicable Law in connection with the solicitation and sale of the Contracts.
The books and records shall be maintained so as to clearly and accurately
disclose the nature and details of all transactions. Each party will make
available to the other, upon reasonable advance request, copies of books and
records, or such information as a party may
10
reasonably request to enable [illegible] comply, and to demonstrate its
[illegible] with its obligations under applicable Law and internal control
policies as they relate to the solicitation and sale of the Contracts.
16. CONFIDENTIAL INFORMATION
------------------------
a) Confidential Information. All information communicated, in any form, by
MetLife to Selling Entities or by Selling Entities to MetLife under this
Agreement regarding MetLife or Selling Entities, or their respective affiliates,
including, but not limited to, proprietary information, such as financial,
business, technical, marketing or economic information, administrative
procedures, computer systems and software, sales data, financial plans,
investment strategies, the terms of this Agreement and any other agreements
between the parties, and confidential customer information (collectively
"Confidential Information") shall be treated confidentially by the receiving
party in accordance with applicable Law and the terms of this Agreement.
"Confidential Customer Information" refers to information about individuals who
are consumers or customers of either party, and may include, but is not limited
to, information such as customer lists, names, addresses, telephone numbers,
account balances, account numbers, account activity, social security numbers,
taxpayer identification numbers, financial, medical and health information,
credit history, and protected health information (PHI) as that term is defined
by federal regulations implementing the privacy provisions of the Health
Insurance Portability and Accountability Act of 1996 (IIIPAA).
b) Confidential Information excludes information that (1) is independently
developed by a party without violating the disclosing party's proprietary
rights, (2) is or becomes publicly known (other than through unauthorized
disclosure), (3) is intentionally disclosed by the owner of such information to
a third party free of any obligation of confidentiality, (4) is already known by
a party, as evidenced by the written records of that party, free of an
obligation of confidentiality other than pursuant to this Agreement, or (5) is
rightfully received by a party free of any obligation of confidentiality.
c) Applicable Law for the purposes of this Section 16 refers to federal,
state, and local laws or regulations related to consumer privacy including,
without limitation, Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 (Public Law
106-102) and its implementing regulations (e.g., Regulation S-P of the
Securities and Exchange Commission and regulations adopted by the various state
insurance departments), IIlPAA and its implementing privacy regulations adopted
by Health and Human Services, and the federal Fair Credit Reporting Act and its
implementing regulations, as they may be amended from lime to time.
d) USE. The parties may use Confidential Information received from the
other party only in connection with the performance of their obligations under
this Agreement and in accordance with applicable Law. The parties may not
disclose Confidential Information to any other party, provided, however, that
MetLife may use and disclose Confidential Customer Information as necessary to
underwrite Contracts, administer claims, and otherwise fulfill its obligations
as an insurer or as otherwise required or permitted by applicable Law. The
parties may disclose Confidential Information only to their respective employees
and agents on a need-to-know basis provided such employees and agents arc
required or have otherwise agreed to treat such information confidentially. In
the event that a party shares Confidential Information, or requests that the
other party share Confidential Information, with a third party assisting that
party in performing services under this Contract, the party must have a written
agreement with such entity which includes a confidentiality provision
prohibiting disclosure or use of Confidential Information other than to carry on
the purposes for which the information was provided. Each party will take
reasonable steps to protect the Confidential Information received from the other
party, applying at least the same security measures and level of care as they
employ to protect its own Confidential Information. A party shall promptly
report to the other any unauthorized disclosure or use of Confidential
Information received from the other party of which it becomes aware. If a party
is compelled by applicable Law to disclose any Confidential Information received
from the other party, the party so compelled must promptly notify, in writing,
the party whose Confidential Information is being disclosed, and provide that
party with an opportunity to limit the production. Each party will have the
right to audit the others for the limited purpose of ensuring compliance with
this provision under reasonable terms and conditions, including, e.g. advance
notice and duration.
e) SECURITY. Each party agrees to implement reasonable safeguards to ensure
the confidentiality,
11
integrity and security of Confidential Information as required by [illegible].
