SELLING AGREEMENT
Agreement dated as of , 199 , by and among Business Men's Assurance Company of
America, a Missouri corporation ("Life Company"); Xxxxx & Xxxxxx, Inc., a
Missouri corporation ("Distributor"); , a corporation ("Broker/Dealer") and ,
("Insurance Agent").
RECITALS:
Pursuant to a distribution agreement with Distributor, Life Company has
appointed Distributor as the principal underwriter of the variable annuity
contracts identified in Schedule 1 to this Agreement at the time that this
Agreement is executed, and such other variable annuity contracts or variable
life insurance contracts that may be added to Schedule 1 from time to time in
accordance with Section 2(f) of this Agreement. Such contracts together with any
fixed annuity contracts shown on Schedule 1 shall be referred to herein as
"Contracts." The parties to this Agreement desire that Broker/Dealer and
Insurance Agent be authorized to solicit applications for the sale of the
Contracts to the general public subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and of the mutual promises and
covenants hereinafter set forth, the parties agree as follows:
1. Additional Definitions
(a) Affiliate - With respect to a person, any other person controlling,
controlled by, or under common control with, such person.
(b) Agent - An individual associated with Insurance Agent and Broker/Dealer who
is appointed by Life Company as an agent for the purpose of soliciting
applications.
(c) NASD - The National Association of Securities Dealers, Inc.
(d) 1933 Act - The Securities Act of 1933, as amended.
(e) 1934 Act - The Securities and Exchange Act of 1934, as amended.
(f) 1940 Act - The Investment Company Act of 1940, as amended.
(g) Premium - A payment made under a Contract to purchase benefits under such
Contract.
(h) Prospectus - With respect to each Contract, the prospectus for such Contract
included within the Registration Statement for such Contract; provided, however,
that, if the most recently filed prospectus, filed pursuant to Rule 497 under
the 1933 Act subsequent to the date on which the Registration Statement became
effective differs from the prospectus on file at the time the Registration
Statement became effective, the term "Prospectus" shall refer to the most
recently filed prospectus filed under Rule 497 from and after the date on which
it shall have been filed.
(i) Registration Statement - With respect to each Contract, the most recent
effective registration statement(s) filed with the SEC or the most recent
effective post-effective amendment(s) thereto with respect to such Contract,
including financial statements included therein and all exhibits thereto. There
may be more than one Registration Statement in effect at a time for a Contract;
in such case, any reference to "the Registration Statement" for a Contract shall
refer to any or all, depending on the context, of the Registration Statements
for such Contract.
(j) SEC - The Securities and Exchange Commission.
(k) Service Center - Policy Service Office: Phone 0-000-000-0000.
Mailing address for non-cash administrative mail:
BMA Service Center, X.X. Xxx 00000, Xx. Xxxxx, XX 00000-0000
Mailing Address for cash and paperwork with cash:
BMA Service Center, X.X. Xxx 000000, Xx. Xxxxx, XX 00000-0000
2. Authorization of Broker/Dealer and Insurance Agent
(a) Distributor hereby authorizes Broker/Dealer under the securities laws, and
Life Company hereby authorizes and appoints Insurance Agent under the insurance
laws, each in a non-exclusive capacity, to distribute the Contracts.
Broker/Dealer and Insurance Agent accept such authorization and appointment and
shall use their best efforts to find purchasers for the Contracts, in each case
acceptable to Life Company.
(b) Life Company shall notify Broker/Dealer and Insurance Agent in writing of
all states and jurisdictions in which Life Company is licensed to sell the
Contracts. Broker/Dealer and Insurance Agent acknowledge that no territory is
exclusively assigned hereunder, and Life Company reserves the right in its sole
discretion to establish or appoint one or more agencies in any jurisdiction in
which Insurance Agent transacts business hereunder.
(c) Insurance Agent is vested under this Agreement with power and authority to
select and recommend individuals associated with Insurance Agent for appointment
as Agents of Life Company, and only individuals so recommended by Insurance
Agent shall become Agents, provided that Life Company reserves the right in its
sole discretion to refuse to appoint any proposed agent or, once appointed, to
terminate the same at any time with or without cause.
(d) Neither Broker/Dealer nor Insurance Agent shall expend or contract for the
expenditure of the funds of Life Company. Broker/Dealer and Insurance Agent each
shall pay all expenses incurred by each of them in the performance of this
Agreement, unless otherwise specifically provided for in this Agreement or
unless Life Company and Distributor shall have agreed in advance in writing to
share the cost of certain expenses. Initial and renewal state appointment fees
for Insurance Agent and appointees of Insurance Agent as Agents of Life Company
will be paid by Life Company according to the terms set forth in the rules and
regulations as may be adopted by Life Company from time to time. Neither
Broker/Dealer nor Insurance Agent shall possess or exercise any authority on
behalf of Distributor or Life Company other than that expressly conferred on
Broker/ Dealer or Insurance Agent by this Agreement. In particular, and without
limiting the foregoing, neither Broker/Dealer nor Insurance Agent shall have any
authority, nor shall either grant such authority to any Agent, on behalf of
Distributor or Life Company: to make, alter or discharge any Contract or other
contract entered into pursuant to a Contract; to waive any Contract forfeiture
provision; to extend the time of paying any Premiums; or to receive any monies
or Premiums from applicants for or purchasers of the Contracts (except for the
sole purpose of forwarding monies or Premiums to Life Company).
(e) Broker/Dealer and Insurance Agent acknowledge that Life Company has the
right in its sole discretion to reject any applications or Premiums received by
it and to return or refund to an applicant such applicant's Premium.