The parties shall use their best efforts to conform and coordinate their actions
under, and interpretations of, their respective policies and procedures in the
performance of the actions contemplated by this Agreement so as to ensure
compliance with applicable Law and avoid conflicts between themselves. Each
party represents and warrants that it has implemented and currently maintains an
effective information security program to protect the Confidential Information,
which program includes administrative, technical, and physical safeguards:
(i) to insure the security and confidentiality of Confidential Information:
(ii) to protect against any anticipated threats or hazards to the security
or integrity of such Confidential Information; and
(iii) to protect against unauthorized access to or use of Confidential
Information which could result in substantial harm or inconvenience to
either party or their affiliates, or to customers of any of them.
If a party discovers a breach of its information security program, it shall
promptly notify the other parties.
f) INJUNCTIVE RELIEF. The parties acknowledge that the unauthorized
disclosure of Confidential Information is likely to cause irreparable injury to
the disclosing party and that, in the event of a violation or threatened
violation of a party's obligations hereunder, the disclosing party shall have no
adequate remedy at law and shall therefore be entitled to enforce each such
obligation by seeking a temporary or permanent injunctive or mandatory relief
obtained in any court of competent jurisdiction without the necessity of proving
damages, posting any bond or other security, and without prejudice to any other
rights and remedies which may be available at law or in equity.
g) USE UPON TERMINATION. At the termination of this Agreement, or in the
event a party makes a request for the return of their Confidential Information,
the other parties will promptly return the original and all copies of same, or
certify in writing to the requesting party that the Confidential Information has
been destroyed, provided however, that each party shall retain Confidential
Information in its possession necessary to service its customers or as may be
required by Law.
h) This Confidentiality section shall survive the termination of this
Agreement.
17. INDEMNIFICATION; LIMITATION OF LIABILITY
----------------------------------------
a) DEFINITIONS.
(i) "Claim" means any civil, administrative and/or civil criminal
action, claim, suit and/or legal proceeding of any kind that is brought against
an Indemnities by a third party ("Claimant") unaffiliated with such Indemnities.
(ii) "Costs" means any damages, judgments, settlements, losses,
expenses, interest, penalties, reasonable legal fees and disbursements
(including without limitation fees and costs for investigators, expert witnesses
and other litigation advisors) and other costs incurred by an Indemnities to
investigate, defend or settle a Claim, except that no settlement payments shall
be included in Costs unless the applicable Indemnitor has given its prior
express written consent to the settlement, which consent shall not be
unreasonably withheld. Costs shall not include any expenses for any
investigation or defense of a Claim incurred by Indemnitee after the date on
which Indemnitor gives notice of its election to assume the defense of such
Claim.
b) BY SELLING ENTITIES. Selling Entities will indemnify and hold harmless
Distributor and MetLife Affiliates, including each of their respective current
and former officers, directors, employees or agents (each a Distributor and/or
MetLife Affiliate Indemnitee"), from any Costs sustained by a Distributor or
MetLife Affiliate Indemnitee, on account of any Claim arising out of or based
upon any negligent, fraudulent, illegal or wrongful act or omission with respect
to its obligations under this
12
Agreement, or any breach [illegible] Agreement by Selling Entities. In any
[illegible] foregoing eases Selling Entities and/or Agency will be an
"Indemnitor" as the term is used in this Agreement.
c) BY METLIFE. MetLife will indemnify and hold harmless CIS and Agency,
including each of their respective current and former officers, directors,
employees or agents (each a CIS and/or Agency Indemnitee"), from any Costs
sustained by a CIS and/or Agency Indemnitee, on account of any Claim arising out
of or based upon negligent, fraudulent, illegal or wrongful act or omission with
respect to its obligations under this Agreement, or any breach of this Agreement
by MetLife. In any of the foregoing cases Distributor and/or MetLife Affiliates
will be an "Indemnitor" as the term is used in this Agreement.
d) INDEMNIFICATION CLAIM NOTICE AND CASE MANAGEMENT. lndemnitor will not be
liable under this indemnification provision for any Claim made against an
Indemnitee unless that Indemnitee has notified the Indemnitor in writing within
a reasonable time after the summons or other first legal process giving
information of the nature of the Claim has been served upon that Indemnitee (or
after the Indemnitee has received notice of such service on any designated
agent). At any time after such notice, any Indemnitor may deliver to the
Indemnitee its written acknowledgment that Indemnitee is entitled to
Indemnification under this indemnification provision for all Costs associated
with the Claim. The Indemnitor will thereafter be entitled to assume the defense
of the Claim and will bear all associated expenses. including without
limitation, payment on a current basis of all previous Costs incurred by the
Indemnitee in relation to the Claim from the date the Claim was brought, unless
in dispute pursuant to sub paragraph 17(g). After notice from any Indemnitor to
the Indemnitee of an election to assume the defense of any Claim, the Indemnitee
will not be liable to the Indemnitors for any Costs related to the Claim. Until
an Indemnitee receives notice of an Indemnitor's election to assume the defense
of any Claim, Indemnitee may defend itself against the Claim and may hire
counsel and other experts of its choice and Indemnitors, jointly and severally,
will be liable for payment of counsel and other expert fees on a current basis
as the same are billed.
e) COOPERATION AND UPDATES. If an Indemnitee makes a claim for
indemnification against an Indemnitor, Indemnitee and Indemnitor will each give
the other copies of its books and records (or reasonable access to its
employees) in connection with the Claim for which indemnification is sought
hereunder and will otherwise cooperate with one another in the defense of any
such Claim. Regardless of which party defends a particular Claim, the defending
party will give the other parties written notice of any significant development
in the case as soon as practicable, but in any event Within five (5) business
days after such development In no event will either Indemnitor or Indemnitee be
required to divulge any privileged information.
f) SETTLEMENT. If an Indemnitee is defending a Claim and: (I) a settlement
proposal is made by the Claimant, or (2) the Indemnitee desires to present a
settlement proposal to the Claimant, then the Indemnitee must promptly notify
the lndernnitors of such settlement proposal together with its counsel's
recommendation and request the consent of Indemnitor(s). Indemnitee, in making
such request, will make available complete access, during normal business hours,
to any and all discovery up to the date of such request. If the Indemnitee
desires to enter into the settlement and less than all of the Indemnitors
consent within thirty (30) business days (unless such period is extended. in
writing, by mutual agreement of the parties hereto), then Indemnitors, from the
time they fail to consent forward, will defend the Claim and will further
indemnify the lndemnitees for all Costs associated with the Claim which are in
excess of the proposed settlement amount even if the same were not originally
covered under this indemnification provision. If an Indemnitor is defending a
Claim and a settlement requires an admission of liability by Indemnitee or would
require Indemnitee to either take action (other than purely ministerial action)
or refrain from taking action (due to an injunction or otherwise), Indemnitor
may agree to such settlement only after obtaining the express, written consent
of Indemnitee.
g) INDEMNIFICATION DISPUTES. In the event that there is a dispute between
an Indemnitee and an Indemnitor over whether the Indemnitor is liable for a
Claim, then Indemnitor must advise Indemnitee of such a dispute and the reasons
therefor, in writing, within thirty (30) days after the Claim is first tendered
to Indemnitor, unless the Indemnitee and Indemnitor mutually agree, in writing,
to extend the time, and the parties shall refer the Claim to Arbitration as
provided below.
h) SUBROGATION. In the event of any indemnification payment under this
Agreement, Indemnitor shall be subrogated to the extent of such payment to all
the rights of recovery of Indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including
13
the execution of such [illegible] documents necessary to enable Indemnitor to
[illegible] bring suit to enforce such rights.
18. FORCE MAJEURE
-------------
No party shall be responsible to the other Parties for delays or errors in
its performance or any breach of this Agreement occurring solely by reason of
circumstances beyond its control, including, without limitation, acts of civil
or military authority, national emergencies, fire, major mechanical breakdown,
labor disputes, flood, landslide, hurricane, tsunami or other catastrophe, acts
of God, insurrection, war, riots, delays of supplier, or failure of
transportation, communication or power supply (a "Disaster").