(f) Schedule 1 to this Agreement may be amended by Distributor and Life Company
in their sole discretion from time to time to include other variable annuity
contracts, fixed annuity contracts, or variable life insurance contracts, or to
delete contracts from the Schedule.
(g) Distributor and Life Company acknowledge that Broker/Dealer and Insurance
Agent are each an independent contractor. Accordingly, Broker/ Dealer and
Insurance Agent are not obliged or expected to give full time and energies to
the performance of their obligations hereunder, nor are Broker/Dealer and
Insurance Agent obliged or expected to represent Distributor or Life Company
exclusively. Nothing herein contained shall constitute Broker/Dealer, Insurance
Agent, the Agents or any agents or representatives of Broker/Dealer or Insurance
Agent as employees of Distributor or Life Company in connection with
solicitation of applications for the Contracts.
3. Licensing and Registration of Broker/Dealer, Insurance Agent and Agents
(a) Broker/Dealer represents and warrants that it is a Broker/Dealer registered
with the SEC under the 1934 Act, and is a member of the NASD in good standing.
Broker/Dealer must, at all times when performing its functions and fulfilling
its obligations under this Agreement, be duly registered as a Broker/Dealer
under the 1934 Act and as required by applicable law, in each state or other
jurisdiction in which Broker/Dealer intends to perform its functions and fulfill
its obligations hereunder.
(b) Insurance Agent represents and warrants that it is a licensed life insurance
agent where required to solicit applications. Insurance Agent must, at all times
when performing its functions and fulfilling its obligations under this
Agreement, be duly licensed to sell the Contracts in each state or other
jurisdiction in which Insurance Agent intends to perform its functions and
fulfill its obligations hereunder.
(c) Broker/Dealer shall ensure that no individual shall offer or sell the
Contracts on its behalf in any state or other jurisdiction in which the
Contracts may lawfully be sold unless such individual is an associated person of
Broker/Dealer (as that term is defined in Section 3(a)(18) of the 0000 Xxx) and
duly registered with the NASD and any applicable state securities regulatory
authority as a registered person of Broker/Dealer qualified to distribute the
Contracts in such state or jurisdiction. Broker/Dealer shall be solely
responsible for the background investigations of the Agents to determine their
qualifications and will provide Life Company upon request with copies of such
investigations.
(d) Insurance Agent shall ensure that no individual shall offer or sell the
Contracts on behalf of Insurance Agent in any state or other jurisdiction unless
such individual is duly affiliated as an agent of Insurance Agent, duly licensed
and appointed as an agent of Life Company, and appropriately licensed,
registered or otherwise qualified to offer and sell the Contracts to be offered
and sold by such individual under the insurance laws of such state or
jurisdiction. Insurance Agent shall be responsible for investigating the
character, work experience and background of any proposed agent prior to
recommending appointment as agent of Life Company. Upon request, Life Company
shall be provided with copies of such investigation. All matters concerning the
licensing of any individuals recommended for appointment by Insurance Agent
under any applicable state insurance law shall be a matter directly between
Insurance Agent and such individual, and the Insurance Agent shall furnish Life
Company with proof of proper licensing of such individual or other proof,
reasonably acceptable to Life Company. Broker/Dealer and Insurance Agent shall
notify Distributor and Life Company immediately upon termination of an Agent's
association with Broker/Dealer or Insurance Agent.
(e) Without limiting the foregoing, Broker/Dealer and Insurance Agent represent
that they are in compliance with the terms and conditions of letters issued by
the Staff of the SEC with respect to the non-registration as a broker/dealer of
an insurance agency associated with a registered broker/dealer. Broker/Dealer
and Insurance Agent shall notify Distributor immediately in writing if
Broker/Dealer and/or Insurance Agent fail 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.
4. Broker/Dealer and Insurance Agent Compliance
(a) Broker/Dealer and Insurance Agent hereby represent and warrant that they are
duly in compliance with all applicable federal and state securities laws and
regulations, and all applicable insurance laws and regulations. Broker/Dealer
and Insurance Agent each shall carry out their respective obligations under this
Agreement in continued compliance with such laws and regulations. Broker/Dealer
shall be responsible for securities training, supervision and control of the
Agents in connection with their solicitation activities with respect to the
Contracts and shall supervise Agents' compliance with applicable federal and
state securities law and NASD requirements in connection with such solicitation
activities. Broker/Dealer and Insurance Agent shall comply, and shall ensure
that Agents comply, with the rules and procedures established by Life Company
from time to time, and the rules set forth below, and Broker/Dealer and
Insurance Agent shall be solely responsible for such compliance.
(b) Broker/Dealer, Insurance Agent and Agents shall not offer or attempt to
offer the Contracts, nor solicit applications for the Contracts, nor deliver
Contracts, in any state or jurisdiction in which the Contracts may not lawfully
be sold or offered for sale.
(c) Broker/Dealer, Insurance Agent and Agents shall not solicit applications for
the Contracts without delivering the Prospectus for the Contracts, the
then-currently effective prospectus(es) for the underlying fund(s) and, where
required by state insurance law, the then-currently effective statement of
additional information for the Contracts.
(d) Broker/Dealer, Insurance Agent and Agents shall not recommend the purchase
of a Contract to an applicant unless each has reasonable grounds to believe that
such purchase is suitable for the applicant in accordance with, among other
things, applicable regulations of any state insurance commission, the SEC and
the NASD.
(e) Insurance Agent shall return promptly to Life Company all receipts for
delivered Contracts, all undelivered contracts and all receipts for
cancellation, in accordance with the requirements established by Life Company
and/or as required under state insurance law. Upon issuance of a Contract by
Life Company and delivery of such Contract to Insurance Agent, Insurance Agent
shall promptly deliver such Contract to its purchaser. For purposes of this
provision "promptly" shall be deemed to mean not later than five calendar days.
Life Company will assume that a Contract will be delivered by Insurance Agent to
the purchaser of such Contract within five calendar days for purposes of
determining when to transfer premiums initially allocated to the Money Market
Account in those states requiring a refund of purchase payment available under
such Contracts to the particular investment options specified by such purchaser.
As a result, if purchasers exercise the free look provisions under such
Contracts, Broker/ Dealer shall indemnify Life Company for any loss incurred by
Life Company that results from Insurance Agent's failure to deliver such
Contracts to the purchasers within the contemplated five calendar day period.
(f) In the event that Premiums are sent to Insurance Agent or Broker/Dealer,
rather than to the Service Center, Insurance Agent and Broker/Dealer shall
promptly (and in any event, not later than two business days) remit such
Premiums to Life Company at the Service Center. Insurance Agent and
Broker/Dealer acknowledge that if any Premium is held at any time by either of
them, such Premium shall be held on behalf of the customer, and Insurance Agent
or Broker/Dealer shall segregate such premium from their own funds and promptly
(and in any event, within 2 business days) remit such Premium to Life Company.
All such Premiums, whether by check, money order or wire, shall at all times be
the property of Life Company.
(g) Neither Broker/Dealer nor Insurance Agent, nor any of their directors,
partners, officers, employees, registered persons, associated persons, agents or
affiliated persons, in connection with the offer or sale of the Contracts, shall
give any information or make any representations or statements, written or oral,
concerning the Contracts, the underlying funds or fund Shares, other than
information or representations contained in the Prospectuses, statements of
additional information and Registration Statements for the Contracts, or a fund
prospectus, or in reports or proxy statements therefor, or in promotional, sales
or advertising material or other information supplied and approved in writing by
Distributor and Life Company.
(h) Broker/Dealer and Insurance Agent shall not use or implement any
promotional, sales or advertising material relating to the Contracts without the
prior written approval of Distributor and Life Company.
(i) Broker/Dealer and Insurance Agent shall be solely responsible under
applicable tax laws for the reporting of compensation paid to Agents.
(j) Broker/Dealer and Insurance Agent each represent that it maintains and shall
maintain such books and records concerning the activities of the Agents as may
be required by the SEC, the NASD and any appropriate insurance regulatory
agencies that have jurisdiction and that may be reasonably required by Life
Company. Broker/Dealer and Insurance Agent shall make such books and records
available to Life Company upon written request.
(k) Broker/Dealer and Insurance Agent shall promptly furnish to Life Company or
its authorized agent any reports and information that Life Company may
reasonably request for the purpose of meeting Life Company's reporting and
record keeping requirements under the insurance laws of any state, under any
applicable federal and state securities laws, rules and regulations, and the
rules of the NASD.
(l) Broker/Dealer shall secure and maintain a fidelity bond (including coverage
for larceny and embezzlement), issued by a reputable bonding company, covering
all of its directors, officers, agents and employees who have access to funds of
Insurance Company. This bond shall be maintained at Broker/Dealer's expense in
at least the amount prescribed by the NASD rules. Broker/Dealer shall upon
request provide Distributor with a copy of said bond. Broker/Dealer shall also
secure and maintain errors and omissions insurance acceptable to Distributor and
covering Broker/Dealer, Insurance Agent and Agents. Broker/Dealer hereby assigns
any proceeds received from a fidelity bonding company, errors and omissions or
other liability coverage, to Distributor or Life Company as their interests may
appear, to the extent of their loss due to activities covered by the bond,
policy or other liability coverage. If there is any deficiency amount, whether
due to a deductible or otherwise, Broker/Dealer shall promptly pay such amount
on demand. Broker/Dealer hereby indemnifies and holds harmless Distributor or
Life Company from any such deficiency and from the costs of collection thereof,
including reasonable attorneys' fees.
5. Sales Materials
(a) During the term of this Agreement, Distributor and Life Company will provide
Broker/Dealer and Insurance Agent, without charge, with as many copies of
Prospectuses (and any supplements thereto), current fund prospectus(es) (and any
supplements thereto), and applications for the Contracts, as Broker/Dealer or
Insurance Agent may reasonably request. Upon termination of this Agreement,
Broker/Dealer and Insurance Agent will promptly return to Distributor any
Prospectuses, applications, fund prospectuses, and other materials and supplies
furnished by Distributor or Life Company to Broker/Dealer or Insurance Agent or
to the Agents.
(b) During the term of this Agreement, Distributor will be responsible for
providing and approving all promotional, sales and advertising material to be
used by Broker/Dealer and Insurance Agent. Distributor will file such materials
or will cause such materials to be filed with the SEC, the NASD, and/or with any
state securities regulatory authorities, as appropriate.
6. Commissions
(a) During the term of this Agreement, Distributor and Life Company shall pay to
Broker/Dealer or Insurance Agent, as applicable, commissions and fees set forth
in Schedule 2 to this Agreement. The payment of such commissions and fees shall
be subject to the terms and conditions of this Agreement and those set forth on
Schedule 2. Schedule 2, including the commissions and fees therein, may be
amended at any time, in any manner, and without prior notice, by Distributor or
Life Company. Any amendment to Schedule 2 will be applicable to any Contract for
which any application or Premium is received by the Service Center on or after
the effective date of such amendment. However, Life Company reserves the right
to amend such Schedule with respect to subsequent premiums and renewal
commissions. Compensation with respect to any Contract shall be paid to
Insurance Agent only for so long as Insurance Agent is the agent-of-record and
maintains compliance with applicable state insurance laws and only while this
Agreement is in effect.