19. CONTINUITY OF BUSINESS PLAN
---------------------------
Notwithstanding the "Force Majeure" provision, each party shall adopt a
Continuity of Business Plan (a "COB Plan") to ensure the least disruption to the
availability of Contracts to any Contract owner, which COB Plan may be reviewed
from time to time upon reasonable notice by the other party and during normal
business hours. Each party must immediately advise the other parties upon the
occurrence of any event or circumstance that will, or would reasonably be
expected to, disrupt their operations and in such event, upon request of the
other Party and, to the extent practicable, deliver all Confidential Information
pertaining to Contract owners. Each party shall implement its COB Plan to permit
it to perform its obligations hereunder, within a commercially reasonable period
of time, in the event of a Disaster.
20. NOTICE
------
Any notice required to be given by one party to another shall be (i)
personally delivered, (ii) mailed by registered or certified mail, postage
prepaid, or (iii) delivered to a third-party company or governmental entity,
delivery charges prepaid, providing delivery services in the ordinary course of
business which guarantees delivery to the other party on the next business day,
to the addresses below, with a copy at the same address to the General Counsel;
or such different addresses as a party designates in writing in compliance with
this subsection. All such notices shall be deemed delivered when so mailed or
hand-delivered. Alternatively, such notices shall be deemed delivered by timely
transmission of the writing, delivery charges prepaid, to a third-party company
or governmental entity providing delivery services in the ordinary course of
business which guarantees delivery to the other party on the next business day.
CITICORP INVESTMENT SERVICES OR METLIFE INVESTORS DISTRIBUTION COMPANY
CIAI ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
One Court Square With a copy to:
24/14 ▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Counsel
Long Island City, NY 1120 MetLife
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
21. ARBITRATION
-----------
a) Any dispute arising out of this Agreement will be settled by arbitration
under the rules then in effect at the NYSE or the NASD respective department of
arbitration, or the American Arbitration Association. Neither party will seek
consequential or punitive damages from the other, and, if punitive damages are
so awarded by the arbitration panel, neither party will seek to collect that
part of the panel's award from the other. Arbitration will he held in the State
of New York. Judgment on any award rendered by the arbitration panel may be
entered in any court having jurisdiction thereof except to the extent
consequential or punitive damages are part of the award.
b) The arbitration will be determined by one neutral arbitrator as agreed
upon by each party. If
14
the parties fail to appoint [Illegible] on a timely basis or are unable to
[illegible] on the choice of an arbitrator on a timely basis, any one of the
parties may apply to the American Arbitration Association to appoint the
arbitrator to sit and hear the arbitration, Each arbitrator appointed shall be a
retired judge or a practicing attorney, admitted to practice in the State of New
York, who is, if practicable, an experienced arbitrator of large, complex
securities and insurance cases. The arbitrator's decision will be binding on the
parties and the decision will be final with no right of appeal. Each party will
bear its own costs of arbitration. Each party waives the right to a trial by
either a jury or a court, including but not limited to a trial of any issue
concerning the validity of this section and the right of appeal from the
arbitrator's award.
c) By agreeing to arbitration, the parties do not intend to deprive a court
of competent jurisdiction of its authority to issue a pre-arbitral injunction,
pre-arbitral attachment, or other order in aid of arbitration, or for a
preliminary injunction or other equitable relief to maintain the status quo or
prevent irreparable harm prior to the appointment of the arbitral tribunal.
Without prejudice to such provisional remedies as may be available under the
jurisdiction of such court, the arbitral tribunal shall have full authority to
grant provisional remedies and to direct the parties to request that any court
modify or vacate any temporary or preliminary relief or other order Issued by
such court, and to award damages for the failure of any party to respect the
arbitral tribunal's orders to that effect.