(b) No compensation shall be payable, and Broker-Dealer and Insurance Agent
agree to reimburse Distributor and Life Company for any compensation that may
have been paid to Broker-Dealer, Insurance Agent or any Agents in any of the
following situations: (i) Insurance Company, in its sole discretion, determines
not to issue the Contract applied for; (ii) Insurance company refunds the
premiums upon the applicant's surrender or withdrawal pursuant to any
"free-look" privilege; (iii) Insurance Company refunds the premiums paid by
applicant as a result of a complaint by applicant; (iv) Insurance Company
determines that any person soliciting an application who is required to be
licensed or any other person or entity receiving compensation for soliciting
applications or premiums for the Contracts is not or was not duly licensed as an
insurance agent; or (v) any other situation listed on Schedule 2.
(c) Agents shall have no interest in this Agreement or right to any commissions
to be paid by Distributor or Life Company to Insurance Agent. Insurance Agent
shall be solely responsible for the payment of any commission or consideration
of any kind to Agents. Insurance Agent shall have no right to withhold or deduct
any commission from any Premiums which it may collect unless and only to the
extent that Schedule 2 of this Agreement permits Insurance Agent to net its
commissions against Premiums collected. Insurance Agent shall have no interest
in any compensation paid by Life Company to Distributor or any affiliate, now or
hereafter, in connection with the sale of any Contracts hereunder.
7. Term and Termination
This Agreement may not be assigned except by written consent of the parties
hereto and shall continue for an indefinite term, subject to the termination by
any party hereto upon thirty days' advance written notice to the other parties,
except that in the event Distributor or Broker/Dealer ceases to be a registered
broker/dealer or a member of the NASD, or Insurance Agent ceases to be properly
licensed, this Agreement shall immediately terminate. Upon its termination, all
authorizations, rights and obligations under this Agreement shall cease, except
the agreements in Sections 6, 8, 10 and 15 which shall survive any such
termination.
8. Complaints and Investigations
(a) Distributor, Life Company, Broker/Dealer and Insurance Agent shall cooperate
fully in any insurance regulatory investigation or proceeding or judicial
proceeding arising in connection with the Contracts marketed under this
Agreement. In addition, Distributor, Life Company, Broker/Dealer and Insurance
Agent shall cooperate fully in any securities regulatory investigation or
proceeding or judicial proceeding with respect to Distributor, Broker/Dealer,
their Affiliates and their agents, to the extent that such investigation or
proceeding related to the Contracts marketed under this Agreement. Without
limiting the foregoing:
(i) Broker/Dealer and Insurance Agent will be notified promptly of any customer
written complaint or notice received at the BMA Service Center of any regulatory
investigation or proceeding or judicial proceeding received by Distributor or
Life Company with respect to Insurance Agent or any Agent which may affect the
issuance of any Contract marketed under this Agreement.
(ii) Broker/Dealer and Insurance Agent will promptly notify Distributor and Life
Company of any written customer complaint or notice of any regulatory
investigation or proceeding or judicial proceeding received by Broker/Dealer or
Insurance Agent or their Affiliates with respect to themselves, their
Affiliates, or any Agent in connection with any Contract marketed under this
Agreement or any activity in connection with any such Contract.
(b) In the case of a customer complaint, Distributor, Life Company,
Broker/Dealer and Insurance Agent will cooperate in investigating such complaint
and any response by Broker/Dealer or Insurance Agent to such complaint will be
sent to Distributor and Life Company for approval not less than five business
days prior to its being sent to the customer or regulatory authority, except
that if a more prompt response is required, the proposed response shall be
communicated by telephone or facsimile.
9. Modification of Agreement
This Agreement supersedes all prior agreements, either oral or written, between
the parties relating to the Contracts and except for any amendment of Schedule 2
pursuant to the terms of this Agreement, may not be modified in any way unless
by written agreement signed by all of the parties to this Agreement.
10. Indemnification
(a) Broker/Dealer and Insurance Agent, jointly and severally, shall indemnify
and hold harmless Distributor and Life Company and each person who controls or
is associated with Distributor or Life Company within the meaning of such terms
under the federal securities laws, and any officer, director, employee or agent
of the foregoing, against any and all losses, claims, damages or liabilities,
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any reasonable amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they or any of them may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any actual or alleged:
(i) violation(s) by Broker/Dealer, Insurance Agent or an Agent of federal or
state securities law or regulations, insurance law or regulation(s), or any rule
or requirement of the NASD;
(ii) unauthorized use of sales or advertising material, any oral or written
misrepresentations, or any unlawful sales practices concerning the Contracts, by
Broker/Dealer, Insurance Agent or an Agent;
(iii) claims by the Agents or other agents or representatives of Insurance Agent
or Broker//Dealer for commissions or other compensation or remuneration of any
type;
(iv) any failure on the part of Broker/Dealer, Insurance Agent, or an Agent to
submit Premiums or applications to Life Company, or to submit the correct amount
of a Premium, on a timely basis and in accordance with this Agreement;
(v) any failure on the part of Broker/Dealer, Insurance Agent, or an Agent to
deliver Contracts to purchasers thereof on a timely basis as set forth in
Section 4(e) of this Agreement; or
(vi) a breach by Broker/Dealer or Insurance Agent of any provision of this
Agreement.
This indemnification will be in addition to any liability which Broker/Dealer
and Insurance Agent may otherwise have.
(b) Distributor and Life Company, jointly and severally, shall indemnify and
hold harmless Broker/Dealer and Insurance Agent and each person who controls or
is associated with Broker/Dealer or Insurance Agent within the meaning of such
terms under the federal securities laws, and any officer, director, employee or
agent of the foregoing, against any and all losses, claims, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any reasonable amounts paid
in settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon a breach by Distributor or Life Company of any
provision of this Agreement. This indemnification will be in addition to any
liability which Distributor and Life Company may otherwise have.
(c) After receipt by a party entitled to indemnification ("indemnified party")
under this Section 10 of notice of the commencement of any action, if a claim in
respect thereof is to be made against any person obligated to provide
indemnification under this Section 10 ("indemnifying party"), such indemnified
party will notify the indemnifying party in writing of the commencement thereof
as soon as practicable thereafter, provided that the omission to so notify the
indemnifying party will not relieve it from any liability under this Section 10,
except to the extent that the omission results in a failure of actual notice to
the indemnifying party and such indemnifying party is damaged as a result of the
failure to give such notice. The indemnifying party will be entitled to
participate in the defense of the indemnified party but such participation will
not relieve such indemnifying party of the obligation to reimburse the
indemnified party for reasonable legal and other expenses incurred by such
indemnified party in defending himself or itself. The indemnification provisions
contained in this Section 10 shall remain operative in full force and effect,
regardless of any termination of this Agreement. A successor by law of
Distributor or Life Company, as the case may be, shall be entitled to the
benefits of the indemnification provisions contained in this Section 10.
11. Rights, Remedies, etc. Are Cumulative
The rights, remedies and obligations contained in this Agreement are cumulative
and are in addition to any and all rights, remedies and obligations, at law or
in equity, which the parties hereto are entitled to under state and federal
laws. Failure of either party to insist upon strict compliance with any of the
conditions of this Agreement shall not be construed as a waiver of any of the
conditions, but the same shall remain in full force and effect. No waiver of any
of the provisions of this Agreement shall be deemed, nor shall constitute, a
waiver of any other provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver.
12. Notices
All notices hereunder are to be made in writing and shall be given:
If to Distributor, to: If to Life Company, to:
Xxxxx & Xxxxxx, Inc. Business Men's Assurance Company of America
Attention: Attention:
BMA Tower BMA Tower
P.O. Box 419458 P.O. Box 412879
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
If to Broker/Dealer, to If to Insurance Agent, to:
or such other address as such party may hereafter specify in writing. Each such
notice to a party shall be either hand delivered, transmitted by registered or
certified United States mail with return receipt requested or by express
courier, and shall be effective upon delivery.
13. Interpretation, Jurisdiction, Etc.
This Agreement constitutes the whole agreement between the parties hereto with
respect to the subject matter hereof, and supersedes all prior oral or written
understandings, agreements or negotiations between the parties with respect to
the subject matter hereof. No prior writings by or between the parties hereto
with respect to the subject matter hereof shall be used by either party in
connection with the interpretation of any provision of this Agreement. This
Agreement shall be construed and its provisions interpreted under and in
accordance with the internal laws of the State of Missouri without giving effect
to principles of conflict of laws.
14. Arbitration
Any controversy or claim arising out of or relating to this Agreement, or the
breach hereof, shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
15. Setoffs; Chargebacks
Broker/Dealer and Insurance Agent hereby authorize Distributor and Life Company
to set off from all amounts otherwise payable to Broker/Dealer and Insurance
Agent all liabilities of Broker/Dealer, Insurance Agent or Agent. Broker/Dealer
and Insurance Agent shall be jointly and severally liable for the payment of all
monies due to Distributor and/or Life Company which may arise out of this
Agreement or any other agreement between Broker/Dealer, Insurance Agent and
Distributor or Life Company including, but not limited to, any liability for any
chargebacks or for any amounts advanced by or otherwise due Distributor or Life
Company hereunder. All such amounts shall be paid to the Distributor and Life
Company within thirty days of written request therefore. Distributor and Life
Company do not waive any of its other rights to pursue collection of any
indebtedness owed by Broker/Dealer or Insurance Agent or its Agents to
Distributor or Life Company. In the event Distributor or Life Company initiates
legal action to collect any indebtedness of Broker/Dealer, Insurance Agent or
its Agents, Broker/Dealer and Insurance Agent shall reimburse Distributor and
Life Company for reasonable attorney fees and expenses in connection therewith.
16. Headings
The headings in this Agreement are included for convenience of reference only
and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
17. Counterparts
This Agreement may be executed in two or more counterparts, each of which taken
together shall constitute one and the same instrument.
18. Severability
This is a severable Agreement. In the event that any provision of this Agreement
would require a party to take action prohibited by applicable federal or state
law or prohibit a party from taking action required by applicable federal or
state law, then it is the intention of the parties hereto that such provision
shall be enforced to the extent permitted under the law, and, in any event, that
all other provisions of this Agreement shall remain valid and duly enforceable
as if the provision at issue had never been part hereof. IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the day and
year first above written.
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA
By:______________________________
Name:____________________________
Title:___________________________
XXXXX & XXXXXX, INC.
By:______________________________
Name:____________________________
Title:___________________________
SCHEDULE 1
Operational Requirements
SCHEDULE 2
Compensation -- Variable Annuity
SCHEDULE 2A
Compensation -- Variable Life
[Broker/Dealer]
By:______________________________
Name:____________________________
Title:___________________________
[Insurance Agent]
By:______________________________
Name:____________________________
Title:___________________________
BMA CLARITY
SELLING AGREEMENT
SCHEDULE 1 - OPERATIONAL REQUIREMENTS
Remittance: Please check whether the Broker/Dealer will be remitting gross
premium or net of commissions:
Gross Premium Net of Commissions
Commission Payment: Please check whether the Broker/Dealer prefers to be paid
through the automated check clearinghouse (ACH) method or a physical check.