22. TERMINATION
-----------
a) This Agreement may be terminated by any party providing thirty (30) days
written notice to the others
b) A party may terminate this Agreement immediately and without notice if
the other party (i) as to CIS or Distributor, ceases to be registered under the
1934 Act or to be a member in good standing of the NASD, (ii) fails to comply
with any licensing laws or other applicable Law, (iii) becomes insolvent or
bankrupt or suffers other financial impairment that may affect its performance
of this Agreement, or (iv) is prohibited from offering the Contracts as a result
of any order by a regulatory authority or applicable Law.
c) A party may terminate this Agreement for cause at any time upon ten (10)
days' written notice to the other parties. "Cause" is defined as a breach of a
material provision of this Agreement. In the event of notification of a
termination for cause, and upon request, the other party shall have thirty (30)
days to cure the breach ("cure period"). If the party is able to cure the breach
to the good faith satisfaction of the other party within the cure period, this
Agreement will continue in effect as though it were never terminated.
d) Termination of this Agreement will have no effect on Commissions due and
coming due Selling Entities on Contracts issued, additions thereto, and
applications received by MetLife prior to the termination date, unless (i)
payment of Commissions would violate Law or (ii) Selling Entities are no longer
broker-of-record on a Contract at the direction of the Contract owner.
e) The following sections will survive termination of this Agreement to the
maximum extent permitted by Law: Sections 9(Compensation), 11 (Market Timing),
14 (Complaints and Investigations), 15 (Books and Records), 16
(Confidentiality), 17 (Indemnification), 21 (Arbitration) and 22 (Termination).
f) Notwithstanding termination, the obligations of the parties related to
client services (including but not limited to electronic client account values,
Contract owner service capabilities, copies of client statements) for
outstanding Contracts issued prior to termination will remain in effect so long
as Selling Entities are the broker of record.
23. MODIFICATION; WAIVER
--------------------
This Agreement may not be amended or supplemented except by a written
agreement signed by all parties. Any failure of a party to comply with any
obligation, covenant, agreement or condition in this Agreement may be waived by
the party entitled to the benefits thereof only by a writing signed and
delivered by the party granting the waiver. A waiver, or failure to insist upon
strict compliance with such
15
obligation, covenant, agreement or condition, will not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure of compliance.
24. ASSIGNMENT
----------
No party may assign its rights or obligations under this Agreement without
the prior written consent of the other parties (which consent may not be
unreasonably withheld) and any purported assignment without such consent shall
be void. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
25. GOVERNING LAW
-------------
This Agreement shall be governed as to its validity, interpretation, and
effect by the laws of the state of New York without giving effect to principles
of conflicts of laws.
26. ENTIRE AGREEMENT
----------------
This Agreement contains the entire understanding and agreement among the
parties with respect to its subject matter, and supersedes all prior and
contemporaneous discussions, agreements, and understandings (although the rights
and obligations of the parties, including, without limitation, ongoing
compensation, in respect of any Contracts currently outstanding under various
single case agreements, shall remain in effect and are not modified in any
respect hereby).
27. CONSTRUCTION; SEVERABILITY
--------------------------
Section headings contained in this Agreement are inserted for convenience
of reference only and shall not affect the meaning or interpretation of this
Agreement. In the event any term, phrase, clause, paragraph, restriction,
covenant, or agreement contained in this Agreement shall be held to be invalid
or unenforceable by a court of competent jurisdiction, the same shall be
severable and shall not defeat or impair the remaining provisions thereof.
CITICORP INVESTMENT SERVICES CITICORP INSURANCE AGENCY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ [illegible] By: /s/ [illegible]
------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ [illegible] Name: [illegible]
Title: Vice President Title: President
Citicorp Investment Services Citicorp Insurance Agency, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇/[▇▇▇▇▇▇▇▇▇] ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇▇
[illegible] Long Island City. ▇▇▇-▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇ illegible Date: 3-1-06
Date: illegible
METLIFE INVESTORS DISTRIBUTION COMPANY
By: /s/ [illegible]
-------------------------------
Name: [illegible]
Title: EVP
Date: 2/23/06
16