ACH* Physical Check
*If the ACH method is chosen, please complete the following and attach a voided
check:
Name of Bank:
Bank Routing:
Account Name:
Please provide the following contacts for your broker/dealer:
General operational issues:
Name:
Phone Number:
Fax Number:
E-Mail Number:
Banking:
Name:
Phone Number:
Fax Number:
E-Mail Number:
Licensing/appointing:
Name:
Phone Number:
Fax Number:
E-Mail Number:
Marketing:
Name:
Phone Number:
Fax Number:
E-Mail Number:
Compliance:
Name:
Phone Number:
Fax Number:
E-Mail Number:
SELLING AGREEMENT
SCHEDULE 2 - COMPENSATION ELECTION FORM FOR CLARITY VARIABLE ANNUITY
Commission Options: Please check the commission option(s) you would like to
provide to your representatives at the point of sale and on a contract by
contract basis. (Check one or more boxes below).
Option A - 6% of purchase payments paid up front (no trails).
Option B - 4.5% of purchase payments paid up front with .25% immediate
trail paid on a quarterly basis.
Option C - 1% of purchase payments paid up front with .80% immediate trail
paid on a quarterly basis.
Default Commission: Please check the commission option you would like to be the
default commission paid to any registered representative that does not indicate
the commission option desired on the contract information sheet. There is only
one default Option allowed. Once a policy is issued, the commission option
cannot be changed.
Option A - 6% of purchase payments paid up front (no trails).
Option B - 4.5% of purchase payments paid up front with .25% immediate
trail paid on a quarterly basis.
Option C - 1% of purchase payments paid up front with .80% immediate trail
paid on a quarterly basis.
Commission Charge Back Rules: If the policy is less than six months old, 100% of
the commission is charged back to the Broker/Dealer; if the policy is greater
than six month but less than 12 months old, 50% of the commission is charged
back. No charge backs on policies greater than 12 months. Triggering events for
a charge back is a full surrender. Death claims are not a triggering event for
charge backs.
BMA CLARITY
SELLING AGREEMENT
SCHEDULE 2A - COMPENSATION ELECTION FORM FOR CLARITY VARIABLE LIFE
Total Compensation:
Year 1 115% of Target Premium
3% of Excess Premium
Years 2-10 5% of Target Premium
3% of Excess Premium
Year 11+ .25% annual rate of Accumulation Value, paid quarterly on
average balance.
Commission Chargeback Rules:
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA
CONSECO EQUITY SALES, INC.
GROUP SELLING AGREEMENT
This Agreement is made Business Men's Assurance Company of America ("Company"),
Conseco Equity Sales, Inc. ("Underwriter") with Administrative Offices in
Carmel, Indiana, and the Broker-Dealer named herein registered as a
Broker-Dealer ("Broker") and a member of the National Association of Securities
Dealers, Inc. (the "NASD"). The parties do hereby agree as follows:
1. AUTHORIZATION.
Broker, either an individual, partnership, or corporation, is hereby authorized
by Company and Underwriter to solicit applications for variable annuity and
variable life policies ("Policies"), as set forth in the Compensation Schedule
which is made a part of the Group Selling Agreement, to collect and remit
initial required premiums to Company, and to deliver Policies issued by Company:
a. only in jurisdictions where Broker is duly licensed and appointed by the
appropriate regulatory agencies, and;
b. only in states or territories in which Company is admitted to do
business and only for those Policies offered by Company that have been
approved by the appropriate regulatory agencies.
Broker shall supply Company with copies of all certificates of qualification or
licenses required of Broker under this Agreement.
1.1. LIMITATION OF AUTHORITY.
Broker has no authority during the time this Agreement is in effect, or after
termination, to:
a. make or modify Policies on behalf of Company or waive any of Company's
rights or requirements;
b. collect or receive premiums or renewals other than the initial required
premium;
c. endorse, cash or deposit any checks or drafts payable to Company;
d. open any bank account or trust account on behalf of, for the benefit of,
or containing the name of, Company;
e. advertise or publish any matter or thing, including use of the names or
logos of Company or those of its subsidiaries or affiliates, concerning
Company or its Policies without prior written permission of Company;
f. directly or indirectly cause or endeavor to cause any Broker of Company
and Underwriter or registered representatives of Underwriter to terminate
or alter its/his contract with Company, or induce or attempt to induce any
policyholder of Company to relinquish, surrender, replace or lapse a
Policy; or
g. do or perform any acts or things other than expressly authorized herein.
This Agreement shall not create an employer-employee relationship. The
relationship of Broker to Company shall be that of independent contractor.
Broker shall indemnify and hold harmless Company, Underwriter, and their
affiliates from any and all claims, demands, penalties, suits, or actions, and
from any and all losses, costs, and expenses in connection therewith, including
attorney's fees and expenses, arising out of or resulting from sales of the
Policies by or through the Broker, or from the default in the performance of, or
in the negligent performance of, by Broker or Broker's partners, directors,
officers, employees or agents, the obligations of Broker under this Agreement.
In addition, Broker agrees to furnish and maintain a satisfactory bond of
indemnity when requested by Company, a copy of such bond to be submitted to
Company within 30 days of request. The provisions of this paragraph shall
survive the termination of this Agreement.
1.2. REPRESENTATION AND SERVICE.
Broker agrees:
a. that Broker will supervise the securities activities of Broker's with
respect to the sale of the Policies and agrees to establish such rules and
procedures as are necessary to insure compliance with applicable federal
and state securities laws and to accept such supervision;
b. to observe the rules, procedures and other directives established, and
given by Underwriter relating to the sale of the Policies by Broker, as
initially set forth in the Broker-Dealer Manual which Underwriter must
provide, provided, however, that provision of the Broker-Dealer Manual
shall not be deemed to imply a duty of supervision by Company or
Underwriter over Broker, or to relieve Broker of it's duty to supervise its
personnel. Broker will also comply with the rules and regulations of the
Securities and Exchange Commission and the NASD relating to the sale and
distribution of the Policies and will observe all applicable federal and
state laws relating to the Policies;
c. that all solicitations for Policies are accompanied by the appropriate
current prospectuses for the Policies conforming to the requirements of the
Securities Act of 1933;
d. no representations concerning the Policies will be made except those
contained in the appropriate current prospectuses and in information
supplemental to the prospectuses, which may be supplied by Underwriter and
designated for use with the public. In this regard, Broker further agrees
to refrain from using advertising or sales literature concerning the
Policies unless and until it has been approved by Underwriter;
e. to become fully informed as to the provisions and benefits of each
Policy offered by Company for which Broker solicits applications;
f. to represent such Policies adequately and fairly to prospects;
g. to provide all usual and customary service to policyholders and effort
to maintain in force any business placed with Company; and
h. to hold in a fiduciary capacity all premiums received with any
applications for Policies solicited for Company.
1.3. BROKER'S AGENTS.
Broker will recruit, train and supervise registered representatives
("Representatives") for the sale of the Policies. Appointment of each
Representative shall be subject to Company's prior approval. Company may require
termination of any Representative's authority to sell the Policies. Broker is
responsible for the Representatives' compliance with the terms and conditions of
this Agreement and for the Representatives being duly licensed pursuant to
applicable state and federal laws.
1.4. DELIVERY OF POLICY.
Broker shall promptly deliver all issued Policies in accordance with Company
rules.
1.5. ADMINISTRATIVE GUIDELINES AND COMPLIANCE.
Company's administrative guidelines, including bulletins, product and procedure
updates, the revisions, additions and amendments thereto, from the time made by
Company, shall be for all purposes a part of this Agreement as fully as if set
out word for word herein and shall be complied with by Broker provided, however,
that this shall not be deemed to imply a duty of supervision by Company or
Underwriter over Broker, or to relieve Broker of its duty to supervise its
personnel. Broker agrees to comply fully with all applicable regulations,
bulletins, rulings, circular letters, proclamations and statutes, now or
hereafter in force, and to promptly notify Company in writing of all contacts
and/or correspondence received from insurance regulatory or other governmental
authorities, and to cooperate fully with Company in making responses to those
authorities.
2. COMPENSATION.
All compensation payable for sales of the Policies shall be paid by Company to
Broker through Underwriter and nothing contained herein shall create any right,
title or interest in Underwriter to such compensation nor any responsibility on
the part of Underwriter for payment of such compensation. Company agrees to pay
compensation in the form of commissions and service fees as provided in the
Compensation Schedule(s) delivered to Broker by Company and incorporated herein
by reference, upon any cash premiums received by Company for Policies issued on
applications submitted by Broker. Such compensation shall be payment in full for
all services performed and all expenses incurred by Broker. Company reserves the
right to accrue compensation under this Agreement until a minimum of $25.00 has
become due. If this Agreement is terminated for any reason, regardless of what
the Compensation Schedule(s) might provide, no compensation of any kind shall
thereafter be payable.
2.1. COMPENSATION SCHEDULE(S).
The Compensation Schedule(s) attached, or which may hereafter be added, is
incorporated herein and made a part of this Agreement. Company reserves the
right to change such Compensation Schedule(s) at any time upon written notice to
Broker. However, no such change shall be applicable to Policies for which
Company has accepted premiums prior to the effective date of such change.
2.2. ACCOUNTING.
Company will give to Broker a monthly statement of all compensation becoming due
and payable since the date of the previous monthly statement. Unless Company
receives written objection to such monthly statement from Broker, within 90 days
after the date it is mailed to Broker's last known address or delivered to
Broker in person, the same shall be deemed final and binding upon Broker.
2.3. EXCHANGES.
If in the sole discretion of Company a new Policy is issued to replace a
terminated or in force policy of Company or its affiliates or subsidiaries, the
new Policy shall be regarded as an exchanged Policy, and any compensation
payable shall be determined and adjusted by Company in accordance with Company's
then current exchange rules, independent of the Compensation Schedule(s).
2.4. RETURN OF PREMIUM.
If no Policy is issued on an application, the whole amount of all monies
collected by Broker will be immediately returned to the applicant. If Company
finds it necessary, for any reason, to cancel a Policy and refund premiums, any
compensation paid to Broker on the amount refunded shall be repaid to Company,
or may be deducted from any compensation payable to Broker under this Agreement.
2.5. LOCAL TAXES.
Broker is responsible for any county or municipal occupational or privilege fee,
tax or license which may be required of Broker or Representatives as a result of
business submitted hereunder.
3. INDEBTEDNESS.
Company shall have a first lien upon any amounts due, or to become due, Broker
for indebtedness to Company or its affiliates and subsidiaries, whether due or
contingent, of Broker or Broker's assigns under this Agreement. Such
indebtedness may be deducted by Company from such amounts due or to become due.
3.1. GUARANTEE.
If Broker is a corporation or partnership, the principal(s) signing this
Agreement on behalf of Broker jointly and severally guarantee to repay to
Company any indebtedness Company is unable to collect from Broker. Should it
become necessary to take legal action to recover such indebtedness, the
principal(s) jointly and severally agree to be responsible for the reasonable
attorney fees and expenses of Company.
4. TERMINATION.
Termination of this Agreement is effected as follows:
a. Cause. This Agreement may be terminated for cause by Company,
immediately upon written notice to Broker, when Broker or Broker's partner,
director, officer, employee or agent has, or is reasonably believed to
have: (i) misappropriated funds from any policyowner or from Company; (ii)
endeavored to induce Brokers of Company and Underwriter or registered
representatives of Underwriter to leave its services or policyowners of
Company to relinquish their policies; (iii) interfered with the collection
of renewal premiums; (iv) engaged in fraudulent acts or any other act
violative of federal or state law or other applicable rules or regulations,
including the Conduct Rules of the NASD; (v) been adjudged a bankrupt or
executed a general assignment for benefit of creditors or committed an act
of bankruptcy; or (vi) otherwise acted to prejudice materially the interest
of Company in breach of this Agreement. If Company does not terminate this
Agreement for any such cause, a waiver shall not result and this Agreement
may be terminated under this subparagraph for any subsequent cause.
b. Death or Dissolution. If Broker is not a corporation or partnership,
this Agreement will terminate on the date of Broker's death. If Broker is a
corporation or partnership, this Agreement will terminate on the date that
the corporation or partnership is dissolved or otherwise judged by
appropriate regulatory agencies to no longer be a legal entity.
c. License Suspension or Revocation. This Agreement will terminate
immediately in the event of any order of suspension, revocation or
termination of Broker's license by any regulatory authority.
d. Default. This Agreement will terminate immediately upon notice in the
event of:
1. default under this Agreement; or
2. Broker or Broker's associated person's failure to timely and fully
comply with Company directives, rules, regulations or manuals.
e. Ownership Change. This Agreement will terminate if Broker is not a
natural person and in the event of a significant change in Broker's
ownership or management, or in the event of the execution of an agreement
of sale, transfer or merger of Broker, without prior notice and consent of
Company.
f. Notice. This Agreement may be terminated by either party for any reason
by giving the other party at least 30 days advance written notice delivered
personally or mailed to the last known address of the other party.
g. Indebtedness. Upon termination of this Agreement, any indebtedness to
Company becomes immediately due and payable.
5. PREVIOUS AGREEMENT.
By execution of this Agreement, any prior agreement between the Company,
Underwriter and the Broker or between Company and the signing principal(s)
related specifically to the business transacted under this Agreement is
terminated as of the effective date of this Agreement; but while this Agreement
remains in force, any rights of Broker to receive compensation under the terms
and conditions of the prior agreement are continued hereunder, and such earned
compensation shall be payable at the rate, for the remainder of the period, and
on the basis applicable as if that agreement remained in force.
6. ENTIRE AGREEMENT.
This Agreement, including any supplements and the Compensation Schedule(s), is
the entire Agreement between the parties for all dealings after its effective
date. This Agreement shall not be assigned without the prior written consent of
Company. No amendment of this Agreement shall be valid unless made in writing by
Company.
7. WAIVER.
No waiver by Company of rights arising from wrongdoing or failure by Broker
shall occur by Company's election not to enforce any provision of this
Agreement, nor reduce or affect Company's rights arising from subsequent
wrongdoing or failure by Broker. Broker releases Company from any liability for
providing social security numbers and tax data to authorized governmental
agencies.
8. NOTICE.
Any written notice given under any provision of this Agreement shall be complete
upon deposit, postage paid, in the U.S. Mail addressed to Broker at Broker's
last known address according to Company's records or to Company or Underwriter
at its Administrative Offices.
9. ARBITRATION.
Any dispute, claim or controversy arising out of or relating to this Agreement,
performance hereunder or the breach hereof, or otherwise arising between Broker
and Company or Underwriter, shall be subject to mandatory arbitration under the
auspices, rules and by-laws of the NASD, as may be amended from time to time,
and any arbitration award may be entered as a judgment in a court of competent
jurisdiction. Notwithstanding the foregoing arbitration requirement, at its
option, Company and/or Underwriter may seek injunctive relief either within the
arbitration process or from a court of competent jurisdiction. Venue for any
such injunctive action shall be in a court located in Noblesville, Xxxxxxxx
County, Indiana. Venue for arbitration hearing shall be in Xxxxxxxx County,
Indiana.
10. CONSTRUCTION
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
INDIANA EXCLUSIVE OF CHOICE OF LAWS PROVISIONS.
The effective date of this Group Selling Agreement with Business Men's Assurance
Company of America and Conseco Equity Sales, Inc., shall be:
______________________________ _______________, _______________.
(Month) (Day) (Year)
_____________________________________________ Check Type of Legal Entity:
Contract Account Number (Assigned by Company) [ ] Individual [ ] Partnership
[ ] Corporation (NOTE: IF PARTNERSHIP OR
CORPORATION TWO DIFFERENT
SIGNATURES ARE NECESSARY)
_____________________________________________
Type or Print Name of Broker/Dealer
______________________________________________
Taxpayer Identification Number of Broker/Dealer
_____________________________________________ _____________________________________________
Type or Print Name of Principal Type or Print Name of Principal
______________________________________________ ______________________________________________
Signature of Principal Signature of Principal
______________________________________________ ______________________________________________
Social Security Number of Principal Social Security Number of Principal
BUSINESS MEN'S ASSURANCE CONSECO EQUITY SALES, INC.
COMPANY OF AMERICA
By: ________________________________________ By: ________________________________________
Authorized Signature Authorized Signature
________________________________________ ________________________________________
Type or Print Name Type or Print Name
________________________________________ ________________________________________
Title Title
________________________________________ ________________________________________
Date Date
